[Reader-list] Day 7 proceedings- Naz v UOI- 377 case

[Aarti Mundkur]

Day seven of Naz hearings (1.10.08)

The ASG continued his arguments on behalf of the Union of India by 
citing Maneka Gandhi's case for the proposition that the only 
requirement for a law to be valid under Art 21 is that the procedure 
prescribed by the law must be just, fair and reasonable. He argued that 
the Court cannot go into the substantive content of the law, but can 
only test the procedure prescribed under Sec 377. J. Shah noted that the 
key point of Maneka Gandhi was the relationship between Art 14, 19 and 
21 and the fact that a law tested under Art 21 must also fulfil the 
requirements of reasonableness under Art 14 as well as Art 19. Further 
the test under Maneka Gandhi according to J. Shah was that both the 
substantive content of the law as well as its procedure could be examined.

J. Shah asked the ASG to read Francis Coralie Mullen's case where it was 
clearly laid down that the law restricting the right of detenus to have 
interviews with lawyers , could be tested on not just it is procedure 
but its substantive content as well.

J. Muralidhar made the point that the test under Art 21 had evolved 
since Kharak Singh , and in Francis Coralie Mullen it was clear that the 
law restricting the right of prisoners to have interviews with their 
lawyers in its substantive content violated Art 21.

The ASG finally conceded the point that the Court under Art 21 had the 
power to test the validity of the substantive content of the law as well.

When questioned about the contention that Sec 377 violated the right to 
live with dignity, the ASG maintained that he conceded that everyone had 
the right to live with dignity, only 'dignity does not mean that you 
permit all this '…

The ASG then read from the petition to make the point that Naz 
foundation concedes that MSM and gay men are susceptible to 
homosexuality. J. Shah said that there was no question of concession as 
the point was not in dispute as all.

The ASG then went on to read from the written submissions of the 
petitioner to make the following counter assertions

That the petitioner uses the term sexual minorities and that there is no 
such thing as sexual minorities in the Constitution. J. Shah noted that 
the petitioners were not praying for inclusion as minority in a 
Constitutional sense but using the term to indicate a small number of 
people. J. Shah asked the ASG to respond to the contention that the word 
sex included sexual orientation.

The ASG responded by saying that the term 'sexual orientation is taken 
from South African law. The South African Constitution guarantees sexual 
orientation. If one is used to that kind of sex, that will be preserved 
if a man is indulging in that kind of activity.. no such thing in India.'

J. Shah made the point that the word sex included sexual orientation 
came from the Toonen decision and was it the contention of the ASG that 
international law treaties which India has ratified could not be used to 
interpret Constitutional guarantees?

The ASG then went on to say that he was not contending that there was no 
right to privacy, but was rather making the point on what was the nature 
of that right. 'You do in private what your mind says you do, eat sleep, 
lie naked in your house One cannot compare our society to America, 
Britain because our mindset is different.'

J. Muralidhar asked the ASG what was his response to three issues raised 
, health, privacy and dignity ?

On privacy the ASG noted that he had read the same judgements as the 
petitioners, Kharak Singh,. Govind and Rajgopal. He did not agree with 
the foreign decisions referred to by the petitioner on privacy.

J. Shah pointed out the Griswold, Roe and others were not anti sodomy 
law decisions but rather decisions on the scope of the right to privacy 
and were all referred to by the Supreme Court in Govind and subsequent 
decisions.

The ASG noted that nobody interferes with private affairs in anybody's 
house. One can do anything one wants in the privacy of ones home. J. 
Muralidhar then made the point that in that case the ASG had to show 
compelling state interest in prosecuting consensual sexual activity in 
private.

The ASG noted that the law was there since 1860 and it was up to 
parliament to change the law. Law visualizes all sections of society not 
just a small section of society. Law should cater to the needs of entire 
society. The will of the parliament is clear, debates can go on in 
society. Though other provisions of IPC and CrP.C have been amended , 
this section has not been changed. It cannot be said that the right to 
privacy will extend to such an extent and such absurd levels.

He said that law cannot be made invalid because of hardship to a section 
of society. One can however remedy the hardship. The Wolfenden Committee 
was applicable in a different context and we need not look at that.

With reference to Toonen's case, the standards of thought, morality in 
those countries are different , theirs is a permissive society and our 
society has not adopted those standards.

There is no such thing as consent in Sec 377, the concept of Sec 377 is 
a kind of a force, which is not natural, consent has no meaning in this 
context.

Sec 377 according to the ASG deals with a kind of situation where so 
called intercourse is against the order of nature, harm or no harm. It 
is necessary to protect the human race itself. We need Sec 377 because 
man to man sex is against the order of nature. Scientifically everything 
God has made , eat from the mouth, etc is disturbed if this is allowed.

'Does the right to dignity imply this kind of right? Question according 
to the ASG was not against dignity to punish what was against the order 
of nature. There is however no controversy about dignity. 'Who is saying 
that they should be unfairly treated? Nobody is saying that. They should 
be treated fairly. The point is made that they are marginalized , 
ignored, who is doing that? They are entitled to treatment. Nobody is 
saying treat like a second class citizen, if a man is suffering from 
something, he needs treatment.'

The ASG noted that the Government of India was committed to addressing 
the needs of those at great risk. They say that Sec 377 prevents the 
collection of data. However we need to educate people, this not good for 
you and for the other person.

J. Shah made the point that if we educate people that going to 
prostitutes is wrong whether then people will stop going to prostitutes 
? Obviously the NACO affidavit was on the point that education by itself 
was not enough.

The ASG said , 'In our culture and tradition men have sex only with 
their women'

The ASG went on to say, It is wrong to say that access to health care is 
impeded as if a man goes to a doctor and asks for treatment he will be 
provided. Where is the fear ? It is incorrect to say that the statute is 
arbitrary because one cant get treatment.
J. Shah said that on the ground , if a person had a sexually transmitted 
disease and was a MSM, he would be fearful of going to the doctor 
knowing that the sexual act he had done was punishable even up to life. 
He knows that the behaviour is criminalized and knows that he is liable 
to punishment. It remains a stigma as he cannot tell the doctor that 
what he indulged in was an offence. Can you brush aside NACO's affidavit 
by saying that person is feeling shy about going to the doctor ?

J. Shah went on to note that MSM are subject to various indignities 
which might hinder actual treatment. The only question the ASG had to 
answer is if there was no prosecution for sex in private (hardly any) 
why then should the provision remain? What is the compelling public 
interest served by a law that is rarely used? In the affidavit read out 
by Mr. Divan, there is a situation which all of us know of -making fun, 
ridiculing, heaping indignities only because of the nature of sex. When 
you are not serious about prosecution, why should this provision remain 
on the statute book ?

J. Muralidhar asked the ASG to think about this point, 'that if the 
Union of India viewed this as being against the order of nature how 
would it impact on the notion of an inclusive society? We have an 
obligation to educate our people on how to exist with people who are not 
like you? You need to ask the question on how to help communities to 
coexist . What impact will this have on the argument of compelling state 
interest. ?

J. Shah went on to note, that the stand of the government in most of the 
cases where the law was challenged , Dudgeon, Modinos, Hong Kong, South 
Africa it was conceded by the Government that the law was rarely used. 
It was only used for harassment. If the Government was not serious about 
enforcement, why should it be there ? J. Shah then summarized the 
arguments of the ASG as

1) The removal of the law would lead to the spread of HIV/AIDS. However 
there was no study submitted by the ASG on this point

2) It would lead to a loss of morality as our culture is different.

There is however different thinking within the Government on this very 
important issue. In effect your stand would tell an entire section of 
the population that they are law breakers and send a message to society.

In the Modinos case for example it was held that even in an orthodox 
Christian country like Cyprus , the majority view and public morals 
alone were insufficient for continued criminalization.

J. Muralidhar then made the point that a public interest litigation was 
not be viewed as an adversarial litigation, it is not dispute resolution 
but problem solving. Certain elements of the case before us should be 
viewed in a constructive manner.

J. Shah then went on to say that since Mr Grover was present it would be 
right to mention the case in the Bombay High Court which related to the 
termination of employment of a person who was HIV positive and how in 
that case all parties agreed to cooperate to find a solution and did not 
see it as a adversarial litigation.

J. Shah then referred to the NACO affidavit and said that there were 
real difficulties faced by an organ of government.

J. Muralidhar then made the point that the Government itself was not 
able to intervene but rather depended upon NGOs' for HIV interventions.

J. Shah also noted that the State of TN notification on aravanis was 
telling in terms of thinking which recognized their rights.

The Court rose and the next date of hearing was fixed for post the 
vacation on Oct 15. J. Shah asked the ASG how much more time he needed 
and then fixed a half day session on Oct 15 a full day on Oct 16 
(afternoon was fixed for intervenors ) and Oct 17 half day.