1st October 2008
On behalf of the Government of India, Additional Solicitor General (ASG) – PP Malhotra continued to defend Section 377 of the Indian Penal Code, 1860 which criminalizes adult, consensual non-penile vaginal sex on 1st October 2008 in Naz Foundation (India) Trust v. Government of NCT, Delhi and Others, Writ Petition (Civil) No. 7455 of 2001, before a division bench of Chief Justice A.P Shah and Justice Murlidharan of the Delhi High Court
Below is a summary of the day’s proceedings:
Retracting from his earlier submission, the ASG conceded that a validly enacted law could be assailed for being violative of Article 21. He, however, argued that the constitutional test of fairness is with respect to procedure only. The Bench rejected his contention and asserted that a law must be fair, just and reasonable in both substance and procedure. The Chief Justice clarified that the petitioner has not attacked criminal procedure but the import of Section 377 that penalizes sex between men. The Bench also affirmed that fundamental rights under Articles 14, 19 and 21 of the Constitution are interconnected and are not to be examined “in compartments”. This exchange lasted over one hour.
Next, the ASG sought to counter written submissions filed by the petitioner.
India does not recognise “sexual minorities”.
The ASG argued that the terms sexual minorities and sexual orientation are not recognized in the Indian Constitution. The latter, he said, is incorporated in the South African constitution, which has no application in Indian courts. The Bench responded that its concern is not terminology but alleged contravention of rights of a section of the population. The Chief Justice further asked the ASG to reply to the petitioner’s submission that the term “sex” in Article 15 also includes sexual orientation as held in Toonen v. Australia, No. 488/1992, CCPR/C/50/D/488/1992. The ASG replied that that decision holds good for “permissive societies” but not a conservative country like India.
India is not bound by international human rights law
The ASG contended that the petitioner cannot rely on International Conventions like ICCPR and ICESCR to make a case for rights of homosexuals. Disagreeing with the submission, the Bench stated that the Supreme Court has clearly held that international law can be read into fundamental rights to expand their meaning and to fill a void in domestic legislation.[1] The ASG then questioned the petitioner’s reliance on U S and Canadian judgments. The Chief Justice clarified that the Indian Supreme Court has itself cited these decisions to interpret rights conferred by the Constitution. The petitioner’s submissions, he said, are no different.
Counter to privacy, dignity and health claims
Responding to the petitioner’s challenge on privacy, the ASG said that the State is not preventing anyone from doing anything in private. The Chief Justice said that if the Union concedes this, then the petitioner has succeeded in their challenge. The ASG replied that there are limits to the right to privacy and no one can be allowed to commit a crime at home. On the question of consent too, the ASG argued that an offence cannot be condoned just because the parties were willing. On dignity, the ASG said that everyone is entitled to live with dignity but dignity does not mean “indulging in such acts”.
In response to the contention, that Section 377 infringes the right to health, the ASG said that the government is providing health care without discrimination and if some “shy away” from services then the State “is not to blame”. He further argued that the State is responsible for everyone’s health and not merely for a small segment of the population. Rejecting the statement, the Chief Justice said that the ASG is arguing an ideal situation but NACO’s affidavit presents reality that MSM avoid going overground due to the fear of prosecution. He further said that if disclosing male-male sex can result in imprisonment for ten years or life, then the fear is “understandable”.
The ASG then argued that MSM should receive education not to “indulge in acts that harm them and others.” The Chief Justice remarked that education alone may not be sufficient. Drawing an analogy with commercial sex, he questioned whether campaigns advising the public not to visit sex workers help? Extending the parallel with sex work, the ASG said the despite legal proscriptions, commercial sex thrives. Still, he argued, the legislature has not thought it wise to legitimize sex work, as it offends public morals. The same, he said, holds true for homosexuality. The Chief Justice observed that unlike sex work, the activity in question is adult consensual sex in private.
The ASG replied that Section 377 is necessary to prevent “unnatural acts” and “protect human race”. The Chief Justice clarified that the Bench will not examine what is ordained by nature and what is not. He said that it is clear from the various affidavits placed before the Court and even, common knowledge, that homosexuals are subjected to indignity because of criminalization. The Chief Justice went on to observe that the State itself admits non-enforcement of the statute against consenting adults in private. Therefore, he asserted, the onus is on the State to establish an overriding interest in retaining the impugned provision. The Bench advised the ASG to frame arguments to justify a compelling State interest. According to the Bench, protection of morals may be a potential argument advanced by the State.
Commenting on the position that homosexuality is unnatural and criminal, Justice Murlidharan remarked that in a plural, inclusive democracy like India, the Government of India’s stand breeds prejudice, exclusion and intolerance of a segment of society. He further advised the ASG that the Government of India need not treat this litigation as adversarial, instead, consider it as a constructive, problem solving exercise.
Before rising, the Bench sought to fix a timetable for further arguments. It will hear the ASG post vacations, on 15th, 16th and 17th October together with the other respondents – JACK and B.P Singhal. The petitioner’s counsel agreed to submit a rejoinder and make counter arguments, if necessary. The next hearing is scheduled on 15th October 2008 at 10.30 am.