[Reader-list] Final day of Naaz Hearings

[Lawrence Liang]

*Minutes of Naz Hearing 7.11.08   (Final Day of Naz hearings) *



Mr B.P Singhal, began by producing some newspaper reports from the Hindustan
Times and Pioneer and said he strongly objected to the reporting. His
contention was that the papers misreported that the 'Court had pulled up Mr.
Singhal'. He contended that 'it was gross contempt my Lord, the press has
become the High Court and it was going beyond all limits. He observed
that,'trespass was the order of the day and it was time for the Court to
take action'. He also observed that,'the mother of all harms to the human
body comes from homosexuality'.

J. Shah expressed surprise at the reporting and said the Court would look
into it.



Mr Grover continued with his rejoinder by stating that in India the HIV
epidemic is caused by different actors and that in India MSM were not
fuelling the epidemic but rather it was female sex workers.

 As per the 2007 NACO study, there is an over all decline in infections in
south and Northeast India. The decline in the south is because of
interventions among FSW's. He submitted that you couldn't distribute condoms
to MSM's , as then one will become abettors to the offence.

The ASG intervened to say that nobody was saying that and that we are
prepared to provide condoms to all.



Mr Grover noted that it was not enough to say that they can come and get
condoms but the state had to be proactive.  He noted that the state has an
obligation to treat everyone and the importance of condom provision was
proved as incidence of new infections among female sex workers had come
down.  He submitted that if HIV spreads through homosexuality alone, it
would have remained confined to homosexual population. But since this group
was also having sex with the general population HIV spread to the general
population. Hence if you scale up interventions with MSM, it will have a
positive impact on the health of the wider society as well.



He then submitted that under Art 21 the state had a burden to discharge,
i.e. that there was a compelling state interest to intrude into the right of
privacy. There was no such data by the state and in fact the state was
divided in its opinion.

]

With respect to the question of child sexual abuse and non consensual sex,
the prayer was clear, since there is no law on child sexual abuse, the
section as only been sought to be read down and not struck down.

To the contention that there was no such thing as a minority, Mr Grover
submitted that Art 14 was not restricted to the grounds enumerated under Art
15 and Art 16.

With respect to the *Sakshi* judgment, he distinguished it as asking for an
expansion of the meaning of sexual intercourse where as the prayer here was
for a restricted reading.

With respect to application of international law, he noted that the very
incorporation of the dignity under Art 21 came via US law i.e. *Munn. V.
Illinois.*

There will be no effect on marriage laws if this prayer is granted and the
introduction of consent based distinction is already there in Sec 375 and
will not create any difficult problems.



Mr. Grover noted that with respect to the main contention of morality, he
noted that while morality is a valid ground under Art 19(2) it cannot be
literally imported into Art 21 as a restriction. The state would have to
show more than just morality, to restrict rights under Art 21. The
understanding of *Maneka Gandhi* cant be that, we limit Art 21, but rather
that we expand Art 21.



J. Muralidhar gave the example of two statutes, one restricts a gay parade
and another restricts a gay persons right to dress in a particular way,
saying should wear suit only etc.  Can morality be a ground for restricting
expression and right to profession as well ?  For example if an MSM is an
advocate  and a Bar Council Rule prohibits him , clearly public decency and
morality cant be ground for restricting the right to practice any profession
.



J. Shah  observed that if the state deprived a person of the right to
health, could the state invoke morality as a ground  and whether
restrictions under Art 19 were relevant at all ?



Mr Grover noted that  pre Cooper there was a compartmentalized view and now
you cant take that view.  You cant just say morality, but rather show that
morality is a compelling state interest,

On the point he read from an additional written submission, using quotations
from *Dudgeon, Norris, Leung. *



J. Shah then asked whether if one imagined that HIV was not there and the
petitioner comes before the Court, the argument would not just be about the
right to health and dignity would be central issue.



Mr Grover agreed with the Bench and noted that if as a heterosexual person
he walked in the park, it was unlikely that he would be arrested under Sec
377.



Mr Shyam Divan for Voices Against 377

Mr. Divan submitted a note to the Court on the doctrine of severability ,
making the point that the doctrine of severability of enforcement would be
of relevance the Court.. This might be done by granting a perpetual
injunction restraining enforcement of the law on the forbidden field..

The principle derived from Chamarbaugwala's  case and cited by HM Seervai in
his Constitutional Law of India,  is that applying the rule of 'severabilty
in application', the Court may restrain the enforcement of a law or
statutory provision in respect of that class of subjects of which the law in
invalid. Here, Sec 377 insofar as it covers consensual same sex acts between
adults.

Mr Divan then submitted another note, which was a brief response to the oral
submissions by the contending respondents. The judges perused the note and
then Mr. Divan briefly made an oral submission on only one point – the
question of public morality.



'The  right to live with dignity guaranteed to all persons. The declaration
is necessary because it will enable LGBT persons to live with dignity and
express a vital dimension of their identity. If identity and self worth are
important, if full moral citizenship is important , then public morality
cannot be allowed to trump it. The activity with respect to which the
declaration is sought does not cause harm to any third party. Public
morality is not a valid or sufficient justification to deny a person his
dignity, particularly where the morality is not in itself a discernable
constitutional value or morality. Indeed, in this context, it is the
fundamental rights enshrined to protect minorities including sexual
minorities that ought to prevail. Morality by itself, in the absence of any
other harm cannot be a ground to restrict the right to live with dignity.'



The Union of India and other intervenor respondents were given till Monday
to file their written submissions and the matter was posted for final
orders.

 Arvind Narrain