Union of India defends Section 377 -(5)

[Guest guest]

Proceedings resumed on 15th October 2008 in the

matter Naz Foundation (India) Trust v.

Government of NCT, Delhi and Others, Writ Petition (Civil) No. 7455

of 2001, testing the constitutionality of Section 377 of the Indian Penal Code,

1860 which criminalizes adult, consensual sex between men before a division

bench of Chief Justice A.P Shah and Justice Murlidharan of the Delhi High

Court. Below is a summary of the day’s proceedings:

Decriminalization of sex between men

endangers health

On behalf of the Government of India, Additional Solicitor

General (ASG) – PP Malhotra continued to argue that criminalization of

sodomy protects public health and conversely, any relaxation in penal law will

increase HIV transmission. To support his submission, he relied on the

following articles:

(1) AIDS by

Kirby

(2) Homosexual

behaviour fuels AIDS and STD epidemic

(3) The health

risks of gay sex, R Diggs

(4) Homosexuality

– Conservapedia

(5) American Journal

of Public Health highlights risks of homosexual practices, A. Dean Byrd, Vice

President, NARTH

(6) CDC Report

showing high HIV rates among Blacks and MSM, Liz Highleyman

Reading out portions from the above, the ASG stressed that

– (i) anal sex is “unhealthy” and, (ii) gay men are

“promiscuous” and have sex with many partners. He further mentioned

that gay and lesbians report higher incidence of mental illness, suicide

ideation and substance abuse. The ASG contended that permitting “such

behaviour” will be “dangerous” for society.

Questioning the source and credibility of the article, the

Chief Justice remarked that the author was a “Minister of a Catholic

Church”. The Bench noticed that the document quoted biblical writings on

homosexuality and took objection to the respondent’s reliance on

“propaganda”. The Chief Justice asserted that scientific and

not religious material be placed before the Court.

The ASG said that religion cannot be divorced from the

matter altogether as India

is a religious society. The Chief Justice replied that the respondent could

argue religious intolerance of homosexuality vis-à-vis public morality but not

public health. He reminded the ASG that NACO’s affidavit submits that

criminalization increases the risk of HIV transmission among MSM and that the

ASG must counter this admission with data from credible sources like the World

Health Organisation (WHO).

At this point, , Advocate Shivangi Rai (for the petitioner)

drew the Judges attention to a UNAIDS Policy Brief on Sex between Men, 2006[1] that states that

fulfilling rights of MSM is a critical means to improve health among them and

the wider community. She clarified that WHO is one of the co-sponsors of the

Joint UN programme on AIDS and therefore, this position stands affirmed by the

agency. The Bench then asked the ASG to read out other paragraphs from the

Policy Brief that acknowledge public health harms of criminalization of

homosexual sexual conduct and exhort countries’ to respect, protect

and promote rights of MSM. The Bench pointed out to the UNGASS Declaration of

Commitment on HIV/AIDS, 2001 and the Political Commitment of 2006 (cited in the

Policy Brief) to remind the ASG that protection of rights of MSM is an

internationally accepted, consensus position of UN member states.

The ASG countered by arguing that UNGASS or any other

international agreement cannot supersede domestic law, which in the present

case, is unambiguously disapproving of sex between men.

This exchange was followed by a discussion on the list of

countries that have both removed and preserved legal proscriptions against same

sex activity. The Bench noted that an increasing number of “non western

countries” in Asia and Latin America

have repealed anti-sodomy laws. The Chief Justice remarked that although the

list provides no guidance to the Court which will decide the matter on

constitutional grounds alone, it is nonetheless encouraging to note that many

democratic societies have done away with laws criminalizing homosexuals.

Next, the ASG referred to a report of the US CDC which

suggests that in America,

HIV is predominantly reported among Blacks and MSM.[2]

The Chief Justice took strong objection to the ASG’s reliance on

literature, which, he considered “racist” and constituting “hate

propaganda” against a particular community. Justice Murlidharan, too,

expressed displeasure at the Union of India’s dependence on material that

tends to “blame” certain communities for disease. Interrupting the

ASG’s selective reading of surveillance data from the report, Justice

Murlidharan cautioned against quoting statistics “out of context”.

The Chief Justice then questioned whether the CDC was an authentic, government

body.

The ASG defended the documents supplied by saying that the

articles establish that same sex activity poses a high risk to public health.

Justuce Murlidharan said that the figures quoted by the ASG were not

inconclusive. He asked if the respondent could show, for instance, higher

incidence of HIV among gay men in Texas post 2003 when sodomy was

decriminalized by an order of the US Supreme Court.

Gay marriage does not prevent HIV

The ASG went on to refer to articles (from Wikipedia) that

claim that STD and HIV infection among MSM continue to rise in countries like Netherlands

that have legalized gay marriage. The ASG sought to argue that HIV transmission

among MSM occurs because of “promiscuity” and despite their ability

to form stable, legal relationships.

The Bench then inquired into the status of same sex

marriages and other forms of partnership between gay men. Justice Murlidharan

remarked that the issue of marriage is very different from decriminalization of

adult, consensual sex between men.

The ASG then sought to read submissions on religious

proscriptions against homosexuality. The Bench asked him not to as the Court

did not intend to examine the issue from that perspective.

Section 377 stands the test of Article 14

Next, the ASG sought to refute the petitioner’s

argument that Section 377 is invalid under Article 14 of the Constitution. He

argued that the text is clear and language unambiguous. At this point, the

Chief Justice interrupted and said that the Bench does not agree with the

petitioner’s claim that Section 377 is vague and arbitrary and therefore,

the respondent need not respond to it. Instead, he advised the ASG to

counter the remaining argument under Article 14, that is, of over intrusion of

penal law.

The ASG then contested the petitioner’s submission

that Section 377 makes an unreasonable classification and is therefore, void. {The petitioner argues that Section 377 clubs

disparate acts – between adults and minors, consenting and non-

consenting partners, private and public, harmful and unharmful together

and fails the test of reasonableness under Article 14} The ASG

argued that Section 377 applies uniformly to all persons and does not create a

class of persons for application of the law. He argued that the contention of

arbitrary classification is not maintainable.

The Chief Justice asked the ASG to assist the Court by

submitting arguments on – (i) state’s compelling interest in

criminalizing private, adult, consensual sex between men and, ii)

judicial authority in granting relief (reading down a penal law) sought by the

petitioner.

Before rising, the Bench set to revise the timetable for the

hearing. The ASG sought an additional two days (16th and 17th

October) to complete his arguments. The Bench instructed counsel for the other

respondents to argue on Monday, 20th October and the petitioner to

make counter arguments on Tuesday, 21st October. The matter was

adjourned to 16th October 2008, 10.30 am.

Tripti Tandon

Lawyers Collective HIV/AIDS Unit, India

www.lawyerscollective.org

[1]

http://data.unaids.org/pub/BriefingNote/2006/20060801_Policy_Brief_MSM_en.pdf

[2]

http://www.hivandhepatitis.com/recent/2008/092308_e.html