Union of India defends Section 377 - (6)

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Subject: Union of India defends Sectioon 377 - (6)

 

On 16th October 2008, Additional Solicitor General – PP Malhotra continued

with arguments in favour of criminalizing sodomy under Section 377 of the Indian

Penal Code, 1860 in Naz Foundation (India) Trust v. Government of NCT, Delhi and

Others, Writ Petition (Civil) No. 7455 of 2001, before a division bench of Chief

Justice A.P Shah and Justice Murlidharan of the Delhi High Court.

 

Rebuttal of arguments under Article 14

 

No ambiguity

Resuming from where he stopped the previous day, the ASG stated that the

distinction between natural and unnatural carnal intercourse under Section 377

is clear; natural sex is between husband and wife while this kind of activity is

unnatural and therefore, punishable.

 

The Chief Justice asked him to respond to the petitioner’s contention that the

Section treats dissimilar acts – voluntary and involuntary, private and public

alike.

 

Section 377 is not arbitrary

The ASG replied that consent is not a defence to the offence. He referred to

Section 375 of the IPC (rape) and read aloud the fifth and sixth exceptions that

invalidate consent to sexual intercourse if a girl is < 16 yrs and if consent is

given in a state of intoxification, respectively.

The ASG stressed that where the legislature wanted to recognise consent, it has

explicitly done so, and with qualifiers such as in Section 375. He argued that

if consent is read into Section 377, then the Court will have to qualify it like

in Section 375. The Chief Justice responded that the consent that the petitioner

talks of is valid consent. The ASG remarked that an offence does not become

arbitrary if parties consent to it.

 

The ASG stated that the term voluntarily in Section 377 bears the same meaning

as under Section 39 of the IPC[1]. Further, he argued that the IPC defines an

offence as “a thing made punishable by this Codeâ€[2] and that the petitioner

seeks a declaration that certain acts cease to be an offence under Section 377.

This, he said, cannot be done.

No such thing as sexual minorities

In response to the claim that Section 377 disproportionately affects sexual

minorities, the ASG said that the concept of sexual minorities is alien to India

.. He went on to argue that minorities are statutorily recognized by the National

Commission for Minorities, which has not identified any group as such. If the

petitioner's arguments are accepted, then every group of ten, hundred, thousand,

or hundred thousand persons will start claiming a minority status.

 

The Chief Justice questioned whether referring to persons with disability,

leprosy or other health status as a “vulnerable minority†is incorrect? The

ASG said that the Constitution cannot be interpreted on divisive lines. Justice

Murlidharan asked whether MSM is a fiction or reality. The ASG replied that in

western countries yes, but in India , this is a perversity.

Objecting to the response, Justice Murlidharan demanded a factual answer and not

one based on personal, value judgment. The ASG replied in the affirmative.

Justice Murlidharan then questioned whether a grouping of persons with such

characteristics is possible. Not under the Indian Constitution, said the ASG.

 

Give them jobs, not rights

The ASG maintained that such persons need education, treatment and jobs and the

government will not deny these entitlements. However, the law cannot be changed

to recognise homosexuality, he said.

Justice Murlidharan enquired  how someone who is charged with a criminal

offence, be offered employment. The ASG replied that under a reformist model,

even convicts are given work. Justice Murlidharan asked if someone convicted

under Section 377 would be offered a government job. The ASG said that the

Courts have held that people with disease be provided jobs. The Chief Justice

remarked that the ASG was confusing the issue with employment rights of people

with HIV and clarified that all HIV positive persons are not homosexual.

Section 377 is neutral

The ASG contended that Section 377 applies equally to male-female and male –

male sex and that the law does not affect homosexuals alone. He further stated

that “this kind of activity†is unknown to law and it is for the law to lay

down standards of morality and crime.

 

Other contentions

Next, the ASG sought to respond to arguments of Respondent No. 8 – Voices

against 377. {An additional argument raised is that the Criminal Code envisages

compoundable offences, where a crime ceases to be one at the option of the

complainant. Accordingly, it is possible to exclude consensual activity from the

ambit of Section 377.} Rejecting the argument, the ASG said that the scheme of

compoundable and non compoundable offences is set out under Section 320 of the

Criminal Procedure Code and that the offence under Section 377 has been made

non-compoundable by the Legislature.

Responding to the submission that Section 377 is not intended to protect women

and/or children, the ASG said that Section 377 aims to protect all persons, not

just women and children.

 

The ASG countered the contention that Section 377 allows unguided discretion to

penal authorities.  He said that the Section is clear in its guidance, that is,

to punish all carnal intercourse against the order of nature.

Next, the ASG responded to judicial decisions cited by the petitioner under

Article 14. On Anuj Garg[3], the ASG said that the matter pertained to sex

discrimination with facts very different from that of the present case. {The

case challenged provisions of the Punjab Excise Act that prohibit employment of

women and men <25 yrs in premises serving liqour}

 

The Bench then drew the ASG’s attention to the Supreme Court’s observation

on changing times, a growing workforce of women and their prominence in the

hospitality sector. The Chief Justice remarked that had the question of women

serving alcohol arisen 20 years ago, Courts would have justified the ban. He

further observed that the argument holds vis- -vis public morality.

 

Sex does not include sexual orientation

Justice Murlidharan asked the ASG to answer whether the Supreme Court’s

observation that discrimination is prohibited on sex or any other like basis,

could be read to cover sexual orientation.

Rejecting the submission, the ASG said that Indian constitution does not include

sexual orientation as a prohibited ground under Article 15. The term, he said,

is incorporated in the South African Constitution, which cannot be imported to

India.

The Bench said that the Indian Constitution does not explicitly mention

pregnancy as a ground for non-discrimination. Teasing out the argument, Justice

Murlidharan, asked if pregnant women are treated unfairly, can an argument not

be advanced that sex (as a ground for non-discrimination) include pregnancy?

Exploring the argument further, the Chief Justice asked whether affirmative

action including statutes to protect pregnant women’s rights can be traced to

Article 15 of the Constitution. The Bench observed that Courts in the US and

Fiji have quashed anti-sodomy laws on constitutional grounds even though their

Constitutions does not explicitly recognize sexual orientation.

 

Section 377 is valid law

Next, the ASG argued that causing hardship and abuse of process cannot be the

basis for striking down a law. Relying on Sushil Kumar v. Union of India[4], the

ASG said that mere possibility of abuse of law does not render it invalid.

Therefore, he said, excesses against homosexuals cannot be a ground for

annulling Section 377.

The ASG relied on the Supreme Court’s decision in Sakshi[5] to press that

Courts cannot read words into a statute.{In this case, a direction was sought to

interpret sexual intercourse under Section 375 IPC to include all forms of

penetration  such as  penile/oral, penile/anal, finger/vaginal and

object/vaginal penetration}. He asserted that Section 377 must be read literally

and not as sought by the petitioner. The Chief Justice said that the

petitionerâ' argument is that the impugned statute is void qua consenting

adults.

 

The ASG further read paras from Sakshi where the Supreme Court declared that

subsequent international treaties do not render existing municipal legislation

void. The Bench agreed but advised the ASG to revert to Vishaka[6] for creative

application of international law into domestic statutes.

Next, the ASG cited Javed v. State of Haryana[7] {where the Supreme Court upheld

disqualification of  persons with more than two children from contesting

elections} to point out that fundamental rights { in this case, to have as many

children as one pleases} can be restricted in the interest  of public policy of

population control.

 

Thereafter, the ASG defended the constitutionality of Section 377 by reading

aloud from a recent Supreme Court decision[8]:

 

There s always a presumption in favour of constitutionality, and a law will not

be declared unconstitutional unless the case is so clear as to be free from

doubt; “to doubt the constitutionality of a law is to resolve it in favour of

its validityâ€â€¦â€¦in pronouncing on the constitutional validity of a statute,

the court is not concerned with the wisdom or unwisdom, or the justice or

injustice of the law. If that which is passed into law is within the scope of

the power conferred on a legislature and violates no restriction on that power,

the law must be upheld whatever a court may think of it

 

The Chief Justice noted that infringement of fundamental rights, such as the

right to health, can be a basis for invalidating a law. The ASG replied that the

right of other persons to healthy life cannot be ignored.

The Chief Justice said that it is the government’s own admission that Section

377 is not invoked against consenting adults in private.

The ASG replied that non – implementation cannot be a ground for striking down

a law.

 

The ASG then attempted to argue that Section 377 sits within the overall scheme

of the penal code and if it is changed, then other statutes will have to be

changed as well.  

 

The Bench rose at 1.20 pm. The matter is scheduled to come up on 20th October

2008 at 10.30am.

 

[1] Section 39, IPC defines “Voluntarily†as -  “ A person is said to

cause an effect “voluntarily†when he cause it by means whereby he intended

to cause it, or by means which, at the time of employing those means, he knew or

had reason to believe to be likely to cause it.â€

[2] Section 40, IPC

[3] Anuj Garg v. Hotel Association of India , (2008) 3 SCC1

[4] 2005 Vol 6 SCC 281

[5] Sakshi v. Union of India (2004) 5 SCC 518

[6] Vishaka v. State of Rajasthan (1997) 6 SCC 241 

[7] (2003) 8 SCC 369

[8] Karnataka Bank v State of Andhra Pradesh   (2008) 2 SCC 254

Tripti Tandon

Lawyers Collective HIV/AIDS Unit , India

www.lawyerscollective.org

e-mail: <tripti.tandon@...>