Written Submission of the Union of India in Naz Foundation

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.

Written by
Tarunabh Khaitan
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  • Tarunabh,

    The submission has the feel of the ASG throwing in whatever he can find rather than building a case methodically. Most of the objections the court raised to this line of arguments have been ignored. Though the court repeatedly pointed out the importance it will give to foreign case law, the point is summarily dismissed with a one liner that none of that applies! My money is on the plaintiffs to win this case.

    By the way, is the Nepali SC’s opinion available online?

  • This looks like a mock fight:).The govt. can take a stand later that despite its best efforts the Court ruled in favor of the plantiffs and thereby silence critics who
    oppose homosexuality on grounds of faith and morality.

  • Has nobody ever challenged the constitutionality of Sections 13(1)(ii) that allows a divorce on the ground of a conversion to a religion other than Hinduism? This provision endorses religious intoleration, is opposed to public policy and formalises religious segregation by the State. I just hope somebody will challenge it some day.

    With respect to Section 377 of the Indian Penal Code, I wonder if the Delhi High Court should be wasting its precious time by attending to inept comments by the Government. Most of the Government arguments in this case hardly possess any legal flavour and the Court would do well to rely largely on the judicial liberation effected in the western world to similarly strike down Section 377 and not enter into an enquiry over whether the conduct punished by Section 377 has been historically subject to condemnation or punishment in India – a fruitless enquiry for a Court of Law.

    Modern liberties offer sufficient grounds for judicial removal of Section 377 and in the context of the case at the Delhi High Court, the Court could, to assume a politically correct posture, strike down Section 377 on Health/HIV grounds alone. Lets hope the Court does that much for this country which is perennially in short supply of individuals who do not stand up for their unpopular rights in a Court of Law. 110 Crore individuals and not one to openly challenge the constitutionality of Section 377 without the pretext of a social concern!

  • Dear Dhananjay, I agree that section 13(1)(ii) and several other provisions in all our personal laws are obnoxious. Hopefully the judiciary will attempt a clean-up soon. The problem is worse for uncodified personal laws, where some cases have held that they are beyond the pale of the constitution!