[Reader-list] Sec.377 case- Proceedings of Day 4 (September 26th)

[Lawrence Liang]

From: siddharth narrain <siddharth.narrain at gmail.com>


*377 case- Proceedings of Day 4 (Central Government's arguments begin)*

Day 4 of the proceedings in the Naz case began with the Additional Solicitor
General P.P. Malhotra's arguments for the Central Government.  He began by
referring to Sakshi judgment and said that sexual offences constitute an
"altogether different crime that are the result of a "perverse mind".  The
judges (Chief Justice A.P. Shah and Justice S. Muralidhar) reminded him that
the Sakshi case dealt with the rape of a one and a half year old child.

Justice Muralidhar interrupted Mr. Malhotra, and asked him to make the
Central Government's stand clear. "The government's stand is the same as in
its affidavits."

Justice Mularidhar said that when two Ministries of the government were
speaking in different voices, it is possible that the government chooses not
to file a counter affidavit.

"What is the stand of the Central Government?" Chief Justice Shah asked once
more.

"The stand of the government is that 377 is valid", replied Malhotra.

"Are you saying that 377 is valid as a whole, even for consenting adults"
asked Chief Justice Shah.

"That makes no difference", replied Malhotra, reminding the court about
Justice Pasayat's observations in an Orissa High Court judgment.

"It is not their (the petitioners) case that this section won't apply to
violent or non consensual acts. Their arguments are related to consenting
adults in private. If there is a Supreme Court judgment to this effect, then
it is relevant, " said Justice Muralidhar.

"The Supreme Court has said that it is a perversity of mind. Justice
Pasayat, while he was in the Orissa High Court (Mihir v State of Orissa) has
said that consent or no consent, it did not matter," replied Malhotra. He
then read from the text of the judgment. "The offence is one under section
377 of the IPC, which implies sexual perversity. No force appears to have
been used…neither notions of a permissive society nor the fact that in some
countries homosexuality has ceased to be an offence, has influenced our
thinking."

"This case deals with a young boy, where there is no consent", pointed out
Chief Justice Shah.

"The question is whether this section makes it an offence irrespective of
age", said Malhotra.

"Then you are saying that this line throws out the entire question of
constitutional validity," asked Chief Justice Shah. "I'm sorry. This section
applies to consenting adults, and there are a number of arguments that this
is in violation of Article 21 etc" he said.

"This arguments is being raised because there are many people of 'that kind'
in society, said Malhotra.  "People are indulging in it, and they should be
excused because they are consenting adults?" he asked.

"There is no question of being excused", Chief Justice Shah remarked
sharply. "The argument is that Article 21 is being violated".

Malhotra then referred to Mihir v State of Orissa (Justice Pasayat's
decision) . "..Unnatural carnal intercourse is abhorrent to civilized
society. It is recognized as a crime and punishable with a strict sentence.
Unlike rape under section 376, consent of the victim is immaterial." "Age is
also immaterial" added Malhotra.

"The judge was construing the section (377) as it is. This section is now
being challenged," said Chief Justice Shah.

"I am only pointing out that the courts have taken the view that this act is
abhorrent to society.  The Pasayat judgment says that even if consent is
given, it is immaterial," said Malhotra.

"You yourself know that these are observations of the court and are not the
ratio of the case", said Justice Muralidhar.

"I confine myself to the observations of the court. The view of the court is
that it is abhorrent to society," said Malhotra.

"This is a 1983 decision. Much water has flown since then," remarked Chief
Justice Shah.

"My lord, nothing has flown in India since then," quipped Malhotra.

"Look at both your affidavits", said Chief Justice Shah.

"The Ministry of Health's concern is about the health of the person. The
Home Ministry's concern is law and order. I am not saying that the states
should be made party, but law and order is a state subject," said Malhotra.

"This is about the right to live with dignity," remarked Chief Justice Shah

"The dignity of society needs to be seen too," replied Malhotra

"Then argue that point. Don't reduce this petition to one line. Take this
issue seriously," said Chief Justice Shah.

"I fully agree that this is a serious issue and requires serious
consideration," said Malhotra.

Malhotra argued that the rule of strict construction had to be applied to
penal statutes. "No person can license another to commit a crime, if the act
has a tendency to effect breach of peace," said Malhotra.

Chief Justice Shah said "So your arguments are that 1) it may create breach
of peace and 2) it affects public morals

'I will show that this (reading down 377) will increase the chances of evil
sought to be avoided. i.e. the evil of HIV/AIDS. There will be more people
of this nature in society," said Malhotra. This will lead to harm in
society.

Chief Justice Shah summed up Malhotra's arguments again 1) It will degrade
moral values 2) It will cause a health hazard to society 3) It will be a
detriment to the health of subjects
Malhotra then referred to a Full Bench decision of the A.P. High Court.

"That was a case of taking consent for mandatory testing", said Chief
Justice Shah. "There is still no bar on males having sexual intercourse with
females," he said.

"That is because our moral values require one man and one woman, his wife,"
said Malhotra.

"If a man contracts HIV and goes to 5 men and 5 women, he will spread it",
said Chief Justice Shah.  What is material is for you to show that the
existence of section 377 will act as a deterrent to such a man", he said.

"If there is no prosecution for consensual homosexual sex, why should it be
read, down?" asked Malhotra.

"Criminalization carries with it stigma", interjected Chief Justice Shah

"In the understanding of the Central Government, is there a category of MSM.
Has this population grown in the last few years? Does NACO have this data?",
asked Justice Muralidhar. Factually, is the government of India aware of the
MSM population in the country?"

"NACO has surveyed it", replied Malhotra.

"You are saying non-criminalization of homosexuality could lead to
encouraging homosexuality and consequently increasing incidence of HIV/AIDS.
For that , do you have any data?," asked Shah.

"I will read from the judgment.." said Malhotra

"We are on facts", pointed out Chief Justice Shah.

"If a man is having sex with one woman, it is confined there. It can't be
transmitted to others," said Malhotra. "We need to stop this vehicle
(homosexual sex)", he said.

'How does this lead to a breach of peace?", asked Shah.

"The police can't be in the house of everybody. The so-called consenting
adult may be bold etc, but isn't this more painful?  There is no data on
this," said Malhotra.

"There is data", said Shah

"The date is on what is happening in America. We are not concerned with
that," said Malhotra.

Chief Justice Shah then pointed out that the government's affidavit dealt
with deletion of 377 while the petitioner's prayer was only reading down.

"If this permitted in the case of consenting adults, it is arbitrary again.
It is discriminatory. Giving this kind of permission will cause great harm
and prejudice to society," said Malhotra.

 "They have not shown one case where there has been a prosecution under
377," he said.

"Mostly they are not prosecuted,' remarked Chief Justice Shah.

"377 is not violative of Article 14 or 15 of the Constitution. 377 is
primarily used to prosecute child sexual abuse, and is used to bridge the
lacunae in rape laws, and is not used to prosecute homosexuality," said
Malhotra.

"This is also their argument. They are also making the distinction between
acts without consent and child sexual abuse and consenting adults," pointed
out Justice Muralidhar.
"If the court gives this kind of interpretation that it is permissible, it
will create havoc in society," said Malhotra. He talked about reasonable
restrictions in the constitution. Malhotra referred to the decision in Lucy
v State of Goa but was told by the judges that this judgment had been
criticized widely.

Justice Muralidhar then asked the Additional Solicitor General about the
NACO affidavit, which categorically states that criminalizing homosexuality
will affect access to treatment.
"The numbers will increase. Will multiply. When there is law there will be
fear, otherwise there will be no fear at all," said Malhotra.

"People are afraid of reporting that they are HIV positive because of the
law", said Justice Muralidhar.

"We have opened many centers for this purpose", said Malhotra

"The Health Ministry's (NACO) affidavit is very clear," said Chief Justice
Shah.

Malhotra then relied on the 42nd and 156th Law Commission Reports, to show
that section 377 should be retained as Indian society by and large
disapproves of homosexuality.

The judges pointed out that the 172nd Law Commission Report (the latest on
the subject) recommends that the government enact a separate legislation to
deal with child sexual abuse and delete section 377.

'One may be willing to commit any crime. One may call a person to one's
house, beat him, or commit murder and say it was with consent and in
private. An offence is an offence. Consent is immaterial," said Malhotra.

Malhotra argued that criminal law has to address public morality and issues
of harm to society.  He said the legal concept of crime depends on moral and
political considerations, and that criminal law reflected shifts and changes
in morality.  He said that since the IPC had been enacted, crimes like child
marriage , dowry and widow remarriage had been brought under the scope of
criminal law. Justice Muralidhar pointed out that widow remarriage was not a
crime.  He berated the government for submitting the affidavit with this
line.

"If we don't react strongly, everything will be tolerated. The whole
paragraph is about morality. It just shows how serious the gentleman (from
the government ) is in answering a notice from the High Court on such a
serious issue," he remarked.

Justice Muralidhar asked if the government's affidavit actually said that
incidence of HIV/AIDS would increase if 377 is read down, or if it was only
in the government's oral submissions.  "The affidavit of the Central
government has not said that there will be a greater risk in spreading
HIV/AIDS said Justice Muralidhar.

"The court can't be oblivious to natural phenomena and natural facts", said
Malhotra.

Chief Justice Shah , referring to the NACO affidavit said that the
government's own affidavit said that people living with HIV/AIDS would be
pushed underground.

Malhotra pointed to a different paragraph in the affidavit that referred to
the need for a change in lifestyle, avoiding multiple sexual partners to
reduce risk of HIV/AIDS.

Chief Justice Shah said, "Do you stand by para 5 (which stated that people
living with HIV/AIDS would be pushed underground because of 377) of the
affidavit?

"It is a government affidavit. I can't say I don't stand by it," replied
Malhotra. He said that the affidavit says there is a need to prevent AIDS,
encourage education programmes and motivate safer sex, i.e. sex with one
partner

'Partner could mean male or female", said Chief Justice Shah.

"Male to male (sex) is neither known to nature, nor known to law," said
Malhotra. He pointed out that the incidence of HIV/AIDS is 8 per cent in the
MSM population as compared to less than 1 per cent among heterosexuals.
"What the petitioner is saying is, permit this 8 per cent to grow", said
Malhotra.

"The NACO affidavit says 377 has an adverse impact on safe sex programmes, "
pointed out Chief Justice Shah.

"The state cannot be told not to take any action," said Malhotra. They can
be advised, "Kindly consider how dangerous it is".

"Please read the whole affidavit," said Chief Justice Shah. "There is no
averment that deletion of 377 would spread HIV/AIDS"

"The National Sentinel Survey data shows that 6 per cent of the MSM
population are already covered by the government's programmes. That leaves 2
per cent. They can also be covered through education etc. That would be the
proper direction, rather than to say this should be permitted."

Malhotra then read out the contents of section 377. He then explained what
'against the order of nature' meant, "..for intercourse, nature has
specified a place. That place is scientifically designed by nature. If it is
done at that place, probably there is no injury, or if there is an injury,
it is of minor nature." He said that the emphasis was on the act. '..This
should be done at a place, at a point designed by nature for that purpose,
and if you do it otherwise, it is treated as an offence,", he said.

Malhotra then referred to an AP high Court judgment delivered by Justice
Sinha, when asked by Chief Justice Shah on the relevance of this decision,
Malhotra said, "AIDS spreads through homosexuals. This is a recognized
fact."

Justice Muralidhar said," There are several major routes of infection".

"Does it (the AP judgment) say Section 377 should be retained?", asked Chief
Justice Shah.

"Portions of the judgment say how AIDS is spreading", said Malhotra. He said
that the first case HIV was reported in 1986 in India and extra marital sex
was the primary mode through which is spread.

"This could be man to man or man to woman", said Chief Justice Shah.

Normal sex is from man to woman and not man-to-man said Malhotra.

Malhotra then referred to Article 21 and reasonable restrictions on freedom.
He referred to the M.P Sharma case, which talked about search and seizure
provisions and Article 20. He said that the powers of search and seizure are
the over riding powers of the State and the Constitution makers chose not to
submit this to limitations. He argued that the right to privacy is not
implicit in Article 21.

 "The argument is that they are scared to go there etc. They are free to go
anywhere. No one is stopping them. It is mere personal sensitiveness. If a
man needs to go the doctor who is stopping him?", said Malhotra.

"The Petitioners case is backed by substantial material", said Chief Justice
Shah.

Malhotra referred to the Kharak Singh saying- "They are arguing- it is a
stigma on me, I can't go anywhere. How would a man get this infection? I am
condemning the man. But there is no need to be sensitive to this. They can
go the doctor. The law cannot be read down or declared invalid because they
are sensitive. There is no doubt about the plight of these people, but to
say that the law should be declared invalid is not enough. The effect of the
law has to be direct and tangible and mere sensitiveness is not enough."

The Government of India will resume its arguments on Monday the 29th of
September 2008.

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