[Reader-list] Day six of Sec 377 hearings before Delhi HC

[Lawrence Liang]

From: arvind narrain <arvindnarrain at hotmail.com>


  Day six of Naz hearings (30.09.08)

The ASG,  PP Malhotra continued his submissions on behalf of the Union of
India by stating that as per NACO's affidavit 8% of the MSM population was
infected by HIV, whereas  HIV prevalence among the general population was
only 1%. Presently 6% of the infected population of MSM is being covered by
NACO interventions. The ASG read this out to  make the point that the main
cause for the disease was homosexuality.

To which J. Shah asked if it was his submission that the removal of Sec 377
would create a  health hazard. .

The ASG  responded by saying that if homosexuality was decriminalized it
would result in a health hazard to society.

Moving on the ASG referred to two  judgements on privacy ( Kharak Singh and
Govind  ) to make the point that the right to privacy was not absolute and
could be restricted by any valid law. His point was that the right to
privacy under Art 21 could not be invoked as long as there was a valid law.

J. Shah asked the ASG if this position (that one cannot question
constitutionality of a statute as long as the legislature had validly
enacted it) was valid as the law had changed post the decision in  Menaka
Gandhi ?

The ASG contended that the decision in Menaka Gandhi related to a passport
issue and sought to distinguish it on facts.

He went on to state that  the question was about the extent  of the right to
privacy and whether a man had a right to do any act, which is an offence.

He went on to read Govind v. State to make the point that if regulations are
framed in accordance with law , as it was in the case of Govind it will be
upheld.. Validly enacted law ( Police regulations authorizing surveillance
in the case of Govind) will be upheld as it will not be  violative of Art
21.

The ASG then went on to reiterate his point that when there is an 'apparent
conflict between the right to privacy of the person and the interest of
general public and society that this disease is not spread. Homosexuality is
one of the causes, which affects this disease. If this is allowed what will
happen ? There will be more sex and the disease will be spreading. He noted
that he no objection to condoms being supplied as that was a precaution, but
it must not be made legal. The law is clear and need not be read down.'

When the ASG was asked by the Bench as to whether  the right to health was a
part of the right to life under Art 21 he stated that yes , but not only the
right to health of those affected but also society. Finally the ASG conceded
that the right to health was included under Art 21. However he continued to
stress that the right to  health also included the right to health of others
as well.

J. Shah posed the hypothetical question as to whether a law which
discriminated against HIV positive people by denying them employment and
isolating them would be valid ?

The ASG's response was that no law is abstract and this right cannot be
absolute. One has to see if other person's rights are affected. He went on
to note that the Supreme Court had said that it was a moral perversity.
Tomorrow you will say that you have a right and exercise it in the road.  We
have to see limits, see other men's rights as well and balance rights.

Speaking particularly of Lucy v. State of Bombay,(1990). Shah noted that the
judgement ( which upheld the validity of a Goa law allowing for isolation of
HIV/AIDS patients ) was, though not over ruled, outdated. He noted that
Indian Law Institute had a seminar in 1994 after the judgement which was
attended by numerous experts. Following this one can say that the law was
never implemented inspite of eleven years having passed.

The ASG speculated that perhaps at that time one was not aware that this
disease spread through blood, sex etc..

J.Shah noted that the ASG was relying on these judgements to show that AID's
was transmitted through homosexual sex. "However on affidavit you are silent
on whether non-criminalization would lead to spread of HIV/AIDS. There is
not a word on this. In fact the NACO affidavit says the exact opposite.
Where do you get this point that de-criminalization would result in the
spread of HIV/AID's. Show us some study, research on this point, surely we
can't rely on your word alone. In fact the consensus around the world is
that criminalization will drive HIV underground….The judgement you rely on (
Vijaya v. Chairman SCCL )  AIR 2001 AP 502,  upholds the validity of
mandatory testing in the case of HIV/AIDS , but the Union of India has
inspite of the judgement not made testing mandatory…You have to place some
material to show that criminalization will stop HIV. In fact what flows from
your argument is that we should not have HIV at all because we have Sec
377".

The ASG went on to read some more judgements to make the point that the
right to privacy was not absolute. He then went on to refer to the Gian Kaur
judgment in which the Supreme Court held that the right to life did not
include the right to die. He referenced some quotations from the judgment to
make the point that global debates and Law Commission India recommendations
will be insufficient to strike down a law.

The ASG was repeatedly asked by J. Shah as to whether that was the sum and
substance of his Art 21 arguments. Whether he would make an argument on
public morality as a justification for limiting Art 21 rights and also
whether he would address the question of dignity. J. Muralidhar made the
point that the other party had made a very strong oral submission as well as
written submission that Sec 377 violated  the right to life with dignity and
the ASG had not addressed that limb of the Art 21 question. Dignity formed a
part of the Preamble as well as UDHR. The ASG was also asked to address the
Court on the question of whether sex in Art 15 and Art 16 included sexual
orientation.

The ASG while assuring the Court that he would address the Court on those
points went on to make submissions on the interpretation of Sec 377. He said
the question under this provision was not whether intercourse was with
consent or not but was whether it was against the order of nature.  'He said
that nature had devised scientific methods. You breath through your nose,
eat through your mouth. Similarly order of nature would mean that
intercourse should be in the place specified by nature in all human
relationships even among animals. The phrase order of nature means that if a
man wants to have intercourse with a woman, the place is specified.'

J. Shah asked the ASG to please address the Court on the Constitutionality
of Sec 377 and to leave aside the question of interpretation of the meaning
of Sec 377 as that question was not before the Court.

The Court rose and J. Shah proposed that if tomorrow was a holiday , the
Court could sit the whole day and finish hearing the matter or if it was not
a holiday could be heard for half a day. The ASG made the cryptic suggestion
that 'man was a social animal' and that he would prefer not to sit on a
holiday. J. Shah noted that there was a perception that the Court had many
holidays and if the ASG did not wish to sit, and tomorrow was a holiday,
then the Court would recommence hearing on Friday. Otherwise the Court will
continue hearing the matter tomorrow morning.


arvnd and mayur











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