377 Final Arguments Day 6

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.