Union of India defends Section 377

Proceedings continued in the matter of Naz Foundation (India) Trust v. Government of NCT, Delhi and Others, Writ Petition (Civil) No. 7455 of 2001, which challenges the constitutional validity of Section 377, Indian Penal Code, 1860   (IPC) before a division bench of Chief Justice A.P Shah and Justice Murlidharan of the Delhi High Court. On 25th September 2008, Advocate Shyam Divan argued on behalf of Voices against 377 in support of the petition.  

On 26th September 2008, Additional Solicitor General (ASG) – PP Malhotra proceeded to argue on behalf of the respondents – Union of India.  

The ASG began by referring to judicial pronouncements on Section 377 where the sexual acts in question were committed against a child. He stressed that Courts had repeatedly described acts covered by Section 377 as "perverse" and "abhorrent". The Chief Justice interrupted the ASG and said that the cases pertained to child sexual abuse and not adult, consensual sex which is the subject matter of the hearing.

The Bench then questioned the ASG on the government’s stand on the matter. The ASG replied that he had been instructed to oppose the petition and defend the validity of Section 377.    

Tripti Tandon, for Lawyers Collective

Counter affidavit of Ministry of Home

The ASG then started reading the affidavit of the Ministry of Home Affairs. He stated that deletion of Section 377 will lead to breach of peace and injure public morality. To elaborate the argument that same sex sexual activity is harmful to society, the ASG sought to rely on a decision of the Andhra Pradesh High Court in Vijaya v. Chairman and Managing Director, Singareni Collieries Ltd AIR 2001 A.P 502 – a case pertaining to HIV transmission through blood transfusion. At this point, the Chief Justice interrupted him and said that this decision was unrelated to the present case.      

The Chief Justice paraphrased the ASG’s two fold submission that permitting same sex relations will – i) offend moral values and, (ii) degrade the health of citizens. He said that while the affidavit elaborated on i), the Bench has not understood how decriminalization of same sex activity will harm public health.

The ASG replied that sex between men is the leading cause of HIV and if such acts are allowed, HIV will proliferate in the country. The Chief Justice remarked that the Government should then stop all sex because HIV spreads through sexual intercourse and not just same sex sexual activity.

The Chief Justice then asked the ASG whether it was the Government’s submission that Section 377 is a deterrent to sex with multiple partners. He further said that it is the Government’s own admission that Section 377 is not used to prosecute consenting adults. He asked how an un-enforced law could act as a deterrent

Justice Murlidharan asked the ASG whether the Central Government recognizes a category of persons as – "MSM"?   The ASG replied that this question would get answered at the time that he reads NACO’s affidavit.

Justice Murlidharan questioned if it is the Government’s submission that Section 377 helps prevent HIV? The Chief Justice went on to ask whether the argument that decriminalization of same sex sexual activity will spread HIV is on record in the two affidavits of the government? The ASG replied in the negative and admitted that that was his oral submission. The Bench asked the ASG to provide data in support of his contention.    

The ASG responded by saying that main mode of HIV transmission is sex and that "this" is a "vehicle" for the spread of AIDS.   He said that sexual transmission of HIV is a known, scientific fact, which the Court cannot be oblivious to. He stressed that HIV can be stopped through education and not by relaxation of laws against homosexuality.

The Chief Justice stated that the ASG’s submission that decriminalizing homosexuality will lead to an increase in HIV is incorrect. He advised the ASG to refer to the affidavit of the Ministry of Health which states that criminalization of male-male sex makes it difficult to prevent HIV and not vice-a-versa.          

The Chief Justice then questioned the ASG on the second contention of the Ministry of Home that decriminalization of adult, consensual sex in private will cause breach of peace. The ASG was unable to answer to the Court’s satisfaction.

The ASG continued reading the Home Ministry’s affidavit and asserted that "…deletion of the Section can open floodgates of delinquent behaviour and be misconstrued as providing unbridled license for the same".

At this point, the Chief Justice pointed out that the Home Ministry’s affidavit seems to assume that the petitioner is seeking to repeal the law. He said that this was incorrect and the petitioner has prayed that private, adult consensual sex be exempted from Section 377. Justice Murlidharan added that petitioner is making a distinction between child sexual abuse, adult non consensual sex, and private, adult consensual sex.

The ASG responded by saying that the Government anyway, does not prosecute adult, consensual sex in private. The Chief Justice asked whether it was the government’s case that it, as a matter of policy, does not prosecute private, adult consensual sex. The ASG said that if the Court permits homosexuality then there will be havoc in Indian society.

The ASG then read out the Home Ministry’s reply to constitutional arguments raised by the petitioner.

On Article 19 (fundamental freedoms), he relied on Lucy D’Souza v State of Goa AIR 1990 Bom 355 , where the Bombay   High Court upheld restrictions on the movement of a person with AIDS. The Chief Justice interrupted, saying that the judgment has been condemned and is considered "bad law".

Justice Murlidharan asked the ASG to apprise the Court of the government’s response to those who avoided seeking treatment because of the fear of criminalization. In reply, the ASG said that the government provides treatment to everyone, irrespective of their sexual orientation. He also said that doctors never ask anyone how he got infected with HIV.  

The ASG went on to argue that decriminalization will increase homosexuality as there will be no fear of the law.

The Chief Justice asked whether the Government agrees that Section 377 was introduced by the British, who have long removed proscriptions on homosexuality in their own country. The ASG said that though enacted during colonial rule, our legislature has amended the Indian Penal Code several times since independence but it has never modified Section 377. He stressed that Parliament, in its wisdom, has not thought of changing or repealing Section 377 to legitimize homosexuality.          

The Chief Justice then directed the ASG to read recommendations of the Law Commission of India pertaining to Section 377.  

The ASG relied on the 42nd and 156th reports of the Law Commission that favour retention of 377.   The Chief Justice drew the ASG’s attention to a more recent report (172nd) that proposes a deletion of Section 377 and the framing of new law on sexual assault and child sexual abuse. The ASG replied that the recommendation in question was not made from the perspective of homosexuality. He further said that the Law Commission had not suggested that Section 377 is unconstitutional. To this, the Chief Justice replied that it is not the role of the Law Commission to decide the constitutionality of laws. That prerogative, he said, was of the Courts.      

The ASG argued that the purpose of the law is to maintain a healthy environment in society. He asserted that an offence is an offence and that consent is immaterial as also the place of commission – public/private.  

The ASG explained that criminal law is influenced by political and social morality and if public opinion changes, so will the law. Reverting to the Ministry of Home’s affidavit, the ASG read aloud – "Acts which have been glorified in the past, like dowry, child marriage, domestic violence, widow remarriage etc. have now been brought under the purview of criminal justice."  
Taking strong objection to the statement, Justice Murlidharan asked whether it was the Government’s case that widow remarriage is a penal offence.   He said that the affidavit had been drafted carelessly by a public officer who was unaware of history, particularly of social reformers like Raja Ram Mohan Roy. Expressing his displeasure, the Chief Justice said that the affidavit reflected "non application of mind". He said that it was inexcusable for a government officer to be making unintelligible, uninformed averments before a Court of Law.

Reply of NACO and Ministry of Health

The ASG hen read out portions of NACO’s affidavit, highlighting abstinence, fidelity, and reduction in sexual partners as key elements of the national AIDS prevention strategy.  

Taking note of the distinction between sex and unprotected sex, the Chief Justice said that the government is only concerned with the latter which poses a risk of HIV transmission. He also pointed out that "sexual partner" could mean man or woman. Refuting the ASG’s earlier contention, the Chief Justice stated that NACO has not averred that only male to male sex results in HIV. The ASG replied that male to male sex is neither known to nature nor to our law.

The ASG then underscored NACO’s submission that of the estimated 25 lakh MSM in India, 8% are HIV positive.   In comparison, he argued, less that 1% of the general population is infected with HIV. According to the ASG, this statistic itself demonstrates that sex between men contributes to HIV. He said that permitting same sex sexual activity will increase HIV transmission.

The Bench took note of the ASG’s selective reading of the Ministry of Health’s affidavit and instructed him to refer to those paras that specifically aver to Section 377. The affidavit clearly states that criminalization of sex between men and fear of law enforcement drives MSM underground, disrupting outreach, supply of condoms and other anti-HIV interventions. The Chief Justice said that it not NACO’s argument that reading down Section 377 will lead to an increase in HIV.

Section 377 prohibits "unnatural acts"

Relying on the text of the impugned Section, the ASG then argued that the law proscribes acts against the order of nature. He said that section was framed to ensure that sexual intercourse happens "where it is meant to" and to prohibit sex "in places, where it is not intended".  

Counter to Constitutional arguments: Judgments

Refuting constitutional arguments against Section 377, the ASG referred to Vijaya v. Chairman and Managing Director, Singareni Collieries Ltd AIR 2001 A.P 502 to insist that AIDS was first detected among homosexuals in the US and that homosexuality is closely associated with HIV. The Bench asked whether the judgment relates to the issues before the Court.   The ASG said that he would come back to this decision in defence of Section 377.

Next, he cited MP Sharma v. Satish Chandra AIR1954 SC 300 where the Supreme Court had rejected privacy claims vis-à-vis search and seizure.  

The Chief Justice remarked that there have been subsequent judicial developments.

The ASG then referred to Kharak Singh v State of Uttar Pradesh (1964) 1 SCR 332, a judgment that the petitioner has relied on to argue on the right to privacy. He drew attention to the Supreme Court’s observation that a regulation could be assailed for violating fundamental rights only if it had no statutory basis. In this case, the ASG said, Section 377 was law itself, and therefore, could not be subjected to scrutiny on grounds of violating fundamental freedoms.

Rejecting the attack under Article 21, the ASG pressed the Supreme Court’s finding that the alleged infringement on fundamental rights must be direct and tangible and not merely arising out of personal sensitivity. He said that no one is stopping MSM from moving, mixing around or socializing and therefore, the argument that section 377 affronts freedom and/or personal liberty is incorrect. He said that the petitioner’s case that Section 377 causes stigma, tramples dignity and intrudes into privacy is their own perception and cannot be the basis for challenging the validity of a statute.  

The Bench then rose to break for lunch. The Chief Justice asked if the ASG would continue post lunch. The ASG replied that he will resume arguments on Monday, September 29 at 2 pm. The hearing was adjourned till then.

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