These edited summaries of oral proceedings were originally posted on pad.ma by Siddharth Narain and are based on notes put together by lawyers representing the petitioners (Naz Foundation and Voices Against 377). The lawyers and supporters took detailed notes during the stage of final arguments and circulated them on LGBT email lists.

An unabridged version of the summaries can be found in a monograph by the Alternative Law Forum, Bangalore – The Right that Dares to Speak its Name.

Before Justices: Chief Justice A.P. Shah and Justice Dr. S. Muralidhar.

Day 1, Sept 18, 2008: Morning Session

Mr. Anand Grover argued for Naz Foundation. Mr. Grover stressed that the prayer in the petition is talking about decriminalising 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 Mr. Grover about how to deal with cases of public sex to which he replied that this could be dealt with by the laws related to public nuisance, indecency, etc. When asked if there were examples of convictions of consenting adults, Mr. 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.

Mr. 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 them. Mr. Grover then explained how Section 377 was an impediment to propagating safe sexual practices.

In response to Chief Justice Shah’s query, he referred to the Lucknow arrests where employees of Sharona Trust (an organisation that worked on safe sex practices with the MSM community) were held in custody for 100 days, and accused by 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 and MSM communities.

Chief Justice Shah remarked that safe sex messages could be effective only when there is more openness and recognition (of sexual practices). Mr. Grover then quoted in great detail from the Wolfenden Committee Report that recommended the decriminalisation 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 it was difficult to get third parties to testify in cases of consenting adults. He said 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 desuetude, that is, 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 Mr. Grover said that technically it did not.

Mr. Grover said, “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 and 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 dyslexic boy was ragged by his classmates. As a result, he was hospitalised just before his exams. He came to us asking for a chance to do his exams again.”

Legal commentators have argued that the final judgment in the case, which expands the existing right to non discrimination in our constitution to include the right to non discrimination based on sexual orientation, could be used by those arguing for protections based on other analogous grounds including disability

He also added that homosexuality was “by nature, and not by choice.”

Day 1, Sept 18, 2008: Post-Lunch Session

The intervener B.P. Singhal’s lawyer H.P. Sharma suddenly brought up the case of right to dignity, privacy, and health, 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. Mr. Grover then argued that international principles linked notions of highest attainable standard of health to the conditions necessary to attain this. This would involve making health facilities accessible to all, especially the most vulnerable populations. He said that far from being a compelling state interest, Section 377 is actually an impediment to HIV/AIDS programmes.

Mr. Grover also argued that ‘private’ should not be restricted to mean spatial 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 Makwanyane Judgment (which abolished 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, Sept 19, 2008: Morning Session

Mr. Grover argued that the right to life includes the right to dignity, and all that goes with it. He argued that Section 377, by criminalising 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 Section 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.

Mr. Grover then argued that the wordings of Section 377 were vague and should be struck down. Justice Muralidhar then asked Mr. Grover if the word ‘whoever’ in Section 377 could be read down. He observed that the petitioners were saying that the law 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.

Mr. 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 Wolfenden Committee Report and should contextualise Wolfenden in the context of Indian society and culture.

Mr. 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. Mr. 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.

Mr. 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’, and so proscribing a penalty of 10 years would be disproportionate to the offence.

Mr. 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. Mr. Grover argued 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.

Mr. B.P. Singhal’s lawyer Mr. H.P. Sharma interrupted saying that in the United Nations office there were no spousal benefits for same sex couples. Chief Justice Shah asked Mr. Sharma, “So you admit that there are people in this world with a different sexual orientation?” To which Mr. 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.”

Mr. Grover interjected to say that if being harassed by the police was fun, and then they were having a lot of fun. 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. Mr. Grover replied that the government needed to discharge its burden to prove that there was a compelling state interest to legislate in this matter.

Mr. Grover then talked in some detail about judgments in other courts where similar anti-sodomy laws have been struck down. These included Dudgeon (in Northern Ireland), Modinos (in Cyprus) and Norris (Republic of Ireland). He pointed out that in these cases there was a similar concern that homosexuality should not be decriminalised 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 Joint Action Council (Kannur) (JACK) lawyer Mr. 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 organised 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.

Mr. 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.” Mr. R.S. Kumar in response said that HIV was a propagated disease.

Day 2, Sept 19, 2008: Post-Lunch Session

Mr. 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 National Coalition for Gay and Lesbian Equality (NCGLE) decision in South Africa.

The NCGLE judgment is a landmark decision where the Constitutional Court in South African held that the anti sodomy law in the country violated the right to privacy, dignity and equality under the South African Constitution. This judgment was used by the lawyers of the petitioners in the Naz case, especially since it talked in great length about the right to dignity of LGBT persons, and roots of discrimination based on gender identity and sexual orientation.

He dealt in great detail with the judgments by both Justice Ackerman and Justice Sachs striking down the anti-sodomy law.

When Mr. 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 Mr. 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 should have been here to listen to this.” 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 criminalisation (of homosexuality) is like treating you as a member of a scheduled caste”, he said.

Mr. 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 Lawrence v Texas case was groundbreaking U.S. Supreme Court decision, where the Supreme Court declared a Texas legislation that criminalised sodomy unconstitutional, thus overturning the existing law laid down in Bowers v Hardwick, where the Supreme Court has upheld the validity of sodomy legislation in the U.S.

The judges asked Mr. Divan (the lawyer for Voices Against 377) if it was possible to link the petitioners’ arguments to the constitutional provisions in Article 17 and 23 that deal with untouchability. Contesting JACK’s position that contests the links between HIV and AIDS, Chief Justice Shah said, “In Bombay someone filed a Public Interest Litigation (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 history of PILs in India can be traced to the post Emergency period where the courts began crafting a method by which they could address issues where the petitioners were represented by journalists, NGOs or persons appearing on behalf of marginalised sections of society.

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.

Day 3, Sept 25, 2008: Morning sessions

Mr. Divan said that he would demonstrate, through records of incidents from across the country, as well as personal affidavits, reports and orders, that the continuance of section 377 on the statute book operated to brutalise a vulnerable, minority segment of citizens for no fault of theirs. “A segment of society is criminalised and brutalised to a point where individuals are forced to deny the core of their identity and vital dimensions of their personality”, he said.

Referring to Professor Siras’ torture of LGBT persons at the hands of the police and society. “Section 377 allows for the legal and extra-legal harassment.

Mr. Divan cited the Human Rights Watch Report report titled “Epidemic of Abuse: Police Harassment of HIV/AIDS social workers in India”which documented the harassment of HIV/AIDS workers in India. This report documents the police raid of the office of Bharosa Trust in Lucknow in June 2001, when the police arrested four health care workers and arrested them under section 377. They were charged with possessing obscene material that was nothing but educational material. However, since 377 was a non-bailable offence, the health care workers were jailed for 48 days.

Referring to the Judges’ observations related to the Criminal Tribes Act in the last hearing, Divan said that during the colonial period hijras were criminalised on the basis of their identity, and in 1897, the Criminal Tribes Act was amended to include eunuchs. “While this act has been repealed, the attachment of stigma continues”, he said.

Mr. Divan then narrated another incident (which occurred in April 2006), which was that of two adult lesbian women in Delhi who were in a relationship.. The father of one of the women ‘X’ filed a complaint stating that she was abducted by her partner ‘Y’. Y was arrested and brought before the police. X wanted to file a statement under section 164 of the Criminal Procedure Code saying that she had left her parental home of her own free will. However her application was refused, and the Magistrate, in his order recorded that it “appeared prima facie that under the guise of the section there were hidden allegations of an offence under section 377 as well. Mr. Divan pointed out that to constitute an offence under section 377 there needs to be penetration, and thereby the section could not be applied in this case.

The lawyers for the lesbian women in this case strategically argued that section 377 does not apply to women, as there was no penetration involved. However, the larger point Mr. Divan is making is that while the law does not technically apply to women, its shadow covers lesbians as well since its is used to harass them.

However, since section 377 served to criminalise all homosexuality, and not merely certain sexual acts, it applied to lesbians as well. Mr. Divan then referred to an incident in Bangalore in 2004, which involved the human rights of sexual minorities in Bangalore Kokila was raped by ten goondas, and the police instead of helping her, tortured her in the police station. Mr. Divan stressed that this incident happened because she was a transgender person.

Justice Muralidhar asked Mr. Divan what recourse could be taken for the offences committed against Kokila. Mr. Divan said that this would be an instance where 377 could be used. He said that for non- consensual acts and sex with minors, Section 377 should be retained in the statute book. Mr. Divan also referred to the Jayalakshmi case that was decided by Chief Justice Shah in which the petitioner’s sister, who was a hijra, committed suicide after being tortured and sexually assaulted by the police. He talked about was the arrest of four gay men in Lucknow in 2006, for allegedly indulging in sex in a picnic spot. Reports by both Human Rights Watch and the National Coalition for Sexual Rights that this incident was actually a case of police entrapment, and that none of the men arrested were having sex in public.

Finally, Mr. Divan referred to the complaint filed by the Inspector of Police, Bangalore, on September 11, 2006, where he states that he raided Cubbon Park and found 12 ‘Khojas’ who with “an intention to engage in unprotected, unnatural sex, were standing in the shade of trees and soliciting passers by.” He said that by such unsafe, immoral, sexual acts, they may spread immoral diseases like AIDS, which may cause severe harm to the general public and thereby are likely to affect public health.” Mr. Divan said that the affidavit of Madhumita, one of the persons arrested in the case showed that the police version was false. Madhumita states that she was standing at a bus stand when she was surrounded 5 constables, and arrested without giving any reason. She said that she was targeted by the police because she chose to dress as a woman and that section 377 branded her as criminal and made her vulnerable to harassment and persecution from the police .

After the narration of these incidents, Mr. Divan talked about the recently framed “Virtually every dimension of the lives of gay men have been affected,” )

“Homosexuals suffer tremendous psychological harm. Fear of discrimination leads to a concealment of true identity…in the case of homosexuals it is the tainting of desire, it is the attribution of perversity and shame to spontaneous bodily affection, it is the prohibition of the expression of love, it is the denial of full moral citizenship in society because you are what you are, that impinges on the dignity and self worth of a group”, he said. Arguing that homosexuals have the right to privacy, Mr. Divan quoted from Justice Kennedy’s decision in Lawrence v. Texas .“Matters involving the most intimate and personal choices that a person may make are central to the personal dignity and autonomy of the individual and are protected from unwarranted intrusion. At the heart of personal liberty is the right to seek and develop personal relationships of an intimate character.” Mr. Divan argued that the notion of autonomy extended beyond the spatial dimension. “It projects beyond the home or the closet, since individuals to attain growth and fulfillment cannot be confined to such spaces,” he said.

Mr. Divan then outlined the global trends with respect to laws relating to homosexuality including the Yogyakarta Principles, the decision of the South African Constitutional Court, the Fijian High Court, the High Court of Hong Kong, the European Court of Human Rights, the Nepalese Supreme Court, and the UN Human Rights Committee. He said that these judgments showed that moral disapproval could not be adequate rationale to keep 377 on the statute book. Chief Justice Shah then pointed out that the Indian Constitution provided that public morality could be a ground for restricting fundamental rights. Divan responded with an impassioned argument. “If it is a law which impinges on the dignity of an individual, not in a nebulous sense, but affecting the core of the identity of a person. Sexual orientation and gender identity are part of the core of the identity of LGBT persons. You cannot take this away…” He said, “Morality is insufficient reason in a case like this where you are criminalising a category and affecting a person in all aspects of their lives, from the time the person wakes up to the time they sleep.” He said that NACO figures estimated that there were 25 lakh MSM in India, which is a minimum figure that we are talking about. Mr. Divan said that if the court did not declare its relief limiting the scope of section 377, it would cast a doubt on whether LGBT persons enjoyed ‘full moral citizenship’ of this country. “A moral argument cannot snuff out the right to life and personal liberty (of LGBT persons).” This is a law that affects what a person considers himself to be while facing the mirror,” he said.

Addressing the point on whether the morality argument could be used to curtail the right to life and liberty, Mr. Divan cited Justice Thomas, who even while dissenting in the Lawrence case (U.S.), characterised the Texas legislation as “an uncommonly silly law”. Chief Justice Shah asked if one could argue that section 377 would lead to disqualifications when it came to elections, employment, etc.

Day 3, Sept 25, 2008: Post Lunch Session

Mr. Divan cited the decision of the Fiji High Court where the Fijian Court, faced with a similar dilemma as the Delhi High Court, had invalidated the relevant section to the extent that it declared inconsistent that part of the section that criminalised private consensual acts between adults. “This is what we recommend that the court does. The section should be interpreted in a manner in which the constitutionality is preserved, not struck down”, he said. Arguing that the grounds of discrimination in Article 15 and 16 of the Indian Constitution should be read to include discrimination based on sexual orientation, Mr. Divan cited the Toonen case where the term ‘other status’ in the International Covenant of Civil and Political Rights was interpreted by the U.N. Human Rights Committee to include ‘sexual orientation’. He relied on the Canadian Supreme Court decision in Vriend v. Alberta and the Indian Supreme Court decision in Anuj Garg to argue that ‘sexual orientation’ should be read into ‘other status’ or the term ‘sex’ that already exists in Article 15. The Canadian Supreme Court held that despite the term ‘sexual orientation’ not being specifically mentioned in the Canadian Charter, on the basis of historic social discrimination based on sexual orientation, it was declared an analogous ground of discrimination. In order to show that there was increasing realisation in India of the rights of LGBT persons, Mr. Divan pointed out that the Tamil Nadu government had initiated policy measures for the welfare of aravanis (hijras) and that the Election Commission had provided a column for persons of the ‘third gender’

Agreeing with Mr. Divan, Chief Justice Shah said, “This is also reflected in the statements made by the Health Minister and the Prime Minister. Mr. Divan said that the estimated figure of the number of homosexuals was around 5-7 percent of any given population. He said that homosexuality was no longer a disease and had been removed from the list of disorders by the American Psychiatric Association. The amicus brief in the Lawrence case showed that the core basis of adult sexual attraction arose in adolescence, which most people had no choice over.

Quoting from the affidavit filed by Gautam Bhan, Mr. Divan showed that the legal repercussions of Section 377 hindered the lives of homosexuals even though society and family could be supportive of the issue. In his affidavit, Bhan states that he felt like a second-class citizen in his own country because of 377. Argued Mr. Divan, “Section 377 operated to criminalise and stigmatise people for being themselves. There is no justification for such a law.” Mr. Divan elaborated on the importance of the notion of identity. “We were discussing the issue of caste. In parts of India, men identify themselves by their caste. Women often identify by gender. For some, religious identity is paramount. When you are enumerating identity, a heterosexual person may not consider sexual orientation as important, but for a homosexual, sexual identity may be paramount. Sexual orientation is often the first thing that governs a person’s life. As we saw in Gautam Bhan’s affidavit, he asks why, though he is equal to persons in all other aspects, he still suffers from the stigma of section 377.”

Mr. Divan said that he wanted to underscore the need for appropriate directions where persons of the LGBT community are alleged to have committed offences other than Section 377. “It is a widespread experience that law enforcement officials policing against obscene acts in the public etc., proceed against LGBT persons not as they would in respect to heterosexuals but under Section 377 as well. This amounts to a particularly invidious discrimination inasmuch as an offence under Section 377 is non-bailable and is punishable with a sentence up to life imprisonment. In contrast, a heterosexual person is generally booked under Section 294 of the IPC which carries a relatively lighter sentence of three months imprisonment and is a bailable offence”, he said.

Said Mr. Divan, “It is submitted that the constitutionality of a provision must be judged keeping in view the changed situation with the passage of time. A law that is constitutional at a certain point of time may with the passage of time be held to be unconstitutional. In matters impacting human rights, a progressive interpretation of the law is necessary. In a distinct context the Supreme Court has observed “it is not necessary and indeed not permissible to construe the Indian Penal Code at the present day in accordance with the notions of criminal jurisdiction prevailing at the time when the code was enacted. The notions…have considerably changed then and now during nearly a century that has elapsed. It is legitimate to construe the code with reference to the modern needs, whenever this is permissible, unless there is anything in the code or in any particular section to indicate the contrary.”

He said that the interpretation with respect to Section 377 urged by Voices Against 377 was in keeping with contemporary understanding of sexual orientation and gender identity. “It is consistent with Indian constitutional values; it is consistent with international human rights standards; it is consistent with the developments in this field of the law worldwide as reflected from legislative changes and decisions of the superior courts in countries across the world,” he said.

“To blot, to taint, to stigmatise and to criminalise an individual for no fault of his or hers, is manifestly unjust. To be condemned to lifelong criminality shreds the fabric of our Constitution. For the male homosexual in particular and by its expanded application to lesbians and transgenders as well, Section 377 has worked to silence the promise of the Preamble and Part III of the Constitution It is the case of the Petitioner and those who support the petition that it is the liberating, emancipatory spirit underlying the Fundamental Rights invoked in this case that must prevail. The Constitution of India recognises, protects and celebrates diversity. LGBT persons are entitled to full moral citizenship” he said.

Mr. Divan then tendered a list of suggested operative directions for the Court to consider while passing orders.

Day 4, September 26, 2008: Morning session

Additional Solicitor General (ASG) Mr. P. P. Malhotra begins arguments for the Union of India Mr. Malhotra began by referring to the Sakshi Judgment and said that sexual offences constitute an “altogether different crime that are the result of a “perverse mind”. The Judges (Chief Justice A.P. Shah and Justice S. Muralidhar) reminded Mr. Malhotra that the Sakshi case dealt with the rape of a one and a half year old child. Justice Muralidhar interrupted Mr. Malhotra, and asked him to make the Central Government’s stand clear. “The government’s stand is the same as in its affidavits.” Justice Muralidhar said that when two Ministries of the government were speaking in different voices, it is possible that the government chooses not to file a counter affidavit. “What is the stand of the Central Government?” Chief Justice Shah asked once more. “The stand of the government is that 377 is valid,” replied Mr. Malhotra

“Are you saying that 377 is valid as a whole, even for consenting adults” asked Chief Justice Shah. “That makes no difference,” replied Mr. Malhotra. “It is not their (the petitioners) case that this section won’t apply to violent or non-consensual acts. Their arguments are related to consenting adults in private. If there is a Supreme Court judgment to this effect, then it is relevant,” said Justice Muralidhar. “The Supreme Court has said that it is a perversity of mind. Justice Pasayat, while he was in the Orissa High Court has said that consent or no consent, it did not matter,” replied Mr. Malhotra. He then read from the text of the judgment. “The offence is one under section 377 of the IPC, which implies sexual perversity.

“No force appears to have been used…neither notions of a permissive society nor the fact that in some countries homosexuality has ceased to be an offence, has influenced our thinking… This case deals with a young boy, where there is no consent,” pointed out Chief Justice Shah. “The question is whether this section makes it an offence irrespective of age,” said Mr. Malhotra.

“Then you are saying that this line throws out the entire question of constitutional validity,” asked Chief Justice Shah. “I’m sorry. This section applies to consenting adults, and there are a number of arguments that this is in violation of Article 21 etc.,” he said. “This argument is being raised because there are many people of ‘that kind’ in society,” said Mr. Malhotra. “People are indulging in it, and they should be excused because they are consenting adults?” he asked.

“There is no question of being excused”, Chief Justice Shah remarked sharply. “The argument is that Article 21 is being violated.” Mr. Malhotra then again referred to Mihir v State of Orissa (Justice Pasayat’s decision. “..Unnatural carnal intercourse is abhorrent to civilised society. It is recognised as a crime and punishable with a strict sentence. Unlike rape under section 376, consent of the victim is immaterial.” “Age is also immaterial” added Mr. Malhotra.

“The judge was construing the section (377) as it is. This section is now being challenged,” said Chief Justice Shah. “I am only pointing out that the courts have taken the view that this act is abhorrent to society. The Pasayat judgment says that even if consent is given, it is immaterial,” repeated Mr. Malhotra.

“You yourself know that these are observations of the court and are not the ratio of the case,” said Justice Muralidhar. “I confine myself to the observations of the court. The view of the court is that it is abhorrent to society,” said Mr. Malhotra.

“This is a 1983 decision. Much water has flown since then,” remarked Chief Justice Shah.

“My lord, nothing has flown in India since then,” quipped Mr. Malhotra.

“Look at both your affidavits,” said Chief Justice Shah.

“The Ministry of Health’s concern is about the health of the person. The Home Ministry’s concern is law and order. I am not saying that the states should be made party, but law and order is a state subject,” said Mr. Malhotra.

“This is about the right to live with dignity,” remarked Chief Justice Shah.

“The dignity of society needs to be seen too,” replied Mr. Malhotra.

“Then argue that point. Don’t reduce this petition to one line. Take this issue seriously,” said Chief Justice Shah.

“I fully agree that this is a serious issue and requires serious consideration,” said Mr. Malhotra. Mr. Malhotra then argued that the rule of strict construction had to be applied to penal statutes. “No person can license another to commit a crime, if the act has a tendency to effect breach of peace,” said Mr. Malhotra.

Chief Justice Shah said “So your arguments are that 1) it (unnatural sex) may create breach of peace and 2) it affects public morals.”

“I will show that this (reading down 377) will increase the chances of evil sought to be avoided. i.e., the evil of HIV/AIDS. There will be more people of this nature in society,” said Mr. Malhotra. “This will lead to harm in society.”

Chief Justice Shah summed up Mr. Malhotra’s arguments again: 1) It will degrade moral values 2) It will cause a health hazard to society 3) It will be a detriment to the health of subjects.

Mr. Malhotra then referred to a Full Bench decision of the A.P. High Court (Vijaya vs. Chairman SCCL) “That was a case of taking consent for mandatory testing,” said Chief Justice Shah.

“There is still no bar on males having sexual intercourse with females,” he said.

“That is because our moral values require one man and one woman, his wife,” said Mr. Malhotra.

“If a man contracts HIV and goes to 5 men and 5 women, he will spread it,” said Chief Justice Shah. “What is material is for you to show that the existence of section 377 will act as a deterrent to such a man,” he said.

“If there is no prosecution for consensual homosexual sex, why should it be read down?” asked Mr. Malhotra.

“Criminalisation carries with it stigma,” interjected Chief Justice Shah.

“In the understanding of the Central Government, is there a category of MSM? Has this population grown in the last few years? Does NACO have this data?” asked Justice Muralidhar.

“Factually, is the government of India aware of the MSM population in the country?”

“NACO has surveyed it,” replied Mr. Malhotra.

“You are saying non-criminalisation of homosexuality could lead to encouraging homosexuality and consequently increasing incidence of HIV/AIDS. For that, do you have any data?” asked Chief Justice Shah.

“I will read from the judgment” said Mr. Malhotra.

“We are on facts,” pointed out Chief Justice Shah.

“If a man is having sex with one woman, it is confined there. It can’t be transmitted to others,” said Malhotra. “We need to stop this vehicle (homosexual sex),” he said.

‘How does this lead to a breach of peace?” asked Chief Justice Shah.

“The police can’t be in the house of everybody. The so-called consenting adult may be bold, etc., but isn’t this more painful? There is no data on this,” said Mr. Malhotra.

“There is data,” said Chief Justice Shah

“The data is on what is happening in America. We are not concerned with that,” said Mr. Malhotra.

Chief Justice Shah then pointed out that the government’s affidavit dealt with deletion of 377 while the petitioner’s prayer was only reading down. “If this permitted in the case of consenting adults, it is arbitrary again. It is discriminatory. Giving this kind of permission will cause great harm and prejudice to society,” said Mr. Malhotra. “They have not shown one case where there has been a prosecution under 377,” he said.

“Mostly they are not prosecuted,” remarked Chief Justice Shah.

“377 is not violative of Article 14 or 15 of the Constitution. 377 is primarily used to prosecute child sexual abuse, and is used to bridge the lacunae in rape laws, and is not used to prosecute homosexuality,” said Mr. Malhotra.

“This is also their argument. They are also making the distinction between acts without consent and child sexual abuse and consenting adults,” pointed out Justice Muralidhar.

“If the court gives this kind of interpretation that it is permissible, it will create havoc in society,” said Mr. Malhotra. He talked about reasonable restrictions in the Constitution. Justice Muralidhar then asked Mr. Malhotra about the NACO affidavit which categorically states that criminalising homosexuality will affect access to treatment.

“The numbers will increase. Will multiply. When there is law there will be fear, otherwise there will be no fear at all,” said Mr. Malhotra.

“People are afraid of reporting that they are HIV positive because of the law,” said Justice Muralidhar.

“We have opened many centres for this purpose,” replied Mr. Malhotra.

“The Health Ministry’s (NACO) affidavit is very clear,” said Chief Justice Shah.

Mr. Malhotra then relied on the 42nd and 156th Law Commission Reports to show that section 377 should be retained as Indian society, by and large disapproves of homosexuality. The Judges pointed out that the 172nd Law Commission Report (the latest on the subject) recommends that the government enact a separate legislation to deal with child sexual abuse and delete section 377.

“One may be willing to commit any crime. One may call a person to one’s house, beat him, or commit murder and say it was with consent and in private. An offence is an offence. Consent is immaterial,” said Mr. Malhotra.

Mr. Malhotra argued that criminal law has to address public morality and issues of harm to society. He said the legal concept of crime depends on moral and political considerations, and that criminal law reflected shifts and changes in morality. He said that since the Indian Penal Code had been enacted, crimes like child marriage, dowry and widow remarriage, which had been brought under the scope of criminal law.

Justice Muralidhar pointed out that widow remarriage was not a crime. He berated the government for submitting the affidavit with this line. “If we don’t react strongly, everything will be tolerated. The whole paragraph is about morality. It just shows how seriously the gentleman (from the government) is in answering a notice from the High Court on such a serious issue,” he remarked.

Justice Muralidhar asked if the government’s affidavit actually said that incidence of HIV/AIDS would increase if 377 is read down, or if it was only in the government’s oral submissions. “The affidavit of the Central government has not said that there will be a greater risk in spreading HIV/AIDS,” said Justice Muralidhar.

“The court can’t be oblivious to natural phenomena and natural facts,” said Mr. Malhotra.

Chief Justice Shah, referring to the NACO affidavit, said that the government’s own affidavit said that people living with HIV/AIDS would be pushed underground. Mr. Malhotra pointed to a different paragraph in the affidavit that referred to the need for a change in lifestyle, avoiding multiple sexual partners to reduce risk of HIV/ AIDS. Chief Justice Shah said, “Do you stand by para 5 (which stated that people living with HIV/AIDS would be pushed underground because of 377) of the affidavit?”

“It is a government affidavit. I can’t say I don’t stand by it,” replied Mr. Malhotra. He said that the affidavit says there is a need to prevent AIDS, encourage education programmes and motivate safer sex, i.e. sex with one partner. Partner could mean male or female,” said Chief Justice Shah.

“Male to male (sex) is neither known to nature, nor known to law”, said Mr. Malhotra. He pointed out that the incidence of HIV/AIDS is 8 per cent in the MSM population as compared to less than 1 per cent among heterosexuals. “What the petitioner is saying is, permit this 8 per cent to grow,” he said.

“The NACO affidavit says 377 has an adverse impact on safe sex programmes,” pointed out Chief Justice Shah. “Please read the whole affidavit,” he said. “There is no averment that deletion of 377 would spread HIV/AIDS.”

“The National Sentinel Survey data shows that 6 per cent of the MSM population are already covered by the government’s programmes. That leaves 2 per cent. They can also be covered through education etc. That would be the proper direction, rather than to say this should be permitted.” Mr. Malhotra then read out the contents of section 377. He then explained what ‘against the order of nature’ meant: “…for intercourse, nature has specified a place. That place is scientifically designed by nature. If it is done at that place, probably there is no injury, or if there is an injury, it is of minor nature.” He said that the emphasis was on the act. ‘..This should be done at a place, at a point designed by nature for that purpose, and if you do it otherwise, it is treated as an offence,” he said.

Mr. Malhotra then referred to an Andhra Pradesh High Court judgment delivered by Justice Sinha. When asked by Chief Justice Shah on the relevance of this decision, Mr. Malhotra said, “AIDS spreads through homosexuals. This is a recognised fact.”

Justice Muralidhar said, “There are several major routes of infection”. “Does it (the AP judgment) say Section 377 should be retained?” asked Chief Justice Shah.

“Portions of the judgment say how AIDS is spreading,” said Mr. Malhotra. He said that the first case HIV was reported in 1986 in India and extra-marital sex was the primary mode through which is spread.

“This could be man to man or man to woman,” said Chief Justice Shah.

Normal sex is from man to woman and not man-to-man, said Mr. Malhotra.

“The Petitioners case is backed by substantial material,” said Chief Justice Shah.

Mr. Malhotra said, “They are arguing – it is a stigma on me, I can’t go anywhere. How would a man get this infection? I am condemning the man. But there is no need to be sensitive to this. They can go to the doctor. The law cannot be read down or declared invalid because they are sensitive. There is no doubt about the plight of these people, but to say that the law should be declared invalid is not enough. The effect of the law has to be direct and tangible and mere sensitivity is not enough

Day 4, September 28, 2008: Afternoon Session

The Government of India resumed its arguments. Mr. Malhotra then went on to reiterate his point that when there is an ‘apparent conflict’ between the right to privacy of the person and the interest of general public and society that this disease is not spread. Homosexuality is one of the causes, which affects this disease. If this is allowed what will happen? There will be more sex and the disease will be spreading. He noted that he had no objection to condoms being supplied as that was a precaution, but it must not be made legal. The law is clear and need not be read down.

When Mr. Malhotra was asked by the Judges as to whether the right to health was a part of the right to life under Article 21 he stated that yes, but not only the right to health of those affected but also society. Finally Mr. Malhotra conceded that the right to health was included under Article 21. However he continued to stress that the right to health also included the right to health of others as well.

Chief Justice Shah posed the hypothetical question as to whether a law which discriminated against HIV positive people by denying them employment and isolating them would be valid. Mr. Malhotra’s response was that no law is abstract and this right cannot be absolute. One has to see if other person’s rights are affected. He went on to note that the Supreme Court had said that it was a moral perversity. Tomorrow you will say that you have a right and exercise it in the road. We have to see limits, see other men’s rights as well and balance rights.

Chief Justice Shah noted that Mr. Malhotra was relying on these judgments to show that AIDS was transmitted through homosexual sex. “However on affidavit you are silent on whether non- criminalisation would lead to spread of HIV/AIDS. There is not a word on this. In fact the NACO affidavit says the exact opposite. Where do you get this point that de-criminalisation would result in the spread of HIV/AIDS. Show us some study, research on this point, surely we can’t rely on your word alone. In fact the consensus around the world is that criminalisation will drive HIV underground….The judgment you rely on (Vijaya v. Chairman SCCL), upholds the validity of mandatory testing in the case of HIV/AIDS, but the Union of India has in spite of the judgment not made testing mandatory…You have to place some material to show that criminalisation will stop HIV. In fact what flows from your argument is that we should not have HIV at all because we have Section 377.”

Mr. Malhotra was repeatedly asked by Chief Justice Shah as to what was the sum and substance of his Article 21 arguments, whether he would make an argument on public morality as a justification for limiting Article 21 rights and also whether he would address the question of dignity. Justice Muralidhar made the point that the other party had made a very strong oral submission as well as written submission that Section 377 violated the right to life with dignity and Mr. Malhotra had not addressed that limb of the Article 21 question. Dignity formed a part of the Preamble as well as Universal Declaration of Human Rights. Mr. Malhotra was also asked to address the Court on the question of whether sex in Article 15 and Article 16 included sexual orientation.

Mr. Malhotra while assuring the Court that he would address the Court on those points went on to make submissions on the interpretation of Section 377. He said the question under this provision was not whether intercourse was with consent or not but was whether it was against the order of nature. He said that nature had devised scientific methods. “You breathe through your nose, eat through your mouth. Similarly order of nature would mean that intercourse should be in the place specified by nature in all human relationships even among animals. The phrase ‘order of nature’ means that if a man wants to have intercourse with a woman, the place is specified.” Chief Justice Shah asked Mr. Malhotra to please address the Court on the Constitutionality of Section 377 and to leave aside the question of interpretation of the meaning of Section 377 as that question was not before the Court.

Day 5, September 29, 2008:

(Mr. Malhotra continues his arguments on behalf of the Union of India).

Day 6, September 30, 2008:

(Mr. Malhotra continues his arguments on behalf of the Union of India).

Day 7, October 1, 2008

(Mr. Malhotra continued his arguments on behalf of the Union of India).

When questioned about the contention that Section 377 violated the right to live with dignity, Mr. Malhotra maintained that he conceded that everyone had the right to live with dignity, only “dignity does not mean that you permit all this…” Mr. Malhotra then read from the petition to make the point that Naz Foundation concedes that MSM and gay men are susceptible to HIV.

Chief Justice Shah said that there was no question of concession as the point was not in dispute as all.

Mr. Malhotra then went on to read from the written submissions of the petitioner to make the following counter assertions; that the petitioner uses the term sexual minorities and that there is no such thing as sexual minorities in the Constitution.

Chief Justice Shah noted that the petitioners were not praying for inclusion as minority in a Constitutional sense but using the term to indicate a small number of people. Chief Justice Shah asked Mr. Malhotra to respond to the contention that the word sex included sexual orientation.

Mr. Malhotra responded by saying that the term ‘sexual orientation’ is taken from South African law. The South African Constitution guarantees sexual orientation “If one is used to that kind of sex, that will be preserved if a man is indulging in that kind of activity… no such thing in India.” Chief Justice Shah made the point that the word sex included sexual orientation came from the Toonen decision and was it the contention of Mr. Malhotra that international law treaties which India has ratified could not be used to interpret Constitutional guarantees?

Justice Muralidhar asked Mr. Malhotra what was his response to three issues raised: health, privacy and dignity? On privacy Mr. Malhotra noted that he had read the same judgments as the petitioners, Kharak Singh, Govind and Rajgopal He did not agree with the foreign decisions referred to by the petitioner on privacy. Chief Justice Shah pointed out that Griswold, Roe and others were not anti-sodomy law decisions but rather decisions on the scope of the right to privacy and were all referred to by the Supreme Court in Govind and subsequent decisions. Mr. Malhotra noted that nobody interferes with private affairs in anybody’s house. One can do anything one wants in the privacy of one’s home.

Justice Muralidhar then made the point that in that case the ASG had to show compelling state interest in prosecuting consensual sexual activity in private.

Mr. Malhotra noted that the law was there since 1860 and it was up to parliament to change the law. Law visualises all sections of society not just a small section of society. Law should cater to the needs of entire society. The will of the parliament is clear; debates can go on in society. Though other provisions of the Indian Penal Code and Cr.P.C have been amended, this section has not been changed. It cannot be said that the right to privacy will extend to such an extent and such absurd levels. He said that law couldn’t be made invalid because of hardship to a section of society. One can however remedy the hardship.

“Does the right to dignity imply this kind of right?” The question according to Mr. Malhotra was whether it was against dignity to punish what was against the order of nature. There is however no controversy about dignity. “Who is saying that they should be unfairly treated? Nobody is saying that. They should be treated fairly. The point is made that they are marginalised, ignored, who is doing that? They are entitled to treatment. Nobody is saying treat like a second-class citizen, if a man is suffering from something, he needs treatment.”

Mr. Malhotra noted that the Government of India was committed to addressing the needs of those at great risk. They say that Section 377 prevents the collection of data. However we need to educate people, this not good for you and for the other person.

Chief Justice Shah made the point that if we educate people that going to prostitutes is wrong then will people stop going to prostitutes? Obviously the NACO affidavit was on the point that education by itself was not enough.

Mr. Malhotra said, “In our culture and tradition men have sex only with their women.” Mr. Malhotra went on to say, it is wrong to say that access to health care is impeded as if a man goes to a doctor and asks for treatment he will be provided. Where is the fear? It is incorrect to say that the statute is arbitrary because one can’t get treatment.

Chief Justice Shah said that on the ground, if a person had a sexually transmitted disease and was a MSM, he would be fearful of going to the doctor knowing that the sexual act he had done was punishable even up to life. He knows that the behaviour is criminalised and knows that he is liable to punishment. It remains a stigma, as he cannot tell the doctor that what he indulged in was an offence. Can you brush aside NACO’s affidavit by saying that person is feeling shy about going to the doctor? Chief Justice Shah went on to note that MSM are subject to various indignities, which might hinder actual treatment.

The only question Mr. Malhotra had to answer is if there was no prosecution for sex in private (hardly any) why then should the provision remain? What is the compelling public interest served by a law that is rarely used? In the affidavit read out by Mr. Divan, there is a situation which all of us know of -making fun, ridiculing, heaping indignities only because of the nature of sex. Mr. Malhotra was asked that when the government was not serious about prosecution, why this provision should remain on the statute book?

Justice Muralidhar asked Mr. Malhotra to think about this point, “that if the Union of India viewed this as being against the order of nature how it would impact on the notion of an inclusive society? We have an obligation to educate our people on how to exist with people who are not like you? You need to ask the question on how to help communities to coexist. What impact will this have on the argument of compelling state interest

Chief Justice Shah went on to note, that the stand of the government in most of the cases where the law was challenged, Dudgeon, Modinos, Hong Kong, South Africa it was conceded by the Government that the law was rarely used. It was only used for harassment. If the Government was not serious about enforcement, why should it be there? Chief Justice Shah then summarised the arguments of Mr. Malhotra as:

1) The removal of the law would lead to the spread of HIV/AIDS. However there was no study submitted by Mr. Malhotra on this point.

2) It would lead to a loss of morality, as our culture is different. There is however different thinking within the Government on this very important issue. In effect your stand would tell an entire section of the population that they are lawbreakers and send a message to society. In the Modinos case for example it was held that even in an orthodox Christian country like Cyprus, the majority view and public morals alone were insufficient for continued criminalisation.

Justice Muralidhar then made the point that public interest litigation was not to be viewed as an adversarial litigation; it is not dispute resolution but problem solving. Certain elements of the case before us should be viewed in a constructive manner.

Chief Justice Shah then went on to say that since Mr. Grover was present it would be right to mention the case in the Bombay High Court which related to the termination of employment of a person who was HIV positive and how in that case all parties agreed to cooperate to find a solution and did not see it as a adversarial litigation.

Chief Justice Shah then referred to the NACO affidavit and said that there were real difficulties faced by an organ of government. Justice Muralidhar then made the point that the Government itself was not able to intervene but rather depended upon NGO’s for HIV interventions. Justice Shah also noted that the State of Tamil Nadu’s notification on aravanis was telling in terms of thinking which recognised their rights.

The Court rose and the next date of hearing was fixed for post-vacation on Oct 15. Chief Justice Shah asked Mr. Malhotra how much more time he needed and then fixed a half-day session on October 15 a full day on Oct 16 (afternoon was fixed for interveners) and a half-day on October 17.

Day 8, October 15, 2008: Morning Session

Additional Solicitor General P. P. Malhotra continues with his arguments. Mr. Malhotra submitted some additional material to the Court. He continued his submissions by making the point that HIV transmission was through sexual contact and as per the study of sexual behaviour in the U.S., over 89% of the transmission was due to homosexual behaviour.

Chief Justice Shah asked a question about the validity of the article relied upon by Mr. Malhotra and made the point that the author of the piece was a Minister in the Catholic Church. Justice Muralidhar noted that on page six of the article submitted by Mr. Malhotra the entire discussion was based on the Bible. Chief Justice Shah went on to read from the article “AIDS was a judgment of God” and noted the article seemed to be complete propaganda. Mr. Malhotra retorted by saying how come anything on the other side is accepted and anything on this side is seen as propaganda. Chief Justice Shah noted that Mr. Malhotra should refer to the NACO affidavit on the point.

Mr. Malhotra went on to read from the article titled, ‘The health risks of gay sex’ by Dr John Diggs to say, that there were five distinctions between gay and heterosexual relationships. Those differences include:

A. Levels of promiscuity

B. Physical health

C. Mental health

D. Lifespan

E. Definition of monogamy

Mr. Malhotra went on to read from the article to make the points that there was a high level of promiscuity among gay men with 75% of male homosexuals having more than 100 partners. This according to Mr. Malhotra would mean that HIV would spread like wildfire. The medical consequence would be the spread of HIV, syphilis etc.

He also noted that lesbians are 3-4 times more likely to have risky sex. There was a high incidence of psychological abuse among gay and lesbian people. There was also a high rate of intravenous drug use among lesbian, gay and bisexual people. Long-term sexual fidelity is rare in gay relationships.

Chief Justice Shah responded by asking who was Dr. John Diggs, the author of the article? He made the point that he was a practicing internist and not a doctor. He noted that the Court was interested in scientific opinions not the opinions of religious bodies. He noted that a view of a religious body which viewed them as sinners could not be taken notice of by the Court. Mr. Malhotra responded by saying that Dr. John Diggs has produced statistics on the serious health consequences of engaging in homosexual sodomy.

Homosexual sodomy is an efficient transmitter of STD/HIV and anal intercourse is a serious health hazard. Chief Justice Shah replied by asking who were the traditional values coalition on whose website, the John Diggs article was hosted. He said, “what are his credentials and how do we accept it? On one hand we have NACO and on the other we have Dr. Diggs from America?”

Mr. Malhotra said that the only reason he cited the study was to show that homosexuality caused a very serious health problem. He went on to read from the study to say that, the sexual activity enjoyed by homosexuals results in bacterial infections, and even cancer. There are activities like golden showers, and insertion of objects into the rectum, which cause oral and anal cancer. A study of homosexual

practices shows 37% enjoyed sodomitical activities and 23% enjoyed water sports.

Chief Justice Shah asked whether everything on the Internet was to be taken as gospel. He noted that they were not taking it and that they were going by the Government’s own affidavit.

Mr. Malhotra said that AIDS is causing havoc in society. Chief Justice Shah noted that the NACO Report had to be countered by scientific material by bodies such as the WHO and not religious bodies. He asked Mr. Malhotra to get material on what the position of bodies such as the WHO was?

Mr. Malhotra went on to cite another study, which also noted the high levels of promiscuity and unhealthy behaviour among the homosexual community. He noted that 29% of homosexuals had 300 partners in a lifetime and 8% had over 300 partners. In New York and San Francisco where gays were concentrated one report suggests that they had even 1000 partners. Chief Justice Shah interjected to say that going by Mr. Malhotra’s argument should we then put 20 lakh homosexuals behind bars? He went on to quote from the study by saying that ‘homosexuality is death’ is really a one sided view of religious bodies.

Mr. Malhotra noted that the figures were based on research by a research scholar.

Chief Justice Shah said that there were doctors among religious bodies as well and anyway what does the WHO say? He noted that the key issue was how far could the government intervene in the privacy of a person and whether the state’s intervention was correct?

Mr. Malhotra made another submission about the spread of HIV through homosexual sex to which Chief Justice Shah noted that he recently addressed a gathering of 600 widows whose husbands had died of HIV. So it was not only gay partners who suffered from HIV/ AIDS.

Justice Muralidhar asked Mr. Malhotra to show some statistics relevant to India. He went on to ask if Mr. Malhotra could produce any study to show that this activity increases risk to such an extent that it needs to be criminalised. “There are two arguments which you have put forward. One is on public morality and the other is on public health and safety. All literature including the NACO affidavit points to the contrary of what you are suggesting in terms of the second argument. NACO is telling us that continued criminalisation will result in denial of the right to health of this group.”

Mr. Malhotra replied by saying that they are entitled to all health benefits.

Justice Muralidhar responded by saying that they are not entitled but have a right to health and continued criminalisation prevents their exercising this right. This is the argument of the other side, whether Section 377 prevents a person from exercising his right?

Mr. Malhotra asked if in the garb of this right one could deny the right to health of the rest of society?

On being asked to produce statistics from India Mr. Malhotra noted that the other side went to the U.S. and other places but he was being asked to keep to India.

Justice Muralidhar noted that for facts and statistics we must first and foremost; go to expert bodies in India.

But law and judgments could go to other jurisdictions. Chief Justice Shah asked Mr. Malhotra to show some scientific material that retaining criminalisation would work as a deterrent.

Mr. Malhotra noted that, “this kind of activity, by a man and a woman it spreads. In normal sex, man is required by law to have sex with one person. Now if they are having sex with 100s of persons, 200, 500 even more, it’s more likely to transmit disease.”

Counsel for Naz Foundation intervened by citing a UNAIDS policy brief on HIV and Sex between men

Chief Justice Shah noted “you want to disown the NACO affidavit and say that criminalisation is a must. We are trying to say that it’s not only NACO but UNAIDS as well which is a U.N. body which is arguing for respecting rights of MSM.”

Justice Muralidhar said that another argument Mr. Malhotra could make would be to show that decriminalisation had led to the spread of HIV/AIDS. Chief Justice Shah noted that in both the Dudgeon) and the Modinos) case the same arguments were advanced. The Court did not see any merit in them. Even within the U.N. the consensus seems to be that discrimination and stigmatisation has not helped. Mr. Malhotra took the judges to a compilation, which showed in which countries homosexuality was decriminalised and in which countries it continued to be an offence. Chief Justice Shah noted that the point one could get from the compilation was that all democratic countries are in favour of decriminalisation. Mr. Malhotra then cited from an article titled, ‘Why gay marriage is not only wrong but socially destructive’, to make the point that after gay marriage was made legal in the Netherlands, HIV/ STD rates were soaring. Chief Justice Shah noted that marriage was a very different issue, which was not being discussed here.

Then Mr. Malhotra read an article titled ‘Homosexuality and Religion’ with its source being the wikipedia. At which point consul for the petitioners submitted that wikipedia was an unreliable source as anybody could modify the article. Mr. Malhotra then went on to read and respond to the written arguments of the petitioners. He noted that with respect to Article 14, Section 377 did not violate the provision as the law applied to all persons equally. It did not single out certain persons. It applied equally to all classes of persons – whether female or male, with this kind of unnatural thing being prohibited by law. It does not for example state that the provision applies only to women, men above 50, etc. It applies to every citizen uniformly.

Chief Justice Shah noted that the argument of the petitioners was the over inclusivity of the provision. The Court then rose with the next hearing fixed for the next day, 16.10.08.

Day 9, October 16, 2008:

(Mr. Malhotra continued his submissions on behalf of the Union of India).

Day 10, October 20, 2008:

Mr. Malhotra continued his submissions.

Chief Justice Shah summarised Mr. Malhotra’s submissions as covering the grounds that there was no right of privacy in the Indian Constitution and if there was a right to privacy it can be curtailed on the grounds of a larger morality or the rights of society. Article 14 is applicable to all and does not target a particular class. In Article 15, the word sex does not include sexual orientation. If the bar on consensual sex between same sex adults is lifted, even if the provision is not used, it is a moral code. It creates fear in the minds of people, which will go if removed. If the provision goes then this conduct will spread and this will lead to more spread of diseases. Right to health as a part of Article 21 should also consider the health of society. Counsel for B.P. Singhal, Respondent No. 7, Mr. H.P. Sharma then began his submissions.)

Mr. Sharma began by saying that the word carnal referred to flesh and what it meant when used in the Indian Penal Code was fleshy intercourse be it oral or anal or whatever. Justice Muralidhar then asked counsel who he was representing Mr Sharma said that he was representing B.P. Singhal. Justice Muralidhar then asked who B.P. Singhal was. Mr Sharma replied that he was a social worker and he was representing the matter so that the majority view could be there. Mr. Sharma continued his submissions by stating that against nature meant that it was unnatural, immoral and irrational. When it is a social evil then there is no question of consent. He then referred to an article by Dr. Diggs )on how sex between men was linked to HIV.

Chief Justice Shah responded by saying that place anything before us but not Dr Diggs.Mr. Sharma submitted that Dr. Diggs was a part of a religious network called the Traditional Values Foundation. Mr. Sharma sought to rely upon another Dr. Lepak. Chief Justice Shah asked the question of whether this was research and that counsel could rely upon a government source, U.N. body, but not rely upon these materials. Mr. Sharma then proceeded to read the NACO affidavit to make the point that only 36% of MSM used condoms and that 64% did not use condoms. Further they did it at public places, had multiple partners and were not faithful.

Chief Justice Shah asked counsel to address arguments on constitutional grounds like Articles 14), 19) or 21 ). Mr. Sharma continued his submissions to note that on a reading of the NACO affidavit, HIV is one part and homosexuality is another part. If Homosexuality was allowed, there was a chance of epidemic of HIV. If 64% do not use condoms and surrender to the disease then they can’t come to court and say legalise it. He went on to submit that he would like to support the affidavit of the Ministry of Home Affairs. If man is married and wife is sitting at home, then what will happen to her? If you allow this on grounds of two consenting adults then, brother-sister marriage should be allowed. Gambling, adultery should be allowed.

Chief Justice Shah interjected to say that “you are missing the point, it is not about the lawfulness of marriage.”

Mr. Sharma submitted that he was on morality, the joint family structure and that we must not import evils from the west. We have traditional values and we must go by that. It would affect the institution of marriage and if women get doubt about what their husbands are doing, there will be a flood of cases of divorce. He went on to note that what would happen to the country in 2100 if there was this indulging in homosexuality as the sex ratio would change.

Chief Justice Shah asked according to your Hindu orthodox opinion ) what was the reason for the sex ratio being skewed in favour of men.

Mr. Sharma submitted that female foeticide, it was a social evil. One should worship girls. No sensible person can kill a child. Abortion should not be allowed. The social evil is that a girl is an unwanted child. He further added that it was poverty, which resulted in this social evil.

Chief Justice Shah pointed out that even in well-off families there are studies, which show that there is 100% termination of foetuses when parents come to know that it is a girl child. Chief Justice Shah asked Mr. Sharma to restrict his arguments to law and asked him to refrain from political arguments. The Court rose and the matter was posted for the 6th and 7th November, 2008.

Day 11, November 6, 2008: Morning Session

Counsel for B.P. Singhal, H.P Sharma, continued his submissions by reading from his written submissions. Mr. Sharma addressed the Lucknow arrests in 2001 in great detail and made the point that when the arrests happened it led to the recovery of magazines containing nude pictures of men and women, safe guide to gay sex, video containing sexually explicit scenes having a nude male on the cover, artificial penis, and two pamphlets which when translated from Hindi read, “It does not make a difference how you do sex, or who you do it with, it does not make a difference if it is safe wrong, or right, natural or natural , moral or immoral. Why do you argue so much, we only have one slogan, destroy AIDS.”

He cited this to make the point that “I don’t know what organisations are doing, the credibility is doubtful and whether these organisations have come to court with clean hands is doubtful.” He said that the pamphlet indicated “The Centre was being used to train people in homosexuality by abandoning all morals and safety precautions.” He further submitted that “if one wants to do sex one should do it in a civilised manner and not have sex as in the Stone Age.”

Chief Justice Shah inquired if NACO programmes were like this? Mr. Sharma went on to say that NACO affidavit says that over 60% do not use condoms and such persons do “not deserve sympathy or mercy.”

Mr. Sharma then referred to R. v. Brown) to make the point that “homosexuals enjoy group sex and even enjoy committing violence. This is sexual perversity and when they were consenting adults, criminal acts warranting prosecution were committed in the course of such perversity.” He said “it was disconcerting to see tendency of homosexuals to indulge in group sex.”

Chief Justice Shah noted that “when the R.v. Brown judgment) was delivered, sodomy was not a crime in the U.K. So even if Section 377 is read down and homosexual acts between consenting adults does not amount to an offence under Section 377, it would still be an offence if grievous hurt is inflicted on the passive partner even if partner has consented to it.” Chief Justice Shah wanted to know about the relevance of the judgment.

Mr. Sharma responded that “anus is not designed by nature for any intercourse and if the penis enters the rectum, victim is found to get injury.” The activity itself causes bodily harm.

Chief Justice Shah asked whether the submission that this act itself causes injury, because it is unnatural or is likely to cause injury had been argued before. Whether in any culture, western, oriental, in several countries where ban is lifted, in WHO Reports, has anyone argued that act itself causes injury? Can you force Brown to the logical conclusion that sex between two males itself is a cause of injury? This submission has never been raised before any Court till now? Why is that?

Mr. Sharma continued to read from Brown to make the point that “drink and drugs are employed to obtain consent and increase enthusiasm, there is genital torture on anus, testis, blood letting. Burning of penis…”

Mr. Anand Grover intervened to say that Brown was to do with violence and dealt with a fact situation not contemplated by Wolfenden and that this was recognised by the judgment itself.

Chief Justice Shah referred to communities in India who inflict violence on themselves so that they are closer to God.

Mr. Sharma interjected to say that it was not relevant and if Muslims cause injury to themselves during Muharam it should not be allowed as well…

Mr. Sharma continued to read from Brown to again to emphasise that homosexuals indulge in group sex. Chief Justice Shah interjected to ask if “it was based on personal knowledge that Mr. Sharma knows that homosexuals enjoy group sex?”

Mr. Sharma then observed “since it was a perverted kind of sex…in the name of thrill, enjoyment and fun, the young shall walk into the trap of homosexual addiction. The tragic aspect of this is that alcohol, drug and disease are the natural concomitants of homosexual activity.”

He further noted that there was a stigma around homosexuality not because of the law, but because it was immoral and against the order of nature He asserted that petitioners had produced no evidence that homosexuality in India is not considered a social evil. He noted that the “law had a deterrent effect without which there would be male brothels and group sex.”

He went on to submit that, it was stigma not fear of the law, which drives secluded existence) “Had section 377 been really so fear-inspiring, we would not have been seeing people participating in gay demonstrations, proclaiming openly that they are homosexuals, or brazenly canvassing for MSM’s.” Mr. Sharma then submitted that the court should not intervene in a policy matter and that it had no power to rewrite, recast or redesign the section.

Mr. Sharma then referred to his written compilation to make the point that the “physiology of every organ has a special purpose and that the anus was only for excretion, and no other purpose. The ‘ejaculatory ducts were meant for the carrying of semen and that there were no such muscles in the anus. In the science of sexual physiology and anatomy, it is completely logical that intercourse is heterosexual and any other way of releasing semen is unnatural.”

Mr. Sharma then observed that, if the consenting adults doctrine was allowed then one would have to allow gambling, adultery, selling and buying kidneys, prostitution, smoking, incest marriage. Further all Indian laws with respect to marriage would have to be amended. He then submitted that if this was allowed it would “shatter every member of the family and all relations. It would be devastating to wife and children. The Indian family system is about love and dedication to our parents and grand parents.”

Chief Justice Shah interjected to say that he wished Indian families were like this and we could see this in our life. Mr. Sharma submitted “no wife wants to share her husband. If a son is homosexual, you can’t prohibit a father from beating him, disqualify him from inheriting property and domestic violence between man and man will increase. You can’t co-exist within the family because of ideological differences and this will affect the family system and affect public morals.” He further submitted that, “there would be nobody to protect homosexuals when they grew old They will say they want to adopt a child born out of heterosexuality). If this is permitted then they will live a miserable life, when they are old they will have no relationship even if they have multiple partners now. The removal of the section is not in their interest.”

He also submitted that with respect to sex being driven underground and the need to negotiate safer sex, it was still being done in public places and it was wrong to say that homosexual sex was driven underground. There was no bar on buying a condom as nobody asked you if you were heterosexual or homosexual.

Submissions by Mr. Ravi Shankar Kumar on behalf of Joint Action Council Kannur (JACK).

Mr. Kumar submitted that there was no scientific evidence that HIV causes AIDS, that a change in this provision would mean that all marriage laws would have to be changed, and that under Sections 269 and 277 of the Indian Penal Code anyway, any intentional spreading of an infectious disease would be an offence.

Chief Justice Shah noted that Sections 269 and 277 applied to both homosexuals and heterosexuals and it was wrong to say that the mere commission of sexual acts without knowledge would be prosecutable under the provisions. Further not all homosexuals had AIDS. It was also wrong to assert that marriage laws would have to change as the ground of divorce, which was sex outside marriage applied to both homosexual and heterosexual sex.

Mr. Kumar then asserted that Naz Foundation did not come to Court with clean hands and was part of an international network, which was using HIV to push an agenda.

Anand Grover objected strenuously and said that the complaints filed by JACK against all counsels who had appeared in the Naz case, Mr. Divan, Ms. Jaisingh, Mr. Sorabjee, was meant to intimidate. Mr. Kumar then noted that an earlier petition filed on the same matter was dismissed, that the Lucknow arrests were about running a gay club which charged Rs. 1000 per day, that the petitioners were not a lawful trust, etc. Chief Justice Shah observed that he had never seen such low level of submissions and that Counsel should make submissions on Constitutionality of the provision.

Rejoinder on behalf of Naz Foundation by Anand Grover.

Mr. Grover submitted two studies by universities based in Australia on the consequences of the decriminalisation of homosexuality. He used the studies to argue the point that post-decriminalisation there were no negative consequences, saying that they provided a complete answer to the facile propositions made. There was no change in the impact on minors, the use of force, private homosexual behaviour and in fact, had a positive impact on problems of public homosexual behaviour. It also allowed the police to divert resources to serious crime. Chief Justice Shah wanted to know whether decriminalisation did lead to a higher risk for HIV, which was the argument.

Mr. Grover noted that the studies pointed out that there was no increase in STDs, which is a marker for HIV.

Chief Justice Shah then raised the question whether there was any analogy between prostitution and MSM in terms of HIV prevention. Justice Muralidhar observed that the success of HIV programmes among sex workers was possibly because they were ghettoised and in one space while MSM were still underground.

Mr. Grover observed that the only way forward was to push condoms in a big way. The Court then rose and the matter was scheduled to be completed on November 7, 2008.

Day 12, November 7, 2008: The Final Day of the Naz hearings

Mr. Grover continued with his rejoinder by stating that in India the HIV epidemic is caused by different actors and that in India MSM were not fuelling the epidemic but rather it was female sex workers. As per the 2007 NACO study, there is an overall decline in infections in South and Northeast India. The decline in the South is because of interventions among Female Sex Workers. He submitted that you couldn’t distribute condoms to MSMs, as then one will become abettors to the offence.

Mr. Malhotra intervened to say that nobody was saying that and that we are prepared to provide condoms to all. Mr. Grover noted that it was not enough to say that they can come and get condoms but the state had to be proactive. He noted that the state has an obligation to treat everyone and the importance of condom provision was proved as incidence of new infections among female sex workers had come down. He submitted that if HIV spreads through homosexuality alone, it would have remained confined to homosexual population. But since this group was also having sex with the general population, HIV spread to the general population. Hence if you scale up interventions withMSM it will have a positive impact on the health of the wider society as well.

He then submitted that under Article 21 the state had a burden to discharge, i.e., that there was a compelling state interest to intrude into the right of privacy. There was no such data by the state and in fact the state was divided in its opinion. With respect to the question of child sexual abuse and non-consensual sex, the prayer was clear, since there is no law on child sexual abuse, the section as only been sought to be read down and not struck down. There will be no effect on marriage laws if this prayer is granted and the introduction of consent-based distinction is already there in Section 375 IPC and will not create any difficult problems.

Mr. Grover noted that with respect to the main contention of morality, he noted that while morality is a valid ground under Article 19(2) it couldn’t be literally imported into Article 21 as a restriction. The state would have to show more than just morality, to restrict rights under Article 21. The understanding of Maneka Gandhi can’t be that, we limit Article 21, but rather that we expand Article 21.

Justice Muralidhar gave the example of two statutes, one restricts a gay parade and another restricts a gay person’s right to dress in a particular way, saying he should wear suits only, etc. Can morality be a ground for restricting expression and right to profession as well? For example if an MSM is an advocate and a Bar Council Rule prohibits him, clearly public decency and morality cant be ground for restricting the right to practice any profession.

Chief Justice Shah observed that if the state deprived a person of the right to health, could the state invoke morality as a ground and were the restrictions under Article 19 relevant at all?

Mr. Grover noted that pre-Cooper (the Bank-Nationalisation case) there was a compartmentalised view but now you can’t take that view. You can’t just say morality, but rather must show that morality is a compelling state interest.

Chief Justice Shah then asked whether if one imagined that HIV was not there and the petitioner comes before the Court, the argument would not just be about the right to health, and dignity would be central issue. Mr. Grover agreed with the Bench and noted that if as a heterosexual person, he walked in the park; it was unlikely that he would be arrested under Section 377.

Mr. Divan submitted a note to the Court on the doctrine of severability, making the point that the doctrine of severability of enforcement would be of relevance the Court. This might be done by granting a perpetual injunction restraining enforcement of the law on the forbidden field. The principle derived from Chamarbaugwala’s case and cited by HM Seervai in his Constitutional Law of India, is that by applying the rule of ‘severability in application’, the Court may restrain the enforcement of a law or statutory provision in respect of that class of subjects of which the law in invalid. Here, Section 377 is invalid insofar as it covers consensual same sex acts between adults.

Mr. Divan then submitted another note, which was a brief response to the oral submissions by the contending respondents. The Judges perused the note and then Mr. Divan briefly made an oral submission on only one point – the question of public morality. “The right to live with dignity is guaranteed to all persons. The declaration is necessary because it will enable LGBT persons to live with dignity and express a vital dimension of their identity. If identity and self-worth are important, if full moral citizenship is important, then public morality cannot be allowed to trump it. The activity with respect to which the declaration is sought does not cause harm to any third party. Public morality is not a valid or sufficient justification to deny a person his dignity, particularly where the morality is not in itself a discernible constitutional value or morality. Indeed, in this context, it is the fundamental rights enshrined to protect minorities including sexual minorities that ought to prevail. Morality by itself, in the absence of any other harm cannot be a ground to restrict the right to live with dignity.”

The Union of India and other intervener respondents were given till Monday to file their written submissions and the matter was posted for final orders.