Union of India defends Section 377 - (2)

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The matter 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) came up before a division bench of

Chief Justice A.P Shah and Justice Murlidharan of the Delhi High Court at 3.45

pm on 29th September 2008.

Recommendations are ‘mere’

suggestions

Arguing on behalf of the Union of India, the Additional Solicitor

General (ASG) – PP Malhotra, referred to the 172nd report of

the Law Commission of India, which recommends deletion of Section 377 and has

been relied upon by the petitioner. The ASG explained that the recommendation in

question was made in the context of rape law reforms (Section 375, IPC). He

asserted that the suggestion to revoke the impugned Section held ground only if

rape is reframed as sexual assault to cover vaginal, anal and other penetration

between heterosexual and same sex persons.

The Chief Justice remarked that the Law Commission’s

proposal was made to bring non-consensual sex between men and women, between

men and men and with children within the purview of criminal law. Except the

former, all other acts are presently excluded from Section 375. Justice

Murlidharan observed that the recommendation was to include child sexual abuse

and non-consensual acts between persons of the same sex under sexual assault. He

said that by implication, the Law Commission had suggested exclusion of adult

consensual sex from penal sanctions.

The ASG then said that these were mere “suggestions”,

which, have not been considered by Parliament. He stressed that in deciding the

validity of Section 377, the Court must examine the legislature’s view, which

is against the petitioner’s stand.

Reliance on NACO’s Affidavit

The ASG repeated his submission that in considering the vires of a statute, law, Courts cannot be influenced

by recommendations of agencies, nor can it go by statements of Ministers or

affidavits of government officials. In support, the ASG relied on M/s Bharat Coking Coal Ltd v. Sanjeev Coke

Manufacturing Company (1983) 1 SCC 147 where the Supreme Court

observed that – “affidavits may

speak for the parties on whose behalf they have been filed and not for

Parliament……No act of Parliament can be struck down because of the

understanding or misunderstanding of Parliamentary intention by the executive government.”

The Chief Justice responded by saying that the Court will

not decide on constitutionality solely on the basis of the governments’ affidavits.

At the same time, NACO’s affidavit is relevant as it indicates emergent

concerns such as HIV among a large MSM population in the country.

The ASG said that though the affidavit may show the gravity

of a situation, it cannot be the basis for invalidating a statute.

The Chief Justice remarked that NACO has stated that criminalization

drives MSM underground and increases the risk of HIV. He observed that if the right

to health is threatened, then it is a clear ground for examining the vires of a law.

The ASG replied that decriminalization of homosexuality will

make other citizens unhealthy and that the Court must be cognizant of their

right to health as well.

Next, the ASG relied on Union

of India v. Elphinstone Spinning and Wevaing Co. (2001) 4 SCC 139,

to reiterate that Courts cannot be guided by affidavits of bureaucrats to

strike down a legislative act. He went on to cite Kamal Kumar Dutta v. Ruby General Hospital Ltd (2006) 7 SCC

613, a case where the Law Minister’s statements were sought to be relied

on to decide application of provisions of the Civil Procedure Code. In this

case, the apex Court held that executive statements, other than those made in

Parliament while introducing Bills, are not aids for statutory interpretation.

The ASG submitted that NACO’s affidavit and recent ministerial

statements on Section 377 have to be ignored. The Chief Justice responded that

the constitutionality of a statute is not decided in abstract but in a factual

context. NACO’s affidavit, he said, is helpful in examining facts. He

told the ASG that the Court would have taken note of it, had it been filed by

any other agency.

The ASG then argued that it is the legislature’s

prerogative to enact, amend or revoke laws and not for Courts to decide public

policy. He further said that the language and intent of Section 377 is clear

and the Court should refrain from interfering with the will of Parliament and

the people of the country. The Chief Justice assured the ASG that the Court is

mindful of its duty.

The ASG pleaded that the Court consider prevailing morality,

which does not favour homosexuality.

The Bench rose at 4.15 pm. The matter is adjourned till 30th

September 10 am.

Tripti Tandon

Lawyers Collective HIV/AIDS Unit

www.lawyerscollective.org