The Written Submission filed by Additional Solicitor General P.P. Malhotra on behalf of the Union of India in Naz Foundation case (dealing with decriminalisation of adult consensual homosexual sex in private) is available here. The case has been followed on this blog here, here and here.
Whatever view on has on the issue, the poor quality of the submission purely from the point of view of legal acumen is disturbing. Consider this quote from the submission:
“Hindu Marriage Act s. 13. Divorce.-(1) Any marriage solemnized, whether before or after the commencement of this Act, may, on a petition presented by either the husband or the wife, be dissolved by a decree of divorce on the ground that the other party- (i) has, after the solemnization of the marriage, had voluntary sexual intercourse with any person other than his or her spouse; or
Thus if a married man does sexual intercourse with any person other than his wife or spouse it is a ground for divorce. If Section 377 is interpreted in a manner that the act of intercourse against the order or nature is permitted and homosexuality which is an offence now is permitted it may require alteration or amendment of Section 13(1)(i) of the Hindu Marriage Act.”
Does the ASG really believe this argument to be true? Any reasonably competent undergraduate law student will tell you that section 13(1)(i) of the Hindu Marriage Act merely provides a ground for divorce which has no necessary relationship with the criminality of the act in question. It will continue to remain a ground for divorce, even if adultery (heterosexual or homosexual) is decriminalised. Decriminalising sodomy will not require any change to this provision. The same section 13(1)(iv) provides that leprosy is a ground for divorce. Section 13(1)(ii) provides that conversion to a religion other than Hinduism is a ground for divorce. As far as I am aware, being inflicted with leprosy or conversion to another religion are not criminal acts, and yet have happily existed as grounds for divorce for years.
While the Union of India still battles to retain this colonial relic, Nepal continues to take a surprisingly progressive stand on the issue. First, the Supreme Court of Nepal outlawed all discrimination on the grounds of sexual orientation and gender identity last year, and instituted a committee to recommend the legalisation of same-sex marriages. Then, after the people’s revolution early this year, Nepal elected Sunil Babu Pant as the first openly gay member of Parliament and the Consituent Assembly. Now, the Maoist government has made Nepal the only South Asian country to endorse a UN General Assembly statement calling for an end to abuse of rights on the basis of sexual orientation and gender identity.