Final Arguments in Constitutional Challenge to Section 377 - (1)

[Guest guest]

The

matter Naz Foundation (India) Trust v.

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

of 2001, challenging the constitutionality 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 on 18th

September 2008. The matter was kept for final arguments.

The

petitioner was represented by Anand Grover and the Respondent –

Government of India, by Additional Solicitor General (ASG) – PP Malhotra.

Counsel for Respondents - Voices against 377 (supporting the petitioner) -

Shyam Divan, for Joint Action Action Council Kannur (JACK) - Ravi Shankar Kumar

and for Mr.B.P Singhal (the latter two opposing the petitioner) - H. P. Sharma

were also present.

Below

are the proceedings in Court:

At

the outset, the ASG conceded that the Union of India had not resolved the different

positions of the Ministry of Home Affairs and the Ministry of Health and Family

Welfare on the impugned Section. The ASG sought more time from the Court as the

Cabinet’s decision on the matter was still awaited. The Chief Justice

declined to postpone the hearing and asked the petitioner to proceed with their

arguments

Interpretation of Section 377

Anand

Grover introduced his arguments by explaining the text of Section 377 and its

interpretation.

Textual Reading

Section

377 reads as below:

“Unnatural Offences, - Whoever voluntarily has carnal intercourse against

the order of nature, with any man, woman or animal, shall be punished with

imprisonment for life, or with imprisonment of either description for a term

which may extend to ten years, and shall also be liable to fine.”

“Explanation, - Penetration

is sufficient to constitute the carnal intercourse necessary to the offence

described in this section

Anand Grover pointed out that the terms “carnal

intercourse” and “against the order of nature” are not

defined. The Chief Justice requested that the text of the original draft of the

Penal Code, as proposed by Lord Macaulay in 1837 be read out from the written

submission supplied by interveners - Voices against 377.

Clause 361: “Whoever intending

to gratify unnatural lust, touches for that purpose any person or any animal or

is by his own consent touched by any person for the purpose of gratifying

unnatural lust, shall be punished with imprisonment of either description for a

term which may extend to fourteen years, and must not be less than two

years.”

It was suggested that Lord Macaulay deliberately

omitted text that defined “unnatural lust” and avoided inserting an

explanation because he found the subject “revolting” and believed

that any attempt to describe such acts would itself injure public morals. For

Lord Macaulay, avoidance of public injury outweighed the benefit of a precisely

framed legislation.

In describing the scope of Section 377, Anand Grover

went on to compare its text with two other provisions of the IPC related to

sexual offences – Section 375 (Rape ) and Section 497 (Adultery).

While Sections 375 and 497 refer to a man, 377 refers

to “whoever”, which could be a man or a woman. Section 375

incorporates “consent” and “willingness”; 497

explicitly mentions consent. In comparison, Section 377 contains the term

“voluntarily”. Anand Grover explained that while consent implies

more than one party, voluntarily is an expression vis-à-vis a single person.

Commenting on the point of consent, the Bench said

that legally, children cannot consent Anand Grover reminded the Court of the

petitioner’s prayer seeking a reading down of the Section so that the law

continues to apply against sexual acts without consent and with persons incapacitated

to consent. The Chief Justice drew the Counsel’s attention to a recent

Bombay High Court decision (in the matter of Allan

Walters v. State of Maharashtra where the accused was being

prosecuted for child sexual abuse under Section 377), where the Bench observed

that Section 377 had become redundant.

Justice Murlidharan noted that in examining the age of

consent, the Court will have to bear in mind the Juvenile Justice (Care and

Protection of Children) Act, 2000, which defines a child as a person below 18

years. Drawing a distinction from the IPC which sets out 16 as the age at which

a girl can consent to sex, Justice Murlidharan observed that considerations of

age of majority would weigh on the Court in granting relief, if any. The Chief Justice

then enquired about a petition filed by

Sakshi filed in the Supreme Court (Sakshi

v Union of India [(1999)]

8 SCC 591), which prayed for deletion of Section 377 and the

framing of a specific law against sexual assault and child sexual abuse. Anand

Grover informed the Court that the issue was referred to the Law Commission.

The Chief Justice remarked that there were two Bills on Child Sexual Abuse

pending with the Government for the last several years.

Reverting to statutory interpretation, Anand Grover

said that the explanation makes it clear that the Section covers penile

penetration only. The Chief Justice asked if there were any decisions to this

effect. Anand Grover pointed out that in Sri Lanka, a similar law was

statutorily amended to expressly include non-penile penetrative acts.

Judicial

Interpretation

Anand Grover then discussed Indian case law on Section

377 describing how the law had come to acquire a broad meaning, rendering it

vague and arbitrary.

In Government v.

Bapoji Bhatt, 1884 Mysore

Law Reports 280, the Court relied on English judgments on sodomy to hold that

Section 377 prohibited anal intercourse only, that is, the area “where

sodomy is usually committed”.

Proscription against oral sex was introduced by Khanu v. Emperor, 1925 Sind

286, where the Court held that “oral

sex is clearly against the order of nature, because the natural object of

carnal intercourse is that there should be the possibility of conception of

human beings, which in the case of coitus per os is impossible.”

Anand Grover said that according to this ratio, Section 377 criminalized

non-procreative sex.

Referring to Lohana

Vasantlal Devchand v. State, AIR 1968 Guj 252, Anand Grover

described the imitative and sexual perversity test evolved by Courts. In this

case, the Court ruled that oral sex which is a prelude to carnal intercourse is

not punishable. What is penalized is “perverse sexual acts” that

replace the urge to have carnal intercourse. Anand Grover argued that by this

logic, oral sex between a man and a woman would be exempt if followed by penile

vaginal intercourse but the same activity would be punishable, if committed

between persons of the same sex.

At this point, the Chef Justice asked if the imitative

and perversity rule was followed by Courts in England. Anand Grover replied in

the negative, saying that in the United Kingdom (UK), the anti-sodomy statute

was applied strictly.

Anand Grover highlighted cases to show orifices where

penile penetration had been held punishable under Section 377 – a

bullock’s nose, between the thighs and hands held tightly. He said that

judicial interpretation suggests that penile insertion in any orifice except

the vagina would be hit by Section 377.

Pointing to the Section’s wide reach, Anand

Grover argued that the law could be invoked against individuals engaging in any

and every sexual act, that is non-penile vaginal. The Judges concurred on the

over-breadth of the term “unnatural”.

Drawing attention to its arbitrary application, Anand

Grover discussed another case, that of Grace

Jaymani v EP AIR 1982 Kant 46,

where the Court acquitted a husband on charges of sodomy on the

ground that the wife was consenting. He pointed out that consent had not been

recorded as a defence or even a mitigating factor, in any case involving

unmarried heterosexuals or persons of the same sex.

The Chief Justice asked that by virtue of this

precedent; wouldn’t consent be implicitly read into Section 377? Anand

Grover replied that only for heterosexual married couples.

Reflecting on this submission, Justice Murlidharan

questioned if and how voluntariness could be a qualifier. Clarifying the

proposition, Anand Grover discussed consent and willingness in the context of

rape law, with the illustration of marital rape. Although absence of consent

and/or willingness on the part of a woman amounts to rape, this is not true for

a wife, unless she is less than 15 yrs old. The position in law is that once

married, a woman has given permanent, irrevocable consent to all sexual

intercourse even though she may not be willing.

Continuing the discussion on consent, the Chief

Justice observed that since 377 is incorporated in the Section on Offices

against the body; the term voluntary is used in the same vein as

‘voluntarily causing hurt in etc.” Justice Murlidharan remarked

that the terms “voluntary” and “consent” exclude acts

done under force, compulsion, fraud etc.

Concluding his arguments, Anand Grover said that in

prosecuting cases, Courts have been guided by tests of sexual perversity or

abnormal sexual satisfaction, which have no clear meaning. Justice Murlidharan agreed that these

were subjective criterion. Anand Grover pressed that being a penal provision

that imposes burden, the law ought to be clear and not vague. He further argued

that the penalty ranges from ten years to life imprisonment to life; there is

no guidance for Courts in awarding sentences. This, he argued, makes the law

disproportionate and arbitrary – grounds for attacking it under Article

14 of the Constitution.

At this point, the Chief Justice remarked that the

petitioner’s arguments point out to the unconstitutionality of the

section as a whole. However, their prayer was for a reading down and not deletion

of the entire section. This, he said, would confuse the Court in granting

relief, if any.

The Bench asked whether the Section had been used to

prosecute consenting adults. Anand Grover said that was rare. He however clarified

that the petitioners only had access to reported High Court cases and were

unable to comment on trends in prosecution by lower Courts. He also said that

Section 377 is known to be used extra legally by Police to harass and blackmail

gay men, a submission that Respondent Voices against 377 would be making. The

Chief Justice remarked that during his tenure at the Madras High Court, he had

himself ordered an investigation into a complaint of Police excesses and

torture by a transgender person. The inquiry found the Police to have afflicted

severe violence including forcible sex with the complainant. The Chief Justice

also mentioned a complaint of a visibly gay medical student of Mumbai, who was

ragged and prevented from taking examinations.

Justice Murlidharan remarked that criminal law tends

to be oppressive towards the poor and the marginalized. Therefore, even if some

homosexual men were prosecuted for consensual sexual acts, they would not be in

a position to appeal against the conviction.

The Chief Justice said that Section 377 appears to be

used to “persecute” rather than “prosecute”

homosexuals.

Legislative reform in UK:

Wolfenden Committee Report

Anand Grover proceeded to highlight relevant extracts

from a report of the Wolfenden Committee, which reviewed British laws

criminalizing sodomy and prostitution in 1957. Justifying its reference before

the Court, Anand Grover said that it was an authoritative document which

addresses arguments against decriminalization of homosexuality that contemporary

law makers are confronted with in all societies. Moreover, the report has been

relied upon by Courts in different jurisdictions in quashing similar anti

sodomy laws.

Anand Grover highlighted the report’s

observation that the terns “natural” and “unnatural”

sex have a theological origin. He shared its conclusion that private morality

cannot be the basis of criminalizing a class of persons. What may be labeled as

a sin by some cannot be regarded a crime in secular legal systems.

Another debate that Anand Grover elaborated from the

report was the proposition that decriminalzing homosexuality will destroy

marriages, families and expose children to harms. He pointed out to the

Wolfenden Committee’s conclusion that recognition of same sex relations

may cause some marriages to break but that this damage is comparable to divorce

on account of adultery, fornication and lesbianism - acts that were not

criminally liable in Britain.

Anand Grover noted that Committee did not find any

causal relationship between criminal law and the prevalence of homosexuality.

The Committee rejected the argument that decriminalizing same sex activity

would lead people to homosexuality. Responding to the finding, Justice

Murlidharan observed that even in India, criminal law has not acted

as a deterrent; Section 377 has not prevented anyone from being homosexual.

Referring to extracts from the Report, Anand Grover

said that the Committee found that criminalization of consensual sodomy did not

protect children; on the contrary, it concluded that decriminalization would

protect children as adults will be able to legally engage with persons of

homosexual orientation.

Summarizing the report, Anand Grover said that

Wolfenden Committee stressed that it is not the province of criminal law to

uphold private morality. This, he said was an important observation, as one of

the arguments of the respondent in preserving Section 377 is that of

safeguarding public morality.

Anand Grover than discussed the Committee’s

recommendations, that is, to decriminalize private, consensual sex between

adult men. The Committee suggested that the terms – private and consent

have the same legal meaning as in the context of heterosexual sex. However, it

proposed the age of 21 for legitimate sexual conduct between males as opposed

to legitimate heterosexual sex, which was recognized at age 16. Anand Grover

pointed out that statutory reforms in England later leveled this

difference and today, the age remains 16 yrs for both heterosexual and

homosexual sex.

Section 377 violates fundamental

rights

No compelling State

interest

Anand Grover then advanced arguments to assail the

constitutionality of Section 377, which infringes fundamental rights under

Articles 14 (Equality), 15 (Non-discrimination), 19 (Freedom) and 21 (Life and

Liberty). At the outset, Anand Grover said that it is settled law that when a

fundamental right is interfered with, the burden is on the State to justify

such intrusion by showing a compelling interest. He contended that in the

present case, the State had failed to discharge this burden and in fact, has

not even attempted to show that there is a compelling interest in preserving

Section 377.

In support, Anand Grover relied on the affidavits of

the Ministry of Home Affairs and the Ministry of Health and Family Welfare. The

former merely states that Section 377 is necessary to protect public safety,

morals and health. It provides no evidence that public disfavours

decriminalisation of homosexual conduct. On the contrary, the Ministry of

Health itself admits that Section 377 imposes a burden in discharging its duty

to protect public health. According to Anand Grover, this itself shows that

there is no compelling state interest in allowing intrusions in fundamental

rights and freedoms of sexual minorities. On the contrary, it establishes a

compelling interest in revoking the impugned section.

Article 21: Right

to Life and Liberty

Anand Grover argued that Section 377 violates the

right to health, privacy and dignity of sexual minorities, claims that have

been read into the right to protection of life and liberty under Article 21.

Right to Health

Elaborating the State’s obligation on Health,

Anand Grover read out relevant provisions of international law, in

particular the International Covenant on Economic, Social and Cultural Rights

(ICESCR), and General Comment No. 14 on Article 12 of the ICESCR where the UN

Human Rights Council has set out the meaning of Right to the highest attainable

standard of health. The judges concurred with the submission that provisions of

international human rights law can be read into domestic law. Anand Grover

stressed on principles of accessibility for all, without discrimination

including on grounds of sexual orientation, provision of goods, commodities and

services to the most marginalized groups, obligation to address underlying

determinants and create conditions for safeguarding the right to health.

Justice Murlidharan remarked that according to the petitioner’s

argument, the State is bound to remove legislative barriers to health. He

pointed out that the Government has itself admitted that men having sex with

men (MSM) cannot buy condoms without fear of prosecution. This, he said,

implies that Section 377 interferes with health.

Anand Grover referred to global, regional and national

studies including of UNAIDS, MAP, Amfar Treat Asia, the National AIDS Control

Organisation and independent researchers to establish that Section 377

increases the risk of and impedes impact mitigation for HIV and other diseases

among MSM. He also relied on the report of the Commission on AIDS in Asia, headed by Prof Chakravorty Rangarajan which

recommends decriminalization of same sex act activity for preventing HIV.

Wrapping up the argument, Anand Grover said that

though there is no epidemiological evidence establishing a causal nexus between

Section 377 and high disease burden among homosexual men, studies have

universally acknowledged criminalization as a factor contributing to HIV

transmission. The Judges observed that the Respondent has itself made this

admission in its affidavit.

Right to

Privacy

Anand Grover introduced the privacy claim with Indian

cases like Kharak Singh v State of Uttar

Pradesh (1964) 1 SCR 332, Gobind

v State of Madhya Pradesh (1975) 2 SCC 148 and R Rajagopal v State of Tamil Nadu (1994) 6

SCC 632. He argued that the zone of privacy which covers personal life,

private, intimate conduct and spaces is protected by law and the State can

intrude only for protecting another countervailing interest.

One countervailing interest is prevention of harm and

the State can rightfully intervene in situations of domestic violence etc.

Anand Grover stated that the opponents have argued that the law does not allow

anyone to consent to harm and that “unnatural sex” within the

meaning of Section 377 is harm. Rejecting this submission, Anand Grover argued

that it was for Courts to determine what constitutes harm on a case by case basis.

He placed reliance on R v Brown,

a case involving sado-masochistic acts between adult men in private.

Though consented to, the impugned acts caused injury. In upholding the

conviction of the accused, the House of Lords set out three tests –

(i)….?? (ii) is the activity regulated, and (iii) was the intention

to cause harm?

In stressing “personal” over

“spatial” aspects of privacy, Anand Grover relied on District Registrar and Collector, Hyderabad v Canara

(2005) 1 SCC 496 where the Supreme Court affirmed that privacy is of a person

and not a place. d said he was inclined to leave the issue open to the Court to

consider.

At 4.15 pm, the Bench rose, adjourning the hearing to

the next day, 19th September 2008. The Court gave the Respondent

Government a week’s time (until 25th September 2008) to place

its arguments on record.

Tripti

Tandon

Lawyers

Collective

HIV/AIDS Unit

www.lawyerscollective,org