Concluding arguments in challenge to Section 377

[Guest guest]

Below are the final

proceedings on 6 and 7 November 2008 in Naz

Foundation (India) Trust v. Government of NCT, Delhi and Others,

Writ Petition (Civil) No. 7455 of 2001, which challenges the validity of

Section 377, India's anti-sodomy law, before a division bench of Chief

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

have concluded and the order stands reserved.

Counter arguments

by Respondent BP Singhal

At the outset, H.P Sharma (Counsel

for Respondent B.P Singhal) informed the Court that in 2001, offences under the

IPC were reclassified by an amendment to the Criminal Procedure Code. Sharma

stated that as per the revision, Police cannot make arrests for offences under

Section 377 without magisterial orders. {The

Court sought a clarification. It was later confirmed that no statutory change

had been effected vis-à-vis Section 377}

The

'truth' about Lucknow

arrests

Referring to the arrest of staff of

Naz Foundation International (NFI) and Bharosa

Trust in Lucknow in July 2001, Sharma read

aloud the FIR and investigation report. He said that though the

petitioners have cited the incident to press that Section 377 is used to

disrupt HIV prevention, the facts are " entirely different. " Sharma

alleged that neither condoms nor AIDS literature was found in the NGO offices.

On the contrary, Police recovered pictures of nude men, sexually explicit

videos, an artificial penis and pamphlets that urge readers not to think about

who they have sex with and how but simply ensure that HIV is not transmitted.

Sharma said he wonders whether people are being encouraged to " abandon

morals in the name of AIDS Control. "

He further alleged that NFI could

not produce any document to prove that its activities are supported by the

Government. According to Sharma, the argument that HIV interventions

require safe spaces is frivolous, as NACO, the largest AIDS control agency has

never needed a safe space for its work.

Homosexual

conduct is not dignified

Next, Sharma referred to Supreme

Court decisions that label offences under Section 377 sexual perversity. These

decisions, he asserted, are binding on this Court. Sharma said that the

petitioner cannot invoke the right to dignity as homosexual acts per se offend human dignity. Reading aloud extracts

from R v. Brown, Sharma said that gay men are known to engage in

sado masochism including genital torture. He said that in this case, the House

of Lords considered consenting partners 'victims' of the offence.

Noting the implications of this

judgment, the Chief Justice said that even where consensual sodomy in private

is decriminalized, criminal sanctions will apply where the act involves

grievous hurt. Another consequence, he said, is that Police can prosecute

homosexual men only if harm is caused.

Sodomy

is injurious per se

Sharma then proceeded to argue that

injury is bound to be caused during anal sex as the anus is not " designed

for penile penetration " . He said that penetration of the anus leads to

tear and rupture, causing bodily harm. Sharma contended that even if Section

377 is revoked, homosexuals will be charged for causing hurt [1]

or grievous hurt.[2]

The Chief Justice observed that till

date no material has been placed before this Court or any other court which

suggests that anal sex per se causes

injury. Noting the absence of WHO literature, the Chief Justice asked Sharma to

supply scientific materials, without which, the Bench would reject the

respondent's submission.

Anus

not meant to be penetrated

In the same vein, Sharma said that

human anatomy and physiology assigns a specific role to each organ. The anus,

he argued, is " meant only for excretion and nothing else. " Sharma

stressed that the vagina and anus have different functions and penetration of

the anus is neither logical nor reasonable. The law forbids what nature has

forbidden.

Sharma further submitted that in Sakshi the Supreme Court had defined

sexual intercourse as hetereosexual intercourse and sex between homosexuals

could not be sexual intercourse. Therefore, he emphasized, such activity cannot

be sanctioned by law.

Against

culture, values and social order

Sharma went on to state that gay men

engage in " group sex " and that " alcohol, drug and disease are

natural concomitants of homosexual activity " . Refusing to accept personal

submissions, the Bench again sought scientific literature in support of the

claim.

Referring to Javed v. State of Haryana, (2003) 8 SCC

369, Sharma argued fundamental rights are to be read in conjunction with

directive principles and fundamental duties, which mandate protection of

public health[3]

and India's composite culture.[4]

Sharma stressed that " lofty ideals cannot be given a go by undue stress on

fundamental rights and liberty " .

The Chief Justice remarked that the

Constitution also espouses developing " humanism and scientific

temper " .

Sharma contended that stigma towards

homosexuality originates not in Section 377 but in the country's social ethos

which is intolerant of such practices. Relying on Commissioner of Police v. Acharya Jagdishwaranand

Avadhuta (2004) 12 SCC 770, he argued that in case of a conflict

between individual liberty and societal interests, latter will prevail.

No

census to determine sexual orientation

Contesting the plea of sexual

minorities, Sharma said that till date, no census had been conducted to enumerate

how many persons are heterosexual or homosexual. The claim of sexual

minorities, he said, must be rejected.

Sharma argued that if the petitioner

is claiming fundamental rights on minority status, then they do not qualify for

protection under Articles 29[5]

and 30[6]

which delineate what constitutes a minority.

The Chief Justice remarked that the

petitioner is seeking inclusion and equal status, regardless of sexual

orientation.

Analogous

to gambling, adultery and other 'vices'

Sharma argued that that if the

doctrine of consenting adults is admitted then gambling, adultery,

prostitution, sale of organs, incestuous marriage and " similar evils "

will have to be legalized. Referring to Krishna

Chandra V State of MP 1964 (1) SCR 765 {where the Supreme Court upheld prohibition on gambling} and

Yusif Abdul Aziz v State of Bombay 1954 (2) SCR 930 {rejection of constitutional challenge to law on

adultery on grounds of discrimination}, Sharma stressed that public

order and morality can trump individual rights.

Court

can't rewrite the law

Citing Ekta Shakti Foundation v Govt of NCT Delhi 2006 10 SCC 337,

Sharma asserted that policy decisions must be left to the government alone. He

argued that in State of Kerala v Mathai Verghese 1986 4

SCC, the Supreme Court declared that the Court cannot rewrite, recast or redesign a statute.

Sharma said that the petitioner's prayer to exempt consenting adults amounts to

reframing Section 377.

The Chief Justice clarified that the

petitioner is seeking a declaration that the impugned Section, in that it

applies to private, adult consensual sex, is unconstitutional. Such a relief,

he explained, would save its constitutionality. Noting precedence, the Chief

Justice alluded to orders where a provision is declared invalid in its

application to majority educational institutions and valid for those run by

minorities.

Sharma replied that such principles

may be adopted in civil disputes but criminal law ought to apply equally to all

persons. The Chief Justice remarked that constitutional principles hold good

for both.

Sharma further contended that the

petitioner is seeking a reinterpretation which does not advance the legislative

intent of Section 377. The Chief Justice and subsequently the ASG clarified

that the petitioner is challenging vires

and the only question before the Court is whether Section 377 contravenes

constitutional protections.

Next, Sharma cited Sakshi to reiterate the Union's

submission on non-applicability of international law without an enabling

provision in domestic law. Clarifying principles for application of

international law, the Chief Justice said that domestic law supersedes

international law only if there is a conflict between the two. The Chief

Justice assured Sharma that the law will not be struck down only because

international law requires protection of homosexuals.

No discrimination

Indian

not foreign standards

Sharma alleged that the petitioner

is trying to import foreign materials – Wolfenden report, Constitution

and decisions from other countries, which is not permissible. The Supreme Court

has defined the offence under Section 377 with sufficient clarity. The IPC, he

stressed, is the best word in Court and must be applied as it is.

Referring to Ajay Goswami v Union

of India 2007 SCC 143, Sharma reiterated the Supreme Court

observation that contemporary social standards determine what is obscene and

what is not. He contended that homosexuality is unacceptable in Indian society

and that an ordinary man of usual prudence would not engage in acts covered by

Section 377.

Homosexuality

will destroy families

Sharma warned that a " wife's

discovery that her husband is addicted to homosexuality shatters every member

of the family " . He said that unlike the west, India places primacy on traditional

family values and respect for parents, which homosexuality will

destroy. He further said that " when homosexuals grow old, they will

have no partners. " Sharma insisted that it is not in " their "

interest that homosexuality be recognized.

NACO's

affidavit be reconsidered

Responding to NACO's affidavit,

Sharma said that HIV is transmitted because of unprotected sex with multiple

partners. If homosexuals stick to one partner or use condoms, HIV will not

spread. Section 377, he claimed, has nothing to do with HIV. Sharma went on to

say that NACO's averment that fear of law frustrates prevention is false. He

said that the media airs warnings on AIDS, without distinguishing heterosexual

from same sex sexual activity. According to him, HIV prevention is common

knowledge. In the same vein, Sharma argued that condoms can be easily obtained

and that no pharmacist will ever ask for " an identity card of heterosexual

or homosexual orientation " . He further contended that negotiation of safe

sex occurs only when sex is purchased and not with single, steady partners.

Sharma said that NACO's affidavit requires reconsideration.

Sharma concluded by saying that the

petition is without merits and ought to be dismissed.

Counter Arguments

by Respondent - Joint Action Council Kunnur (JACK)

Counsel R.S Kumar began by saying

that the Court does not have jurisdiction to amend Section 377, as sought by

the petitioner.

License

to criminally transmit HIV

Next, Kumar said that the petitioner

themselves admit that homosexuals are vulnerable to AIDS. Such persons, he

said, are liable to prosecution under Sections 269 and 270 of the IPC {negligent and malignant acts likely to cause life

threatening disease}. Kumar said that the petitioner is seeking a

license to commit an offence. The Chief Justice said that the provisions apply

to heterosexuals as well. He clarified that criminal transmission requires

knowledge and intention and every sexual act is not prosecutable.

Petition

masks a foreign agenda

Kumar alleged that the petitioner is

part of an internet racket that uses HIV and AIDS as a tool to encourage sex

trade in this country. He referred to a news report that Naz Foundation runs a

" gay club " and " charges Rs 1, 000 for sexual acts. " The

Chief Justice interrupted the Counsel and asked him to argue on merits. Kumar

continued to discredit the petitioner by saying that Naz Foundation (India) Trust is affiliated to a UK

based organization by the same name, whose aim is to secure " interests of

homosexuals " . Kumar contended that a trust can only be established for a

lawful purpose and homosexuality is illegal in India. The Chief Justice remarked

that by this logic, NACO should be outlawed as it seeks to protect MSM from

HIV. Rebuking the Counsel, the Chief Justice said that even the ASG has conceded

that gay citizens enjoy equal rights to health and employment but the

respondent is opposed to it.

Kumar then complained of

professional misconduct by counsel(s) for the petitioner. Anand Grover objected

to the respondent's statements which, he alleged, are attempts to intimidate

Advocates from appearing for the petitioner. The Chief Justice instructed Kumar

to argue on constitutional grounds.

Next, Kumar castigated NACO and its

affidavit, which, he claimed was based on incorrect data. He urged the Court

not to rely on disputed facts. Kumar then proceeded to read a judgment on

perversity, but was stopped by the Chief Justice from repeating arguments

already made. Kumar was asked to file written submissions on behalf of JACK.

Rejoinder/Counter

arguments by petitioner

Anand Grover proceeded to respond to

oral arguments of the respondents. He started by clarifying findings of the

Global AIDS Report 2008, which the ASG had relied on to stress that sex between

men is responsible for AIDS. Citing official government documents,[7]

Grover submitted that though MSM are disproportionately affected by HIV, they

are not the main drivers of the epidemic in India.

HIV

prevention is State's responsibility

Grover drew the Bench's attention to

UNGASS progress indicators where each country reports on measures for HIV

prevention, treatment and care. He asserted that the mechanism evidences State

obligation to provide services to communities at risk including MSM. Grover

said that the question is not whether MSM can buy condoms but whether the

Government is reaching them with preventive measures. This duty, he argued, is

recognized in international human rights covenants, which are substantially

incorporated in Indian law through the Protection of Human Rights Act.[8]

Decriminalization

has no negative consequences

Responding to the apprehension that

decriminalization will harm society, Grover presented studies from Australia[9]

and the US[10]

which document no negative consequences but confirm positive effects for gay

men as well as the rest of the community.This, he asserted, counters the

respondents' misplaced arguments.

Paraphrasing the Government's

argument, Justice Murlidharan said that the question is whether relaxation of

penal sanctions will result in – i) more sex between men, a

sizeable proportion of whom are infected with HIV and, ii) increase

unsafe sex between MSM. In reply, Grover said that epidemiologically, it is

difficult to establish a nexus between criminalization and HIV transmission.

Sexually transmitted infections, he argued, are a marker for HIV and the two

studies do not show an increase in incidence post decriminalization of sodomy.

Grover mentioned large scale condom

promotion among sex workers in southern India resulting in a decline in new

infections. Justice Murlidharan remarked that unlike MSM, sex workers are a

captive population which may facilitate behvaiour change. Grover replied that

empowerment of sex workers has triggered change and the same is needed

vis-à-vis MSM.

Wrapping up the health argument,

Grover said that the purported dichotomy between individual (MSM) rights and

public health is false.

Morality

no grounds to restrict rights

Grover argued that morality cannot

be literally imposed on Article 21, that is, the right to privacy, dignity and

health. He contended that restrictions on the cluster of freedoms under

Article 19 (1) are specific to each right. Elaborating the submission, Grover

said that while speech and expression[11]

can be curtailed on grounds of sovereignty, integrity, decency and morality,[12]

assembly[13]

can be obstructed only under the corresponding clause for protection of

sovereignty, integrity and public order. [14]

The Chief Justice observed that as

per Maneka, substantive and procedural

fairness must be tested on the touchstones of Article14, 19 and 21. Grover

replied that Maneka expands the

scope of fundamental rights but is silent on importing restrictions from one

Article to another.

Examining the argument, Justice

Murlidharan illustrated two situations – 1) where a gay parade is sought

to be restricted and, 2) where a gay lawyer is forbidden from practicing at the

Bar. The Judge said that Grover's argument is that public morality may justify

restrictions on 1) which impinges freedom of expression under Article 19(1) (a)

but not (2), which interferes with the right to work within the meaning of

right to life under Article 21.

Grover said that public morality

itself cannot be a basis for intruding the zone of privacy. Rights under

Article 21 can be restricted only if morality is shown to be a compelling state

interest, which, in the present case, has not been shown. Grover further

submitted that courts have employed the general reasonableness standard which

is different from the one used for reasonable restrictions under Article 19 (2)

to (6).

The Chief Justice questioned if the

present challenge could be sustained without health/HIV grounds. Grover said

that infringement of privacy, dignity, freedom and equality would be the main

argument, just as in National Gay and Lesbian Association. The Chief Justice

asked if health was pressed in any other anti-sodomy case. Grover answered that

health arguments, similar to the present petition, were raised and accepted in Toonen.

Grover then responded to other

contentions raised by the respondents. He concluded by saying that the

petitioner would have sought quashing of Section 377 but have carefully

restrained their prayer out of concern for child sexual abuse.

Rejoinder by Voices

against 377

Quoting from Seervai's commentary on the doctrine of

severability, Counsel Shyam Divan submitted that the Court can exclude

application of Section 377 to a category of persons by constitutional methods

of severability in application and separability in enforcement.

Divan pleaded that public morality

cannot be used to trump an individual's sense of identity and full moral

citizenship.

Parties were asked to submit written

submissions at the earliest. On 7th November 2008, the Bench

reserved the judgment.

---------------------------------

Full pleadings and documents related

to the case will be shortly available at www.lawyerscollective.org

Tripti Tandon

Lawyers Collective HIV/AIDS Unit, India

www.lawyerscollective.org

[1]

Section 321, IPC

[2] Section

324, IPC

[3] Article 47,

Constitution of India

[4] Article 51

A(f), Constitution of India

[5] Refers to

citizens who have a distinct language, script or culture of their own

[6] Refers to

minorities, based on religion and language

[7] National

AIDS Control Organisation, Ministry of Health and Family Welfare, Government of

India, HIV Sentinel Surveillance and HIV Estimation in India:

A Technical Brief 2007.

[8] Sections

2(d) and 2(f), Protection of Human Rights Act, 1993

[9] Sinclair K,

Ross MW, Consequences of decriminalization

of homosexuality: a study of two Australian states, Journal of

Homosexuality, Vol 12(1), 1985

[10] Geis G,

R, Garrett T, PR, Reported

consequences of decriminalization of consensual adult homosexuality in seven

American states, Journal of Homosexuality, Vol 1(4), 1976

[11] Article

19(1)(a), Constitution of India

[12] Article

19(2)), Constitution of India

[13] Article 19

(1) (, Constitution of India

[14] Article 19

(3), Constitution of India