Concluding arguments in challenge to Section 377
- Part 2 -

By Rajesh Khongbantabam *

Noting the absence of WHO literature, the Chief Justice asked Sharma to supply scientific materials, without which, the Bench would reject the respondent's submission. Anus not meant to be penetrated In the same vein, Sharma said that human anatomy and physiology assigns a specific role to each organ. The anus, he argued, is "meant only for excretion and nothing else."

Sharma stressed that the vagina and anus have different functions and penetration of the anus is neither logical nor reasonable. The law forbids what nature has forbidden. Sharma further submitted that in Sakshi the Supreme Court had defined sexual intercourse as hetereosexual intercourse and sex between homosexuals could not be sexual intercourse. Therefore, he emphasized, such activity cannot be sanctioned by law. Against culture, values and social order Sharma went on to state that gay men engage in "group sex" and that "alcohol, drug and disease are natural concomitants of homosexual activity".

Refusing to accept personal submissions, the Bench again sought scientific literature in support of the claim. Referring to Javed v. State of Haryana, (2003) 8 SCC 369, Sharma argued fundamental rights are to be read in conjunction with directive principles and fundamental duties, which mandate protection of public health[3] and India's composite culture. Sharma stressed that "lofty ideals cannot be given a go by undue stress on fundamental rights and liberty".

The Chief Justice remarked that the Constitution also espouses developing "humanism and scientific temper". Sharma contended that stigma towards homosexuality originates not in Section 377 but in the country's social ethos which is intolerant of such practices. Relying on Commissioner of Police v. Acharya Jagdishwaranand Avadhuta (2004) 12 SCC 770, he argued that in case of a conflict between individual liberty and societal interests, latter will prevail.

No census to determine sexual orientation Contesting the plea of sexual minorities, Sharma said that till date, no census had been conducted to enumerate how many persons are heterosexual or homosexual. The claim of sexual minorities, he said, must be rejected. Sharma argued that if the petitioner is claiming fundamental rights on minority status, then they do not qualify for protection under Articles 29 and 30 which delineate what constitutes a minority.

The Chief Justice remarked that the petitioner is seeking inclusion and equal status, regardless of sexual orientation. Analogous to gambling, adultery and other 'vices' Sharma argued that that if the doctrine of consenting adults is admitted then gambling, adultery, prostitution, sale of organs, incestuous marriage and "similar evils" will have to be legalized.

Referring to Krishna Chandra V State of MP 1964 (1) SCR 765 {where the Supreme Court upheld prohibition on gambling} and Yusif Abdul Aziz v State of Bombay 1954 (2) SCR 930 {rejection of constitutional challenge to law on adultery on grounds of discrimination} , Sharma stressed that public order and morality can trump individual rights. Court can't rewrite the law Citing Ekta Shakti Foundation v Govt of NCT Delhi 2006 10 SCC 337, Sharma asserted that policy decisions must be left to the government alone.

He argued that in State of Kerala v Mathai Verghese 1986 4 SCC, the Supreme Court declared that the Court cannot rewrite, recast or redesign a statute. Sharma said that the petitioner's prayer to exempt consenting adults amounts to reframing Section 377. The Chief Justice clarified that the petitioner is seeking a declaration that the impugned Section, in that it applies to private, adult consensual sex, is unconstitutional. Such a relief, he explained, would save its constitutionality.

Noting precedence, the Chief Justice alluded to orders where a provision is declared invalid in its application to majority educational institutions and valid for those run by minorities. Sharma replied that such principles may be adopted in civil disputes but criminal law ought to apply equally to all persons. The Chief Justice remarked that constitutional principles hold good for both. Sharma further contended that the petitioner is seeking a reinterpretation which does not advance the legislative intent of Section 377.

The Chief Justice and subsequently the ASG clarified that the petitioner is challenging vires and the only question before the Court is whether Section 377 contravenes constitutional protections. Next, Sharma cited Sakshi to reiterate the Union's submission on non-applicability of international law without an enabling provision in domestic law. Clarifying principles for application of international law, the Chief Justice said that domestic law supersedes international law only if there is a conflict between the two.

The Chief Justice assured Sharma that the law will not be struck down only because international law requires protection of homosexuals. No discrimination Indian not foreign standards Sharma alleged that the petitioner is trying to import foreign materials – Wolfenden report, Constitution and decisions from other countries, which is not permissible. The Supreme Court has defined the offence under Section 377 with sufficient clarity. The IPC, he stressed, is the best word in Court and must be applied as it is.

Referring to Ajay Goswami v Union of India 2007 SCC 143, Sharma reiterated the Supreme Court observation that contemporary social standards determine what is obscene and what is not. He contended that homosexuality is unacceptable in Indian society and that an ordinary man of usual prudence would not engage in acts covered by Section 377.

Homosexuality will destroy families Sharma warned that a "wife's discovery that her husband is addicted to homosexuality shatters every member of the family". He said that unlike the west, India places primacy on traditional family values and respect for parents, which homosexuality will destroy. He further said that "when homosexuals grow old, they will have no partners." Sharma insisted that it is not in "their" interest that homosexuality be recognized.

NACO's affidavit be reconsidered Responding to NACO's affidavit, Sharma said that HIV is transmitted because of unprotected sex with multiple partners. If homosexuals stick to one partner or use condoms, HIV will not spread. Section 377, he claimed, has nothing to do with HIV. Sharma went on to say that NACO's averment that fear of law frustrates prevention is false. He said that the media airs warnings on AIDS, without distinguishing heterosexual from same sex sexual activity.

According to him, HIV prevention is common knowledge. In the same vein, Sharma argued that condoms can be easily obtained and that no pharmacist will ever ask for "an identity card of heterosexual or homosexual orientation" . He further contended that negotiation of safe sex occurs only when sex is purchased and not with single, steady partners. Sharma said that NACO's affidavit requires reconsideration. Sharma concluded by saying that the petition is without merits and ought to be dismissed.

Counter Arguments by Respondent - Joint Action Council Kunnur (JACK) Counsel R.S Kumar began by saying that the Court does not have jurisdiction to amend Section 377, as sought by the petitioner. License to criminally transmit HIV Next, Kumar said that the petitioner themselves admit that homosexuals are vulnerable to AIDS. Such persons, he said, are liable to prosecution under Sections 269 and 270 of the IPC {negligent and malignant acts likely to cause life threatening disease}.

Kumar said that the petitioner is seeking a license to commit an offence. The Chief Justice said that the provisions apply to heterosexuals as well. He clarified that criminal transmission requires knowledge and intention and every sexual act is not prosecutable.

Petition masks a foreign agenda Kumar alleged that the petitioner is part of an internet racket that uses HIV and AIDS as a tool to encourage sex trade in this country. He referred to a news report that Naz Foundation runs a "gay club" and "charges Rs 1, 000 for sexual acts." The Chief Justice interrupted the Counsel and asked him to argue on merits.

Kumar continued to discredit the petitioner by saying that Naz Foundation (India) Trust is affiliated to a UK based organization by the same name, whose aim is to secure "interests of homosexuals" . Kumar contended that a trust can only be established for a lawful purpose and homosexuality is illegal in India.

The Chief Justice remarked that by this logic, NACO should be outlawed as it seeks to protect MSM from HIV. Rebuking the Counsel, the Chief Justice said that even the ASG has conceded that gay citizens enjoy equal rights to health and employment but the respondent is opposed to it. Kumar then complained of professional misconduct by counsel(s) for the petitioner.

Anand Grover objected to the respondent's statements which, he alleged, are attempts to intimidate Advocates from appearing for the petitioner. The Chief Justice instructed Kumar to argue on constitutional grounds. Next, Kumar castigated NACO and its affidavit, which, he claimed was based on incorrect data. He urged the Court not to rely on disputed facts. Kumar then proceeded to read a judgment on perversity, but was stopped by the Chief Justice from repeating arguments already made.

Kumar was asked to file written submissions on behalf of JACK. Rejoinder/Counter arguments by petitioner Anand Grover proceeded to respond to oral arguments of the respondents. He started by clarifying findings of the Global AIDS Report 2008, which the ASG had relied on to stress that sex between men is responsible for AIDS. Citing official government documents,[7] Grover submitted that though MSM are disproportionately affected by HIV, they are not the main drivers of the epidemic in India.

to be continued...

(written on Sun Nov 16, 2008 5:05 pm (PST) )