[Sent to personal e-mail by Mabel Bianco, Strategies from the South, 26 September 2008]
Below are the proceedings from the second day, 19th September 2008, in the matter of Naz Foundation (India) Trust v. Government of NCT, Delhiand Others, Writ Petition (Civil) No. 7455 of 2001 being heard by the Delhi High Court.
Right to Life with Dignity
Resuming arguments under Article 21, Anand Grover asserted that by criminalizing homosexuals for who they are, Section 377 violates the right to live with dignity. Expanding on the meaning of dignity, he cited case law, notably Francis Coralie Mullin v. Administrator, Union Territory of Delhi, (1981) 1 SCC 608 and Law v. Canada (Minister of Employment and Immigration), [1999] 1 S.C.R. 497 where it was held that dignity entails self worth, respect, integrity and empowerment and is at the centre of being human.
Article 14: Equality and equal protection of the law
Assailing Section 377 on grounds of being violative of Article 14, Anand Grover invoked case law to show that the Section is vague and arbitrary and does not meet the valid classification test. He argued that under the law disparate groups and acts are clubbed together as "unnatural" a proscription which is not clearly defined. In response, the Chief Justice said that if the petitioner's arguments on vagueness are admitted then the remedy will be to invalidate the entire Section. Justice Murlidharan said that the petitioner is attempting to carve out a sub-classification, that is, of private adult consensual sex and seeking its exemption from the application of the statute. He went on to examine a construction where the term whoever could be read to exclude this category of persons. The Chief Justice clarified that in its pleadings, the petitioner has not attacked the term whoever. Instead, they have argued the uncertainty of carnal intercourse and against the order of nature.
Anand Grover advanced the proposition in Harish Chandra Gupta v. State of Uttar Pradesh, AIR 1960 All 650 and K.A Abbas v. Union of India, AIR 1971 SC 481 that if a statute is capable of diverse constructions, the Court must adopt the one that advances legislative intent. The question, he paraphrased, was, what is the objective of Section 377?
Anand Grover relied on Anuj Garg v. Hotel Association of India, (2008) 3 SCC 1, to apprise the Bench of the twin tests of "(i) the legislative aim must be valid and, (ii) the measure used must be proportionate to the aim pursued. He contended that Section 377 fails both the tests; neither is its objective legitimate nor is the measure (penalty of term years to life imprisonment) proportionate.
Justice Murlidharan said that according to the Respondent, Section 377 protects public health, safety and morals. The first claim is negatived by the Ministry of Health's own admission that Section 377 impedes HIV prevention and public health. The question is whether Section 377 safeguards public morality and, if this is a legitimate objective per se.
Anand Grover replied that Section 377 had no logical aim. He argued that even if Section 377's intention is to prohibit non procreative sex, the objective is nullified by the Government's own policy on family planning, that is, promoting birth-spacing and limiting number of children. He cited Deepak Sibal v. Punjab University, (1989) 2 SCC 145 where the Supreme Court struck down a policy whose objective was not legitimate. Anand Grover further emphasized that the Wolfenden Committee was unequivocal in its conclusion that morality cannot be the basis for interfering with individual privacy through penal measures.
Justice Murlidharan said that the petitioner cannot rely on Wolfenden alone to counter the legitimacy of public morality argument. Anand Grover replied that report cannot be ignored either. He said that though privacy was not recognized as a common law right, the Wolfenden Committee still found no justification in offending it. India, he argued, abides by a Constitutional scheme that accords protection to the right to privacy.
Disagreeing with the submission, the Chief Justice said that protecting public morals can be a valid aim of criminal law such as prohibition on use of narcotic drugs, even in the privacy of one's home. He suggested examining more jurisprudence from India on the subject.
Anand Grover agreed and offered to file additional written submissions on the public morality and penal law argument.
Anand Grover then attacked Section 377 on ground of the principle of proportionality. He said that though the Section is textually neutral, that is, it applies to heterosexual and same sex sexual activity, in effect, it targets gay men. He reminded the Court that the Police do not harass heterosexuals on charges of sodomy. Instead, Section 377 is a cover to abuse gay men. The Chief Justice observed that the law cannot change anyone's orientation from homosexual to heterosexual and appears to fail the proportionality test.
Anand Grover further argued that the European Union, as matter of policy, denies entry to States, who, among other conditions, criminalize consensual same sex relations. This, he argued, shows the political value that contemporary civilized societies ascribe to sexual minority rights. In this day and age, India cannot hold archaic, unjust positions like those of the Ministry of Home Affairs.
Advocate HP Sharma interjected to say that legal recognition of same sex relationships varied from county to country and culture to culture. He said that the United Nations itself does not extend spousal benefits to gay men so why should India concede? The Chief Justice expressed disapproval at this interruption and remarked that such interventions did not assist the Court in adjudicating the matter.
The Bench then openly discussed the nature of relief that the petitioner could be granted. The Chief Justice explored a declaratory relief "that is, an order that proclaims Section 377 unconstitutional to the extent that it applies to private, adult consensual sex and/or an order quashing portions/parts that cover private adult consensual acts? The Chief Justice referred to D.S Nakara v. Union of India (1983) 1 SCC 305 where another alternate was laid down. In this case, the Supreme Court read words into a statute to accord it such a meaning that did not affront rights of the aggrieved. In the same vein, the Chief Justice discussed Kartar Singh v. State of Punjab (1994) 3 SCC 569 where the Court provided guidance on how encumbrance must be read in œfree of all encumbrances to save the impugned provision. The Bench asked the petitioner to supply judgments on the nature of relief that the Court could award in the case.
Article 15: Non Discrimination on grounds of "sex"
Next, Anand Grover stated that Section 377 is also hit by Article 15 (1) of the Constitution that forbids discrimination on the basis of sex , which, he argued, includes sexual orientation. In support, he referred to the Toonen v. Australia, No.488/1992, CCPR/C/50/D/488/1992, where sexual orientation was declared to be included in other status At this point, the bench inquired into the recommendations of the Commission to review the Constitution, set up some years ago. Anand Grover admitted that he was not aware but would apprise the Court of outcomes relevant to the matter, if any.
Article 19: Freedom of expression
Anand Grover then introduced arguments that proscription on same sex activity interferes with sexual minorities freedom of speech and expression. He mentioned a magisterial order against the airing of a radio show on sex and HIV including same sex activity (Azadi Bachao Andolan Delhi Unit v. All India Radio and Others, Order of the CMM, Delhi dated 23 October 1997). This argument was not pressed further.
Jurisprudence of other countries
Anand Grover then took the Bench through judgments on anti-sodomy laws from other jurisdictions. Many of these reflect judicial thinking and handling of counter arguments on public order, morality, decency which are relevant to the present case.
Anand Grover extracted relevant paras from Dudgeon v. United Kingdom, [1981] ECHR 5 where there was a history of non-prosecution of consenting adults, similar to India. He pointed out that the European Court of Human Rights still struck down the law, questioning that if non-prosecution for buggery does not offend morals then why should decriminalization of consenting, adult homosexuals hurt the public?
At this point, RS Kumar, Counsel for opponents - JACK made some remarks about the nature of HIV. The Chief Justice expressed displeasure at the uninformed, moralizing attitude of the respondents. He reminded the Court that in the beginning, most Indians dismissed the threat of HIV, saying that such things didn't happen in our country . But today, the Chief Justice said, India has surpassed every other country in the world in the number of HIV infections. Recollecting his involvement in a legal aid clinic for HIV positive widows in Nammakal, Tamil Nadu, as Chief Justice, Madras High Court, he said that such issues need to be discussed openly and that the respondent's stand would not help the nation.
Post lunch, Anand Grover resumed reading of international judgments. He stressed on the South African Constitutional Court's ruling in National Coalition for Gay and Lesbian Equality and Another v. The Minister of Justice and Others, 1999 (1) SA 6 (CC), which discusses criminalization of consensual sodomy against claims of dignity, privacy and equality.
Justice Murlidharan remarked that proscriptions on homosexuals were akin to the criminalization of certain tribes under colonial rule. He said that it was not rationality but prejudice that underpinned the State's response.
Paraphrasing the Court's observation on the right to privacy, Anand Grover said that what ought to be protected, is the nature of the activity and not the site where it is carried out. He highlighted the Court's finding that privacy is not only a restraint on the State but also an obligation to create conditions for personal self-realization. On equality, Anand Grover read aloud - quality does not imply a leveling or homogenization of behaviour but an acknowledgment and acceptance of difference. On other judgments from around the world which struck down similar anti-sodomy statutes (Hong Kong, Fiji, US and Human Rights Committee under the Optional Protocol under the ICCPR), he agreed to submit a written note.
In concluding the petitioner's arguments, Anand Grover said that the Constitution, which upholds dignity, privacy and respect for equality, is itself an expression of political morality. This observation, he said, was vital for India, as our Constitution too envisages a plural, democratic, just order.
The Chief Justice expressed displeasure at the ASG's absence from the hearing and wondered what assistance he would offer to the Court. The bench will hear arguments of Respondents Voices against 377, the Union of India, JACK and Mr. B.P. Singhal on Thursday, 25th September 2008.
Tripti Tandon
Lawyers Collective HIV/AIDS Unit, India
http://www.lawyerscollective.org/
