Suresh Kumar Koushal v. Naz Foundation, minutes of proceedings on 27.03.12 ( Final day of arguments) Huzefa Ahmedi continues for the All India Muslim Personal Law Board Mr. Ahmedi: Anal intercourse between homosexuals is a high risk activity which has the propensity for causing harm to both the partners who induge in it. Singhvi J.: Are there any statistics available that it is a high risk activity? A: Refers to para 62 of the impugned judgment and reads from there, 'the situation is aggravated by the strong tendencies created within the community who deny MSM behaviour itself. Since many MSM are married or have sex with women, their female partners are consequently also at risk for HIV/infection... SJ.: Show us from the NACO affidavit ? A: reads para 4 from the affidavit, ...'there are 1,46,397 MSM (6%) are being covered through 30 targetted interventions. SJ: That is only the number reached through interventions Mukhopadhyay J: What about others who are not affected by HIV? A: The High Court proceeds on a premise... jM: They [respondents] are not attacking Section 377. The alternative argument is to interpret Section 377 in such a manner that some activities are not against the order of nature. JS: Section 377 is then out of the attack of Articles 14, 19, 15 and 21. A: If it is a high risk activity I have tried to show quoting Salmond that it can only be an interest and cannot become a right. JS. These activities were recognised in India before the advent of the Britishers . It was widely prevalent and hence depicted in caves and temples. A: There is only one depiction.... JS: Not one, several. Konark is in which side of India ? It is in the south eastern part of India. Similarly there are depictions in the south and the north as well as the west and the east. It was the British who wanted to mould the society according to their will who introduced this. What was considered taboo 30 years ago was not the act but the discussion about the act. The same activity was done and will continue to be done till humans exist. If somebody conducts a survey will find that the activity perceived as being against the order of nature is routine throughout the world. There is a word in Hindi as well as Urdu- Thekedar. To be the champion of liberty as well as of religion and the value system in society is the preserve of few people in society. They say that we are liberal or not liberal , what is going on inside nobody knows. Someone might feel that these observations are harsh but it only depicts the truth. One person says that they are liberal and crusaders of liberty. Others say that we dont want this liberty, we only want to preserve our religion, liberty and culture. 99.99 % do not know what is religion and culture. Nobody knows what is dharma. If people knew this debate would not be there. The first thing is duty, nobody can live beyond duty. JM. Starting point is a class of people saying that we are harassed. If harassment is alleged, it is the starting point, therefore the declaration. JS: It was wonderful to see the most powerful instrument of communication, the electronic media being used to project a particular point of view. Even if we say that Courts are not influenced, the harsh reality is that unless we stop watching TV, some element in the back of the mind comes in. The thought process is also influenced. JS: Both sides attempt to send any type of literature to the judges. Most go straight to the dustbin. JM: 80 to 90 % of people do not bother with what is going on. JS: Out of 1,00,000 people only few know where the Supreme Court is... JS: This has been going on [debate] and this is all right. A: The foundational facts on which the HC has based its decision are not based on reliable data. One cant say that Section 377 led to persecution as a class. JS: Yes. The petition is shabbily drafted and there is no foundation in facts. The SC remanded the matter to the High Court to decide A: The HC could have come to a finding that there were no foundational facts for it to come to a decision. JS: That would have required the courage of Sabyasachi Mukerjee J. of the Calcutta High Court. That is rare today. A: Section 377 is gender neutral and cites Fazal Rab Choudary for the proposition that consent is irrelevant to Section 377. Also cites Childline Foundation for the proposition that a wide variety of acts are covered by Section 377 which otherwise could not be prosecuted under law. ( includes oral sex , holding of penis in hand )Section 377 is therefore not limited to anal sex...The expression is wider.The expression 'against the order of nature' cannot be interpreted differently in case of men and children. The purpose of the law is to cover these acts of sexual perversity A: The other argument from the other side is that the police should stop at the bedroom door because it is consenting activity. The width of the argument is very wide. If we go by consensual nature then it can be used to validate group sex and incest. A: The argument on privacy Kharak Singh and Gobind v State of Madhya Pradesh were cited but every facet of privacy is not an aspect of fundamental rights. Even if there is a right to privacy it can be restricted on grounds of morality, decency and health. I have referred to Scalia J dissent in Lawrence v. Texas. Cites Soumitra Vishnu( upholding validity of and Gian Kaur( upholding validity of the attempt to suicide provision) for the proposition that it is for the legislature to amend laws. A: Menaka Gandhi is restricted to procedure and strict scrutiny does not apply due to Ashok Thakur. Further you cant question constitutionality of law through a PIL. The fact that a legislation is abused cannot be a ground for invalidation. Cites a line of authorities for that proposition. JS: Any case where a person identifies as a homosexual and convicted? In the table of 140 cases , 80 cases are about children. Any cases using these two words ,homosexual and convicted ? A: The doctrine of severability of enforcement spelled out by the other side is not borne out by principle 2 in the five principles in Chamarbaugwala. .. A: I will produce a note on the AG's submissions. For the fact that homosexuality was accepted in pre-colonial India, the source is the diary of a English officer. Western writers puff up the mysticism of the east. JS: AG is right. One western author wrote something about our cricket team. He tried to belittle the nation through that. What he wrote should be thrown in the dustbin. It is not even worth making paper bags out of. Belittling a group of people is an act of perversity. JM: It is a racial inferiority complex A: I agree my lord. During the Mughul period there were two schools of thought on the treatment of sodomy. In one school it was dealt with very severely and the punishment was death by stoning. The Quran is explicit that it condemns homosexuality even though there are debates on what should the punishment be. I refer to one prophet,Lut who sought to reform them and after his attempt was not succesful , they tried to kill him. Then they were punished. JS. Prophet Lut was which period? A: It was a pre Islamic period. I would also refer to the prohibition of homosexuality in the Arthashastra JS. Do you also not refer to the economics of this . A: Economics has been left to NACO JS. Funds are siphoned off in the name of HIV/AID's. The time in which we are living nothing is impossible. Mr. Radhakrishnan: appearing for Apostolic Churches Alliance Refers to the Black's Law Dictionary to say that order of nature has been defined as something pure, as distinguished from artificial and contrived. He argued that the basic feature of nature involved organs each of which had an appropriate place. The code of nature is inviolable. Sex and food are regulated in society. What is pre-ordained by nature has to be protected, and man has an obligation to nature. He quoted a Sanskrit phrase which translated to "you are dust and go back to dust". He went on to quote from the Vedas and Sruthis "When you pretend you do not know the goal, He is far away when you are aware, He is within. "The order of nature is not elusive or vague. . It is within every man. The other side will pretend that the term is vague. It is a `pretend sleep'. If somebody sleeps, we can wake them up. If it is pretend sleep we cannot. This like what Mrs Gandhi said about Nixon". "There is a limit to what Art 21 can be extended", he continued "In the Mahabghavatham, there is a story- the curse of Durvasa. The devas and asuras unite and churn the sea. What came out was a venom which was then swallowed by Shiva. This gives him the name Neelakanta. This is like you are churning out Article 21 beyond its elasticity. The venom is there. The venom will descend on this world and destroy this world. Mr Radhakrishnan then read out a list if offences prohibited by section 377. He starts with peno-vaginal sex. Justice Mukopadhyay: Is penile vaginal penetration against the order of nature? Mr Radhakrishnan: I should not have included that. I am sorry, it is a mistake J. Singhvi: It is allright. Justice Mukopadhyay: Section 377 dealt with animals. But in your written submissions and the previous one, there is no mention of animals. Insteead you focuse on a small section. Mr Radhakrishnan: From a constitutional perspective Justice Mukopadhyay: This is looking at the section from a microscopic angle look at it from a telescopic perspective. Mr Radhkrishnan: Animals should be accommodated. We should take care of animals Justice Singhvi (jokes): Animals are consumed, and therefore not accommodated Mr Radhakrishnan: chapter 16 of the IPC deals with Offences affecting the Body. 377 is correctly put in this chapter. There is a transmission of diseases, emanating from the same mind. They are claiming they are second class citizens. A sound mind can exist only in a sound body. Justice Mukopadhyay: 377 does not talk of homosexuals. It covers everybody. Mr Radhakrishnan: This can occur in different permutations and combinations They are organizing homosexuals and drifting away from duty. The declaration of the High Court is absurd, because 377 was retained, but read down through process of legislation..377 does not have a theocratic origin, it is not transplanted from the British, Macaulay must have taken prevailing conditions in Indian society into account The fall out of the impugned judgment can be summarized as follows: the family system, the foundation and bulwark of Indian social structure right from Rig Vedic age will be in shambles - the institution of marriage will be detrimentally affected Indian society will be polluted and destabilized Rampant homosexual activities for money will tempt and corrupt yound Indians into this trade HIV/AIDS will spread rapidly in India India will lose its nobility, character and virtuousness The state will be compelled to enact more than one statute similar tp the Immoral Traffic (Prevention) Act Four questions were posed to Yudhistira by Yaksha and the answers are extracted below: Q: What is more nobly sustaining than the earth? A: The mother who brings up the children she has borne is nobler and more sustaining than the earth Q. what is higher than the sky? A. The father Q. what is Happiness? A.: Happiness is the result of good conduct Q.: What is that , by giving up which, a man becomes rich? A: Desire, getting rid of it , man becomes wealthy This cherished concept of Father, Mother, Happiness and Wealth, will receive a lethal blow from homosexuality and gay marriage, thus this ancient land will loose its nobility and rightful and honoured place in the world. Justice Mukopadhyay: Where is the fifth question? Mr Radhakrishnan: These cherished concepts go back 5000 years future generations definitely require 377 Mr R refers to 2 documents- a map from the LA Times website depicting various states in the US where same sex marriage is legal Mr Ashok Desai then pointed out that this map dealt with same sex marriage Mr R: Yes, this declaration will lead to gay marriage, that is why the case has been planted Mr R then pointed to statistics which showed that India's fertility rates had come down drastically in the last 50 years. . He said that India's population was diminishing, and that this was an assault on the Indian social fabric. Mr Purushotham Mulloli (representing Joint Action Council, Kannur) (and dressed in an ochre coloured kurta) Mr P: "I am standing as a symbol of the Constitution. The might of an NGO on the other side Bill Clinton, Bill Gates, they have their support. Their massive organization and strength, I can't withstand. The reason I am here is because of this Court. "This NGO says they are working among HIV positive persons, but if this act is in private, how does this NGO have a programme? I have asked a police station, they say they have no idea. How does an NGO get to know about these acts occurring in private?" "They are betraying homsoexuals, This is a media directed campaign.. They are talking everything about HIV/AIDS and their prayer is about consensual sex in private. They asked for it in the High Court and got it exactly. There is something wrong here." "Najma Heptullah, President of the Interparliamentary Council conference in Delhi amongst other things listed reform of criminal law provisions like 377.. "This petition comes with massive backing..of Macaulay were alive, he would have committed suicide many times over. " "I have information that cannot be submitted here" Justice Singhvi "Why is that?" Mr P "There are security reasons. I can submit to your Lorship in private" Justice Singhvi "This is an open court , please say what you have to" Mr P "This is a media directed case . When the case was dismissed by the High Court in 2004, there was no media coverage. My lawyer contacted the press and we were told we are not listed as parties:" Naz Foundation went to court in 2000 as a registered society. Why did NACO file a contravening affidavit , something is seriously wrong. Even the Attorney General has ignored the HIV/AIDS angle this is a case where cylinder shave bene fired over the shoulder of HIV/AIDS We wrote to the Law Minister Veerappa Moily in 2009 telling him that his statement in 377 was unfortunate. When Ramadoss was making noises, we had written to him to ask for the evidence based on which he was saying that MSM were high risk, at a conference in mexico. The PM of India is the Chairperson of the National AIDS Council. We have written 3 open letters saying that there was no scientific evidence that MSM were high risk. ( submits the same to the court) The government is abdicating responsibility that it has no choice post the High High Court judgment, it is destroying the independence of the judiciary there is a nexus between the government, judiciary etc Mr P: I enjoyed the proceedings in the last few days and learnt a lot. I am educated more on the subject. But the discussions went only one way. There was no discussion on HIV/AIDS HIV/AIDS was used to get favourable judgments- in cases involving a bloodbank and medicines in this court . I impleaded in one of these cases, it is a very sad situation. Justice Singhvi: You can make legal submissions but are not entitled to use this kind of language in the court , you can use this language outside Mr P: I am not professionally trained . He then refereed to 2 judgments relate to blood banks Justice Singhvi: You have been appearing in the Courts. There is no judgment in this compilation Mr P: quotes a study related to bloodbanks the professional donors were not high risk, they systematically stopped normal blood supply..we went to the High Court and got a judgment in our favour Petitioner in Person- Ram Murthy: I will pose a situation to the respondents- A rapes B, B complains, A says this is consensual sex in private. How can there be a culprit? Justice Singhvi; That's All? RM: Does this not decide the issue? Is it true: Justice Singhvi: Nobody will answer now. Justice Mukopadhyay: The legal system works differently. We ask the questions and you reply. RM: The population of these people is 0.2 % and 99.8 % , the entire nation gets affected. If their claim is not verified, this is a serious problem for our culture and core values shall I give you a situation where my claim is not verified..they have demolished all other fundamental rights. Justice Singhvi: That's all? RM: I initially made a very voluminous petition, but the lady at the window said that I should make it brief. Justice Singhvi: If you want, you can add RM: I have more to say, crucial points Justice Mukopadhyay: Argue, except do not ask any questions RM: In normal sex, condoms prevent birth, in this sex, condoms prevent disease..in privacy , only natural law exists Justice Singhvi: You have spoken very well. Judgment reserved. Parties and Intervenors have 2 weeks to file written submissions" Mr Ram Jethmalani, who is appearing in the next cases that the judges were taking up (on the death penalty) then requested the judges to hear him briefly on 377 but the judges declined saying they were treating him like they would treat anyone else.
