Union of India defends Section 377 - (1)

[Guest guest]

Proceedings continued in the matter of Naz Foundation (India) Trust v. Government of NCT,

Delhi and Others, Writ Petition (Civil) No. 7455 of 2001, which challenges

the constitutional validity of Section 377, Indian Penal Code, 1860  (IPC)

before a division bench of Chief Justice A.P Shah and Justice Murlidharan of

the Delhi High Court. On 25th September 2008, Advocate Shyam Divan

argued on behalf of Voices against 377 in support of the petition.  

On 26th September 2008, Additional Solicitor

General (ASG) – PP Malhotra proceeded to argue on behalf of the respondents

– Union of India.  

The ASG began by referring to judicial pronouncements on

Section 377 where the sexual acts in question were committed against a child.

He stressed that Courts had repeatedly described acts covered by Section 377 as

“perverse” and “abhorrent”. The Chief Justice

interrupted the ASG and said that the cases pertained to child sexual abuse and

not adult, consensual sex which is the subject matter of the hearing.

The Bench then questioned the ASG on

the government’s stand on the matter. The ASG replied that he had been

instructed to oppose the petition and defend the validity of Section 377.   

Counter affidavit

of Ministry of Home

The ASG then started reading the

affidavit of the Ministry of Home Affairs. He stated that deletion of Section

377 will lead to breach of peace and injure public morality. To elaborate the

argument that same sex sexual activity is harmful to society, the ASG sought to

rely on a decision of the Andhra Pradesh High Court in Vijaya v. Chairman and Managing Director, Singareni

Collieries Ltd AIR 2001 A.P 502 – a case pertaining to HIV

transmission through blood transfusion. At this point, the Chief Justice

interrupted him and said that this decision was unrelated to the present

case.    

The Chief Justice paraphrased the ASG’s two fold

submission that permitting same sex relations will – i) offend moral

values and, (ii) degrade the health of citizens. He said that while the

affidavit elaborated on i), the Bench has not understood how decriminalization

of same sex activity will harm public health.

The ASG replied that sex between men is the leading cause of

HIV and if such acts are allowed, HIV will proliferate in the country. The

Chief Justice remarked that the Government should then stop all sex because HIV

spreads through sexual intercourse and not just same sex sexual activity.

The Chief Justice then asked the ASG whether it was the

Government’s submission that Section 377 is a deterrent to sex with multiple

partners. He further said that it is the Government’s own admission that

Section 377 is not used to prosecute consenting adults. He asked how an

un-enforced law could act as a deterrent

Justice Murlidharan asked the ASG whether the Central Government

recognizes a category of persons as – “MSM”?  The ASG replied

that this question would get answered at the time that he reads NACO’s

affidavit.

Justice Murlidharan questioned if it is the

Government’s submission that Section 377 helps prevent HIV? The Chief

Justice went on to ask whether the argument that decriminalization of same sex

sexual activity will spread HIV is on record in the two affidavits of the government?

The ASG replied in the negative and admitted that that was his oral submission.

The Bench asked the ASG to provide data in support of his contention.   

The ASG responded by saying that main mode of HIV

transmission is sex and that “this” is a “vehicle” for

the spread of AIDS.  He said that sexual transmission of HIV is a known, scientific

fact, which the Court cannot be oblivious to. He stressed that HIV can be

stopped through education and not by relaxation of laws against homosexuality. 

   

The Chief Justice stated that the ASG’s submission that

decriminalizing homosexuality will lead to an increase in HIV is incorrect. He advised

the ASG to refer to the affidavit of the Ministry of Health which states that

criminalization of male-male sex makes it difficult to prevent HIV and not

vice-a-versa.      

The Chief Justice then questioned the ASG on the second

contention of the Ministry of Home that decriminalization of adult, consensual

sex in private will cause breach of peace. The ASG was unable to answer to the

Court’s satisfaction.

The ASG continued reading the Home Ministry’s affidavit

and asserted that “…deletion of

the Section can open floodgates of delinquent behaviour and be misconstrued as

providing unbridled license for the same”.

At this point, the Chief Justice pointed out that the Home

Ministry’s affidavit seems to assume that the petitioner is seeking to

repeal the law. He said that this was incorrect and the petitioner has prayed

that private, adult consensual sex be exempted from Section 377. Justice

Murlidharan added that petitioner is making a distinction between child sexual

abuse, adult non consensual sex, and private, adult consensual sex.

The ASG responded by saying that the Government anyway, does

not prosecute adult, consensual sex in private. The Chief Justice asked whether

it was the government’s case that it, as a matter of policy, does not

prosecute private, adult consensual sex. The ASG said that if the Court permits

homosexuality then there will be havoc in Indian society. 

The ASG then read out the Home Ministry’s reply to constitutional

arguments raised by the petitioner.

 

On Article 19 (fundamental freedoms), he relied on Lucy D’Souza v State of Goa AIR 1990

Bom 355 , where the Bombay  High Court upheld restrictions on the movement of a

person with AIDS. The Chief Justice interrupted, saying that the judgment has been

condemned and is considered “bad law”.

Justice Murlidharan asked the ASG to apprise the Court of the

government’s response to those who avoided seeking treatment because of the

fear of criminalization. In reply, the ASG said that the government provides treatment

to everyone, irrespective of their sexual orientation. He also said that

doctors never ask anyone how he got infected with HIV.  

The ASG went on to argue that decriminalization will

increase homosexuality as there will be no fear of the law.

The Chief Justice asked whether the Government agrees that Section

377 was introduced by the British, who have long removed proscriptions on

homosexuality in their own country. The ASG said that though enacted during

colonial rule, our legislature has amended the Indian Penal Code several times

since independence but it has never modified Section 377. He stressed that Parliament,

in its wisdom, has not thought of changing or repealing Section 377 to

legitimize homosexuality.      

The Chief Justice then directed the ASG to read recommendations

of the Law Commission of India pertaining to Section 377.  

The ASG relied on the 42nd and 156th reports

of the Law Commission that favour retention of 377.  The Chief Justice drew the

ASG’s attention to a more recent report (172nd) that proposes

a deletion of Section 377 and the framing of new law on sexual assault and child

sexual abuse. The ASG replied that the recommendation in question was not made

from the perspective of homosexuality. He further said that the Law Commission had

not suggested that Section 377 is unconstitutional. To this, the Chief Justice replied

that it is not the role of the Law Commission to decide the constitutionality

of laws. That prerogative, he said, was of the Courts.    

The ASG argued that the purpose of the law is to maintain a

healthy environment in society. He asserted that an offence is an offence and

that consent is immaterial as also the place of commission –

public/private.  

The ASG explained that criminal law is influenced by political

and social morality and if public opinion changes, so will the law. Reverting

to the Ministry of Home’s affidavit, the ASG read aloud - “Acts which have been glorified in the past,

like dowry, child marriage, domestic violence, widow remarriage etc. have now

been brought under the purview of criminal justice.”  

Taking strong objection to the statement, Justice

Murlidharan asked whether it was the Government’s case that widow

remarriage is a penal offence.  He said that the affidavit had been drafted

carelessly by a public officer who was unaware of history, particularly of

social reformers like Raja Ram Mohan Roy. Expressing his displeasure, the Chief

Justice said that the affidavit reflected “non application of mind”.

He said that it was inexcusable for a government officer to be making unintelligible,

uninformed averments before a Court of Law.

Reply of NACO and Ministry of Health

The ASG hen read out portions of NACO’s affidavit,

highlighting abstinence, fidelity, and reduction in sexual partners as key

elements of the national AIDS prevention strategy.  

Taking note of the distinction between sex and unprotected

sex, the Chief Justice said that the government is only concerned with the

latter which poses a risk of HIV transmission. He also pointed out that

“sexual partner” could mean man or woman. Refuting the ASG’s

earlier contention, the Chief Justice stated that NACO has not averred that only

male to male sex results in HIV. The ASG replied that male to male sex is

neither known to nature nor to our law.

The ASG then underscored NACO’s submission that of the

estimated 25 lakh MSM in India,

8% are HIV positive.  In comparison, he argued, less that 1% of the general population

is infected with HIV. According to the ASG, this statistic itself demonstrates

that sex between men contributes to HIV. He said that permitting same sex

sexual activity will increase HIV transmission.

The Bench took note of the ASG’s selective reading of

the Ministry of Health’s affidavit and instructed him to refer to those

paras that specifically aver to Section 377. The affidavit clearly states that

criminalization of sex between men and fear of law enforcement drives MSM

underground, disrupting outreach, supply of condoms and other anti-HIV

interventions. The Chief Justice said that it not NACO’s argument that

reading down Section 377 will lead to an increase in HIV.

Section 377 prohibits “unnatural

acts”

Relying on the text of the impugned Section, the ASG then

argued that the law proscribes acts against the order of nature. He said that

section was framed to ensure that sexual intercourse happens “where it is

meant to” and to prohibit sex “in places, where it is not intended”.

 

Counter to Constitutional arguments: Judgments

Refuting constitutional arguments against Section 377, the ASG

referred to Vijaya v. Chairman and Managing

Director, Singareni Collieries Ltd AIR 2001 A.P 502 to insist that AIDS

was first detected among homosexuals in the US and that homosexuality is

closely associated with HIV. The Bench asked whether the judgment relates to the

issues before the Court.  The ASG said that he would come back to this decision

in defence of Section 377.

Next, he cited MP Sharma v.

Satish Chandra AIR1954 SC 300 where

the Supreme Court had rejected privacy claims vis-à-vis search and seizure.  

The Chief Justice remarked that there have been subsequent

judicial developments.

The ASG then referred to Kharak

Singh v State of Uttar Pradesh

(1964) 1 SCR 332, a judgment that the petitioner has relied on to

argue on the right to privacy. He drew attention to the Supreme Court’s observation

that a regulation could be assailed for violating fundamental rights only if it

had no statutory basis. In this case, the ASG said, Section 377 was law itself,

and therefore, could not be subjected to scrutiny on grounds of violating

fundamental freedoms.

Rejecting the attack under Article 21, the ASG pressed the

Supreme Court’s finding that the alleged infringement on fundamental

rights must be direct and tangible and not merely arising out of personal sensitivity.

He said that no one is stopping MSM from moving, mixing around or socializing and

therefore, the argument that section 377 affronts freedom and/or personal liberty

is incorrect. He said that the petitioner’s case that Section 377 causes

stigma, tramples dignity and

intrudes into privacy is their own perception and cannot be the basis for

challenging the validity of a statute.  

The Bench then rose to break for lunch. The Chief Justice

asked if the ASG would continue post lunch. The ASG replied that he will resume

arguments on Monday, September 29 at 2 pm. The hearing was adjourned till then.

Tripti Tandon

Lawyers Collective HIV/AIDS Unit

www.lawyerscollective.org