377 Final Arguments Day 4

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.

Malhotra referred to the Kharak Singh decision


“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.