[Reader-list] Day 8 of Naz Hearings 15.10.08

[Lawrence Liang]

wow, golden showers in the delhi high court , what  a joy :)


Day eight of the Naz hearings  15.10.08

The ASG submitted some additional material to the Court based on which he
made the following submissions :
The ASG continued his submissions by  making the point that HIV transmission
was through sexual contact and as per the study of sexual behavior in the US
, over 89% of the transmission was due to homosexual behaviour.
J. Shah  asked a question about the validity of the article relied upon by
the ASG and made the point that the author of the piece was a  Minster in
the Catholic Church. Justice Muralidhar noted that on page six of the
article submitted by the ASG the entire discussion was based on the Bible.
J. Shah went on to read from the article that 'AIDS was a judgment of God'
and noted the the article seemed to  be complete propaganda.

The ASG retorted by saying how come anything on the other side is accepted
and anything on this side is seen as propaganda.
J. Shah noted that the ASG should refer to the NACO affidavit on the point.
The ASG went on to read from the article titled, 'The health risks of gay
sex ' by Dr John Diggs to say,   that there were five distinctions between
gay and heterosexual relationships. Those differences include:
A.Levels of promiscuity
B.Physicalhealth
C.Mentalhealth
D.Lifespan
E. Definition of "monogamy"
THE ASG went on to read from the article to make the points that  there was
a high level of promiscuity among gay men with 75% of male homosexuals
having more than 100 partners. This according to the ASG would mean that HIV
would spread like wildfire. The medical consequence would be the spread of
HIV, syphilis etc.  He also noted that lesbians are 3-4 times more likely to
have risky sex.  There was a high incidence of psychological abuse among gay
and lesbian people. There was also a high rate of intravenous drug use among
lesbian, gay and bisexual people. Long term sexual fidelity is rare in gay
relationships.
J. Shah responded by asking who was Dr. John Diggs , the author of the
article? He made the point that he was a practicing internist and not a
doctor. He noted that the Court was interested in scientific opinions not
the opinions of religious bodies. He noted that a view of a religious body
which viewed them as sinners could not be taken notice of by the Court.
The ASG responded by saying that Dr. John Diggs has produced statistics on
the serious health consequences of engaging in homosexual sodomy.
Homosexual sodomy is an efficient transmitter of STD/HIV and anal
intercourse is a serious health hazard.
J. Shah  by asking who were the  traditional values coalition on whose
website,  the John Diggs article was hosted. He said 'what are his
credentials and how do we accept it? On one hand we have NACO and on the
other we have Dr. Diggs from America ?'
The ASG said that the only reason he cited the study was to show that
homosexuality caused a very serious health problem.  He went on to read from
the study to say that, the sexual activity enjoyed by homosexuals results in
bacterial infections, and even cancer. There are activities like golden
showers, and insertion of objects into the rectum which cause oral and anal
cancer.  A study of homosexual practices shows 37% enjoyed sodomitical
activities and 23% enjoyed water sports.
J. Shah asked by everything on the internet was to be  taken as gospel: He
noted that they were not taking it and that they were going by the
Governments own affidavit.
The ASG said that AID's is causing havoc in society.
J, Shah noted that the NACO Report had to be countered by scientific
material  by bodies such as the WHO and not religious bodies.  He asked the
ASG to get material on what the position of bodies such as the WHO were?
The ASG went on to cite another study which also noted the high levels of
promiscuity and unhealthy behaviour among the homosexual community. He noted
that 29% of homosexuals had 300 partners in a lifetime and 8% had over 300
partners.  In New York and San Francisco where gays were concentrated one
report suggests that they had even 1000 partners.
J. Shah interjected to say that going by the ASG's argument should we then
put 20 lakh homosexuals behind bars?  He went on to quote from the study by
saying that 'homosexuality is death' is really a one sided view of religious
bodies.
The ASG noted that the figures were based on research by a research scholar.

J. Shah said that there were doctors among religious bodies as well and
anyway what does the WHO say?
J. Shah noted that the key issue was how far can the government intervene in
the privacy of a person and whether the state's intervention was correct?
The ASG made another submission about the spread of HIV through homosexual
sex to which JH. Shah noted that he recently addressed a gathering of 600
widows whose husbands had died of HIV. So it was not only gay partners who
suffered from HIV AIDS.
THE ASG then went on to cite another report  which had the figures
HIV is 6 times higher in white men
15 times higher in white women
Blacks account for 46% of all infection
Blacks are 12% but account for a major part of the infection.
J., Shah strongly objected to the study and said that this study seemed to
target the black community as spreading HIV/AIDS.
J. Muralidhar asked the ASG to show some statistics relevant to India.  He
went on to ask if the ASG  could produce  any study to show  that this
activity increases risk to such an extent that it needs to be criminalized ?
"There are two arguments which you have put forward.  One is on public
morality and the other is on public health and safety.  All literature
including the NACO affidavit points to the contrary of what you are
suggesting in terms of the second argument. NACO is telling us that
continued criminalization will result in denial of the right to health of
this group."
The ASG replied by saying that they are entitled to all health benefits.
J. Muralidhar responded by saying that they are not entitled but have a
right to health and continued criminalization prevents their exercising this
right. This is the argument of the other side, whether Sec 377 prevents a
person from exercising his right?
The ASG asked whether in the garb of this right whether one can deny the
right to health of the rest of society?
On being asked to produce statistics from India the ASG noted that the other
side went to the US and other places but he was being asked to keep to
India?
 J. Muralidhar noted that for facts and statistics we must first and
foremost, go to expert bodies in India,. But law and judgments could go to
other jurisdictions.
J. Shah asked the ASG to show some scientific material that retaining
criminalization would work as a deterrent .
The ASG noted that 'this kind of activity, by a man and a woman it spreads.
In normal sex, man is required by law to have sex with one person. Now if
they are having sex with 100s of persons, 200 , 500 even more, its more
likely to transmit disease.
Counsel for Naz Foundation intervened by citing a UN AID's policy brief on
HIV and Sex between men ,  which noted that  the criminalization and
stigmatization of MSM impeded HIV prevention work.
J. Shah noted that  ' you want to disown the NACO affidavit and say that
criminalization is a must. We are trying to say that its not only NACO but
UNAIDs as well which is a UN body which is arguing for respecting rights of
MSM.
J. Muralidhar said that another argument the ASG could make would be to show
that decriminalization had led to the spread of HIV/AIDs .
J. Shah noted that in both the Dudgeon and the Modinos case the same
arguments were advanced.  The Court did not see any merit in them.  Even
within the UN the consensus seems to be that discrimination and
stigmatization has not helped.
The ASG took the judges to a compilation which showed in which countries
homosexuality was decriminalized and in which countries it continued to be
an offence.
J. Shah noted that the point one could get from the compilation was that all
democratic countries  are in favour of decriminalization.
The ASG then cited from an article titled , 'Why gay marriage is not only
wrong but socially destructive.', to make the point that after gay marriage
was made legal in the Netherlands, HIV/ STD rates were soaring.
J. Shah noted that marriage was a very different issue which was not being
discussed here.
Then the ASG read an article titled homosexuality and religion with its
source being the wikipedia.
At which point consul for the petitioners submitted that wikepedia was an
unreliable source as anybody could modify the article.
The ASG then went on to read and respond to the written arguments of the
petitioners. He noted that with respect to Art 14 , Sec 377 did not violate
the provision as the law applied to all persons equally. It did not single
out certain persons. It applied equally to all classes of persons – whether
female or male , with this kind of unnatural thing being prohibited by law.
It does not for example state that the provision applies only to women, men
above 50 etc. It applies to every citizen uniformly.
J. Shah noted that the argument of the petitioners was the over inclusivity
of the provision.
The Court then rose with the next hearing fixed for the next day,  16.10.08.

Mayur Suresh and Arvind Narrain