Concluding arguments in challenge to Section 377
- Part 3 -

By Rajesh Khongbantabam *

HIV prevention is State's responsibility Grover drew the Bench's attention to UNGASS progress indicators where each country reports on measures for HIV prevention, treatment and care. He asserted that the mechanism evidences State obligation to provide services to communities at risk including MSM.

Grover said that the question is not whether MSM can buy condoms but whether the Government is reaching them with preventive measures. This duty, he argued, is recognized in international human rights covenants, which are substantially incorporated in Indian law through the Protection of Human Rights Act.

Decriminalization has no negative consequences Responding to the apprehension that decriminalization will harm society, Grover presented studies from Australia[9] and the US[10] which document no negative consequences but confirm positive effects for gay men as well as the rest of the community.

This, he asserted, counters the respondents' misplaced arguments. Paraphrasing the Government's argument, Justice Murlidharan said that the question is whether relaxation of penal sanctions will result in – i) more sex between men, a sizeable proportion of whom are infected with HIV and, ii) increase unsafe sex between MSM.

In reply, Grover said that epidemiologically, it is difficult to establish a nexus between criminalization and HIV transmission. Sexually transmitted infections, he argued, are a marker for HIV and the two studies do not show an increase in incidence post decriminalization of sodomy.

Grover mentioned large scale condom promotion among sex workers in southern India resulting in a decline in new infections. Justice Murlidharan remarked that unlike MSM, sex workers are a captive population which may facilitate behavior change. Grover replied that empowerment of sex workers has triggered change and the same is needed vis-is MSM. Wrapping up the health argument, Grover said that the purported dichotomy between individual (MSM) rights and public health is false.

Morality no grounds to restrict rights Grover argued that morality cannot be literally imposed on Article 21, that is, the right to privacy, dignity and health. He contended that restrictions on the cluster of freedoms under Article 19 (1) are specific to each right. Elaborating the submission, Grover said that while speech and expression can be curtailed on grounds of sovereignty, integrity, decency and morality, assembly can be obstructed only under the corresponding clause for protection of sovereignty, integrity and public order.

The Chief Justice observed that as per Maneka, substantive and procedural fairness must be tested on the touchstones of Article14, 19 and 21. Grover replied that Maneka expands the scope of fundamental rights but is silent on importing restrictions from one Article to another.

Examining the argument, Justice Murlidharan illustrated two situations – 1) where a gay parade is sought to be restricted and, 2) where a gay lawyer is forbidden from practicing at the Bar. The Judge said that Grover's argument is that public morality may justify restrictions on 1) which impinges freedom of expression under Article 19(1) (a) but not (2), which interferes with the right to work within the meaning of right to life under Article 21.

Grover said that public morality itself cannot be a basis for intruding the zone of privacy. Rights under Article 21 can be restricted only if morality is shown to be a compelling state interest, which, in the present case, has not been shown. Grover further submitted that courts have employed the general reasonableness standard which is different from the one used for reasonable restrictions under Article 19 (2) to (6).

The Chief Justice questioned if the present challenge could be sustained without health/HIV grounds. Grover said that infringement of privacy, dignity, freedom and equality would be the main argument, just as in National Gay and Lesbian Association. The Chief Justice asked if health was pressed in any other anti-sodomy case.

Grover answered that health arguments, similar to the present petition, were raised and accepted in Toonen. Grover then responded to other contentions raised by the respondents. He concluded by saying that the petitioner would have sought quashing of Section 377 but have carefully restrained their prayer out of concern for child sexual abuse.

Rejoinder by Voices against 377 Quoting from Seervai's commentary on the doctrine of severability, Counsel Shyam Divan submitted that the Court can exclude application of Section 377 to a category of persons by constitutional methods of severability in application and separability in enforcement.

Divan pleaded that public morality cannot be used to trump an individual's sense of identity and full moral citizenship. Parties were asked to submit written submissions at the earliest. On 7th November 2008, the Bench reserved the judgment.

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