[Reader-list] Day 9 of Naaz Petition Hearings

[Lawrence Liang]

I suppose you have to give it to the ASG for his tenacity...... the
arguments are increasingly looking like versions of the ever returning Jason
of the friday the 13th series, no matter how many times you knock him down,
he keeps returning with more of the same

*Day Nine of Naz  Hearings (16.10.08)*

The ASG continued his submissions with reference to
the written arguments of the petitioner by   noting
that there is a distinction between sexual intercourse
and carnal intercourse and it cannot be said that
homosexuality is natural intercourse. 'The  natural
law is very clear, when it is between a husband and
his wife , if it is unnatural it is an offence. Sec
377 applies to all citizens who are doing an unnatural
act and hence does not violate Art 14.'

J. Shah  made the point that the Section does not make
an distinction between consensual and non consensual ,
public and private and hence whether the Section was
over inclusive  as submitted by the petitioners ?

The ASG responded by saying that consent will not
'make an offence not an offence'. If you look at
Sec 375 sixtly, a man is said to commit rape if he has
sexual intercourse with a girl who is under the age of
sixteen with or without consent.

J. Shah noted that  why consent was not material for
an offence under Sec 375 sixtly was because it was an
act of sexual intercourse with a minor girl.

The ASG noted that there were other conditions such as
unsoundness of mind, intoxication all of which
indicated that there was no question of consent.  If
Sec 377 was to be read to exclude consenting acts as
was urged by the petitioners , then the language of
the provision would have to be changed to record the
above mentioned conditions.


J. Shah noted that consent meant only valid consent.

The ASG then said that the South African Constitution
cannot be used to interpret our Constitution and that
Sec 377 laid down a valid classification which was not
hit by Art 14.  With respect to the fact that Sec 377
applied to acts done both in private as well as in
public he noted that  an offence is something which is
punishable under the IPC and that  the behaviour under
Sec 377 was an offence . He went on to submit that Art
14 is very clear as it applies uniformly to all
persons who indulge in unnatural acts as prohibited by
law- consent by one or two parties will not make the
offence arbitrary.

On the question of whether Sec 377 disproportionately
affects  sexuality minorities as was made out by the
petitioner the ASG noted that the word sexual minority
had no place in the Constitutional scheme.  The word
minority is defined and that there is no such thing as
a sexual minority in the Constitution. 'Any group of
100 or 1000 people can start claiming that they are a
minorityand the Court will be sitting on this only'.


J. Shah responded by saying that the word minority was
only used to indicate that it was a small group. Would
you say that that  the statement that 'those
affected by tuberculosis or leprosy are vulnerable
minorities is then a wrong statement?'  The phrase
sexual minority means that some two lakh people for
example have a different sexual orientation.

The ASG responded by saying that the word sexual
orientation comes from South Africa and our
Constitution does not say that. One is dividing the
nation by recognizing that.

J. Shah then asked if the law said that the disabled
should be treated separately, are we then dividing the
nation ?

The ASG responded by saying that if  there are
1,00,000  etc people who start claiming that we are
entitled as a matter of right not to be prosecuted
then every 1000 people will assemble and start saying
that this is our right.

J. Muralidhar then asked if MSM as a term was a
fiction or a reality ?
The ASG responded by saying that it is a perversity.
J. Muralidhar then asked regardless of your moral
opinion, the question is does the Government recognize
that they exist ?

The ASG then conceded that they exist and asked how is
it possible to have' a grouping of such persons when
our Constitution does not say this ?'
J. Shah asked the ASG to keep his value judgments
aside as the Court was discussing questions of law.

The ASG responded by saying that as far as Art 14 was
concerned this was the law. He said that 'they
needed treatment, education, employment and that they
should be treated well.

J. Muralidhar then asked how then according to the ASG
a person who was committing a crime was being given
employment ?

The ASG responded that it was a 'reformatory society
' and  that they be given employment but not
government employment.

J. Shah asked whether a person who declared his status
as gay would be entitled to employment ?
J. Muralidhar wanted to know  how the stance of them
being entitled to employment was consistent with  your
position that they are persons without rights ?

The ASG 's response was to say that ' should such
a course of conduct be read down ?'

J. Muralidhar noted that should it be criminalized in
private and public according to you, it will be an
offence ?
The ASG noted that 'by their conduct, this kind of
activity is a great health hazard and it enhances the
chance of spreading disease.'

J. Shah responded by saying that  not very HIV
infected person is a homosexual.

J. Muralidhar said that even among the sources you
have read to us , you have said that homosexual sex is
only one of the sources of transmission.

The ASG responded by asking whether the Court should
encourage such sources ?

J. Muralidhar objected to the ASGs' remarks by
saying that 'you say that we are dividing the
country'.
J. Shah interjected to say that 'these are not
arguments but comments against us.'.

The ASG then went on to reiterate his point that Sec
377 is neutral, and what it prohibits is unknown to
law and that the law lays down social standards.

The ASG then began to read and rebut the written
submission of Respondent 8, Voices Against Sec 377 on
Art 14
He disagreed with the Voices argument that the
provision was never intended to protect women and
children and asserted that it meant to protect others
including women and children. He asserted that there
was no question of reading down Sec 377 and the
language was clear. He noted that if Sec 377 hampered
HIV/AIDs' interventions , they just had to come
forward and the Government would help them. With
respect to the submission that Sec 377 conferred
unguided discretion upon the police which power was
used by the police to blackmail and abuse the ASG
asserted that the power was guided as all kinds of
activity was barred under Sec 377. The ASG  dismissed
the reference to Sandra Day O Connor's concurring
opinion in Lawrence v. Texas, which was making the
point that if a certain kind of expression closely
associated with a group is targeted ( anal sex ), in
effect the group is targeted   by  remarking that
'our laws are different.'. He said that he would
read the National Coalition judgement on which he was
asked by J. Shah to refer the judgment with respect to
all aspects.

The ASG then went on to address arguments under Art 15
by referring to the Anuj Garg decesion.  He was guided
by J. Shah to the part of the judgment relied upon by
both the petitioner , Naz Foundation and Voices
Agaisnt Sec 377 which sought to make the point that
under Art 15 discrimination was barred on the basis of
'sex, race, caste or any other like basis.'
J. Shah inquired whether the phrase like basis could
include sexual orientation ?
The ASG responded that the word sexual orientation
came from the South African Constitution  and
proceeded to read out Sec 9(3) in which sexual
orientation  was a prohibited marker of
discrimination.
J. Shah responded by saying that, 'we don't have
the word pregnancy in our constitution and whether we
should not refer to pregnancy as a marker of non
discrimination because the word is not mentioned in
the Constitution ? Could we justify special
legislation for pregnant women on the basis of Art 15
protections ? If in the American Constitution , Fijian
Constitution the word sexual orientation was not
mentioned , did it preclude any argument based on
sexual orientation being advanced ?

The ASG conceded that women have a right of employment
and a right to equality.

The ASG then went on to cite  (2005) 6 SCC 281 , to
make the point that it was well settled that the mere
possibility of abuse of law did not make the provision
unconstitutional. The mere possibility of abuse of
power will not make it ultra vires and only the action
and not the section will be vulnerable.  The Court
only interprets the law and the Court cannot legislate
and if the law was misused it was up to the
legislature.  The ASG then handed over to the Court
four decisions which made the point that the
presumption of constitutionality was in favour of the
legislation.

The ASG then noted that he would like to read an
important case, Sakshi v. Union of India (2004) 5 SCC
518.  The ASG was asked to read the relevant part of
the judgment  which noted that a radically enlarged
meaning of sexual intercourse under Sec 376  may
violate Art 20 (1 ) ( no person can be charged
retroactively for an offence).

J. Shah wanted to know what the submission of the ASG
was on the point as the Sakshi judgment was on the
point of broadening the section to create new offences
?

The ASG submitted that the question was whether the
provision should be interpreted in this manner. It was
the same argument in this matter as the question was
one of interpretation.

J. Shah responded that the ASG should please try to
understand that the question before the Court here was
whether  the provision was void vis a vis consenting
adults.

The ASG went on to read the assertions of the ASG in
the Sakshi case to make the point that  no Court can
strike down a provision on the basis of an
international treaty.

J. Muralidhar made the point that what the ASG was
quoting was merely the arguments before the Court, the
Court in the Sakshi matter never pronounced  on the
matter cited by the ASG.

J. Muralidhar observed that  if there was a gap in the
enacted law, international law can be used as
interpretative tool to expand the scope of rights.  He
pointed out to Francis Coralie Mullin, where J.
Bhagwati  referred to and drew inspiration from the
judgement of the US Supreme Court in Munn. V. State of
Illinois.

J,. Shah agreed with the ASG's assertion that
international law cannot be used to strike down a
domestic law. And went on to observe that
international treaties, can be relied upon as tools to
interpret provisions in the Constitution.

The ASG asserted that the Court cannot make laws but
only interpret it.  He then went on to repeat his
reading of Kharak Singh where the judges had noted
that the harm complained of had to be tangible and not
mere personal sensitivities.

The ASG then referred to the judgment of Javed v.
State ( 2003) 8 SCC 369 , in which the Court had
upheld the law limiting the number of children any
person elected to the Panchayat could have  and had
observed that Art 21 did not encompass the right to
'procreate as many children as one pleases'. That
the right was to be read in the context of the
'menace of growing population which was judicially
noticed.

The ASG then  referred to  (2008) 2 SCC 254, to make
the point that the the rule which should guide  the
Court is that one should always presume in favour of
constitutionality. To doubt constitutional validity of
a law is to resolve it in terms of its validity.  The
Court is not concerned with the wisdom or unwisdom,
justice or injustice of law.

J. Shah observed that the decesion related to  a  law
which  does not violate fundamental rights  and if it
does not violate the fundamental rights , then the
Court cannot strike it down on the grounds that it is
unjust.

The ASG noted that the 'the fact that the
legislation could be better was not material for the
purposes of interpretation. It happened in South
Africa, Hong Kong  is not relevant. Whether the law
causes hardship cannot be a basis of its challenge.

J. Shah asked if when the right to health was
violated, whether that could be dismissed on the
ground of mere hardship ?

The ASG replied that you 'cant infringe others
fundamental rights to fulfil your rights. Society has
a right to good health as well'.

J. Shah noted that the  Court was not going to rely
upon the material the ASG produced and the Court had
asked the ASG to produce WHO Reports etc. He noted
that whether criminalization would stop HIV or not,
there was no material before the Court in terms of
scientific evidence.

The ASG  urged the Court to 'think further, if one
of the sources which causes HIV/AIDS – would it not
be increasing if every man on the street thinks its
permissible lets do it ?'

J. Shah asked if that was the case , why did the
Government in its own affidavit make the point that
Sec 377 had 'rarely been used against homosexual
activities'

The ASG replied that if a provision was there in the
statute books and not used for 150 years , should it
be struck down ?  He said that there is no fear of
prosecution, they have not been harmed.  They have
gone astray, they must be protected, should be
educated.

J. Shah observed that there were fifteen incidents
which were brought before the Court.

The ASG observed that 'their hardship is no ground
to violate the law'.  He went on to note that the
IPC is divided into various Chapters and sexual
offence come in the Sec 376 to Sec 377. The scheme of
the Act had to be taken into account. The scheme of
the Act is serious about punishing unnatural offences.
 If there is a change in Sec 377 many other laws would
have to change, for example the Hindu Marriage Act.

The Court rose with  J. Shah pointing out that the
matter could be resumed in the afternoon.
 The ASG submitted that he was busy and had many other
matters and could not continue in the afternoon. The
Counsel for BP Singhal was not present and expressed
through JACK's Counsel ,  his inability to make his
submissions in the afternoon. The Counsel for JACK on
being asked if he would be prepared to make his
submissions said that he would prefer to follow the
ASG.
The Court then asked the ASG as to let the Court know
how much time he wanted. The ASG said that he wanted
at least two days. The Court requested him to try and
finish by tomorrow and  to take a bit of time on
Monday. The Court proposed to hear both the
intervenors on Monday as well as the rejoinder so that
the hearings could be completed.  The next date of
hearing was fixed for 17.10.08