377 Hearing- Day 1 and 2

Notes on Naz Foundation v Union of India
Delhi High Court
Judges : S. Muralidhar and A.P.Shah
Day 1 Morning Session
Anand Grover argued for Naz Foundation
Stresses that the prayer in the petition is talking about decriminalizing consensual sex between adults, and that the petitioners are very conscious about the fact that there is a vacuum when it comes to child sexual abuse cases.
He argued that since there are very few reported cases where 377 has actually been applied to consensual acts between adults, the government needs to show what the compelling state interest is in keeping this law in place.
Chief Justice Shah asked Grover about how to deal with cases of public sex to which he replied that this could be dealt with the laws related to public nuisance, indecency etc.
When asked if there were examples of convictions of consenting adults, Grover said no.
Chief Justice Shah then went on to talk about the case of a transgender person who had self immolated herself after being sexually molested by the police.(which he had dealt with when he was a judge in the TN High Court)
Grover also pointed out that there are acts of child sexual abuse that are non penetrative and therefore section 377 could in any case not be effective in dealing with it.
Grover then explained how 377 was an impediment to propogate safe sexual practices. In response to Chief Justice Shah’s query, he referred to the Lucknow arrests where employees of Bharosa Trust  (an organization that worked on safe sex practices with the MSM community) were held in custody for 100 days,  and accused of the local media of running ‘Sex Clubs’ etc. He pointed out that Naz Foundation’s interventions were sanctioned by the Central Government, and that they had distributed 13 million condoms per month to sex workers besides condoms that are distributed to MSM communities.
Chief Justice Shah remarked that  safe sex messages can be effective only when there is more openness and recognition (of sexual practices).
Grover then quoted in great details from the Wolfendon Committee Report that recommended the decriminalization of sodomy in England in 1957. He argued that the government cannot make private sexual behaviour criminal when there was no overriding compelling state interest.
Justice Muralidhar  commented that the criminal law is invariably used against the poor in the country and that there were no statistics on the number of convictions in the trial courts.
Chief Justice Shah observed that since it was difficult to get third parties to testify in cases of consenting adults, section 377 was used to extract money, and that it was “a case of persecution, not prosecution”.
Justice Muralidhar then talked about the opposition from Kiran Bedi to distribution of condoms in Tihar Jail.  
Justice Muralidhar also mentioned the doctrine of Destitution i.e. when a law is not used for a very long time, it could lapse (usually used for delegated legislation)
Justice Muralidhar also asked if the law applied to lesbians, and Grover said that technically it did not.
Said Grover, “Recently we had a gay Pride in Mumbai. One of the policemen remarked that if the law was repealed they would not have to do this kind of work. I told him that we don’t want to do this sort of work”.
Chief Justice Shah then said, ‘In Bombay I dealt with a ragging case where a homosexual boy was ragged by his classmates. As a result, he was hospitalized just before his exams. He came to us asking for a chance to do his exams again. We have seen what could happen to homosexuals”. He also added that homosexuality was “by nature, and not by choice”.
Day 1 Post-Lunch Session
The intervenor B.P. Singhal’s lawyer H.P. Sharma suddenly brought up the case of R.V. Brown (which dealt with sadomasochism). He said that anal sex by homosexuals cannot be equated with other types of sex.
Grover mentioned the Law Commission .s 172nd Report that recommended the deletion of section 377, the right to dignity, privacy, and health under the Universal Declaration of Human Rights, and the fact that ‘other status’ in the Optional Protocol to the International Covenant for Civil and Political Rights has been interpreted to include ‘sexual orientation’.
Justice Muralidhar enquired if the National Commission to Review the Working of the Constitution had suggested that sex be extended to include sexual orientation or the scope of discrimination to be widened to include sexual orientation.
Grover then argued that international principles linked notions of highest attainable standard of health was linked to the conditions necessary to attain this which would involve making health facilities accessible to all, especially the most vulnerable populations.  He said that far from being a compelling state interest 377 is actually an impediment to HIV/AIDS programs.
Grover also argued that ‘private’ should not be restricted to mean special privacy and should be related to the intention, and should be left up to the interpretation of the court.
Justice Muralidhar then referred to the Makanwyane judgement(relating to the death penalty in South Africa) , saying that the court cannot be completely swayed by public opinion. “Minorities in terms of opinion and values have to be protected”, he said.
Day 2 – Naz Case Morning Session
Grover argued that the right to life includes the right to dignity, and all that goes with it. He argues that section 377, by criminalizing consensual sex between adults violates their right to dignity.
Justice Muralidhar commented that the NACO affidavit was the strongest argument that Naz had, as it unequivocally said that 377 was a barrier to the right to health.
Chief Justice Shah also raised the concern that if the arguments related to Article 14 (right to equality) were accepted then it would mean that the court would have to strike down the law, while the prayer of the petition asks only for a reading down of the law.
Justice Muralidhar then sought more clarity on the exact nature of what the petitioners were asking for. “Are you saying the section should be read down? What kind of declaration can the court give without reading down the section?”
Chief Justice Shah observed that reading down and seeking a declaration were two separate things.
Both the judges asked for examples where the courts have read down a criminal statute – especially since the petitioners were not asking for the law to be struck down entirely.
Grover then argued that the wordings of section 377 were vague and should be struck down.
Justice Muralidhar then asked Grover if the word ‘whoever’ in section 377 could be read down.
He observed that the petitioners were saying that the slaw had included categories that should not have been included- i.e. ‘overstretching or overbreadth’.  He said that ‘vagueness’ was a difficult argument to make in terms of unnatural offences. He said that this line of argument would not help the petitioner as far as the final declaration was concerned.
Grover then cited the example of the Kharak Singh case where the court draws a line of demarcation.
Grover then mentioned the Abbas case which dealt with censorship of cinema. He quoted from this case saying that of those who are depraved begin to see in these things more than the average person does, then it cannot be helped.
Grover then argued that legislative interference needed to be justified and that any restriction needs to be proportionate to the offence.
Justice Muralidhar then observed that saying that the legitimate aim of section 377 was to maintain ‘public safety’ was contraindicative. He suggested that the petitioners look at other statutes that overlap on issues related to public morality.  He said that the petitioners could not only refer to the Wolfendon Committee Report and should contextualise Wolfendon in the context of Indian society and culture.
Grover then referred to the Modinos case in Cyprus where the Cypriot government had argued before the European Commission of Human Rights that it should be able to retain the anti-sodomy law because culturally it was different from the rest of Europe.
Justice Muralidhar said that legitimate aim had to be seen in the context of our Constitution and that the government could argue that it was taking measures in the interests of morality and decency.
Grover replied that we live in a democratic set up where the rights of minorities needed to be protected, and the state needed to show what the legitimate aim of the law was to enter the zone of privacy.
Justice Muralidhar then pointed out that this argument would not be applicable to child pornography. Chief Justice Shah added, “ To say that public morality cannot be a source of criminal law is not correct. What about cases of child sexual abuse?” He said that ‘decency’ and ‘morality’ could be legitimate aims that can be used to enact criminal law even in the ‘private zone’.
Grover then pointed out that in this specific example there was no harm being caused to anyone. He said, “While section 377 applies to both homosexuals and heterosexuals, the police are not going to target heterosexuals”.
Chief Justice Shah said that homosexuality, i.e. sexual orientation cannot be ‘cured’, so proscribing a penalty of 10 years would be disproportionate to the offence.
Grover said that it was inherent to gay men to do these acts (sodomy), and that this was a part of their personality. He pointed out that the European Community did not allow countries with an anti-sodomy law to join.
Grover argues that under Article 19 (1)a every person had a right to receive and impart information, and that section 377 impeded this. He said that often homosexuals, who did not have adequate information, went to psychiatrists, where they are often administered shock treatment.
B.P. Singhal’s lawyer H.P. Sharma interrupted saying that in the United Nations office there were no spousal benefits for same sex couples.
Chief Justice Shah asked the lawyer, “So you admit that there are people in this world with a different sexual orientation?”
To which H.P. Sharma said that it (retention of the law ) was because of fun (that homosexuals had) and perversity. Chief Justice Shah, expressing his displeasure shook his head and said, “This kind of assistance will not take us anywhere.”
Grover said that if being harassed by the police was fun, then they were having a lot of fun.
Grover reiterated that Article 21 (the right to life) included the right to receive information. Justice Muralidhar pointed out that this had been held in the recent political antecedents case where the right to vote was held to be the right to express one’s opinion, and that the right to information was a part of 19 (1) a).    
Justice Shah then mentioned a case (The Pune Cantonment case) he had dealt with where the Bombay Environmental Action Group (BEAG) had asked for information related to the  Municipal Corporation of Pune.
Both judges then pointed out that the petitioners need to take into account Article 19(2)  which provides exceptions to the right to freedoms based on public order, morality etc.  
Grover replied that the government needed to discharge its burden to prove that there was a compelling state interest to legislate in this matter.
Grover then talked in some detail about judgements in other courts where similar anti-sodomy laws have been struck down. These included Dudgeon (in Northern Ireland), Modinos (in Cyprus)  and Norris . He pointed out that in these cases there was a similar concern that homosexuality should not be decriminalized because of the fear that some sections of society may draw misguided inferences, but the European Court of Human Rights had struck down this law anyway.  
Chief Justice Shah addressing the JACK lawyer R.S. Kumar said, “Do you know what is happening in Tamil Nadu. A widowed person living with HIV AIDS is denied all rights…We organized  a programme as a part of the Tamil Nadu Legal Services Board for 600 widowed women, who were able to speak openly. This is because they are no longer regarded as sinners.
He went on to point out to JACK and B.P. Singhal that saying ‘Indian culture was not the answer. “If you are under the impression that this happens only in the U.S you are mistaken”, he said.
R.S. Kumar said that there was a false diagnosis when it came to HIV/AIDS.
Chief Justice Shah snapped, “People are dying. What are you saying? You are speaking with a moral attitude”.
R.S. Kumar in response said that HIV was a propogated disease.
Day 2 Post Lunch Session 18/9/2008
Grover then talked in great detail about the Modinos v Cyprus case where the European Court of human rights struck down an anti-sodomy law in Cyprus. This was followed by the decision in the NCGLE decision in South Africa.  He dealt in great detail with the judgements by both Justice Ackerman and Justice Sachs.
When Grover was referring to the stigma that the law attaches to a significant section of the population, Chief Justice Shah compared this to the stigma attached to ‘criminal tribes’ who were branded by the Criminal Tribes Act in India.  
As Grover was reading from the South African decision, the visibly moved judges began conferring amongst themselves. They said this decision reminded them of Justice Hidayatullah’s decisions.
Chief Justice Shah, noticing that the Additional Solicitor General was not present in court, remarked, “I don’t know what assistance we are going to get from the government. The ASG is not here”.
He then compared discrimination based on sexual orientation to discrimination based on caste. “If you belong to the ‘untouchable’ category, you suffer a disadvantage in every aspect of life. The effect of criminalization (of homosexuality) is like treating you as a member of a scheduled caste”, he said.
Grover then cited from the NCGLE decision to point out that while the state is founded on a deep political morality, this does not mean that it can criminalise homosexual conduct.
The judges then mentioned Justice Scalia’s dissent in the Lawrence case where he talks about preserving morality.
The judges asked Mr Diwan if it was possible to link the petitioners arguments to the constitutional provisions in Article 17 and 23 that deal with untouchability.
Ridiculing JACK’s position that contests the links between HIV and AIDS, Chief Justice Shah said, “In Bombay someone filed a PIL saying that all HIV prevention efforts should be stopped as this was a case where God was punishing immorality…Everyone has their own views.”
The Additional Solicitor General P.P. Malhotra then asked for more time to file  a response. The judges said they would not give the government more time. Pointing out that the report in the Hindustan Times front page which said that the High Court would not deliver a judgment till the government made its stand clear was inaccurate, the judges said that government had to make its submissions on September 25th.