Final Arguments in Constitutional Challenge to Section 377 - (2)

[Guest guest]

Below are the proceedings from the second day, 19th September 2008, in the

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

Writ Petition (Civil) No. 7455 of 2001 being heard by the Delhi High Court.

Right to Life with Dignity

Resuming arguments under Article 21, Anand Grover asserted that by

criminalizing homosexuals for who they are, Section 377 violates the right to

live with dignity. Expanding on the meaning of dignity, he cited case law,

notably Francis Coralie Mullin v. Administrator, Union Territory of Delhi,

(1981) 1 SCC 608 and Law v. Canada (Minister of Employment and Immigration),

[1999] 1 S.C.R. 497 where it was held that dignity entails self worth, respect,

integrity and empowerment and is at the centre of being human.

Article 14: Equality and equal protection of the law

Assailing Section 377 on grounds of being violative of Article 14, Anand Grover

invoked case law to show that the Section is vague and arbitrary and does not

meet the valid classification test. He argued that under the law disparate

groups and acts are clubbed together as " unnatural'- a proscription which is not

clearly defined.

In response, the Chief Justice said that if the petitioner's arguments on

vagueness are admitted then the remedy will be to invalidate the entire Section.

Justice Murlidharan said

that the petitioner is attempting to carve out a sub-classification, that is, of

private adult consensual sex and seeking its exemption from the application of

the statute.

He went on to examine a construction where the term " whoever " could be read to

exclude this category of persons. The Chief Justice clarified that in its

pleadings, the petitioner has not attacked the

term " whoever " . Instead, they have argued the uncertainty of " carnal

intercourse " and " against the order of nature " .

Anand Grover advanced the proposition in Harish Chandra Gupta v. State of Uttar

Pradesh, AIR 1960 All 650 and K.A Abbas v. Union of India, AIR 1971 SC 481 that

if a statute is capable of diverse constructions, the Court must adopt the one

that advances legislative intent. The question, he paraphrased, was, what is the

objective of Section 377?

Anand Grover relied on Anuj Garg v. Hotel Association of India, (2008) 3 SCC 1,

to apprise the Bench of the twin tests of - (i) the legislative aim must be

valid and, (ii) the measure used must be proportionate to the aim pursued. He

contended that Section 377 fails both the tests; neither is its objective

legitimate nor is the measure (penalty of term years to life imprisonment)

proportionate.

Justice Murlidharan said that according to the Respondent, Section 377 protects

public health, safety and morals. The first claim is negatived by the Ministry

of Health's own admission that Section 377 impedes HIV prevention and public

health. The question is whether Section 377 safeguards public morality and, if

this is a legitimate objective per se.

Anand Grover replied that Section 377 had no logical aim. He argued that even if

Section 377's intention is to prohibit non procreative sex, the objective is

nullified by the Government's own policy on family planning, that is, promoting

birth-spacing and limiting number of children. He cited Deepak Sibal v. Punjab

University, (1989) 2 SCC 145 where the Supreme Court struck down a policy whose

objective was not legitimate. Anand Grover further emphasized that the Wolfenden

Committee was unequivocal in its conclusion that morality cannot be the basis

for interfering with individual

privacy through penal measures.

Justice Murlidharan said that the petitioner cannot rely on Wolfenden alone to

counter the legitimacy of public morality argument. Anand Grover replied that

report cannot be ignored either. He said that though privacy was not recognized

as a common law right, the Wolfenden Committee still found no justification in

offending it. India, he argued, abides by a Constitutional

scheme that accords protection to the right to privacy.

Disagreeing with the submission, the Chief Justice said that protecting public

morals can be a valid aim of criminal law such as prohibition on use of narcotic

drugs, even in the privacy of one's home. He suggested examining more

jurisprudence from India on the subject.

Anand Grover agreed and offered to file additional written submissions on the

public morality and penal law argument.

Anand Grover then attacked Section 377 on ground of the principle of

proportionality. He said that though the Section is textually neutral, that is,

it applies to heterosexual and same sex sexual activity, in effect, it targets

gay men. He reminded the Court that the Police do not harass heterosexuals on

charges of sodomy.

Instead, Section 377 is a cover to abuse gay men. The Chief Justice observed

that the law cannot change anyone's orientation from homosexual to heterosexual

and appears to fail the proportionality test.

Anand Grover further argued that the European Union, as matter of policy, denies

entry to States, who, among other conditions, criminalize consensual same sex

relations. This, he argued, shows the political value that contemporary

civilized societies ascribe to sexual minority rights. In this day and age,

India cannot hold archaic, unjust positions like those of the Ministry of Home

Affairs.

Advocate HP Sharma interjected to say that legal recognition of same sex

relationships varied from county to country and culture to culture. He said that

the United Nations itself does not extend spousal benefits to gay men so why

should India concede? The Chief Justice expressed disapproval at this

interruption and remarked that such interventions did not assist the Court in

adjudicating the matter

The Bench then openly discussed the nature of relief that the petitioner could

be granted. The Chief Justice explored a declaratory relief - that is, an order

that proclaims Section 377 unconstitutional to the extent that it applies to

private, adult consensual sex and/or an order quashing portions/parts that cover

private adult consensual acts?

The Chief Justice referred to D.S Nakara v. Union of India (1983) 1 SCC 305

where another alternate was laid down. In this case, the Supreme Court read

words into a statute to accord it such a meaning that did not affront rights of

the aggrieved. In the same vein, the Chief Justice discussed Kartar Singh v.

State of Punjab (1994) 3 SCC 569 where the Court provided guidance on how

" encumbrance " must be read in " free of all encumbrances " to save the impugned

provision.

The Bench asked the petitioner to supply judgments on the nature of relief that

the Court could award in the case.

Article 15: Non Discrimination on grounds of " sex "

Next, Anand Grover stated that Section 377 is also hit by Article 15 (1) of the

Constitution that forbids discrimination on the basis of " sex " , which, he

argued, includes sexual orientation. In support, he referred to the Toonen v.

Australia, No.488/1992, CCPR/C/50/D/488/1992, where sexual orientation was

declared to be included in " other status " At this point, the bench inquired into

the recommendations of the Commission to review the Constitution, set up some

years ago. Anand Grover admitted that he was not aware but would apprise the

Court of outcomes relevant to the matter, if

any.

Article 19: Freedom of expression

Anand Grover then introduced arguments that proscription on same sex

activity interferes with sexual minorities' freedom of speech and

expression. He mentioned a magisterial order against the airing of a radio show

on sex and HIV including same sex activity (Azadi Bachao Andolan Delhi Unit v.

All India Radio and Others, Order of the CMM, Delhi dated 23 October 1997). This

argument was not pressed further.

Jurisprudence of other countries

Anand Grover then took the Bench through judgments on anti- sodomy laws from

other jurisdictions. Many of these reflect judicial thinking and handling of

counter arguments on public order, morality, decency - which are relevant to the

present case.

Anand Grover extracted relevant paras from Dudgeon v. United Kingdom, [1981]

ECHR 5 where there was a history of non-prosecution of consenting adults,

similar to India. He pointed out that the European Court of Human Rights still

struck down the law, questioning that if non-prosecution for buggery does not

offend morals then why should decriminalization of consenting, adult homosexuals

hurt the public?

At this point, RS Kumar, Counsel for opponents - JACK made some remarks about

the nature of HIV. The Chief Justice expressed displeasure at the uninformed,

moralizing attitude of the respondents.

He reminded the Court that in the beginning, most Indians dismissed the threat

of HIV, saying that " such things " didn't happen in " our country " . But today, the

Chief Justice said, India has surpassed every other country in the world in the

number of HIV infections.

Recollecting his involvement in a legal aid clinic for HIV

positive widows in Nammakal, Tamil Nadu, as Chief Justice, Madras High Court, he

said that such issues need to be discussed openly and that the respondent's

stand would not help the nation.

Post lunch, Anand Grover resumed reading of international judgments.

He stressed on the South African Constitutional Court's ruling in National

Coalition for Gay and Lesbian Equality and Another v. The Minister of Justice

and Others, 1999 (1) SA 6 (CC), which discusses criminalization of consensual

sodomy against claims of dignity, privacy and equality.

Justice Murlidharan remarked that proscriptions on homosexuals were akin to the

criminalization of certain tribes under colonial rule.

He said that it was not rationality but prejudice that underpinned the State's

response.

Paraphrasing the Court's observation on the right to privacy, Anand Grover said

that what ought to be protected, is the " nature of the activity and not the site

where it is carried out " . He highlighted the Court's finding that privacy is not

only a restraint on the State but also an obligation to create conditions for

personal self-realization.

On equality, Anand Grover read aloud - " equality does not imply a leveling or

homogenization of behaviour but an acknowledgment and acceptance of difference " .

On other judgments from around the world which struck down similar anti-sodomy

statutes (Hong Kong, Fiji, US and Human Rights Committee under the Optional

Protocol under the ICCPR), he agreed to submit a written note.

In concluding the petitioner's arguments, Anand Grover said that the

Constitution, which upholds dignity, privacy and respect for equality, is itself

an expression of political morality. This observation, he said, was vital for

India, as our Constitution too envisages a plural, democratic, just order.

The Chief Justice expressed displeasure at the ASG's absence from the

hearing and wondered what assistance he would offer to the Court.

The bench will hear arguments of Respondents - Voices against 377, the Union of

India, JACK and Mr. B.P. Singhal on Thursday, 25th September 2008.

Tripti Tandon

Lawyers Collective HIV/AIDS Unit

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

www.lawyerscollective.org