When there is a conflict between individual right on homosexuality and societal interest in morality, the latter will prevail, counsel Harshvir Pratap Sharma argued in the Supreme Court strongly opposing the Delhi High Court judgment de-criminalising homosexuality between two consenting adults.
Appearing for the former BJP MP, B.P. Singhal, Mr. Sharma told a Bench of Justices G.S. Singhvi and S.J. Mukhopadhaya that fundamental rights should not be read in isolation. They should be read along with the Directive Principles of State Policy. Every fundamental right was subject to public health, morality and decency.
Counsel faulted the High Court judgment, contending that consent for unlawful act was not consent in the eye of law and one could not claim the right to privacy for indulging in it. The court had dismissed petitions claiming right to gamble. “Tomorrow a pregnant woman might claim the right of abortion. Will the court allow it?”
Pointing out that India is a country of different religions and cultural identities, counsel said the Supreme Court, while deciding the question of legalising homosexuality between two consenting adults, should take this factor into consideration.
He said the Naz Foundation, petitioner before the High Court, claimed that it was working on a HIV/AIDS prevention programme. But when the Lucknow police raided one of its premises, several articles and videos were seized and it was found that the Foundation was carrying out perverted sexual practices in safe places on a collective scale.
Arguing that Mahatma Gandhi had considered homosexuality a vice and immoral, counsel said the word ‘unnatural’ would mean immoral, irrational and against public policy, and any unnatural act would be an offence. Pointing out that the court could interfere only if there was violation of one’s fundamental right, he said that in this case there was no complaint of violation. It was mere apprehension of violation and the court could not interfere unless and until the right was violated, he said.
Additional Solicitor-General Mohan Jain, appearing for the Health Ministry, in his written submissions, explained its concern for opposing the High Court judgment. “According to the National AIDS Control Organisation, the overall HIV prevalence among different population groups in 2008-09 shows that HIV is higher among the HRG [High Risk Groups], Injecting Drug Users [IDU] 9.19 %, Men who have Sex with Men [MSM] 7.3% and Female Sex Workers [FSW] 4.94 %, while HIV prevalence among the general population is estimated to be less than 0.5%. The estimated number of MSMs and Transgenders [TGs] at high risk in 2009 is 4.12 lakh. Through Targeted Intervention [TI] projects, 2.85 lakh (69%) MSMs and TGs have been covered under services. Since many MSMs are married and have sex with women, their female sexual partners are also consequently at risk for HIV/infection” Reluctance to reveal the same sex behaviour rendered risky sexual practices going unnoticed and unaddressed in MSMs.
The ASG said: “The fear of harassment by law enforcement agencies mostly leads to sex being hurried, particularly because these groups lack ‘safe place’ and they often utilise public places for their indulgence. They do not have the option to consider safer sex practices. The hidden nature of such groups hampers interventions under the National AIDS Control Programme, which is aimed at prevention of AIDS. This makes a large section of MSMs invisible and unreachable.” By creating a friendly environment, the people involved in risky behaviour would be encouraged to reveal information and this would help in providing them total access to the services of preventive efforts.
The ASG said: “HIV Sentinel Surveillance in India, implemented by the National AIDS Control Organisation, is the largest and one of the best systems in the world. The methodology adopted is globally accepted and in accordance with WHO/UNAIDS recommendations for HIV/AIDS surveillance. For this purpose, sentinel sites are set up at specific service delivery points or facilities such as ANC [Antenatal clinic], STI [Sexually Transmitted Infection] clinics and TI projects. TI projects are NGO-based projects that provide prevention services to high-risk groups [Female Sex Workers, MSMs and IDUs.] They are reached at several identified “hot spots” such as brothels, clubs, bus stops, railway stations, parks, theatres, etc, where the high-risk group individuals can be approached. Based on data from the NACP on population size and vulnerabilities of the risk groups, these sentinel sites are established at places where high HIV prevalence is expected and therefore, need to be closely monitored under the programme.”
- Privacy right is no cover for unlawful act: counsel (thehindu.com)
- Shifting stand on homosexuality, Centre draws Supreme Court ire (thehindu.com)