[Reader-list] Day 5 of the 377 Hearing

[Lawrence Liang]

dear all,
minutes of the Naz case challenging the validity of
Sec 377


The matter came up only twenty  minutes before the
Court was due to rise. In the short time the Mr. P.P.
Malhotra, (Additonal Solicitor General)  made the
following submissions for the Union of India
Firstly, that the 172 Law Commission Report
recommended certain changes in rape law and it was
only if these changes could be effectuated that  Sec
377 could be deleted.  He was questioned by the judges
as to whether his position was that the Court was
bound to follow the recommendations of the Law
Commission. Justice Shah noted that the Law
Commission's opinion had changed since its earlier
Reports and that the Court was not bound by the law
commissions recommendations and can still examine the
Constitutionality of a statute regardless of what the
Law Commission held. The Law Commission's
recommendations was one of the factors which the Court
would consider but was not a determining factor.

Secondly, the ASG by reference to three Supreme Court
judgements made the point that the Court cannot speak
for parliament and can only hold  what parliament has
already stated.. No act of parliament can be struck
down because of a misunderstanding of the statute by
the Court.. Judges cannot make law but only interpret
it.  The law is clear, the will of parliament is the
will of the people.

Thirdly, the ASG made submission  related to the
affidavits filed by NACO. His point was that NACO
might say or anybody might say that there are 25 lakh
people(MSM), but the Court was not bound by statements
by any party be it NACO or anybody else. The Court's
role was to interpret the Constitutional validity of
the statute and the affidavit was of no value in this
regard.
J. Shah's response was to say that while he
appreciated the point of the role of the Court being
to adjudicate Constitutional validity, but the Court
could not make up its mind in the abstract. The
determination of Constitutional validity had to be
based on some material.  For example to decide if Sec
377 violates the right to health implicit in Art 21
the Court will have to examine if crminalization of
homosexuality results in a denial of the right to
health.
The ASG countered by saying that the right to health
of a few cannot mean that you make society unhealthy
as others too have a right to a live a healthy life.
J. Shah responded by saying that the state will have
to show material to make the point that
criminalization protects health. If the health of
other parts of society was affected then the Court may
 have to balance interests.
J.Shah then referred to the minority opinion in
Lawrence v. Texas and noted that the minorities
viewpoint on whether the Texas statute should be
struck down was that it was not necessary to read the
Wolfenden Report…..
Before J. Shah could finish, the ASG interjected to
say that the social circumstances, moral standards
were very different here and the Court would have to
consider that. The ASG further argued that people from
the West came to India for our high moral standards.
The matter was then posted for tomorrow morning when
the ASG would continue his arguments.

Mayur and Arvind.