UPDATE: Delhi High Court Proceedings - May 19th, 2008

Naz Foundation (India) Trust v. Union of India came up for hearing before a division bench of Justice Sikri and Justice Mirdha of the Delhi High Court at 2.30 pm on 19.5.08.

*The day's proceedings*:

Counsel for the petitioners – Anand Grover, introduced the case which challenges the constitutional validity of Section 377, Indian Penal Code ("IPC"), that criminalizes sodomy for violating Articles 14 (equality), 15 (non-discrimination), 19 (freedom of speech and expression) and 21 (life and liberty).

Anand proposed to present his arguments in the following sequence: tracing legislative history of anti-sodomy law(s) in England and pre colonial, colonial and post colonial India, examining the meaning and scope of Section 377 through textual reading and judicial interpretation by Courts, and arguing that the section lends itself to 'vagueness' and 'uncertainty' and is therefore open to an attack on constitutional grounds.

In the alternative, he proposed to argue that even if "unnatural offences" under Section 377 had acquired a meaning of proscribing non procreative, penetrative penile sex, it still fell foul on constitutional grounds.

Justices Sikri and Midha inquired if the counsel for the respondent – Union of India was present. Counsels for Respondents No. 6 (JACK), No. 7 (Mr.B.P Singhal) and No. 8 (Voices against 377) marked their presence.

Counsel for the Union of India submitted that her client had filed two affidavits, one by the National Aids Control Organization (NACO) under the Ministry of Health and the other by the Ministry of Home Affairs. She admitted that NACO's reply is supportive of the Petitioner. To this, Justice Sikri remarked that if that is the Union's position then why not doesn't it amend the law itself?

The Counsel for the Union of India replied that the Ministry of Home Affairs has opposed the petition but that its counter was filed in 2003 prior to NACO's reply (in 2006). She admitted that the client (i.e the Ministry of Home) had not given any new or additional instructions. It therefore appears that the Ministry of Home stands by its earlier stand of contesting the
petition.

Amused by the fact that the Union was divided in its opinion, Justice Sikri remarked "It (homosexuality) is not a health hazard but is affecting the home".

Counsel for B. P Singhal referred to a 1996 case involving ONGC where there was a difference of opinion between two government departments. Singh was of the opinion that the matter be decided by the Cabinet and suggested that the Cabinet Secretary be directed to appear in Court. The Judges dismissed Singh's proposal.

Counsel for the Union then read out portions from NACO's affidavit which admit that criminalization of homosexuality make it difficult to prevent HIV. She also drew attention to NACO's submission that there are nearly 2.5 million men having sex with men (MSM) in India and that it is estimated that 8% of this population is infected with HIV as compared to less than 1% of the general population. Reading on, she highlighted NACO's strategy for prevention of HIV which includes provision of information and education, communication for behaviour change and prevention tools, i.e condoms to high risk groups like MSM. At the same time, NACO strives to reinforce traditional Indian values and morals. The Counsel accepted that she was unable to reconcile contradictions in NACO's affidavit as well as divergent stands between NACO and the Ministry of Home.

Thinking aloud, Justice Sikri said that the Home Ministry maybe asked to review its own position in light of NACO's affidavit.

At this stage, Anand drew the Court's attention to another matter (re recruitment of HIV positive persons in the Police) pending before the Supreme Court where NACO and the Ministry of Home had taken different stands. Anand said that he was not minded to oppose the Court's suggestion but would still press for the matter to be heard at the earliest. The Judges clarified that they were ready to hear the matter today itself and ultimately decided to proceed with the hearing with whatever was on record.

Singhal's counsel interjected by saying that the crux of the matter was whether adult consensual unnatural sex should be decriminalized. In his submission, it cannot be, as by that logic, *sati,* paid organ transplant and drug purchasing should be let off the hook.

Anand then proceeded with his submissions:

*History of law on Homosexuality *

*1. England: Biblical writings incorporated in Law*
Anand traced the treatment of sodomy as an "abhorrent" act or "unspeakable vice" in original biblical writings from the 13th century upto the enactment of the Buggery Act in 1533 in England. Sodomy was punishable with death up until 1835.

Anand pointed out that after 1850, there were two sets of crimes – (i) sodomy and (ii) indecent acts or assault. Justice Sikri sought a clarification on the definition of sodomy and noted that indecent assault implies lack of consent.

England reformed its law in 1967 decriminalizing same sex activity between adults.

2. *Pre colonial* *India** *
Anand presented relevant texts from Manusmitri. At this juncture, Counsel for B.P Singhal objected saying that the arguments should be confined to anglo-saxon jurisprudence and not venture into 'sensitive' areas of religion, anthropology etc.

Although the Justices were inclined to hear ancient scripts, Anand conceded and said that since the submission was part of the pleadings on record, it may be considered 'read'.

*3. Colonial India: Introduction of the Penal Code *
Anand then read out relevant sections from various drafts of the Penal Code submitted by Macaulay. He pointed out to the lack of discussion on the subject, which, in Macaulay's own admission was so "abhorrent" that it cannot be subjected to public debate. Anand submitted that in the absence of legislative deliberations, the Court will not be able to use external aids to interpret the law.

4*. Independent India: Law Commission Reports*
Anand drew the attention of the Court to two reports of the Law Commission (156th and 172nd) that discussed Section 377, of which the latter recommended its deletion in the year 2000.

*Meaning and Scope of Section 377 *
Anand began with a textual reading pf Section 377.

"*Unnatural Offences, - **Whoever voluntarily has carnal intercourse against the order of nature, with any man, woman or animal, shall be punished with imprisonment for life, or with imprisonment of either description for a term which may extend to ten years, and shall also be liable to fine."*

"*Explanation, - **Penetration is sufficient to constitute the carnal intercourse necessary to the offence described in this section*

Anand submitted that though the law penalized specific acts, it been applied arbitrarily since its inception. In one this case, a eunuch was prosecuted under 377 on the basis of dress and demeanor and later medical examination. Though the High Court overturned the conviction, criminal proceedings were initiated even in the absence of a sexual act.

Anand said that the section penalizes "unnatural offences", which are not defined. However, terms/ language of the section indicate what it intends to cover:

(1) *"Voluntarily*" – which, though synonymous does not signify consent as the latter requires two parties.

(2) "*Whoever*" - which could refer either to the person penetrating or the person being penetrated.

(3) *"Carnal intercourse*" – Anand contrasted the term with "sexual intercourse", which is used in two other sections of the IPC dealing with sexual offences, i.e Section 375 and 376 dealing with rape and Section 497 which criminalizes adultery. Since both these provisions pertain to a heterosexual context, Grover inferred that "sexual intercourse" refers to penile-vaginal sex while "carnal intercourse" covers non-penile vaginal sex.

(4) *"Penetration*" - incorporated in the explanation to the section. In the biblical sense, the act of sexual intercourse is complete with erection, penetration and ejaculation. However, Section 377 merely requires penetration, with or without seminal discharge.

Anand stated that that through judicial interpretation, non-penile vaginal sex has acquired another color, that is, "non-procreative sex". He added that over time, the word "perversity" also gained usage in interpreting 377.

Anand went on to argue that over a period of time, Courts have included many sexual acts within the meaning of "unnatural sex" under Section 377 such as *coitus per anus* (anal sex), *coitus per os* (oral sex), rubbing the penis b/w thighs. In addition to disparate acts, the Section covers actions between different parties – man and man, man and woman and man and animal.

Anand then pointed out that the section makes "consent" irrelevant. Sometimes however, Courts have held consent to be a factor mitigating the sentence. In one case involving oral sex between a husband and wife, consent was accepted as a defence, leading to acquittal.

Summarizing the vague and uncertain reading of the section, Anand said that being pre-constitutional; the section has not been subjected to strict scrutiny. He asserted that now the time has come to test it against Constitutional parameters of fundamental rights.

*Decriminalisation in England – Wolfenden Report *

Next, Anand introduced the report of the Wolfenden Committee, set up in 1957 to examine criminal laws on homosexuality and prostitution in England and Wales. The report's recommendations were the basis for decriminalization of adult consensual homosexual acts in the U.K. Impressing the importance of the report, Anand said that its findings on the object, scope and limits of criminal law are enlightening to the merits of the petition, which sought the exclusion of adult, consensual sex in private from section 377. In conclusion, Anand emphasized that it was well accepted that acts done by consenting adults in private are not the province of criminal law and that morality cannot be the basis of subjecting individuals to penal hardship.

Anand asserted that when a country (England) without a constitutional legal system has revoked the law, India with a robust Constitutional scheme, must be open to scrutinizing the law against the rigours of the Constitution.

Drawing a parallel with prostitution, Anand pointed that prostitution is not an offence. The Immoral Traffic (Prevention) Act 1956merely proscribes attendant activities.

Justice Sikri commented that public opinion on this subject differs. To this Anand said that the issue is to decide what role criminal law should play?

*Sexual act or sexual orientation *

Anand went on to point out the difference between homosexuality and homosexual acts. He said that though the section does not criminalise sexual orientation or a homosexual identity, it is still offensive to the dignity of homosexuals. He referred to studies that show that health risks/burden of disease are higher among gay men.

Justices responded in the affirmative and said that NACO's affidavit itself acknowledges this finding.

Anand drew attention to situational homosexual acts such as in military barracks, prisons or other exclusively male settings. He referred to an earlier petition filed by the *AIDS Bhed Bhav Virodhi Andolan (ABVA)* that challenged Section 377 on the ground that it prevented jail authorities from supplying condoms.

Justice Sikri inquired about the matter and its outcome. Anand replied that the case was dismissed in 2001 for non –prosecution.

The matter is adjourned to Wednesday, 21st May at 2pm.

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