[Reader-list] day 10 of the Naz V UOI hearing

[Aarti Mundkur]

Day Ten of the Naz Hearings (20.10.08)

Just as the ASG began to continue his submissions , consul for the 
petitioners asked the Court as how much longer the arguments would 
continue. J. Shah said that they hoped the ASG would finish today and 
that on two other days , Nov 6 and Nov 7, 2008 the other respondents 
JACK and BP Singhal would address their arguments and the petitioner 
could do the rejoinder. With that the hearings would be completed.

The ASG continued by saying that for AIDS to spread there were three 
causes, man to man , man to woman and through blood and that man to 
woman sex can never be stopped. Only thing is that we have to educate 
persons who are indulging in unprotected sex, be it man to man or man to 
woman.

J. Shah responded by asking if the ASG meant that education about safer 
sex was required ?

The ASG responded by saying that ‘permitting it would mean giving 
sanction to it, people would freely indulge in it.’ Between man and wife 
its one person one partner in normal circumstances. Those who indulge in 
abnormal sex have a larger number of partners. Their partners keep 
changing and each subsequent act increases the chances of it. By all 
canons, disastrous diseases should be prevented. Consent has no meaning. 
These are the consequences. Just because a person has consented to die 
is no ground.

The ASG then referred to Art 15 and began to read it. J. Shah said that 
Art 15 cannot be invoked unless we accept the word sex includes sexual 
orientation.

The ASG submitted that ‘our constitution does not talk about sexual 
orientation’. Large number of people are doing these things and Art 15 
does not help in anyway.

The ASG then proceeded to read Art 19 and the written submission of the 
petitioner. He contended that the arguments of the petitioner that Sec 
377 violated the right to freedom of expression was not right. The ASG 
noted that freedom of expression means that they are able to express 
their views. That is permitted. It does not mean that act become legal. 
They can canvass their opinion before parliament, just as opposing 
parties are also canvassing their opinions. The ASG contended that it is 
wrong to say that the Section produces a culture of silence around these 
issues as ‘they are expressing it here and can express elsewhere’. ‘One 
can certainly argue against this section, and it is permitted through 
the mode of speech. They have had conferences, processions, meetings, 
parades- does this violate fundamental rights ? Is there a fundamental 
right to indulge in these kinds of activities?’ The ASG then proceeded 
to cite , (19992) 3 SCC 637 and (1995) 2 SCC 161 and said that these 
judgments are about the freedom of speech and expression and how it 
includes the right to receive information and how they have no relevance 
at all to Sec 377.

The ASG repeated that ‘you can express your views. There is no 
controversy. You are permitted to say that Sec 377 should be deleted. 
How is it hit by Art 19(1)?

J. Shah noted that these judgments were well known judgements and were 
relied upon for the limited purpose of showing the extent and scope of 
Art 19(1) and that he had nothing further to say if the ASG insisted on 
reading them.

Referring to the second judgment (19995) 2 SCC 162 , the Cricket 
Association of Bengal case, the ASG noted that in that case the Court 
had to balance the rights of broadcasters versus the rights of citizens. 
Similarly in this case the Court would have to balance the rights. When 
as per NACO affidavit more than ‘99.7 % do not indulge , and they are 
not suffering, they have a right to be informed. Inform them that this 
has bad effects, leads to death etc’

J. Shah responded by saying that as per the WHO homosexuality was not a 
disease.

ASG replied that , while homosexuality was not a disease it was a main 
cause of disease. What is required is education, treatment for them. 
They cannot claim that a law is unconstitutional merely because they 
suffer some hardship

J. Shah said that the argument was not about hardship, it was about how 
the law was used by the police to harass.

The ASG responded by saying that the answer lies in the Union of India’s 
affidavit.

J. Shah said that we drew your attention to it, and why is the law 
required when nobody has been prosecuted ?

The ASG responded by saying that ‘if the law goes, everybody on the 
street will be doing it and it will spread like anything. If permitted 
it will have disastrous effects’

The ASG proceeded to conclude that the arguments of the petitioner under 
Art 19 did not advance the cause of the petitioner any further.

The ASG then proceeded to read the arguments of the respondent Voices 
Against Sec 377 on freedom of expression, that Sec 377 connoted a 
structural limitation to the free exercise of ones opinions in a 
meaningful manner. He also read , that freedom of expression was 
important for self fulfilment and free conscience. He further read that, 
‘Sec 377 IPC by criminalizing homosexual acts has a chilling effect on 
the free speech and expression of LGBT persons. The shadow of 
criminality cast by Section 377 curtails a free and frank discussion on 
issues of sexuality, which enables people to publicly own their 
identity. Whereas, wearing religious symbols or other markers of one’s 
identity is a public expression something that is essential to one’s 
identity and is protected by the law, section 377 does not allow sexual 
minorities to openly express their sexuality, an aspect that is 
intrinsic to whom they are, and is hence in violation of their right to 
expression.

The real test for Freedom of Speech and Expression lies in its ability 
to enable speech that may challenge popular opinions. Section 377 serves 
to criminalise expression of minorities which may challenge dominant 
opinions. Section 377 prevent sexual minorities to effectively take part 
in any democratic society that is based on equality and social justice.;’

The ASG contended that ‘expression of ones opinions is one thing, but to 
say that the commission of these acts is hit by Art 19 is wrong. 
Expression of opinion is not an offence, only commission of an act is an 
offence’.

The ASG went on to note that ‘law is what society feels to be immoral. 
Public opinion is the law. Three law Commission Reports have held that 
Sec 377 is to be retained.
J. Shah interjected to say that the LCI report in 2000 suggests that Sec 
376 be reformulated and that Sec 377 be deleted.

The ASG responded and said that he will read the LCI Report of 2000.

J. Shah responded that we have read it and that ‘we will not ask you a 
single question, please proceed to read it.’

The ASG then proceeded to refer to Bowers and Lawrence’s case and said 
that in both cases there were strong divergent opinions. There is also a 
lot of difference between our Constitution and the American 
Constitution. He began to read J. Scalias dissenting judgment and then 
said that it was a long judgement and based on a suggestion by J. Shah 
agreed to mark relevant parts and place it before the Court.

The ASG then submitted that under The VII schedule of the Constitution, 
criminal law including the IPC was in the concurrent list. Since the 
various states which had made many amendments to the criminal laws had 
not amended Sec 377 and Sec 377 remained a statutory provision on the 
books. Since 1860 even after the coming into force of the Constitution, 
no state has thought of amending it because it affects public morality 
and health. States know the needs of the people and none so far as 
amended Sec 377. ‘It leads to perverse thought, perverse ideas and it is 
a perversity.’

The ASG then contended that we have to ‘think more of the other 
sections, marriage laws will have to be amended’. Sec 13(i) on grounds 
of divorce will have to be changed.

J. Shah wanted to know since the ASG submitted that ‘you cant stop 
relations between a man and a woman’ how decriminalizing sex between 
consenting adults would have the effect of changing the law of divorce. 
He observed that this was not relevant and even assuming it was, 
decriminalisation would have no effect on the divorce laws.

The ASG then noted that consent with respect to transfer of organs under 
the Tranfer of Organs Act was prohibited. One cannot willingly give 
kidneys to another person.

J. Shah observed that was a different situation at which point the ASG 
said that ‘if it did not find favour with his Lordship’ he would not 
continue with that submission.

Referring to notions of decency and morality the ASG noted that , ‘ in 
our country it is immoral on the face of it. Society has a fundamental 
right to save itself from AID’s. This right is far greater than any 
right of the less than 1% who are in this programme. The health of 
society should be considered and it is the greatest health hazard for 
this country. If permitted it is bound to have enormous impact on 
society as young people will then say that the High Court has permitted it.’

J. Shah observed that ‘we are still hearing the matter and are yet to 
decide the matter and you are speaking like we have already decided’

The ASG then apologized if he had given that impression and proceeded to 
read a judgment on the minimum wages legislation to make the point that 
consent was not always relevant particularly when it came to a question 
of workers agreeing to take wages lesser than the prescribed minimum 
wage, as maintenance of health and decency guided the Court decision.

The ASG then repeated his submission that hardship cannot be a ground of 
decrminalization. He then repeated his submissions on how AID’s would 
spread with decriminalisation. The ASG then proceeded to give a 
compilation of material to the Court and proceeded to read from it.

He relied upon the material which included a UNAID’s 2008 Report on the 
Global AID’s epidemic and a study of HIV and AIDs by Vinod Sharma and 
quoted from it extensively to make the point that homosexual sex in the 
primary driver of the AID’s epidemic. The ASG noted that anal sex has 
the highest risk for the receptive partner. He said that ‘in sex with a 
male, chances of blood oozing out from the anus are higher as nature has 
defined the vagina and the rectum diffeently.’ He said that the rate of 
partner change will mean that the disease will spread more.

The ASG then read statistics from around the world from the UNAIDs 
Report to make the case that though HIV spread through MSM, IDU and 
Sexworkers the major mode of spread was MSM. He referred to figures from 
Mexico, Carribean, Peru, Eastern Europe, America and Germany. When he 
referred to Egypt as well in the same light, J. Shah interrupted to note 
that the figures from Egypt was inspite of the country having some very 
strict laws .

J. Shah noted that these figures were seen by the Court and indicated 
that the ASG should move on.

When the ASG insisted on continuing to read, J. Shah requested him to 
read a specific part of the Report which made the point that, among the 
factors for the spread of HIV was unprotected sex, multiple sex 
partners, injecting drug users and factors which aided the spread 
included lack of knowledge, societal factors such as human rights 
violations and sociocultural norms. Sociocultural norms stigmatised 
certain populations and limited their ability to access HIV prevention.

The ASG responded by saying that ‘every citizen was not aware of this 
and persons should know that he will suffer if he has sex with him. 
Prevention is better than cure.’

The ASG was then asked to read the portion from the Report which made 
the point that the global HIV epidemic cannot be reversed unless a 
majority of MSM’s, IDU’s are reached. He was also asked to read the part 
which made the point that, prevention programmes will not be effective 
unless supported by programmes which address social factors and the 
marginalization of people most at risk. MSM face a disproportionate risk 
in diverse settings and yet they are seriously underserved by HIVservices.

Counsel for the petitioners interjected to state that an important part 
of the Report was the commitments undertaken by each country in the UN 
General Assembly Special Session (UNGASS ) on HIV/ AIDs. Counsel 
stressed that these were commitments undertaken by each country, not 
externally imposed which made the point that countries recognized that 
laws targeting MSM’s prevented programes on HIV/Aids from being successful.
Counsel for the petitioners went on to point out that the study also 
referred to the Sonagachi model or the community empowerment model as 
key to fighting HIV/AIDS.

When the ASG was asked by J. Shah if he was done with the compilation, 
he said that he would like to read from the annexures. He read figures 
on death from AID’s in India, no of people who were HIV positive , 
number of orphans due to AIDs. The response of the Bench to each of 
these submissions was a laconic yes.

The ASG then went on to state that it had taken him six days to come to 
the conclusion that MSM sex causes AID’s. He said that society should be 
educated and they have a right to save themselves. There is the right of 
99.7% to have a healthy life. You cannot have a right over another 
persons right to life with dignity. You have a right to live away from 
disease. The ASG then concluded his submissions.

J. Shah summarized the ASG’s submissions as covering the grounds that 
there was no right of privacy in the Indian Constitution and if there 
was a right to privacy it can be curtailed on the grounds of a larger 
morality or the rights of society. Art 14 is applicable to all and does 
not target a particular class, Art 15 the word sex does not include 
sexual orientation. If the bar on consensual sex between same sex adults 
is lifted, even if the provision is not used, it is a moral code. It 
creates fear in the minds of people which will go if removed. If the 
provision goes then this conduct will spread and this will lead to more 
spread of diseases. Right to health as a part of Art 21 should also 
consider the health of society.

Counsel for BP Singhal , R- 7, Mr. H.P. Sharma then began his submissions.

Mr. Sharma began by saying that the word carnal referred to flesh and 
what it meant when used in the IPC was fleshy intercourse be it oral or 
anal or whatever.

J. Muralidhar then asked counsel who he was representing

Mr Sharma said that he was representing B.P.Singhal.

J. Muralidhar then asked , who was BP Singhal

Mr Sharma replied that he was a social worker and he was representing 
the matter so that the majority view could be there.

Mr. Sharma continued his submissions by stating that against nature 
meant that it was unnatural, immoral and irrational. When it is a social 
evil then there is no question of consent. He then referred to an 
article by Dr. Diggs on how sex between men was linked to HIV.

J. Shah responded by saying that place anything before us but not Dr Diggs.

Counsel for the petitioner submitted that Dr. Diggs was a part of a 
religious network called the Traditional Values Foundation.

When counsel for R-6 sought to rely upon another Dr. Lepak, J. Shah 
asked the question of whether this was research and that counsel could 
rely upon a government source, UN body, but not rely upon these materials.

Consel then proceeded to read the NACO affidavit to make the point that 
only 36% used condoms and that 64% did not use condoms. Further they did 
it at public places , had multiple partners and were not faithful.

J. Shah asked counsel to address arguments on constitutional grounds 
like Art 14, 19 or 21.

Counsel continued his submissions to note that on a reading of the NACO 
affidavit , HIV is one part and homosexuality is another part. If 
Homosexuality was allowed, there was a chance of epidemic of HIV. If 64% 
do not use condoms and surrender to the disease then they cant come to 
court and say legalize it.

He went on to submit that he would like to support the affidavit of the 
Ministry of Home. If man is married and wife is sitting at home, then 
what will happen to her ? If you allow this on grounds of two consenting 
adults then, brother sister marriage should be allowed. Gambling, 
adultery should be allowed.

J. Shah interjected to say that ‘you are missing the point, it is not 
about the lawfulness of marriage.’

Counsel for R7 submitted that he was on morality, the joint family 
structure and that we must not import evils from the west. We have 
traditional values and we must go by that. It would affect the 
institution of marriage and if women get doubt about what their husbands 
are doing, there will be a flood of cases of divorce.

He then read the Sakshi case to contend that you cannot judicially 
interpret a statute to include all forms of penetration and further the 
Sakshi judgment had laid down that the South African judgment could not 
be used.

J. Shah noted that the judgment was a different one from what was relied 
upon by the petitioners and asked counsel if he was contending that no 
foreign judgement could be relied upon ?

Counsel contended that that was his submission

J. Shah noted that there were hundreds of judgments of the Supreme Court 
which had cited authorities from other countries. He also noted that 
Sakshi was about adding words to the statute, not deleting words.

Counsel for R 6 submitted that ‘if you cant add , you cant delete.’ He 
went on to add that Sec 498 A was challenged , Sec 302 was challenged 
and all these provisions were still on the statute book.

He then went on the read from 2004 Cri.L.J 310 , to make the point that 
we should not blindly follow British parliament and the Wolfenden 
Committee Report. The judgment referred to HLA Hart’s , Law liberty and 
Morals and J. Shah asked Counsel to produce the same.

He went on to submit that the test was what an ordinary man would have 
done under criminal law. It is a common sense test. He drew an analogy 
to Sec 40 of Cr.P.C which referred to unnatural death to make the point 
that it means irrational, illogical and therefore Sec 377 referred to 
sex which was irrational and illogical.

He went on to note that what would happen to the country in 2100 if 
there was this indulging in homosexuality as the sex ratio would change.

J. Shah asked according to your Hindu orthodox opinion what was the 
reason for the sex ratio being skewed in favour of men ?

Counsel for R-7 submitted that it was a social evil. One should worship 
girls. No sensible person can kill a child. Abortion should not be 
allowed. The social evil is that a girl is an unwanted child. He further 
added that it was poverty, which resulted in this social evil.
J. Shah pointed out that even in well off families there are studies, 
which show that there is 100% termination of foetuses when parents come 
to know that it is a girl child.

Counsel for R-7 submitted that socio-economic factors, dowry, 
illegitmate children, very unpious sex outside marriage is a ground.

J. Shah asked Counsel for R-7 to restrict his arguments to law and asked 
him to refrain from political arguments.

The Court rose and the matter was posted for the 6^th and 7^th November, 
2008.


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