Landmark Judgement on Gay

IN THE HIGH COURT OF DELHI AT NEW DELHInd July, 20091 of 1052 of 1053 of 1054 of 105, AIR 1925 Sind 286, Kennedy A.J.C. heldinter aliacoitus per os isR. V. Jacobs (1817) Russ & Ry 331 C.C.R.,Govindarajula In re., (1886) 1 Weir 382, that insertingLohana Vasantlal Devchand v. State,Calvin Francis v. Orissa,Lohana, it was held thatFazal Rab Choudhary v. State of, AIR 1983 SC 323, it was observed that Section 3775 of 1056 of 1057 of 1058 of 1059 of 10510 of 105nd report of the Commission wherein it was11 of 10512 of 10513 of 10514 of 10515 of 10516 of 105Hijra and Kothi persons (which are referred to17 of 10518 of 105hijra (eunuch) from19 of 105, (2007) 4 MLJ20 of 10521 of 10522 of 10523 of 10524 of 105Maneka Gandhi, (1978) 1 SCC 248, a rather narrow andManeka Gandhi, a seven-Judge Bench25 of 105became the starting point for a veryM.H. Hoskot v. State of Maharashtra, (1978) 3 SCCHussainara Khatoon and Ors. v. Home Secretary, (1980) 1 SCC 81, Sunil Batra v. Delhi, (1978) 4 SCC 494, Prem Shankar Shukla v. Delhi, (1980) 3 SCC 526, Francis Coralie Mullin v.,Egan v. Canada,nd) 79 at 106]. At its least, it is clear that26 of 105Prem. (supra),page 529 of SCC].Francis Coralie Mullin v. Administrator, Union(supra), Justice P.N.We think that the right to life includes the right to liveLaw v. Canada (Ministry, [1999 1 S.C.R. 497]27 of 10528 of 105Olmstead v. United States, 277 US 438Griswold v. State of Connecticut, 381 US 479 (1965),Griswold it was established that the right to make29 of 105Eisenstadt v. Baired, 405 USJane Roe v. Wade, 410 US 113 (1973), was a case in which30 of 105Planned Parenthood of Southeastern, 505 US 833 (1992), the Court again confirmedKharak Singh v. The State of U.P., (1964) 1 SCR 332,Munn v. Illinois, 9431 of 105Gobind v.., (1975) 2 SCC 148, in which Mathew, J.. The learned Judge referred to Griswold v.and Jane Roe v. Henry Wade and observed:Olmstead v. Unitedthe significance of man’s32 of 105R. Rajagopal v. State of T.N., (1994)District Registrar and Collector, Hyderabad and, (2005) 1 SCC 496,33 of 105People's Union for Civil Liberties v. Union of, (1997) 1 SCC 301 and Sharda v. Dharampal, (2003)Gobind v. State of M.P. (supra)Bowers, Attorney General of Georgia v.478 US 186 (1986), made it clear that the34 of 105The, decided by Constitutional Court ofth October, 1998).Bowers v. Hardwick (supra) Blackmun, J. cited theParis Adult Theatre I v. Slaton,35 of 105th March, 2007, a group of human rights experts36 of 105Sexual Orientation” is understood to refer to eachGender Identity” is understood to refer to eachHuman beings of all s*xual orientation and genderAll persons are entitled to enjoy the right toEvery citizen has a right to take part in the37 of 105Bernstein and Others v. Bester and Others NNO,District Registrar & Collector, Hyderabad v.(Supra) Lahoti, CJ. referred to observations ofThornburgh v. American College of O and, 476 US 747 (1986), that “the concept of privacy38 of 105The National Coalition for Gay and Lesbian(supra)].39 of 10540 of 105hijras) were criminalised by virtue41 of 105hijra community still continues.hijras) are42 of 10543 of 105Maneka Gandhi (supra) at para 76 SCC]Dudgeon v. The United Kingdom, 45Norris v. Republic of, 142 Eur. Ct. H.R. (ser. A) (1988), the criminalisationDudgeon v. The, the European Court of Human Rights heldNorris v. Republic of Ireland, the European Court44 of 105Modinos v. Cyprus, 259 Eur. Ct. H.R. (ser. A) (1993), theToonen v. Australia, (No.488/1992 CCPR/C/ 50/D/488The National Coalition for Gay and Lesbian Equality(supra), the Constitutional Court45 of 105Lawrence v. Texas, 539 US 558 (2003), holding theBowers v. Hardwick46 of 105Dudgeon(supra), sodomy between adultth47 of 105Toonen v. Australia. Consensual s*xualBowers v. Hardwick (supra), butLawrence v.Texas, the sodomy laws, dated 24thth September, 2006 struck down similar48 of 105Dhirendra Nandan & Another v., Criminal Appeal Case No. HAA 85 & 86 of 2005,th August, 2005. Nepalese Supreme Court hasth “December, 2008, in New York, the UN General49 of 10550 of 105Paschim Banga., (1996) 4 SCC 37].51 of 10552 of 10553 of 105th54 of 105th International Conference on Aids in55 of 105Lawrence v. Texas:56 of 10557 of 105rd edition), “homos*xuality” is no longerUnited Nations General Assembly Declarationat para 64; NACO,National AIDS Control Programme Phase III (2007-November 2006, at58 of 105Toonen(supra) before Human Rights59 of 10560 of 105Gobind (supra), if the court does find that aLawrence v. Texas (supra), the Court held that61 of 105Dudgeon v. United Kingdom (supra), the UK62 of 105Norris v. Republic of Ireland (supra), the Court drew aDudgeon case and relied on the63 of 10564 of 10565 of 105The National(supra):66 of 105nd report, the Law Commission has recommended67 of 10568 of 10569 of 10570 of 105th Century, you probablyThe address of the Solicitor General of India before Unitedst/hrc080410pm-ng.rm?start=02:18:32&]Wrong in legal principle because theyWrong because they oppress a minority in71 of 105Wrong because they fly in the face ofWrong because they put a cohort of citizensth Nationalthnd) of Law Commission72 of 10573 of 105Budhan, AIR 1955 SC 191]. InDeepak Sibal v. Punjab University,is that it eschews arbitrariness in any form., (1974) 4 SCC 3, (1981) 1 SCC 72274 of 10575 of 10576 of 10577 of 105emphasis supplied)78 of 105emphasis supplied)79 of 105The National Coalition for Gay and Lesbian, para 108].Lawrence v. Texas (supra):Romer v. Evans, 517 U.S. 620 (1996), the challenge was80 of 105, 339 U.S. 629, 635 (1950)Shelley v. Kraemer, 334, U.S. 1, 22A second and related point is that laws of theVriend v. Alberta, (1998)81 of 10582 of 105The purpose underlying the fundamental right(supra), the Human Rights Committee,83 of 105Corbiere v. Canada, [1999] 2 S.C.R. 203, the, 1997 (3) SA 1012 (CC) that, 1998 (1) SA 300 (CC), the Court further84 of 10585 of 105Anuj Garg v. Hotel Association of, (2008) 3 SCC 1, which has important bearing on theAnuj Garg, constitutional validity of86 of 105John Vallamattom v., (2003) 6 SCC 611:87 of 105biological difference betweengathers an overtone of societal conditions so88 of 105compelling state purpose.89 of 105emphasis supplied)Anuj Garg, the Court, however, clarified that thes*x classifications” may be used toAshok Kumar Thakur v. Union of India, (2008) 6 SCC90 of 105, (1992) Supp. 3 SCCAnuj Garg, S.B. Sinha, J. emphasised this aspectAnuj Garg, if a law discriminates on any of the91 of 105Francis Coralie Mullin v.(supra), para 6 of SCC]. In M., (2006) 8 SCC 212,the92 of 105(supra):Andhra Pradesh v. P. Laxmi Devi, (2008) 4 SCC 720,93 of 10594 of 105State of Madras v.AIR 1952 SC 196, wherein para 15 dealing with15. … It is important in this context to bear in95 of 105State of Madras v. V.G.Row (supra), whileR. (Alconbury Ltd.) v. Environment Secretary, [2001]96 of 105R. (Alconbury Ltd.)[2001] 2 WLR 1389, atWest Virginia319 US 624I.R. Coelho (Dead) by LRs v. State of, (2007) 2 SCC 1 and Raja Ram Pal v., (2007) 3 SCC 184.Coelho, the Supreme Court held that it could strike down97 of 105Raja Ram Pal case, the Court disposed of the argumentssupreme lex in this country”Peerless General Finance Investment Co. Ltd. v., (1992) 2 SCC 343, the Court98 of 10599 of 105Maneka(supra), para 81 of SCC].100 of 105101 of 105(1957) S.C.R. 930.Bowman v. Continental Oil Co.,R.M.D. Chamarbaugwalla v. Union of India, AIR 1957102 of 105was followed in Kedar Nath v. State, AIR 1962 SC 955, Bhim Singhji v. Union of, (1981) 1 SCC 166 and State of Andhra Pradesh v., (2002) 5 SCC 203.103 of 105104 of 105nd Report which we believe removes a great105 of 105

*

 

+ WP(C) No.7455/2001

% Date of decision : 2

Naz Foundation .... Petitioner

Through: Mr.Anand Grover, Sr.Advocate with

Mr.Trideep Pais, Ms.Shivangi Rai and

Ms.Mehak Sothi and Ms.Tripti

Tandon, Advocates

versus

Government of NCT of Delhi

and Others .... Respondents

Through : Mr.P.P. Malhotra, ASG with

Mr.Chetan Chawla, Advocate for

UOI.

Ms.Mukta Gupta, Standing Counsel

(Crl.) with Mr.Gaurav Sharma and

Mr.Shankar Chhabra, Advocates for

GNCT of Delhi.

Mr.Ravi Shankar Kumar with

Mr.Ashutosh Dubey, Advocates for

respondent No.6/Joint Action Council

Kannur.

Mr.H.P.Sharma, Advocate for

respondent No.7/Mr.B.P. Singhal.

Mr.S.Divan, Sr. Advocate with

Mr.V.Khandelwal, Mr.Arvind Narain,

Ms.S. Nandini, Mr.Mayur Suresh,

Ms.Vrinda Grover and Mr.Jawahar

Raja, Advocates for respondent

No.8-Voices against 377.

 

CORAM:

HON’BLE THE CHIEF JUSTICE

HON’BLE DR. JUSTICE S.MURALIDHAR

 

1.Whether reporters of the local news papers

be allowed to see the judgment? Y

2.To be referred to the Reporter or not ? Y

3. Whether the judgment should be reported in the Digest?Y

[WP(C)7455/2001] Page

 

AJIT PRAKASH SHAH, CHIEF JUSTICE:

 

1. This writ petition has been preferred by Naz Foundation, a

Non Governmental Organisation (NGO) as a Public Interest

Litigation to challenge the constitutional validity of Section

377 of the Indian Penal Code, 1860 (IPC), which criminally

penalizes what is described as “unnatural offences”, to the

extent the said provision criminalises consensual s*xual

acts between adults in private. The challenge is founded on

the plea that Section 377 IPC, on account of it covering

s*xual acts between consenting adults in private infringes

the fundamental rights guaranteed under Articles 14, 15, 19

& 21 of the Constitution of India. Limiting their plea, the

petitioners submit that Section 377 IPC should apply only to

non-consensual penile non-v**ginal s*x and penile nonv**ginal

s*x involving minors. The Union of India is

impleaded as respondent No.5 through Ministry of Home

Affairs and Ministry of Health & Family Welfare. Respondent

No.4 is the National Aids Control Organisation (hereinafter

referred to as “NACO”) a body formed under the aegis of

Ministry of Health & Family Welfare, Government of India.

NACO is charged with formulating and implementing

policies for the prevention of HIV/AIDS in India. Respondent

No.3 is the Delhi State Aids Control Society. Respondent

No.2 is the Commissioner of Police, Delhi. Respondents No.6

to 8 are individuals and NGOs, who were permitted to

intervene on their request. The writ petition was dismissed

[WP(C)7455/2001] Page

 

by this Court in 2004 on the ground that there is no cause of

action in favour of the petitioner and that such a petition

cannot be entertained to examine the academic challenge

to the constitutionality of the legislation. The Supreme

Court vide order dated 03.02.2006 in Civil Appeal

No.952/2006 set aside the said order of this Court observing

that the matter does require consideration and is not of a

nature which could have been dismissed on the aforesaid

ground. The matter was remitted to this Court for fresh

decision.

 

HISTORY OF THE LEGISLATION

 

2. At the core of the controversy involved here is the penal

provision Section 377 IPC which criminalizes s*x other than

heteros*xual penile-v**ginal. The legislative history of the

subject indicates that the first records of sodomy as a crime

at Common Law in England were chronicled in the Fleta,

1290, and later in the Britton, 1300. Both texts prescribed

that sodomites should be burnt alive. Acts of sodomy later

became penalized by hanging under the Buggery Act of

1533 which was re-enacted in 1563 by Queen Elizabeth I,

after which it became the charter for the subsequent

criminalisation of sodomy in the British Colonies. Oralgenital

s*xual acts were later removed from the definition

of buggery in 1817. And in 1861, the death penalty for

buggery was formally abolished in England and Wales.

[WP(C)7455/2001] Page

 

However, sodomy or buggery remained as a crime "not to

be mentioned by Christians."

3. Indian Penal Code was drafted by Lord Macaulay and

introduced in 1861 in British India. Section 377 IPC is

contained in Chapter XVI of the IPC titled “Of Offences

Affecting the Human Body”. Within this Chapter Section

377 IPC is categorised under the sub-chapter titled “Of

Unnatural Offences” and reads as follows:

“377. Unnatural Offences - Whoever voluntarily has

carnal intercourse against the order of nature with

any man, woman or animal, shall be punished with

imprisonment for life, or with imprisonment of either

description for a term which may extend to ten

years, and shall also be liable to fine.

Explanation - Penetration is sufficient to constitute

the carnal intercourse necessary to the offence

described in this section."

 

JUDICIAL INTERPRETATION

 

4. The marginal note refers to the acts proscribed as

“unnatural offences”. This expression, however, is not used

in the text of Section 377 IPC. The expression “carnal

intercourse” is used in Section 377 IPC as distinct from the

expression “s*xual intercourse”, which appears in Sections

375 and 497 IPC. According to the Concise Oxford

Dictionary (ninth edition, 1995), the term “carnal” means

“of the body or flesh; worldly” and “sensual, s*xual”.

Consent is no defence to an offence under Section 377 IPC

[WP(C)7455/2001] Page

 

and no distinction regarding age is made in the section. In

 

Khanu v. Emperor

that “section 377 IPC punishes certain persons who have

carnal intercourse against the order of nature with

 

human beings.... [if the oral s*x committed in this case is

carnal intercourse], it is clearly against the order of nature,

because the natural object of carnal intercourse is that

there should be the possibility of conception of human

beings, which in the case of

impossible.”[page 286] It appears that the courts had

earlier held in

and

the penis in the mouth would not amount to an offence

under Section 377 IPC. Later, Section 377 IPC has been

interpreted to cover oral s*x, anal s*x and penetration of

other orifices. In

AIR 1968 Guj 252, the issue was whether oral s*x amounted

to an offence under Section 377 IPC. It was held that the

“orifice of the mouth is not, according to nature, meant for

s*xual or carnal intercourse.” In

 

1992 (2) Crimes 455, relying on

oral s*x fell within the ambit of Section 377 IPC. The Court

used the references to the Corpus Juris Secundum relating

to s*xual perversity and abnormal s*xual satisfaction as the

guiding criteria. In

Bihar

[WP(C)7455/2001] Page

 

IPC implied “s*xual perversity”. It is evident that the tests

for attracting the penal provisions have changed from the

non-procreative to imitative to s*xual perversity.

5. The English law was reformed in Britain by the Sexual

Offences Act, 1967, which de-criminalised homos*xuality

and acts of sodomy between consenting adults (above age

of 21) pursuant to the report of Wolfenden Committee. The

Committee advising the Parliament had recommended in

1957 repeal of laws punishing homos*xual conduct.

 

THE CHALLENGE

 

6. The petitioner NGO has been working in the field of HIV/AIDS

Intervention and prevention. This necessarily involves

interaction with such sections of society as are vulnerable to

contracting HIV/AIDS and which include gay community or

individuals described as “men who have s*x with men”

(MSM). For sake of convenient reference, they would

hereinafter be referred to as “homos*xuals” or “gay”

persons or gay community. Homos*xuals, according to the

petitioner, represent a population segment that is extremely

vulnerable to HIV/AIDS infection. The petitioner claims to

have been impelled to bring this litigation in public interest

on the ground that HIV/AIDS prevention efforts were found

to be severely impaired by discriminatory attitudes

exhibited by state agencies towards gay community, MSM

or trans-gendered individuals, under the cover of

[WP(C)7455/2001] Page

 

enforcement of Section 377 IPC, as a result of which basic

fundamental human rights of such individuals/groups (in

minority) stood denied and they were subjected to abuse,

harassment, assault from public and public authorities.

7. According to the petitioner, Section 377 IPC is based upon

traditional Judeo-Christian moral and ethical standards,

which conceive of s*x in purely functional terms, i.e., for the

purpose of procreation only. Any non-procreative s*xual

activity is thus viewed as being “against the order of

nature”. The submission is that the legislation criminalising

consensual oral and anal s*x is outdated and has no place in

modern society. In fact, studies of Section 377 IPC

jurisprudence reveal that lately it has generally been

employed in cases of child s*xual assault and abuse. By

criminalising private, consensual same-s*x conduct, Section

377 IPC serves as the weapon for police abuse; detaining

and questioning, extortion, harassment, forced s*x,

payment of hush money; and perpetuates negative and

discriminatory beliefs towards same-s*x relations and

s*xuality minorities; which consequently drive the activities

of gay men and MSM, as well as s*xuality minorities

underground thereby crippling HIV/AIDS prevention efforts.

Section 377 IPC thus creates a class of vulnerable people

that is continually victimised and directly affected by the

provision. It has been submitted that the fields of

psychiatry and psychology no longer treat homos*xuality as

[WP(C)7455/2001] Page

 

a disease and regard s*xual orientation to be a deeply held,

core part of the identities of individuals.

8. The petitioner submits that while right to privacy is implicit

in the right to life and liberty and guaranteed to the citizens,

in order to be meaningful, the pursuit of happiness

encompassed within the concepts of privacy, human dignity,

individual autonomy and the human need for an intimate

personal sphere require that privacy – dignity claim

concerning private, consensual, s*xual relations are also

afforded protection within the ambit of the said fundamental

right to life and liberty given under Article 21. It is averred

that no aspect of one’s life may be said to be more private

or intimate than that of s*xual relations, and since private,

consensual, s*xual relations or s*xual preferences figure

prominently within an individual’s personality and lie easily

at the core of the “private space”, they are an inalienable

component of the right of life. Based on this line of

reasoning, a case has been made to the effect that the

prohibition of certain private, consensual s*xual relations

(homos*xual) provided by Section 377 IPC unreasonably

abridges the right of privacy and dignity within the ambit of

right to life and liberty under Article 21. The petitioner

argues that fundamental right to privacy under Article 21

can be abridged only for a compelling state interest which,

in its submission, is amiss here. Also based on the

fundamental right to life under Article 21 is the further

[WP(C)7455/2001] Page

 

submission that Section 377 IPC has a damaging impact

upon the lives of homos*xuals inasmuch as it not only

perpetuates social stigma and police/public abuse but also

drives homos*xual activity underground thereby

jeopardizing HIV/AIDS prevention efforts and, thus,

rendering gay men and MSM increasingly vulnerable to

contracting HIV/AIDS.

9. Further, it has been submitted on behalf of the petitioner

that Section 377 IPC's legislative objective of penalizing

“unnatural s*xual acts” has no rational nexus to the

classification created between procreative and nonprocreative

s*xual acts, and is thus violative of Article 14 of

the Constitution of India. Section 377's legislative objective

is based upon stereotypes and misunderstanding that are

outmoded and enjoys no historical or logical rationale which

render it arbitrary and unreasonable. It is further the case

of the petitioner that the expression “s*x” as used in Article

15 cannot be read restrictive to “gender” but includes

“s*xual orientation” and, thus read, equality on the basis of

s*xual orientation is implied in the said fundamental right

against discrimination. The petitioner argues that

criminalization of predominantly homos*xual activity

through Section 377 IPC is discriminatory on the basis of

s*xual orientation and, therefore, violative of Article 15. It

is further the case of the petitioner that the prohibition

against homos*xuality in Section 377 IPC curtails or

[WP(C)7455/2001] Page

 

infringes the basic freedoms guaranteed under Article 19 (1)

(a) (b) (c) & (d); in that, an individual’s ability to make

personal statement about one’s s*xual preferences, right of

association/assembly and right to move freely so as to

engage in homos*xual conduct are restricted and curtailed.

10. Broadly on the above reasoning, it has been submitted that

there is a case for consensual s*xual intercourse (of the kind

mentioned above; i.e. homos*xual) between two willing

adults in privacy to be saved and excepted from the penal

provision contained in Section 377 IPC.

 

REPLY BY UNION OF INDIA – CONTRADICTORY STANDS OF

MINISTRY OF HOME AFFAIRS AND MINISTRY OF HEALTH &

FAMILY WELFARE

 

11. A rather peculiar feature of this case is that completely

contradictory affidavits have been filed by two wings of

Union of India. The Ministry of Home Affairs (MHA) sought to

justify the retention of Section 377 IPC, whereas the Ministry

of Health & Family Welfare insisted that continuance of

Section 377 IPC has hampered the HIV/AIDS prevention

efforts. We shall first deal with the affidavit of the Ministry

of Home Affairs. The Director (Judicial) in the Ministry of

Home Affairs, Government of India, in his affidavit, seeks to

justify the retention of Section 377 IPC on the statute book

broadly on the reason that it has been generally invoked in

cases of allegation of child s*xual abuse and for

complementing lacunae in the rape laws and not mere

[WP(C)7455/2001] Page

 

homos*xuality. This penal clause has been used particularly

in cases of assault where bodily harm is intended and/or

caused. It has been submitted that the impugned provision

is necessary since the deletion thereof would well open

flood gates of delinquent behaviour and can possibly be

misconstrued as providing unfettered licence for

homos*xuality. Proceeding on the assumption that

homos*xuality is unlawful, it has been submitted in the

affidavit that such acts cannot be rendered legitimate only

because the person to whose detriment they are committed

has given consent to it. Conceding ground in favour of right

to respect for private and family life, in the submission of

Union of India, interference by public authorities in the

interest of public safety and protection of health as well as

morals is equally permissible.

12. Terming the issues raised in the petition at hand as a

subject relating to policy of law rather than that of its

legality, Union of India relies upon the reports of Law

Commission of India particularly on the issue whether to

retain or not to retain Section 377 IPC. Reference has been

made to 42

observed that Indian society by and large disapproved of

homos*xuality, which disapproval was strong enough to

justify it being treated as a criminal offence even where the

adults indulge in it in private. Union of India submits that

law cannot run separately from the society since it only

[WP(C)7455/2001] Page

 

reflects the perception of the society. It claims that at the

time of initial enactment, Section 377 IPC was responding to

the values and morals of the time in the Indian society. It

has been submitted that in fact in any parliamentary secular

democracy, the legal conception of crime depends upon

political as well as moral considerations notwithstanding

considerable overlap existing between legal and safety

conception of crime i.e. moral factors.

13. Acknowledging that there have been legal reforms in a large

number of countries so as to de-criminalise homos*xual

conduct, Union of India seeks to attribute this trend of

change to increased tolerance shown by such societies to

new s*xual behaviour or s*xual preference. Arguing that

public tolerance of different activities undergoes change

with the times in turn influencing changes in laws, it is

sought to be pointed out that even the reforms in the nature

of Sexual Offences Act, 1967 (whereby buggery between

two consenting adults in private ceased to be an offence in

the United Kingdom) had its own share of criticism on the

ground that the legislation had negatived the right of the

state to suppress 'social vices'. Union of India argues that

Indian society is yet to demonstrate readiness or willingness

to show greater tolerance to practices of homos*xuality.

Making out a case in favour of retention of Section 377 IPC

in the shape it stands at present, Union of India relies on the

arguments of public morality, public health and healthy

[WP(C)7455/2001] Page

 

environment claiming that Section 377 IPC serves the

purpose.

14. From the above summary of submissions of the Union of

India through the MHA it is clear that the thrust of the

resistance to the claim in the petition is founded on the

argument of public morality. Though the MHA has referred

to the issue of public health and healthy environment, the

affidavit has not set out elaborately the said defence.

 

AFFIDAVIT OF NACO / MINISTRY OF HEALTH & FAMILY WELFARE

 

15. National Aids Control Organisation (NACO) has submitted its

response in the shape of an affidavit affirmed by the Under

Secretary of Ministry of Health and Family Welfare, which

thus also represents the views of the said Ministry of the

Government of India. The submissions of NACO only

confirm the case set out by the petitioner that homos*xual

community (MSM etc.) is particularly susceptible to

attracting HIV/AIDS in which view a number of initiatives

have been taken by NACO to ensure that proper HIV

intervention and prevention efforts are made available to

the said section of the society by, amongst other things,

protecting and promoting their rights. In the reply affidavit,

NACO states that the groups identified to be at greater risk

of acquiring and transmitting HIV infection due to a high

level of risky behaviour and insufficient capacity or power

for decision making to protect themselves from infection,

[WP(C)7455/2001] Page

 

generally described as 'High Risk Groups' (HRG), broadly

include men who have s*x with men (MSM) and female s*x

workers and injecting drug users.

16. NACO has adopted a strategy for preventing and further

transmission of infection, which include the following efforts:

(a) The strategy for preventing and the further

transmission of infection includes:

i. Making the General Population and High Risk

Groups aware through strategic IEC

(Information Education Communication) & BCC

(Behaviour Change Communication) providing

them with the necessary tools and information

for protecting themselves from HIV infection.

ii. Motivating safer s*xual practices by reducing

s*xual partners, being faithful to a single

partner abstaining from casual s*x and the

correct and consistent use of condoms.

iii. Controlling Sexually Transmitted Infections

(STIs) among High Risk Groups along with

promoting use of condoms as preventive

measure.

iv. Peer education and Community participation

(being the essential component of Primary

Health Care).

[WP(C)7455/2001] Page

 

v. Ensuring availability of safe blood and blood

products; and

vi. Reinforcing the traditional Indian moral values

of abstinence, delayed s*xual debut till

marriage and fidelity among youth and other

impressionable groups of population.

(b) To create an enabling socio-economic

environment so that all sections of population can

have access to proper information, health care &

counseling services to protect themselves from the

infection and at the same time empower families and

communities to provide better care & support to

people living with HIV/AIDS.

(c) Improving services for the care of people living

with AIDS both in hospital and at homes through

community care.

17. In the reply affidavit filed on behalf of NACO, it has been

submitted that the report of the Expert Group on Size

Estimation of Population with High Risk Behaviour for NACPIII

Planning, January 2006 estimated that there are about 25

lakh MSM (Men having s*x with men). The National Sentinel

Surveillance Data 2005 shows that more than 8% of the

population of MSM is infected by HIV while the HIV

prevalence among the general population is estimated to be

lesser than 1%. Given the high vulnerability of MSM to HIV

[WP(C)7455/2001] Page

 

infection, NACO has developed programmes for undertaking

targeted interventions among them. These projects are

implemented by NGOs with financial support from NACO.

Presently 1,46,397 MSM (6%) are being covered through 30

targeted interventions. Under the targeted intervention

projects, the objectives are to:

a. reduce number of partners and by bringing

about a change in their behaviour;

b. reduce their level of risk by informing them

about and providing access to condoms;

c. providing access to STD services.

18. According to the submissions of NACO, those in the High Risk

Group are mostly reluctant to reveal same s*x behaviour

due to the fear of law enforcement agencies, keeping a large

section invisible and unreachable and thereby pushing the

cases of infection underground making it very difficult for the

public health workers to even access them. It illustrates this

point by referring to the data reflected in the National

Baseline Behaviour Surveillance Survey (NBBSS of 2002)

which indicates that while 68.6% MSM population is aware

about the methods of preventing infection, only 36% of them

actually use condoms. NACO has further submitted that

enforcement of Section 377 IPC against homos*xual groups

renders risky s*xual practices to go unnoticed and

unaddressed inasmuch as the fear of harassment by law

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enforcement agencies leads to s*x being hurried,

particularly because these groups lack 'safe place', utilise

public places for their indulgence and do not have the option

to consider or negotiate safer s*x practices. It is stated that

the very hidden nature of such groups constantly

inhibits/impedes interventions under the National AIDS

Control Programme aimed at prevention. Thus NACO

reinforces the plea raised by the petitioner for the need to

have an enabling environment where the people involved in

risky behaviour are encouraged not to conceal information

so that they can be provided total access to the services of

such preventive efforts.

 

RESPONSES OF OTHER RESPONDENTS

 

19. 'Voices against Section 377 IPC' (hereinafter referred to as

“respondent No.8”) is a coalition of 12 organisations that

represent child rights, women's rights, human rights, health

concerns as well as the rights of same s*x desiring people

including those who identify as Lesbian, Gay, Bis*xual,

Transgenders,

in the affidavit as “LGBT”). It has been submitted on its

behalf that organisations that constitute respondent No.8 are

involved in diverse areas of public and social importance and

that in the course of their work they have repeatedly come

across gross violation of basic human rights of “LGBT”

persons, both as a direct and indirect consequence of the

enforcement of Section 377 IPC. It relies upon its report

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tilted 'Rights for All : Ending Discrimination under Section

377' published in 2004 to create awareness about negative

impact of this law on society in general and Lesbian, Gay,

Bis*xual and Transgenders people in particular.

20. Respondent No.8 supports the cause espoused by the

petitioner in this PIL and avers that Section 377 IPC, which

criminalises 'carnal intercourse against the order of the

nature', is an unconstitutional and arbitrary law based on

archaic moral and religious notions of s*x only for

procreation. It asserts that criminalisation of adult

consensual s*x under Section 377 IPC does not serve any

beneficial public purpose or legitimate state interest. On the

contrary, according to respondent No.8, Section 377 IPC by

criminalising the aforementioned kinds of s*xual acts has

created an association of criminality towards people with

same s*x desires. It pleads that the continued existence of

this provision on the statute book creates and fosters a

climate of fundamental rights violations of the gay

community, to the extent of bolstering their extreme social

ostracism.

21. To illustrate the magnitude and range of exploitation and

harsh and cruel treatment experienced as a direct

consequence of Section 377 IPC, respondent No.8 has placed

on record material in the form of affidavits, FIRs, judgments

and orders with objectively documented instances of

[WP(C)7455/2001] Page

 

exploitation, violence, rape and torture suffered by LGBT

persons. The particulars of the incidents are drawn from

different parts of the country. In an instance referred to as

“Lucknow incident – 2002” in the report titled 'Epidemic of

Abuse : Police Harassment of HIV/AIDS Outreach Workers in

India' published by Human Rights Watch, the police during

investigation of a complaint under Section 377 IPC picked up

some information about a local NGO (Bharosa Trust) working

in the area of HIV/AIDS prevention and s*xual health

amongst MSMs raided its office, seized safe s*x advocacy

and information material and arrested four health care

workers. Even in absence of any prima facie proof linking

them to the reported crime under Section 377 IPC, a

prosecution was launched against the said health care

workers on charges that included Section 292 IPC treating

the educational literature as obscene material. The health

workers remained in custody for 47 days only because

Section 377 IPC is a non-bailable offence.

22. Then there is a reference to 'Bangalore incident, 2004'

bringing out instances of custodial torture of LGBT persons.

The victim of the torture was a

Bangalore, who was at a public place dressed in female

clothing. The person was subjected to gang rape, forced to

have oral and anal s*x by a group of hooligans. He was later

taken to police station where he was stripped naked,

handcuffed to the window, grossly abused and tortured

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merely because of his s*xual identity. Reference was made

to a judgment of the High Court of Madras reported as

 

Jayalakshmi v. The State of Tamil Nadu

849, in which an eunuch had committed suicide due to the

harassment and torture at the hands of the police officers

after he had been picked up on the allegation of involvement

in a case of theft. There was evidence indicating that during

police custody he was subjected to torture by a wooden stick

being inserted into his anus and some police personnel

forcing him to have oral s*x. The person in question

immolated himself inside the police station on 12.6.2006 and

later succumbed to burn injuries on 29.6.2006. The

compensation of Rs.5,00,000/- was awarded to the family of

the victim. Another instance cited is of a case where the

Magistrate in his order observed that the case involved a

hidden allegation of an offence under Section 377 IPC as

well, thereby stretching the reach of Section 377 IPC to two

lesbian adult women who were involved in a romantic

relationship with each other while the initial accusation was

only under Section 366 IPC. An affidavit of a gay person is

also filed on record. The person was picked up from a bus

stand at about 10 p.m. by the police, who accused him of

being a homos*xual. He was physically assaulted with

wooden sticks, taken to police post where he was subjected

to s*xual and degrading abusive language. During the

incarceration in the police post over the night, four police

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men actually raped and s*xually abused him including

forcing him to have oral and anal s*x. The respondent No.8

has relied upon several other instances of fundamental

rights violation of homos*xuals and gay persons. The

material on record, according to the respondent No.8, clearly

establishes that the continuance of Section 377 IPC on the

statute book operate to brutalise a vulnerable, minority

segment of the citizenry for no fault on its part. The

respondent No.8 contends that a section of society has been

thus criminalised and stigmatized to a point where

individuals are forced to deny the core of their identity and

vital dimensions of their personality.

23. Respondents No.1 (Govt. of NCT of Delhi), No.2

(Commissioner of Police, Delhi) and No.3 (Delhi State Aids

Control Society) did not file any counter affidavit/pleadings.

Respondent No.6 (Joint Action Council Kannur) and

respondent No.7 (Mr. B.K.Singhal), who were impleaded as

intervenors, filed counter affidavits mainly adopting the

views / stand of the Ministry of Home Affairs, Union of India

on the issue.

 

ARGUMENTS

 

24. Learned counsel appearing for the parties have addressed

the Court at length. During the course of submissions,

extensive references were made to voluminous material

which included various reports, publications, articles, Indian

[WP(C)7455/2001] Page

 

and foreign judgments including those of US Supreme Court,

European Commission of Human Rights, Human Rights

Committee etc. Counsel also provided comprehensive

written submissions supported by authorities but as we

understand it, the prime arguments can be generally

summarised in this way:-

(i) The submission of Mr. Anand Grover, Sr. Advocate,

appearing for the petitioner, and Mr. Shyam Divan, Sr.

Advocate, appearing for respondent No.8, is that Section 377

IPC violates the constitutional protections embodied in

Articles 14, 19 and 21. It suffers from the vice of

unreasonable classification and is arbitrary in the way it

unfairly targets the homos*xuals or gay community. It also

unreasonably and unjustly infringes upon the right of

privacy, both zonal and decisional. It also conveys the

message that homos*xuals are of less value than other

people, demeans them and unconstitutionally infringes upon

their right to live with dignity. Section 377 IPC also creates

structural impediments to the exercise of freedom of speech

and expression and other freedoms under Article 19 by

homos*xuals or gays and is not protected by any of the

restrictions contained therein. Furthermore, morality by

itself cannot be a valid ground for restricting the right under

Articles 14 and 21. Public disapproval or disgust for a

certain class of persons can in no way serve to uphold the

constitutionality of a statute. In any event, abundant

[WP(C)7455/2001] Page

 

material has been placed on record which shows that the

Indian society is vibrant, diverse and democratic and

homos*xuals have significant support in the population. It is

submitted that courts in other jurisdictions have struck down

similar laws that criminalise same-s*x s*xual conduct on the

grounds of violation of right to privacy or dignity or equality

or all of them. Keeping in mind that Section 377 IPC is the

only law that punishes child s*xual abuse and fills a lacuna

in rape law, it is prayed that Section 377 IPC may be

declared as constitutionally invalid insofar as it affects

private s*xual acts between consenting adults or in the

alternative to read down Section 377 IPC to exclude

consenting same-s*x s*xual acts between adults.

(ii) In reply, learned ASG submits that there is no

fundamental right to engage in the same s*x activities. In

our country, homos*xuality is abhorrent and can be

criminalised by imposing proportional limits on the citizens'

right to privacy and equality. Learned ASG submits that

right to privacy is not absolute and can be restricted for

compelling state interest. Article 19(2) expressly permits

imposition of restrictions in the interest of decency and

morality. Social and s*xual mores in foreign countries cannot

justify de-criminalisation of homos*xuality in India.

According to him, in the western societies the morality

standards are not as high as in India. Learned ASG further

submits that Section 377 IPC is not discriminatory as it is

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gender neutral. If Section 377 IPC is struck down there will

be no way the State can prosecute any crime of nonconsensual

carnal intercourse against the order of nature or

gross male indecency. He hastens to add that Section 377

IPC is not enforced against homos*xuals and there is no

need to “read down” the provisions of Section 377 IPC.

Learned ASG further contends that spread of AIDS is

curtailed by Section 377 IPC and de-criminalisation of

consensual – same – s*x acts between adults would cause a

decline in public health across society generally since it

would foster the spread of AIDS. He submits that Section

377 IPC does not impact upon the freedom under Article

19(1) as what is criminalised is only a s*xual act. People will

have the freedom to canvass any opinion of their choice

including the opinion that homos*xuality must be decriminalised.

He, therefore, submits that the Section 377 IPC

is constitutionally valid.

(iii) Mr.Ravi Shankar Kumar, appearing for respondent

No.6, and Mr.H.P. Sharma, appearing for respondent No.7,

submitted that the petitioner's arguments with respect to

the spread of HIV and AIDS are founded on propaganda and

are not factually correct. Section 377 IPC prevents HIV by

discouraging rampant homos*xuality. According to them,

Indian society considers homos*xuality to be repugnant,

immoral and contrary to the cultural norms of the country.

[WP(C)7455/2001] Page

 

ARTICLE 21, THE RIGHT TO LIFE AND PROTECTION OF A PERSON'S

DIGNITY, AUTONOMY AND PRIVACY

 

25. Until the decision of the Supreme Court in

v. Union of India

constricted meaning was given to the guarantee embodied

in Article 21. But in

decision, P.N. Bhagwati, J. (as his Lordship then was) held

that the expression “personal liberty” in Article 21 is of the

widest amplitude and it covers a variety of rights which go to

constitute the personal liberty of man and some of them

have been raised to the status of distinct fundamental rights

and give additional protection under Article 19. Any law

interfering with personal liberty of a person must satisfy a

triple test: (i) it must prescribe a procedure; (ii) the

procedure must withstand a test of one or more of the

fundamental rights conferred under Article 19 which may be

applicable in a given situation; and (iii) it must also be liable

to be tested with reference to Article 14. As the test

propounded by Article 14 pervades Article 21 as well, the

law and procedure authorising interference with the personal

liberty must also be right and just and fair and not arbitrary,

fanciful or oppressive. If the procedure prescribed does not

satisfy the requirement of Article 14, it would be no

procedure at all within the meaning of Article 21. The Court

thus expanded the scope and ambit of the right to life and

personal liberty enshrined in Article 21 and sowed the seed

[WP(C)7455/2001] Page

 

for future development of the law enlarging this most

fundamental of the fundamental rights. This decision in

 

Maneka Gandhi

significant evolution of the law culminating in the decisions

in

544,

State of Bihar

Admn.

Admn.

Administrator, Union Territory of Delhi and others

 

(1981) 1 SCC 608.

 

DIGNITY

 

26. Dignity as observed by L'Heureux-Dube, J is a difficult

concept to capture in precise terms [

 

(1995) 29 CRR (2

the constitutional protection of dignity requires us to

acknowledge the value and worth of all individuals as

members of our society. It recognises a person as a free

being who develops his or her body and mind as he or she

sees fit. At the root of the dignity is the autonomy of the

private will and a person's freedom of choice and of action .

Human dignity rests on recognition of the physical and

spiritual integrity of the human being, his or her humanity,

and his value as a person, irrespective of the utility he can

provide to others. The expression “dignity of the individual”

[WP(C)7455/2001] Page

 

finds specific mention in the Preamble to the Constitution of

India. V.R. Krishna Iyer, J. observed that the guarantee of

human dignity forms part of our constitutional culture [

Shankar Shukla v. Delhi Admn

27. In

Territory of Delhi and others

Bhagwati explained the concept of right to dignity in the

following terms:

 

“...

with human dignity and all that goes along with it,

namely, the bare necessaries of life such as adequate

nutrition, clothing and shelter and facilities for reading,

writing and expressing oneself in diverse forms, freely

moving about and mixing and commingling with fellow

human beings. ......... Every act which offends against or

impairs human dignity would constitute deprivation pro

tanto of this right to live and it would have to be in

accordance with reasonable, fair and just procedure

established by law which stands the test of other

fundamental rights.” [para 8 of SCC]

28. The Canadian Supreme Court in

of Employment and Immigration)

attempts to capture the concept of dignity in these words :

“Human dignity means that an individual or group feels

self-respect and self-worth. It is concerned with

physical and psychological integrity and empowerment.

Human dignity is harmed by unfair treatment premised

upon personal traits or circumstances which do not

relate to individual needs, capacities, or merits. It is

enhanced by laws which are sensitive to the needs,

capacities, and merits of different individuals, taking

into account the context underlying their differences.

Human dignity is harmed when individuals and groups

are marginalized, ignored, or devalued, and is enhanced

when laws recognise the full place of all individuals and

groups within Canadian society.”[at para 53]

[WP(C)7455/2001] Page

 

PRIVACY

 

29. Article 12 of the Universal Declaration of Human Rights

(1948) refers to privacy and it states:

"No one shall be subjected to arbitrary interference with

his privacy, family, home or correspondence nor to

attacks upon his honour and reputation. Everyone has

the right to the protection of the law against such

interference or attacks."

Article 17 of the International Covenant of Civil and Political

Rights (to which India is a party), refers to privacy and states

that:

"No one shall be subjected to arbitrary or unlawful

interference with his privacy, family, home and

correspondence, nor to unlawful attacks on his honour

and reputation."

30. The European Convention on Human Rights also states that:

"1. Everyone has the right to respect for his private and

family life, his home and his correspondence.

2. There shall be no interference by a public authority

except such as is in accordance with law and is

necessary in a democratic society in the interests of

national security, public safety or the economic wellbeing

of the country, for the protection of health or

morals or for the protection of the rights and freedoms

of others."

31. In India, our Constitution does not contain a specific

provision as to privacy but the right to privacy has, as we

shall presently show, been spelt out by our Supreme Court

from the provisions of Article 19(1)(a) dealing with freedom

of speech and expression, Article 19(1)(d) dealing with right

to freedom of movement and from Article 21, which deals

[WP(C)7455/2001] Page

 

with right to life and liberty. We shall first refer to the caselaw

in US relating to the development of the right to privacy

as these cases have been adverted to in the decisions of our

Supreme Court.

(1928), was a case of wire-tapping or electronic surveillance

and where there was no actual physical invasion, the

majority held that the action was not subject to Fourth

Amendment restrictions. But, in his dissent, Justice

Brandeis, stated that the amendment protected the right to

privacy which meant “the right to be let alone”, and its

purpose was “to secure conditions favourable to the pursuit

of happiness”, while recognising “the significance of man's

spiritual nature, of his feelings and intellect: the right sought

“to protect Americans in their beliefs, their thoughts, their

emotions and their sensations” (page 478). The dissent

came to be accepted as the law after another four decades.

 

32. In

the Court invalidated a state law prohibiting the use of drugs

or devices of contraception and counseling or aiding and

abetting the use of contraceptives. The Court described the

protected interest as a right to privacy and placed emphasis

on the marriage relation and the protected space of the

marital bedroom.

33. After

certain decisions regarding s*xual conduct extends beyond

[WP(C)7455/2001] Page

 

the marital relationship. In

438 (1972), the Court invalidated a law prohibiting the

distribution of contraceptives to unmarried persons. The

case was decided under the Equal Protection Clause; but

with respect to unmarried persons, the Court went on to

state the fundamental proposition that the law impaired the

exercise of their personal rights. It quoted from the

statement of the Court of Appeals finding the law to be in

conflict with fundamental human rights, and it observed:

“It is true that in Griswold the right of privacy in

question inhered in the marital relationship..... If the

right of privacy means anything, it is the right of the

individual married or single, to be free from

unwarranted governmental intrusion into matters so

fundamentally affecting a person as the decision

whether to bear or beget a child.” [para 453]

34.

an unmarried pregnant woman, who wished to terminate her

pregnancy by abortion instituted action in the United States

District Court for the Northern District of Texas, seeking a

declaratory judgment that the Texas Criminal Abortion

Statutes, which prohibited abortions except with respect to

those procured or attempted by medical advice for the

purpose of saving the life of the mother, were

unconstitutional. The Court said that although the

Constitution of the USA does not explicitly mention any right

of privacy, the United States Supreme Court recognised that

a right of personal privacy or a guarantee of certain areas or

[WP(C)7455/2001] Page

 

zones of privacy, does exist under the Constitution, and that

the roots of that right may be found in the First Amendment,

in the Fourth and Fifth Amendments, in the penumbras of

the Bill of Rights in the Ninth Amendment and in the concept

of liberty guaranteed by the first section of the Fourteenth

Amendment. In

Pa v. Casey

the constitutional protection to personal decisions relating to

marriage, procreation, contraception, family relationships,

child rearing and education. In explaining the respect the

Constitution demands for the autonomy of the person in

making these choices, the Court stated as follows:

“These matters, involving the most intimate and

personal choices a person may make in a lifetime,

choices central to personal dignity and autonomy,

are central to the liberty protected by the

Fourteenth Amendment. At the heart of liberty is

the right to define one's own concept of existence,

of meaning, of the universe, and of the mystery of

human life. Beliefs about these matters could not

define the attributes of personhood were they

formed under compulsion of the State.” [page

851]

 

DEVELOPMENT OF LAW OF PRIVACY IN INDIA

 

35. In

the U.P. Regulations regarding domiciliary visits were in

question and the majority referred to

US 113 (1877), and held that though our Constitution did not

refer to the right to privacy expressly, still it can be traced

from the right to “life” in Article 21. According to the

[WP(C)7455/2001] Page

 

majority, clause 236 of the relevant Regulations in U.P., was

bad in law; it offended Article 21 inasmuch as there was no

law permitting interference by such visits. The majority did

not go into the question whether these visits violated the

“right to privacy”. But, Subba Rao, J. while concurring that

the fundamental right to privacy was part of the right to

liberty in Article 21, part of the right to freedom of speech

and expression in Article 19(1)(a), and also of the right of

movement in Article 19(1)(d), held that the Regulations

permitting surveillance violated the fundamental right to

privacy. In effect, all the seven learned Judges held that the

“right to privacy” was part of the right to “life” in Article 21.

36. We now come to the celebrated judgment in

State of M.P

developed the law as to privacy from where it was left in

 

Kharak Singh

Connecticut

“There can be no doubt that the makers of our

Constitution wanted to ensure conditions favourable to

the pursuit of happiness. They certainly realized as

Brandeis, J. said in his dissent in

States, 277 US 438, 471

spiritual nature, of his feelings and of his intellect and

that only a part of the pain, pleasure, satisfaction of life

can be found in material things and therefore they must

be deemed to have conferred upon the individual as

against the Government a sphere where he should be

let alone.” [para 20 of SCC]

37. Mathew, J. held that privacy – dignity claims deserve to be

examined with care and to be denied only when an

[WP(C)7455/2001] Page

 

important countervailing interest is shown to be superior, or

where a compelling state interest was shown. If the court

then finds that a claimed right is entitled to protection as a

fundamental privacy right, a law infringing it must satisfy the

compelling state interest test. Then the question would be

whether the state interest is of such paramount importance

as would justify an infringement of the right. The learned

Judge observed that the right to privacy will have to go

through a process of case-by-case development. The

learned Judge further observed that the right is not absolute.

The issue whether enforcement of morality is a State

interest sufficient to justify infringement of fundamental

“privacy right” was held not necessary to be considered for

purposes of the case. The Court refused “to enter into the

controversial thicket whether enforcement of morality is a

function of the State.”

38. A two-Judge Bench in

6 SCC 632, held the right to privacy to be implicit in the right

to life and liberty guaranteed to the citizens of India by

Article 21. “It is the right to be left alone”. A citizen has a

right to safeguard the privacy of his own, his family,

marriage, procreation, motherhood, child bearing and

education among many other matters.

39. In

another v. Canara Bank and another

[WP(C)7455/2001] Page

 

another two-Judge Bench held that the right to privacy dealt

with persons and not places. The right to privacy has been

accepted as implied in our Constitution, in other cases,

namely,

India

4 SCC 493.

 

SECTION 377 IPC AS AN INFRINGEMENT OF THE RIGHTS TO

DIGNITY AND PRIVACY

 

40. The right to privacy thus has been held to protect a “private

space in which man may become and remain himself”. The

ability to do so is exercised in accordance with individual

autonomy. Mathew J. in

referring to the famous Article, “The Right to Privacy” by

Charles Warren and Louis D. Brandeis, (4 HLR 193), stressed

that privacy - the right to be let alone – was an interest that

man should be able to assert directly and not derivatively

from his efforts to protect other interests. Blackmun, J. in his

dissent in

Hardwick et al,

much - quoted “right to be let alone” should be seen not

simply as a negative right to occupy a private space free

from government intrusion, but as a right to get on with your

life, your personality and make fundamental decisions about

your intimate relations without penalisation. The privacy

recognises that we all have a right to a sphere of private

intimacy and autonomy which allows us to establish and

[WP(C)7455/2001] Page

 

nurture human relationships without interference from the

outside community. The way in which one gives expression

to one's s*xuality is at the core of this area of private

intimacy. If, in expressing one's s*xuality, one acts

consensually and without harming the other, invasion of that

precinct will be a breach of privacy. (Ackermann J. in

National Coalition for Gay and Lesbian Equality v. The

Minister of Justice

South Africa on 9

41. In

following passage from

[413 US 49 (1973), page 63] :

“Only the most willful blindness could obscure the fact

that s*xual intimacy is a sensitive, key relationship of

human existence, central to family life, community

welfare, and the development of human personality.

The way in which we give expression to our s*xuality is

at the core of this area of private intimacy. If, in

expressing our s*xuality, we act consensually and

without harming one another, invasion of that precinct

will be a breach of our privacy.”

 

SEXUALITY AND IDENTITY

 

42. There is a growing jurisprudence and other law related

practice that identifies a significant application of human

rights law with regard to people of diverse s*xual

orientations and gender identities. This development can be

seen at the international level, principally in the form of

practice related to the United Nations – sponsored human

rights treaties, as well as under the European Convention on

[WP(C)7455/2001] Page

 

Human Rights. The s*xual orientation and gender identity –

related human rights legal doctrine can be categorised as

follows: (a)non-discrimination; (b) protection of private

rights; and (c) the ensuring of special general human rights

protection to all, regardless of s*xual orientation or gender

identity.

43. On 26

launched the Yogyakarta Principles on the Application of

Human Rights Law in Relation to Sexual Orientation and

Gender Identity (Yogyakarta Principles). The principles are

intended as a coherent and comprehensive identification of

the obligation of States to respect, protect and fulfill the

human rights of all persons regardless of their s*xual

orientation or gender identity. The experts came from 25

countries representative of all geographical regions. They

included one former UN High Commissioner for Human

Rights, 13 current or former UN Human Rights Special

Mechanism Office Holders or Treaty Body Members, two

serving Judges on domestic courts and a number of

academics and activists. Although relatively short period of

time has elapsed since the launch of the Principles, a

number of member and observer States have already cited

them in Council proceedings. Within days of the Geneva

launch, more than 30 States made positive interventions on

s*xual orientation and gender identity issues, with seven

States specifically referring to the Yogyakarta Principles.

[WP(C)7455/2001] Page

 

[Michael O'Flaherty and John Fisher, “Sexual Orientation,

Gender Identity and International Human Rights Law:

Contextualising the Yogyakarta Principles” - Human Rights

Law Review 8:2 (2008), 207-248].

44. The Yogyakarta Principles define the expression “s*xual

orientation” and “gender identity” as follows:

“

person’s capacity for profound emotional, affectional

and s*xual attraction to, and intimate and s*xual

relations with, individuals of a different gender or the

same gender or more than one gender;”

“

person’s deeply felt internal and individual experience

of gender, which may or may not correspond with the

s*x assigned at birth, including the personal sense of

the body (which may involve, if freely chosen,

modification of bodily appearance or function by

medical, surgical or other means) and other expressions

of gender, including dress, speech and mannerisms.”

The Principles recognise:

 



identities are entitled to the full enjoyment of all

human rights;

 



privacy, regardless of s*xual orientation or gender

identity;

 



conduct of public affairs including the right to

stand for elected office, to participate in the

formulation of policies affecting their welfare, and

to have equal access to all levels of public service

and employment in public functions, without

discrimination on the basis of s*xual orientation or

gender identity.

[WP(C)7455/2001] Page

 

45. Prof Edwin Cameron in his Article “Sexual Orientation and

the Constitution : A Test Case for Human Rights”, (1993) 110

SALJ 450 defines s*xual orientation:

“.... s*xual orientation is defined by reference to erotic

attraction: in the case of heteros*xuals, to members of

the opposite s*x; in the case of gays and lesbians, to

members of the same s*x. Potentially a homos*xual or

gay or lesbian person can therefore be anyone who is

erotically attracted to members of his or her own s*x.”

46. In

1996 (4) BCLR 449 (CC), Ackermann J. pointed out that the

scope of privacy had been closely related to the concept of

identity and that “rights, like the right to privacy, are not

based on a notion of the unencumbered self, but on the

notion of what is necessary to have one’s autonomous

identity ..... In the context of privacy this means that it is .....

the inner sanctum of the person such as his/her family life,

s*xual preference and home environment which is shielded

from erosion by conflicting rights of the community.” [para

117]

47. The Supreme Court has acknowledged that the sphere of

privacy deals with persons and not places. Explaining this

concept in

Canara Bank

Stevens, J. in

G

embodies the moral fact that a person belongs to himself

and not to others nor to society as a whole”. Lahoti, CJ. also

[WP(C)7455/2001] Page

 

referred to an observation of a commentator in (1976) 64

Cal. L. Rev 1447, that privacy centers round values of

repose, sanctuary and intimate decision. Repose refers to

freedom from unwanted stimuli; sanctuary to protection

against intrusive observation; and intimate decision, to

autonomy with respect to the most personal of life choices.

For every individual, whether homos*xual or not, the sense

of gender and s*xual orientation of the person are so

embedded in the individual that the individual carries this

aspect of his or her identity wherever he or she goes. A

person cannot leave behind his sense of gender or s*xual

orientation at home. While recognising the unique worth of

each person, the Constitution does not presuppose that a

holder of rights is as an isolated, lonely and abstract figure

possessing a disembodied and socially disconnected self. It

acknowledges that people live in their bodies, their

communities, their cultures, their places and their times.

The expression of s*xuality requires a partner, real or

imagined. It is not for the state to choose or to arrange the

choice of partner, but for the partners to choose themselves.

[Sachs, J. in

Equality v. The Minister of Justice

48. The sphere of privacy allows persons to develop human

relations without interference from the outside community or

from the State. The exercise of autonomy enables an

individual to attain fulfillment, grow in self-esteem, build

[WP(C)7455/2001] Page

 

relationships of his or her choice and fulfill all legitimate

goals that he or she may set. In the Indian Constitution, the

right to live with dignity and the right of privacy both are

recognised as dimensions of Article 21. Section 377 IPC

denies a person's dignity and criminalises his or her core

identity solely on account of his or her s*xuality and thus

violates Article 21 of the Constitution. As it stands, Section

377 IPC denies a gay person a right to full personhood which

is implicit in notion of life under Article 21 of the

Constitution.

 

IMPACT OF CRIMINALISATION ON HOMOSEXUALS

 

49. Prof. Ryan Goodman of the Harvard Law School, in his well

researched study of the impact of the sodomy laws on

homos*xuals in South Africa argues that condemnation

expressed through the law shapes an individual's identity

and self-esteem. Individuals ultimately do not try to conform

to the law's directive, but the disapproval communicated

through it, nevertheless, substantively affects their sense of

self-esteem, personal identity and their relationship to the

wider society. Based on field research, he argues that

sodomy laws produce regimes of surveillance that operate in

a dispersed manner, and that such laws serve to embed

illegality within the identity of homos*xuals. He categorises

how sodomy laws reinforce public abhorrence of lesbians

and gays resulting in an erosion of self-esteem and selfworth

in numerous ways, including (a) self-reflection, (b)

[WP(C)7455/2001] Page

 

reflection of self through family, (c) verbal assessment and

disputes, (d) residential zones and migrations, (e) restricted

public places, (f) restricted movement and gestures, (g)

“safe places” and (h) conflicts with law enforcement

agencies. (Beyond the Enforcement Principle: Sodomy Laws,

Social Norms and Social Panoptics”, 89 Cal. L. Rev. 643).

50. The studies conducted in different parts of world including

India show that the criminalisation of same-s*x conduct has

a negative impact on the lives of these people. Even when

the penal provisions are not enforced, they reduce gay men

or women to what one author has referred to as

“unapprehended felons”, thus entrenching stigma and

encouraging discrimination in different spheres of life. Apart

from misery and fear, a few of the more obvious

consequences are harassment, blackmail, extortion and

discrimination. There is extensive material placed on the

record in the form of affidavits, authoritative reports by well

known agencies and judgments that testify to a widespread

use of Section 377 IPC to brutalise MSM and gay community.

Some of the incidents illustrating the impact of

criminalisation on homos*xuality are earlier noted by us.

We may quote another glaring example. During Colonial

period in India, eunuchs (

of their identity. The Criminal Tribes Act, 1871 was enacted

by the British in an effort to police those tribes and

communities who 'were addicted to the systematic

[WP(C)7455/2001] Page

 

commission of non-bailable offences.' These communities

and tribes were deemed criminal by their identity, and mere

belonging to one of those communities rendered the

individual criminal. In 1897, this Act was amended to

include eunuchs. According to the amendment the local

government was required to keep a register of the names

and residences of all eunuchs who are “reasonably

suspected of kidnapping or castrating children or of

committing offences under Section 377 IPC. Commenting

on the Criminal Tribes Act in a speech made in 1936, Pt.

Jawaharlal Nehru said:

“I am aware of the monstrous provisions of the Criminal

Tribes Act which constitute a negation of civil liberty...

an attempt should be made to have the Act removed

from the statute book. No tribe can be classed as

criminal as such and the whole principle as such is out

of consonance with civilized principles of criminal justice

and treatment of offenders...” [Dalip D'Souza, Branded

by law: Looking at India's Denotified Tribes, Penguin,

New Delhi, 2001: page 57]

While this Act has been repealed, the attachment of

criminality to the

51. In 2006, the State of Tamil Nadu vide G.O. (Ms) No.199

dated 21.12.2006 recognising that “aravanis (

discriminated by the society and remain isolated” issued

directions thus:

“I. counseling be given to children who may feel

different from other individuals in terms of their gender

identity.

II. Family counseling by the teachers with the help of

NGOs sensitized in that area should be made mandatory

[WP(C)7455/2001] Page

 

so that such children are not disowned by their families.

The C.E.O.s, D.E.O.s, District Social Welfare Officers and

Officers of Social Defence are requested to arrange

compulsory counseling with the help of teachers and

NGOs in the Districts wherever it is required.

III. Admission in School and Colleges should not be

denied based on their s*x identity. If any report is

received of denying admission of aravani's suitable

disciplinary action should be taken by the authorities

concerned.”

52. The criminalisation of homos*xuality condemns in perpetuity

a sizable section of society and forces them to live their lives

in the shadow of harassment, exploitation, humiliation, cruel

and degrading treatment at the hands of the law

enforcement machinery. The Government of India estimates

the MSM number at around 25 lacs. The number of lesbians

and transgenders is said to be several lacs as well. This vast

majority (borrowing the language of the South African

Constitutional Court) is denied “moral full citizenship”.

Section 377 IPC grossly violates their right to privacy and

liberty embodied in Article 21 insofar as it criminalises

consensual s*xual acts between adults in private. These

fundamental rights had their roots deep in the struggle for

independence and, as pointed out by Granville Austin in

“The Indian Constitution – Cornerstone of A Nation”, “they

were included in the Constitution in the hope and

expectation that one day the tree of true liberty would

bloom in India”. In the words of Justice V.R. Krishna Iyer

these rights are cardinal to a decent human order and

[WP(C)7455/2001] Page

 

protected by constitutional armour. The spirit of Man is at

the root of Article 21, absent liberty, other freedoms are

frozen. [

 

GLOBAL TRENDS IN PROTECTION OF PRIVACY DIGNITY RIGHTS OF

HOMOSEXUALS

 

53. The first successful international human rights cases

concerning the privacy on same-s*x relations were taken

under the ECHR. In

Eur. Ct. H.R. (ser. A) (1981), and

Ireland

of such practices was deemed a violation of the privacy

protection in Article 8 of the ECHR. In

United Kingdom

that “maintenance in force of the impugned legislation

constitutes a continuing interference with the applicant's

right to respect for his private life (which includes his s*xual

life) within the meaning of Article 8 para 1 (art.8-1). In the

personal circumstances of the applicant, the very existence

of this legislation continuously and directly affect his private

life. In

of Human Rights ruled that Ireland's blanket prohibition on

gay s*x breached the ECHR. The Court quoted with approval

the finding of an Irish Judge that:

“[o]ne of the effects of criminal sanctions against

homos*xual acts is to reinforce the misapprehension

and general prejudice of the public and increase the

anxiety and guilt feelings of homos*xuals leading, on

[WP(C)7455/2001] Page

 

occasion, to depression and the serious consequences

which can follow ...” [para 21]

54. In

European Court of Human Rights again held that such a law

violated the right to privacy, and maintained that even a

“consistent policy” of not bringing prosecutions under the

law was no substitute for full repeal.

55. In

/1992, March 31, 1994), the Human Rights Committee held

that the continuous existence of Tasmanian sodomy laws

violates Article 17 of International Covenant of Civil and

Political Rights. The Committee observed:

“The Committee considers that sections 122(a) and (c)

and 123 of the Tasmanian Criminal Code "interfere"

with the author's privacy, even if these provisions have

not been enforced for a decade. In this context, it notes

that the policy of the Department of Public Prosecutions

not to initiate criminal proceedings in respect of private

homos*xual conduct does not amount to a guarantee

that no actions will be brought against homos*xuals in

the future, particularly in the light of undisputed

statements of the Director of Public Prosecutions of

Tasmania in 1988 and those of members of the

Tasmanian Parliament. The continued existence of the

challenged provisions therefore continuously and

directly "interferes" with the author's privacy.”[para 8.2]

56. In

v. The Minister of Justice

of South Africa struck down the sodomy laws on the ground

of violation of rights to privacy, dignity and equality.

Ackermann J. narrated the palpable invasion of their rights:

“The common-law prohibition on sodomy criminalises all

s*xual intercourse per anum between men: regardless

[WP(C)7455/2001] Page

 

of the relationship of the couple who engage therein, of

the age of such couple, of the place where it occurs, or

indeed of any other circumstances whatsoever. In so

doing, it punishes a form of s*xual conduct which is

identified by our broader society with homos*xuals. Its

symbolic effect is to state that in the eyes of our legal

system all gay men are criminals. The stigma thus

attached to a significant proportion of our population is

manifest. But the harm imposed by the criminal law is

far more than symbolic. As a result of the criminal

offence, gay men are at risk of arrest, prosecution and

conviction of the offence of sodomy simply because

they seek to engage in s*xual conduct which is part of

their experience of being human. Just as apartheid

legislation rendered the lives of couples of different

racial groups perpetually at risk, the sodomy offence

builds insecurity and vulnerability into the daily lives of

gay men. There can be no doubt that the existence of a

law which punishes a form of s*xual expression for gay

men degrades and devalues gay men in our broader

society. As such it is a palpable invasion of their dignity

and a breach of section 10 of the Constitution.” [para

28]

57. In

Texas sodomy laws as unconstitutional, the US Supreme

Court reversed its earlier decision in

 

(supra). Kennedy, J., who delivered the opinion of the Court,

said:

“.... It suffices for us to acknowledge that adults may

choose to enter upon this relationship in the confines of

their homes and their own private lives and still retain

their dignity as free persons. When s*xuality finds overt

expression in intimate conduct with another person, the

conduct can be but one element in a personal bond that

is more enduring. The liberty protected by the

Constitution allows homos*xual persons the right to

make this choice. ...... [page 567]

......The issue is whether the majority may use the

power of the State to enforce these views on the whole

society through operation of the criminal law. “Our

obligation is to define the liberty of all, not to mandate

our own moral code.” [page 571]

[WP(C)7455/2001] Page

 

.....When homos*xual conduct is made criminal by the

law of the State, that declaration in and of itself is an

invitation to subject homos*xual persons to

discrimination both in the public and in the private

spheres. ...” [page 575]

58. Since 1967 the process of change has informed legal

attitude towards s*xual orientation. This process has

culminated in the de-criminalisation of sodomy in private

between consenting adults, in several jurisdictions. The

superior courts in some of these jurisdictions have struck

down anti-sodomy laws, where such laws remain on the

statute book. In 1967 in England and Wales and in 1980 in

Scotland sodomy between consenting adult males in private

was de-criminalised. However, in Northern Ireland the

criminal law relating to sodomy remained unchanged. In

1982, in pursuance of the decision of the ECHR in

v. United Kingdom

consenting males in private was de-criminalised in Northern

Ireland. The same conclusion was reached in 1988 in Norris

v. Ireland (supra) and Ireland repealed sodomy laws in 1993.

Laws prohibiting homos*xual activity between consenting

adults in private having eradicated within 23 member-states

that had joined the Council of Europe in 1989 and of the 10

European countries that had joined since (as at 10

 

February, 1995), nine had de-criminalised sodomy laws

either before or shortly after their membership applications

were granted. In Australia, all the States with the exception

[WP(C)7455/2001] Page

 

of Tasmania, had by 1982 de-criminalised s*xual acts in

private between consenting adults and had also passed antidiscrimination

laws which prohibited discrimination on the

ground, amongst others, of s*xual orientation. Tasmania

repealed offending sections in its Criminal Code in 1997 in

view of the decision of United Nations Human Rights

Committee in

relations between adult males have been de-criminalised in

New Zealand. In Canada, consensual adult sodomy

(“Buggery”) and so-called “gross indecency” were decriminalised

by statute in 1989 in respect of such acts

committed in private between 21 years and older which was

subsequently brought down to age of 18 years or more. In

United States of America though the challenge to sodomy

laws was turned down in

subsequently in

insofar as between consenting adults in private were struck

down. A number of open democratic societies have turned

their backs to criminalisation of sodomy laws in private

between consenting adults despite the fact that s*xual

orientation is not expressly protected in the equality

provisions of their constitutions. Homos*xuality has been

de-criminalised in several countries of Asia, Africa and South

America. The High Court of Hongkong in its judgments in

 

Leung T.C.William Roy v. Secy for Justice

 

August, 2005 and 20

[WP(C)7455/2001] Page

 

sodomy laws. To the same effect is the judgment of the

High Court of Fiji in

State

decided on 26

also struck down the laws criminalising homos*xuality in

2008 [Supreme Court of Nepal, Division Bench, Initial Note of

the Decision 21.12.2007].

59. On 18

Assembly was presented with a statement endorsed by 66

States from around the world calling for an end to

discrimination based on s*xual orientation and gender

identity. The statement, read out by the UN Representative

for Argentina Jorge Arguella, condemns violence,

harassment, discrimination, exclusion, stigmatisation, and

prejudice based on s*xual orientation and gender identity. It

also condemns killings and executions, torture, arbitrary

arrest, and deprivation of economic, social, and cultural

rights on those grounds. The statement read at the General

Assembly reaffirms existing protections for human rights in

international law. It builds on a previous joint statement

supported by 54 countries, which Norway delivered at the

UN Human Rights Council in 2006. UN High Commissioner

for Human Rights, who addressed the General Assembly via

a video taped message stated:

“Ironically many of these laws, like Apartheid laws that

criminalised s*xual relations between consenting adults

[WP(C)7455/2001] Page

 

of different races, are relics of the colonial and are

increasingly recognised as anachronistic and as

inconsistent both with international law and with

traditional values of dignity, inclusion and respect for

all.”

 

COMPELLING STATE INTEREST

 

60. The Union Ministry of Home Affairs has opposed the petition

claiming, inter alia, that Section 377 IPC is a justified

interference by “public authorities in the interest of public

safety and protection of health and morals.” On the other

hand, Union Ministry of Health and Family Welfare has

supported the petition and admitted that Section 377 IPC, by

criminalising consensual s*x between adults of the same

s*x, hampers HIV intervention efforts aimed at s*xual

minorities. Indeed it is the plea of the petitioner that Section

377 IPC infringes right to health as embodied in Article 21 of

the Constitution of India. We shall take up the issue of public

safety and health first.

 

SECTION 377 IPC AS AN IMPEDIMENT TO PUBLIC HEALTH

 

61. Article 12 of the International Covenant on Economic, Social

and Cultural Rights makes it obligatory on the “State to fulfill

everyone's right to the highest attainable standard of

health.” The Supreme Court of India interpreting Article 21

of the Indian Constitution in the light of Article 12 of the

Covenant held that the right to health inhered in the

[WP(C)7455/2001] Page

 

fundamental right to life under Article 21. [

Khet Mazdoor Samity v. State of W.B

62. It is submitted by NACO that Section 377 acts as a serious

impediment to successful public health interventions.

According to NACO, those in the High Risk Group are mostly

reluctant to reveal same-s*x behaviour due to fear of law

enforcement agencies, keeping a large section invisible and

unreachable and thereby pushing the cases of infection

underground making it very difficult for the public health

workers to even access them. The situation is aggravated

by the strong tendencies created within the community who

deny MSM behaviour itself. Since many MSM are married or

have s*x with women, their female s*xual partners are

consequently also at risk for HIV/infection. The NACO views

it imperative that the MSM and gay community have the

ability to be safely visible through which HIV/AIDS prevention

may be successfully conducted. Clearly, the main

impediment is that the s*xual practices of the MSM and gay

community are hidden because they are subject to criminal

sanction.

63. General Comment No.14 (2000) [E/C.12/2000/4; 11 August

2000] on Article 12 of the International Covenant on

Economic, Social and Cultural Rights states that right to

health is not to be understood as a right to be healthy. The

right to health contains both freedoms and entitlements.

[WP(C)7455/2001] Page

 

The freedoms include the right to control one's health and

body, including s*xual reproductive freedom, and the right

to be free from interference, such as the right to be free

from torture, non-consensual medical treatment and

experimentation. By contrast, the entitlements include the

right to a system of health, protection which provides

equality of opportunity for people to enjoy the highest

attainable level of health. It further states:

“Non-discrimination and equal treatment

By virtue of article 2.2 and article 3, the Covenant

proscribes any discrimination in access to health care

and underlying determinants of health, as well as to

means and entitlements for their procurement, on the

grounds of race, colour, s*x, language, religion, political

or other opinion, national or social origin, property,

birth, physical or mental disability, health status

(including HIV/AIDS), s*xual orientation and civil,

political, social or other status, which has the intention

or effect of nullifying or impairing the equal enjoyment

or exercise of the right to health. The Committee

stresses that many measures, such as most strategies

and programmes designed to eliminate health-related

discrimination, can be pursued with minimum resource

implications through the adoption, modification or

abrogation of legislation or the dissemination of

information...” [para 18]

64. The 2001 UN General Assembly Special Session (UNGASS)

Declaration of Commitment on HIV/AIDS, held on 25-27

June, 2001, adopted by all UN Member States emphasised

the importance of “addressing the needs of those at the

greatest risk of, and most vulnerable to, new infection as

indicated by such factors as ... s*xual practices.” In 2005, 22

governments from different regions along with

[WP(C)7455/2001] Page

 

representatives of non-governmental organisations and

people living with HIV as members of the UNAIDS governing

board, called for the development of programmes targeted

at key affected groups and populations, including men who

have s*x with men, describing this as “one of the essential

policy actions for HIV prevention”. [UNAIDS (2005)

Intensifying HIV Prevention, Geneva, Joint United Nations

Programme on HIV/AIDS]. Since then, country and regional

consultations have confirmed that the stigma, discrimination

and criminalisation faced by men who have s*x with men are

major barriers to the movement for universal access to HIV

prevention, treatment, care and support. [United Nations

A/60/737 Assessment by UNAIDS to the General Assembly on

Scaling up HIV Prevention, Treatment, Care and Support,

March 24, 2006]. At the 2006 High Level Meeting on AIDS,

the Member States and civil society members reiterated the

commitment underlining the need for “full and active

participation of vulnerable groups ... and to eliminate all

forms of discrimination against them .... while respecting

their privacy and confidentiality”. [Paragraph 64 of 2001

Declaration of Commitment on HIV/AIDS and Paragraphs 20

and 29 of the 2006 Political Declaration on HIV/AIDS]. In this

context UNAIDS, inter alia, recommended the following:

“Respect, protect and fulfill the rights of men who have

s*x with men and address stigma and discrimination in

society and in the workplace by amending laws

prohibiting s*xual acts between consenting adults in

private; enforcing anti-discrimination; providing legal

[WP(C)7455/2001] Page

 

aid services, and promoting campaigns that address

homophobia.” [HIV and Sex between Men : UNAIDS]

65. A report of the National Conference on Human Rights and

HIV/AIDS, held on 24-25 November, 2000 in New Delhi and

organised by the National Human Rights Commission, in

collaboration with other organisations, concludes:

“Therefore, to more successfully prevent and manage

HIV/AIDS among these marginalized populations,

(intravenous drug users and MSA), a revision of the

existing laws and processes is strongly

recommended........ In terms of preventing HIV/AIDS

among men who have s*x with men, it would be most

useful to make section 377 IPC obsolete, and instead

review the legislation and endeavour to define more

clearly the age of s*xual consent.

.... .... .... .... ....

In a nutshell, the protection of Human Rights and the

empowerment of marginalized populations would, in the

context of HIV/AIDS prevention, create an environment

that would enable India to reach the most vulnerable

with HIV/AIDS messages and supporting mechanisms.”

[Report of the National Conference on Human Rights

and HIV/AIDS : https://nhrc.nic.in/Publications/report_hivaids.

htm]

66. The “Delhi Declaration of Collaboration, 2006” issued

pursuant to International Consultation on Male Sexual Health

and HIV, co-hosted by the Government of India, UNAIDS and

Civil Society Organisations, recognised that: “... the stigma,

discrimination and criminalisation faced by men who have

s*x with men, gay men and transgender people are major

barriers to universal access to HIV prevention and

treatment” [Delhi Declaration of Collaboration : 26

 

[WP(C)7455/2001] Page

 

September, 2006]. On June 30, 2008, the Prime Minister

Mr.Manmohan Singh in a speech delivered at the release of

the Report of the Commission on AIDS in Asia stated “the

fact that many of the vulnerable social groups, be they s*x

workers or homos*xuals or drug users, face great social

prejudice has made the task of identifying AIDS victims and

treating them very difficult” [Prime Minister's address on the

release of the Report of the Commission on AIDS in Asia:

June 30, 2006]. On August 08, 2008, the Union Minister of

Health and Family Welfare, Dr. Ambumani Ramadoss

speaking at the 17

Mexico City is reported to have stated “....structural

discrimination against those who are vulnerable to HIV such

as s*x workers and MSM must be removed if our prevention,

care and treatment programmes are to succeed”. He said,

“Section 377 of the Indian Penal Code, which criminalises

men who have s*x with men, must go” [Reported in Indian

Express: August 9,2006 https://www.indianexpress.com/story/

346649.html]. Union Minister of Health is also reported to

have stated at the International HIV/AIDS Conference in

Toronto, 2006 that Section 377 IPC was to be amended as

part of the government's measures to prevent HIV/AIDS.[The

Hindu: August 16,2006]

67. There is almost unanimous medical and psychiatric opinion

that homos*xuality is not a disease or a disorder and is just

another expression of human s*xuality. Homos*xuality was

[WP(C)7455/2001] Page

 

removed from the Diagnostic and Statistical Manual of

Mental Disorders (DSM) in 1973 after reviewing evidence

that homos*xuality is not a mental disorder. In 1987, egodystonic

homos*xuality was not included in the revised third

edition of the DSM after a similar review. In 1992, the World

Health Organisation removed homos*xuality from its list of

mental illnesses in the International Classification of

Diseases (ICD 10). Guidelines of the ICD 10 reads:

“disorders of s*xual preference are clearly differentiated

from disorders of gender identity and homos*xuality in itself

is no longer included as a category.”

68. According to the Amicus brief filed in 2002 by the American

Psychiatric Association before the United States Supreme

Court in the case of

“According to current scientific and professional

understanding, however, the core feelings and

attractions that form the basis for adult s*xual

orientation typically emerge between middle childhood

and early adolescence. Moreover, these patterns of

s*xual attraction generally arise without any prior

s*xual experience.” [page 7 of Amicus brief]

Thus, homos*xuality is not a disease or mental illness that

needs to be, or can be, 'cured' or 'altered', it is just another

expression of human s*xuality.

69. Learned Additional Solicitor General made an attempt at

canvassing the interest of public health to justify retention of

Section 377 IPC on the statute book. He referred to the UN

Report on Global AIDS Epidemic, 2008, particularly the

[WP(C)7455/2001] Page

 

section dealing with Asia to highlight that HIV /AIDS is

transmitted through the route of s*x and specifically that of

s*x by men-with-men. Reliance was placed on the findings

indicated at pages 47-50 of the Report to the effect that in

Asia an estimated 5.0 million people were living with HIV in

2007 out of which 3,80,000 people were those who had been

newly infected in that year alone. The UN Report attributes

this alarming increase in the HIV infection, amongst others,

to “unprotected s*x” in which unprotected anal s*x between

men is stated to be a potential significant factor. Learned

ASG placed reliance on a number of articles, papers and

reports, including publications of Centre for Disease Control

and Prevention (CDC). The objective of ASG, in relying upon

this material, is to show that HIV/AIDS is spread through s*x

and that men-to-men s*x carries higher risk of exposure as

compared to female-to-male or male-to-female. In his

submission, de-criminalisation of Section 377 IPC cannot be

the cure as homos*xuals instead need medical treatment

and further that AIDS can be prevented by appropriate

education, use of condoms and advocacy of other safe s*x

practices.

70. We are unable to accede to the submissions of learned ASG.

The understanding of homos*xuality, as projected by him, is

at odds with the current scientific and professional

understanding. As already noticed with reference to

Diagnostic and Statistical Manual of Mental Disorders (DSM),

[WP(C)7455/2001] Page

 

as revised in 1987 (3

treated as a disease or disorder and now near unanimous

medical and psychiatric expert opinion treats it as just

another expression of human s*xuality.

71. The submission of ASG that Section 377 IPC does not in any

manner come in the way of MSM accessing HIV/AIDS

prevention material or health care intervention is in contrast

to that of NACO, a specialized agency of the government

entrusted with the duty to formulate and implement policies

for prevention of spread of HIV/AIDS. As mentioned earlier,

NACO confirms the case of the petitioner that enforcement

of Section 377 IPC contributes adversely; in that, it leads to

constantly inhibiting interventions through the National AIDS

Control Programme undertaken by the said agency. It needs

to be noted here that Government of India is a party to the

declared commitment to address the needs of those at

greater risk of HIV including amongst High Risk Groups, such

as MSM [See

of Commitment on HIV/AIDS, 2001,

MoHFW,

2012) Strategy and Implementation Plan,

pages 18-32]. Thus, the submissions made orally on behalf

of the Union of India are not borne out by the records. On

one hand, the affidavit of NACO categorically states that

Section 377 IPC pushes gays and MSM underground, leaves

them vulnerable to police harassment and renders them

[WP(C)7455/2001] Page

 

unable to access HIV/AIDS prevention material and

treatment. On the other, the extensively documented

instances of NGOs working in the field of HIV/AIDS

prevention and health care being targeted and their staff

arrested under Section 377 IPC amply demonstrate the

impact of criminalization of homos*xual conduct.

72. The submission of ASG that Section 377 IPC helps in putting

a brake in the spread of AIDS and if consensual same-s*x

acts between adults were to be de-criminalised, it would

erode the effect of public health services by fostering the

spread of AIDS is completely unfounded since it is based on

incorrect and wrong notions. Sexual transmission is only

one of the several factors for the spread of HIV and the

disease spreads through both homos*xual as well as

heteros*xual conduct. There is no scientific study or

research work by any recognised scientific or medical body,

or for that matter any other material, to show any causal

connection existing between decriminalisation of

homos*xuality and the spread of HIV/AIDS. The argument, in

fact, runs counter to the policy followed by the Ministry of

Health and Family Welfare in combating the spread of this

disease.

73. A similar line of argument advanced in the case of

v. State of Australia

Committee was rejected with the following observations:

[WP(C)7455/2001] Page

 

“As far as the public health argument of the

Tasmanian authorities is concerned, the

Committee notes that the criminalization of

homos*xual practices cannot be considered a

reasonable means or proportionate measure to

achieve the aim of preventing the spread of

AIDS/HIV. The Government of Australia observes

that statutes criminalizing homos*xual activity

tend to impede public health programmes "by

driving underground many of the people at the

risk of infection". Criminalization of homos*xual

activity thus would appear to run counter to the

implementation of effective education

programmes in respect of the HIV/AIDS

prevention. Secondly, the Committee notes that

no link has been shown between the continued

criminalization of homos*xual activity and the

effective control of the spread of the HIV/AIDS

virus.”[para 8.5]

74. Learned ASG was at pains to argue that Section 377 IPC is

not prone to misuse as it is not enforced against

homos*xuals but generally used in cases involving child

abuse or s*xual abuse. Again, the submission is against the

facts. A number of documents, affidavits and authoritative

reports of independent agencies and even judgments of

various courts have been brought on record to demonstrate

the widespread abuse of Section 377 IPC for brutalising MSM

and gay community persons, some of them of very recent

vintage. If the penal clause is not being enforced against

homos*xuals engaged in consensual acts within privacy, it

only implies that this provision is not deemed essential for

the protection of morals or public health vis-a-vis said

section of society. The provision, from this perspective,

should fail the “reasonableness” test.

[WP(C)7455/2001] Page

 

MORALITY AS A GROUND OF A RESTRICTION TO

FUNDAMENTAL RIGHTS

 

75. As held in

claimed right is entitled to protection as a fundamental

privacy right, the law infringing it must satisfy the

compelling state interest test. While it could be “a

compelling state interest” to regulate by law, the area for

the protection of children and others incapable of giving a

valid consent or the area of non-consensual s*x,

enforcement of public morality does not amount to a

“compelling state interest” to justify invasion of the zone of

privacy of adult homos*xuals engaged in consensual s*x in

private without intending to cause harm to each other or

others. In

moral disapproval is not by itself a legitimate state interest

to justify a statute that bans homos*xual sodomy. Justice

Kennedy observed:

“The present case does not involve minors. It

does not involve persons who might be injured or

coerced or who are situated in relationships

where consent might not easily be refused. It

does not involve public conduct or prostitution. It

does not involve whether the government must

give formal recognition to any relationship that

homos*xual persons seek to enter. The case does

involve two adults who, with full and mutual

consent from each other, engaged in s*xual

practices common to a homos*xual lifestyle. The

petitioners are entitled to respect for their private

lives. The State cannot demean their existence or

control their destiny by making their private

s*xual conduct a crime. Their right to liberty

under the Due Process Clause gives them the full

right to engage in their conduct without

intervention of the government. “It is a promise of

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the Constitution that there is a realm of personal

liberty which the government may not enter.” ....

The Texas statute furthers no legitimate state

interest which can justify its intrusion into the

personal and private life of the individual.”[page

578]

76. Further, Justice O'Connor while concurring in the majority

judgment added that:

“Indeed, we have never held that moral

disapproval, without any other asserted state

interest, is a sufficient rationale under the Equal

Protection Clause to justify a law that

discriminates among groups of persons.”[page

582]

77. In

Government urged that there is feeling in Northern Ireland

against the proposed change, as it would be seriously

damaging to the moral fabric of Northern Irish society. The

issue before the Court was to what extent, if at all, the

maintenance in force of the legislation is “necessary in a

democratic society” for these aims. The Court after referring

to Wolfenden report observed that overall function served by

the criminal law in this field is to preserve public order and

decency and to protect the citizen from what is offensive or

injurious. Furthermore, the necessity for some degree of

control may even extend to consensual acts committed in

private, where there is call to provide social safeguards

against exploitation and corruption of others, particularly

those who are specially vulnerable because they are young,

weak in body or mind, inexperienced, or in a state of special

[WP(C)7455/2001] Page

 

physical, official, or economic dependence. The Court

concluded as follows:

“As compared with the era when that legislation

was enacted, there is now a better understanding,

and in consequence an increased tolerance, of

homos*xual behaviour to the extent that in the

great majority of the member States of the

Council of Europe it is no longer considered to be

necessary or appropriate to treat homos*xual

practices of the kind now in question as in

themselves a matter to which the sanctions of the

criminal law should be applied; the Court cannot

overlook the marked changes which have

occurred in this regard in the domestic law of the

member States ..... In Northern Ireland itself, the

authorities have refrained in recent years from

enforcing the law in respect of private

homos*xual acts between consenting males over

the age of 21 years capable of valid consent. No

evidence has been adduced to show that this has

been injurious to moral standards in Northern

Ireland or that there has been any public demand

for stricter enforcement of the law.

It cannot be maintained in these circumstances

that there is a “pressing social need” to make

such acts criminal offences, there being no

sufficient justification provided by the risk of harm

to vulnerable sections of society requiring

protection or by the effects on the public...” [para

60]

78. In

comparison with the

reasoning in the latter case to hold that:

“It cannot be maintained that there is a “pressing

social need” to make such acts criminal offences.

On the specific issue of Proportionality, the Court

is of the opinion that “such justifications as there

are for retaining the law in force unamended are

outweighed by the detrimental effects which the

very existence of the legislative provisions in

question can have on the life of a person of

homos*xual orientation like the applicant.

Although members of the public who regard

homos*xuality as immoral may be shocked,

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offended or disturbed by the commission by

others of private homos*xual acts, this cannot on

its own warrant the application of penal sanctions

when it is consenting adults alone who are

involved.” [para 46]

79. Thus popular morality or public disapproval of certain acts is

not a valid justification for restriction of the fundamental

rights under Article 21. Popular morality, as distinct from a

constitutional morality derived from constitutional values, is

based on shifting and subjecting notions of right and wrong.

If there is any type of “morality” that can pass the test of

compelling state interest, it must be “constitutional”

morality and not public morality. This aspect of

constitutional morality was strongly insisted upon by Dr.

Ambedkar in the Constituent Assembly. While moving the

Draft Constitution in the Assembly [Constitutional Assembly

Debates : Official Reports Vol.VII: November 4, 1948, page

38], Dr. Ambedkar quoted Grote, the historian of Greece,

who had said:

"The diffusion of constitutional morality, not

merely among the majority of any community but

throughout the whole, is an indispensable

condition of government at once free and

peaceable; since even any powerful and obstinate

minority may render the working of a free

institution impracticable without being strong

enough to conquer the ascendancy for

themselves."

After quoting Grote, Dr. Ambedkar added:

"While everybody recognised the necessity of

diffusion of constitutional morality for the

peaceful working of the democratic constitution,

there are two things interconnected with it which

[WP(C)7455/2001] Page

 

are not, unfortunately, generally recognised. One

is that the form of administration must be

appropriate to and in the same sense as the form

of the Constitution. The other is that it is perfectly

possible to pervert the Constitution, without

changing its form by merely changing its form of

administration and to make it inconsistent and

opposed to the spirit of the Constitution. ......The

question is, can we presume such a diffusion of

constitutional morality? Constitutional morality is

not a natural sentiment. It has to be cultivated.

We must realise that our people have yet to learn

it. Democracy in India is only a top dressing on

an Indian soil which is essentially undemocratic.”

80. Granville Austin in his treatise “The Indian Constitution –

Cornerstone of A Nation” had said that the Indian

Constitution is first and foremost a social document. The

majority of its provisions are either directly aimed at

furthering the goals of the social revolution or attempt to

foster this revolution by establishing the conditions

necessary for its achievement. The core of the

commitments to the social revolution lies in Parts III and IV,

in the Fundamental Rights and in the Directive Principles of

State Policy. These are the conscience of the Constitution.

The Fundamental Rights, therefore, were to foster the social

revolution by creating a society egalitarian to the extent that

all citizens were to be equally free from coercion or

restriction by the state, or by society privately; liberty was

no longer to be the privilege of the few. The Constitution of

India recognises, protects and celebrates diversity. To

stigmatise or to criminalise homos*xuals only on account of

their s*xual orientation would be against the constitutional

morality.

[WP(C)7455/2001] Page

 

81. The question of the State in fact being a protector of

constitutional morality was also canvassed by the

Constitutional Court of South Africa in

Coalition for Gay and Lesbian Equality v. The Minister

of Justice

“A state that recognises difference does not mean

a state without morality or one without a point of

view. It does not banish concepts of right and

wrong, nor envisage a world without good and

evil..... The Constitution certainly does not debar

the state from enforcing morality. Indeed, the Bill

of Rights is nothing if not a document founded on

deep political morality. What is central to the

character and functioning of the State, however,

is that the dictates of the morality which it

enforces, and the limits to which it may go, are to

be found in the text and spirit of the Constitution

itself.” [para 136]

82. The Wolfenden Committee in considering whether

homos*xual acts between consenting adults in private

should cease to be criminal offences examined a similar

argument of morality in favour of retaining them as such. It

was urged that conduct of this kind is a cause of the

demoralisation and decay of civilisations, and that, therefore,

unless the Committee wished to see the nation degenerate

and decay, such conduct must be stopped, by every possible

means. Rejecting this argument, the Committee observed:

“We have found no evidence to support this view, and we

cannot feel it right to frame the laws which should govern

this country in the present age by reference to hypothetical

explanations of the history of other peoples in ages distant in

time and different in circumstances from our own. In so far

[WP(C)7455/2001] Page

 

as the basis of this argument can be precisely formulated, it

is often no more than the expression of revulsion against

what is regarded as unnatural, sinful or disgusting. Many

people feel this revulsion, for one or more of these reasons.

But moral conviction or instinctive feeling, however strong, is

not a valid basis for overriding the individual's privacy and

for bringing within the ambit of the criminal law private

s*xual behaviour of this kind.” [para 54] The Committee

regarded the function of the criminal law in this field as:

“to preserve public order and decency, to

protect the citizen from what is offensive or

injurious, and to provide sufficient

safeguards against exploitation and

corruption of others, particularly those who

are specially vulnerable because they are

young, weak in body or mind, inexperienced,

or in a state of special physical, official, or

economic dependence, but not to intervene

in the private lives of citizens, or to seek to

enforce any particular pattern of behaviour,

further than is necessary to carry out the

purposes we have outlined.” [para 13 and

14]

83. In the 172

deletion of Section 377 IPC, though in its earlier reports it

had recommended the retention of the provision. In the

172nd report, the Law Commission of India, focused on the

need to review the s*xual offences laws in the light of

increased incidents of custodial rape and crime of s*xual

abuse against youngsters, and inter alia, recommended

deleting the section 377 IPC by effecting the recommended

amendments in Sections 375 to 376E of IPC. The

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Commission discussed various provisions related to s*xual

offences and was of considered opinion to amend provisions

in the Indian Penal Code, 1860; the Code of Criminal

Procedure, 1973; and Indian Evidence Act, 1872. In the

Indian penal Code, recasting of 375 IPC has been

recommended by redefining it under the head of ‘Sexual

Assault’ encompassing all ranges of non consensual s*xual

offences/assaults, which in particular penalize not only the

s*xual intercourse with a woman as in accordance with the

current ‘Rape Laws’; but any non-consensual or non-willing

penetration with bodily part or object manipulated by the

another person except carried out for proper hygienic or

medicinal purposes.

The recommended provision to substitute the existing

section 375 IPC reads thus:

“375.Sexual Assault: Sexual assault means -

(a) penetrating the v**gina (which term shall include

the labia majora),

the anus or urethra of any person with -

i) any part of the body of another person or

ii) an object manipulated by another person

except where such penetration is carried out for

proper hygienic or medical purposes;

(b) manipulating any part of the body of another

person so as to cause penetration of the v**gina

(which term shall include the labia majora), the

anus or the urethra of the offender by any part of

the other person's body;

[WP(C)7455/2001] Page

 

(c) introducing any part of the penis of a person into

the mouth of another person;

(d) engaging in cunnilingus or fellatio; or

(e) continuing s*xual assault as defined in clauses

(a) to (d) above

in circumstances falling under any of the six

following descriptions:

First- Against the other person's will.

Secondly- Without the other person's consent.

Thirdly- With the other person's consent when

such consent has been obtained by putting such

other person or any person in whom such other

person is interested, in fear of death or hurt.

Fourthly- Where the other person is a female, with

her consent, when the man knows that he is not the

husband of such other person and that her consent

is given because she believes that the offender is

another man to whom she is or believes herself to

be lawfully married.

Fifthly- With the consent of the other person,

when, at the time of giving such consent, by reason

of unsoundness of mind or intoxication or the

administration by the offender personally or through

another of any stupefying or unwholesome

substance, the other person is unable to understand

the nature and consequences of that to which such

other person gives consent.

Sixthly- With or without the other person's consent,

when such other person is under sixteen years of

age.

Explanation: Penetration to any extent is

penetration for the purposes of this section.

Exception: Sexual intercourse by a man with his

own wife, the wife not being under sixteen years of

age, is not s*xual assault."

Pertinently, the major thrust of the recommendation is on

the word ‘Person’ which makes the s*xual offences gender

[WP(C)7455/2001] Page

 

neutral unlike gender specific as under the ‘Rape Laws’

which is the current position in statute book. Amendments in

section 376 A, 376B, 376C, 376D have been recommended

on the same lines with enhanced punishments. An added

explanation defining s*xual intercourse is sought to be

introduced governing section 376B, 376C, 376D. Insertion of

new section 376 E has been recommended to penalize non

consensual, direct or indirect, intentional unlawful s*xual

contact with part of body or with an object, any part of body

of another person. This section specifically penalizes the

person committing unlawful s*xual contact who is in a

position of trust or authority towards a young person (below

the age of sixteen years), thereby protecting children.

Conclusively the Section 377 IPC in the opinion of the

Commission, deserves to be deleted in the light of

recommended amendments. However persons, having

carnal intercourse with any animal, were to be left to their

just deserts. Though the Law Commission report would not

expressly say so, it is implicit in the suggested amendments

that elements of “will” and “consent” will become relevant to

determine if the s*xual contact (homos*xual for the purpose

at hand) constitute an offence or not.

84. Our attention was also drawn to a statement of the Solicitor

General of India appearing on behalf of India at the Periodic

Review before the United Nations Human Rights Council that

Indian society was accepting of s*xual differences. In

[WP(C)7455/2001] Page

 

response to a question from the delegate from Sweden on

the state of homos*xual rights in India, he stated:

“Around the early 19

know that in England they frowned on

homos*xuality, and therefore there are historical

reports that various people came to India to take

advantage of its more liberal atmosphere with

regard to different kinds of s*xual conduct. ... As

a result, in 1860 when we got the Indian Penal

Code, which was drafted by Lord Macaulay, they

inserted s.377 in the Indian Penal Code, which

brought in the concept of “s*xual offences

against the order of nature”. Now in India we

didn't have this concept of something being

“against the order of nature”. It was essentially a

Western concept which has remained over the

years. Now homos*xuality as such is not defined

in the Indian Penal Code, and it will be a matter of

great argument whether it's “against the order of

nature”.

[

Nations Human Rights Council: rtsp://webcast.un.org/ondemand/

conferences/unhrc/upr/1

end=02:37:42 at time index 16.30

85. Justice Michael Kirby, a distinguished former Judge of

Australian High Court, expressing in similar vein said that

criminalisation of private, consensual homos*xual acts is a

legacy of one of three very similar criminal codes (of

Macaulay, Stephen and Grifith), imposed on colonial people

by the imperial rules of the British Crown. Such laws are

wrong:

 



exceed the proper ambit and function of the

criminal law in a modern society;

 



the community and target them for an

attribute of their nature that they do not

choose and cannot change. In this respect

[WP(C)7455/2001] Page

 

they are like other laws of colonial times

that disadvantages people on the ground of

their race or s*x;

 



modern scientific knowledge about the

incidence and variety of human s*xuality;

and

 



into a position of stigma and shame that

makes it hard to reach them with vital

messages about safe s*xual conduct,

essential in the age of HIV/AIDS.

[Homos*xual Law Reform : An Ongoing Blind Spot

of the Commonwealth of Nations by the Hon'ble

Michael Kirby AC CMG, 16

Commonwealth Law Conference, Hong Kong, 8

 

April, 2009].

86. The argument of the learned ASG that public morality of

homos*xual conduct might open floodgates of delinquent

behaviour is not founded upon any substantive material,

even from such jurisdictions where sodomy laws have been

abolished. Insofar as basis of this argument is concerned, as

pointed out by Wolfenden Committee, it is often no more

than the expression of revulsion against what is regarded as

unnatural, sinful or disgusting. Moral indignation, howsoever

strong, is not a valid basis for overriding individuals's

fundamental rights of dignity and privacy.In our scheme of

things, constitutional morality must outweigh the argument

of public morality, even if it be the majoritarian view. In

Indian context, the latest report (172

on the subject instead shows heightened realisation about

urgent need to follow global trends on the issue of s*xual

[WP(C)7455/2001] Page

 

offences. In fact, the admitted case of Union of India that

Section 377 IPC has generally been used in cases of s*xual

abuse or child abuse, and conversely that it has hardly ever

been used in cases of consenting adults, shows that

criminalisation of adult same- s*x conduct does not serve

any public interest. The compelling state interest rather

demands that public health measures are strengthened by

de-criminalisation of such activity, so that they can be

identified and better focused upon.

87. For the above reasons we are unable to accept the stand of

the Union of India that there is a need for retention of

Section 377 IPC to cover consensual s*xual acts between

adults in private on the ground of public morality.

 

WHETHER SECTION 377 IPC VIOLATES CONSTITUTIONAL

GUARANTEE OF EQUALITY UNDER ARTICLE 14 OF THE

CONSTITUTION

 

88. The scope, content and meaning of Article 14 of the

Constitution has been the subject matter of intensive

examination by the Supreme Court in a catena of decisions.

The decisions lay down that though Article 14 forbids class

legislation, it does not forbid reasonable classification for the

purpose of legislation. In order, however, to pass the test of

permissible classification, two conditions must be fulfilled,

namely, (i) that the classification must be founded on an

intelligible differentia which distinguishes persons or things

that are grouped together from those that are left out of the

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group; and (ii) that the differentia must have a rational

relation to the objective sought to be achieved by the

statute in question. The classification may be founded on

differential basis according to objects sought to be achieved

but what is implicit in it is that there ought to be a nexus,

i.e., causal connection between the basis of classification

and object of the statute under consideration. [

Choudhry v. State of Bihar

considering reasonableness from the point of view of Article

14, the Court has also to consider the objective for such

classification. If the objective be illogical, unfair and unjust,

necessarily the classification will have to be held as

unreasonable. [

(1989) 2 SCC 145]

89. The other important facet of Article 14 which was stressed in

 

Maneka Gandhi

The Court reiterated what was pointed out by the majority in

 

E.P. Royappa v. State of Tamil Nadu

that “from a positivistic point of view, equality is antithetic to

arbitrariness”.

90. Affirming and explaining this view, the Constitution Bench in

 

Ajay Hasia v. Khalid Mujib Sehravardi

held that it must, therefore, now be taken to be well settled

that what Article 14 strikes at is arbitrariness because any

action that is arbitrary must necessarily involve negation of

[WP(C)7455/2001] Page

 

equality. The Court made it explicit that where an Act is

arbitrary, it is implicit in it that it is unequal both according

to political logic and constitutional law and is, therefore,

violative of Article 14.

 

THE CLASSIFICATION BEARS NO RATIONAL NEXUS TO THE

OBJECTIVE SOUGHT TO BE ACHIEVED

 

91. The petitioner's case is that public morality is not the

province of criminal law and Section 377 IPC does not have

any legitimate purpose. Section 377 IPC makes no distinction

between acts engaged in the public sphere and acts

engaged in the private sphere. It also makes no distinction

between the consensual and non-consensual acts between

adults. Consensual s*x between adults in private does not

cause any harm to anybody. Thus it is evident that the

disparate grouping in Section 377 IPC does not take into

account relevant factors such as consent, age and the

nature of the act or the absence of harm caused to anybody.

Public animus and disgust towards a particular social group

or vulnerable minority is not a valid ground for classification

under Article 14. Section 377 IPC targets the homos*xual

community as a class and is motivated by an animus

towards this vulnerable class of people.

92. According to Union of India, the stated object of Section 377

IPC is to protect women and children, prevent the spread of

HIV/AIDS and enforce societal morality against

homos*xuality. It is clear that Section 377 IPC, whatever its

[WP(C)7455/2001] Page

 

present pragmatic application, was not enacted keeping in

mind instances of child s*xual abuse or to fill the lacuna in a

rape law. It was based on a conception of s*xual morality

specific to Victorian era drawing on notions of carnality and

sinfulness. In any way, the legislative object of protecting

women and children has no bearing in regard to consensual

s*xual acts between adults in private. The second

legislative purpose elucidated is that Section 377 IPC serves

the cause of public health by criminalising the homos*xual

behaviour. As already held, this purported legislative

purpose is in complete contrast to the averments in NACO's

affidavit. NACO has specifically stated that enforcement of

Section 377 IPC adversely contributes to pushing the

infliction underground, make risky s*xual practices go

unnoticed and unaddressed. Section 377 IPC thus hampers

HIV/AIDS prevention efforts. Lastly, as held earlier, it is not

within the constitutional competence of the State to invade

the privacy of citizens lives or regulate conduct to which the

citizen alone is concerned solely on the basis of public

morals. The criminalisation of private s*xual relations

between consenting adults absent any evidence of serious

harm deems the provision's objective both arbitrary and

unreasonable. The state interest “must be legitimate and

relevant” for the legislation to be non-arbitrary and must be

proportionate towards achieving the state interest. If the

objective is irrational, unjust and unfair, necessarily

[WP(C)7455/2001] Page

 

classification will have to be held as unreasonable. The

nature of the provision of Section 377 IPC and its purpose is

to criminalise private conduct of consenting adults which

causes no harm to anyone else. It has no other purpose

than to criminalise conduct which fails to conform with the

moral or religious views of a section of society. The

discrimination severely affects the rights and interests of

homos*xuals and deeply impairs their dignity.

93. We may also refer to Declaration of Principles of Equality

issued by the Equal Rights Trust in April, 2008, which can be

described as current international understanding of

Principles on Equality. This declaration was agreed upon by

a group of experts at a conference entitled “Principles on

Equality and the Development of Legal Standard on

Equality” held on 3-5 April, 2008 in London. Participants of

different backgrounds, including academics, legal

practitioners, human rights activists from all regions of the

world took part in the Conference. The Declaration of

Principles on Equality reflects a moral and professional

consensus among human rights and equality experts. The

declaration defines the terms 'equality' and 'equal

treatment' as follows:

“THE RIGHT TO EQUALITY

The right to equality is the right of all human beings to

be equal in dignity, to be treated with respect and

consideration and to participate on an equal basis with

others in any area of economic, social, political, cultural

or civil life. All human beings are equal before the law

[WP(C)7455/2001] Page

 

and have the right to equal protection and benefit of

the law.

EQUAL TREATMENT

Equal treatment, as an aspect of equality, is not

equivalent to identical treatment. To realise full and

effective equality, it is necessary to treat people

differently according to their different circumstances, to

assert their equal worth and to enhance their

capabilities to participate in society as equals.”

Part-II of the Declaration lays down the right to nondiscrimination.

The right to non-discrimination is stated to

be a free-standing fundamental right, subsumed in the right

to equality. Discrimination is defined as follows:

“Discrimination must be prohibited where it is on

grounds of race, colour, ethnicity, descent, s*x,

pregnancy, maternity, civil, family or carer status,

language, religion or belief, political or other opinion,

birth, national or social origin, nationality, economic

status, association with a national minority, s*xual

orientation, gender identity, age, disability, health

status, genetic or other predisposition toward illness or

a combination of any of these grounds, or on the basis

of characteristics associated with any of these grounds.

(

Discrimination based on any other ground must be

prohibited where such discrimination (i) causes or

perpetuates systemic disadvantage; (ii) undermines

human dignity; or (iii) adversely affects the equal

enjoyment of a person’s rights and freedoms in a

serious manner that is comparable to discrimination on

the prohibited grounds stated above.

Discrimination must also be prohibited when it is on the

ground of the association of a person with other

persons to whom a prohibited ground applied or the

perception, whether accurate or otherwise, of a person

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as having a characteristic associated with a prohibited

ground.

Discrimination may be direct or indirect.

Direct discrimination occurs when for a reason related

to one or more prohibited grounds a person or group of

persons is treated less favourably than another person

or another group of persons is, has been, or would be

treated in a comparable situation; or when for a reason

related to one or more prohibited grounds a person or

group of persons is subjected to a detriment. Direct

discrimination may be permitted only very

exceptionally, when it can be justified against strictly

defined criteria.

Indirect discrimination occurs when a provision,

criterion or practice would put persons having a status

or a characteristic associated with one or more

prohibited grounds at a particular disadvantage

compared with other persons, unless that provision,

criterion or practice is objectively justified by a

legitimate aim, and the means of achieving that aim

are appropriate and necessary.

Harassment constitutes discrimination when unwanted

conduct related to any prohibited ground takes place

with the purpose or effect of violating the dignity of a

person or of creating an intimidating, hostile,

degrading, humiliating or offensive environment.

(

[Declaration of Principles on Equality 2008 - The Equal

Rights Trust]

 

SECTION 377 IPC TARGETS HOMOSEXUALS AS A CLASS

 

94. Section 377 IPC is facially neutral and it apparently targets

not identities but acts, but in its operation it does end up

unfairly targeting a particular community. The fact is that

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these s*xual acts which are criminalised are associated more

closely with one class of persons, namely, the homos*xuals

as a class. Section 377 IPC has the effect of viewing all gay

men as criminals. When everything associated with

homos*xuality is treated as bent, queer, repugnant, the

whole gay and lesbian community is marked with deviance

and perversity. They are subject to extensive prejudice

because what they are or what they are perceived to be, not

because of what they do. The result is that a significant

group of the population is, because of its s*xual nonconformity,

persecuted, marginalised and turned in on itself.

[Sachs, J. in

Equality v. The Minister of Justice

95. As Justice O'Connor succinctly stated in her concurring

opinion in

“While it is true that the law applies only to

conduct, the conduct targeted by this law is

conduct that is closely correlated with being

homos*xual. Under such circumstances, Texas's

sodomy law is targeted at more than conduct. It

is instead directed towards gay persons as a

class.” [page 583]

96. In

to an amendment to Colorado's Constitution which named as

a solitary class persons who were homos*xuals, lesbians, or

bis*xual either by "orientation, conduct, practices or

relationships" and deprived them of protection under the

state anti-discrimination laws. The US Supreme Court

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concluded that the provision was "born of animosity towards

the class of persons affected" and further that it had no

rational relation to a legitimate governmental purpose.

Justice Kennedy speaking for the majority observed:

“It is not within our constitutional tradition to

enact laws of this sort. Central both to the idea of

the rule of law and to our own Constitution’s

guarantee of equal protection is the principle that

government and each of its parts remain open on

impartial terms to all who seek its assistance.

“Equal protection of the laws is not achieved

through indiscriminate imposition of inequalities”.

 

Sweatt v. Painter

(quoting

(1948). Respect for this principle explains why

laws singling out a certain class of citizens for

disfavoured legal status or general hardships are

rare. A law declaring that in general it shall be

more difficult for one group of citizens than for all

others to seek aid from the government is itself a

denial of equal protection of the laws in the most

literal sense. “The guaranty of equal protection of

the laws is a pledge of the protection of equal

laws....” [Page 633]

 

“

kind now before us raise the inevitable inference

that the disadvantage imposed is born of

animosity towards the class of persons affected.

“[I]f the constitutional conception of ‘equal

protection of the laws’ means anything, it must

at the very least mean that a bare.....desire to

harm a politically unpopular group cannot

constitute a legitimate governmental interest....”

[Page 634].

97. The Supreme Court of Canada in

1 S.C.R. 493, held:

“Perhaps most important is the psychological

harm which may ensue from this state of affairs.

Fear of discrimination will logically lead to

concealment of true identity and this must be

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harmful to personal confidence and self-esteem.

Compounding that effect is the implicit message

conveyed by the exclusion, that gays and

lesbians, unlike other individuals, are not worthy

of protection. This is clearly an example of a

distinction which demeans the individual and

strengthens and perpetrates [sic] the view that

gays and lesbians are less worthy of protection as

individuals in Canada’s society. The potential

harm to the dignity and perceived worth of gay

and lesbian individuals constitutes a particularly

cruel form of discrimination.”[para 102]

These observations were made in the context of

discrimination on grounds of s*xual orientation in the

employment field and would apply with even greater force to

the criminalisation of consensual s*x in private between

adult males.

98. The inevitable conclusion is that the discrimination caused to

MSM and gay community is unfair and unreasonable and,

therefore, in breach of Article 14 of the Constitution of India.

 

INFRINGEMENT OF ARTICLE 15 – WHETHER 'SEXUAL

ORIENTATION' IS A GROUND ANALOGOUS TO 'SEX'

 

99. Article 15 is an instance and particular application of the

right of equality which is generally stated in Article 14.

Article 14 is genus while Article 15 along with Article 16 are

species although all of them occupy same field and the

doctrine of “equality” embodied in these Articles has many

facets. Article 15 prohibits discrimination on several

enumerated grounds, which include 's*x'. The argument of

the petitioner is that 's*x' in Article 15(1) must be read

expansively to include a prohibition of discrimination on the

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ground of s*xual orientation as the prohibited ground of s*xdiscrimination

cannot be read as applying to gender

 

simpliciter.

against s*x discrimination is to prevent behaviour that treats

people differently for reason of not being in conformity with

generalization concerning “normal” or “natural” gender

roles. Discrimination on the basis of s*xual orientation is

itself grounded in stereotypical judgments and

generalization about the conduct of either s*x. This is stated

to be the legal position in International Law and comparative

jurisprudence. Reliance was placed on judgments of Human

Rights Committee and also on the judgments of Canadian

and South African courts.

100. International Covenant on Civil and Political Rights (ICCPR)

recognises the right to equality and states that, “the law

shall prohibit any discrimination on any ground such as race,

colour, s*x, language, religion, political or other opinion,

national or social region, property, birth or other status”. In

 

Toonen v. Australia

while holding that certain provisions of the Tasmanian

Criminal Code which criminalise various forms of s*xual

conduct between men violated the ICCPR, observed that the

reference to 's*x' in Article 2, paragraphs 1 and 26 (of the

ICCPR) is to be taken as including 's*xual orientation'.

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101. Despite the fact that Section 15(1) of the Canadian Charter

does not expressly include s*xual orientation as a prohibited

ground of discrimination, the Canadian Supreme Court has

held that s*xual orientation is a ground analogous to those

listed in Section 15(1):

“In Egan, it was held, on the basis of “historical,

social, political and economic disadvantage

suffered by homos*xuals” and the emerging

consensus among legislatures (at para 176), as

well as previous judicial decisions (at para 177),

that s*xual orientation is a ground analogous to

those listed in s.15(1). [Vriend v. Alberta (supra)

per Cory J. para 90].

102. Similarly, in

Canadian Supreme Court identified the thread running

through these analogous grounds – “what these grounds

have in common is the fact that they often serve as the

basis for stereotypical decisions made not on the basis of

merit but on the basis of a personal characteristic that is

immutable or changeable only at unacceptable cost to

personal identity.” [para 13].

103. The South African Constitutional Court recognised in

 

Prinsloo v. Van Der Linde

discrimination on unspecified grounds is usually 'based on

attributes and characteristics' attaching to people, thereby

impairing their 'fundamental dignity as human beings'”. In

 

Harksen v. Lane

developed the idea to say that there will be discrimination

on an unspecified ground if it is based on attributes or

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characteristics which have the potential to impair the

fundamental dignity of persons as human beings, or to affect

them adversely in a comparably serious manner.

Elaborating on what it means by potential impairment of

dignity, the Court resisted the temptation of laying down any

such 'test' for discerning 'unspecified' grounds, but has this

to say by way of guidelines, “In some cases they relate to

immutable biological attributes or characteristics, in some to

the associational life of humans, in some to the intellectual,

expressive and religious dimensions of humanity and in

some cases to a combination of one or more of these

features”. It needs to be noted that on account of the

prevalent wider knowledge of the discrimination on account

of s*xual orientation, the South African constitution, when it

was drafted, specifically included that as a ground.

104. We hold that s*xual orientation is a ground analogous to s*x

and that discrimination on the basis of s*xual orientation is

not permitted by Article 15. Further, Article 15(2)

incorporates the notion of horizontal application of rights. In

other words, it even prohibits discrimination of one citizen by

another in matters of access to public spaces. In our view,

discrimination on the ground of s*xual orientation is

impermissible even on the horizontal application of the right

enshrined under Article 15.

[WP(C)7455/2001] Page

 

“STRICT SCRUTINY” AND “PROPORTIONALITY REVIEW” –

ANALYSIS OF ANUJ GARG V. HOTEL ASSOCIATION OF INDIA,

(2008) 3 SCC 1

 

105. We may now examine in some detail the recent decision of

the Supreme Court in

India

present case. In

Section 30 of the Punjab Excise Act, 1914 prohibiting

employment of “any man under the age of 25 years” or “any

woman” in any part of such premises in which liquor or

intoxicating drug is consumed by the public was challenged

before the High Court of Delhi. The High Court declared

Section 30 of the Act as ultra vires Articles 19(1)(g), 14 and

15 of the Constitution of India to the extent it prohibits

employment of any woman in any part of such premises, in

which liquor or intoxicating drugs are consumed by the

public. National Capital Territory of Delhi accepted the said

judgment but an appeal was filed by few citizens of Delhi.

The appeal was ultimately dismissed by the Supreme Court,

but the principles laid down by the Court relating to the

scope of the right to equality enunciated in Articles 14 and

15 are material for the purpose of the present case. At the

outset, the Court observed that the Act in question is a preconstitutional

legislation and although it is saved in terms of

Article 372 of the Constitution, challenge to its validity on

the touchstone of Articles 14, 15 and 19 of the Constitution

of India, is permissible in law. There is thus no presumption

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of constitutionality of a colonial legislation. Therefore,

though the statute could have been held to be a valid piece

of legislation keeping in view the societal condition of those

times, but with the changes occurring therein both in the

domestic as also international arena, such a law can also be

declared invalid. In this connection, the Court referred to the

following observations made in

Union of India

“The constitutionality of a provision, it is trite, will

have to be judged keeping in view the

interpretative changes of the statute affected by

passage of time.......the law although may be

constitutional when enacted but with passage of

time the same may be held to be unconstitutional

in view of the changed situation.” [paras 28 & 33

of SCC]

106. The Court further held that when the validity of a legislation

is tested on the anvil of equality clauses contained in Articles

14 and 15, the burden therefor would be on the State.

“When the original Act was enacted, the concept

of equality between two s*xes was unknown. The

makers of the Constitution intended to apply

equality amongst men and women in all spheres

of life. In framing Articles 14 and 15 of the

Constitution, the constitutional goal in that behalf

was sought to be achieved. Although the same

would not mean that under no circumstance,

classification, inter alia, on the ground of s*x

would be wholly impermissible but it is trite that

when the validity of a legislation is tested on the

anvil of equality clauses contained in Articles 14

and 15, the burden therefor would be on the

State. While considering validity of a legislation of

this nature, the court was to take notice of the

other provisions of the Constitution including

those contained in Part IV- A of the Constitution.”

[para 21of SCC].

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107. The Court discussed two distinct concepts – “strict scrutiny”

borrowed from the US jurisprudence, and “proportionality

review” which has its origin in the jurisprudence of Canadian

and European courts. The Court held that the interference

prescribed by the State for pursuing the ends of protection

should be proportionate to the legitimate aims. The standard

for judging the proportionality should be a standard capable

of being called reasonable in a modern democratic society.

The Court further held that legislations with pronounced

“protective discrimination” aims, such as Section 30,

potentially serve as double edged swords. Strict scrutiny

should be employed while assessing the implications of this

variety of legislations. Legislation should not be only

assessed on its proposed aims but rather on the implications

and the effects. The Court then went on to state the

principle of personal autonomy with a special judicial role

when dealing with laws reflecting oppressive cultural norms

that especially target minorities and vulnerable groups.

“.....the issue of

s*xes

much so that the real differences are pronounced

by the oppressive cultural norms of the time. This

combination of biological and social determinants

may find expression in popular legislative

mandate. Such legislations definitely deserve

deeper judicial scrutiny. It is for the court to

review that the majoritarian impulses rooted in

moralistic tradition do not impinge upon individual

autonomy. This is the backdrop of deeper judicial

scrutiny of such legislations world over.” [para 41

of SCC]

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108. The Court held that Article 15's prohibition of s*x

discrimination implies the right to autonomy and selfdetermination,

which places emphasis on individual choice.

Therefore, a measure that disadvantages a vulnerable group

defined on the basis of a characteristic that relates to

personal autonomy must be subject to strict scrutiny.

“46. ....The impugned legislation suffers from

incurable fixations of stereotype morality and

conception of s*xual role. The perspective thus

arrived at is outmoded in content and stifling in

means.

47. No law in its ultimate effect should end up

perpetuating the oppression of women. Personal

freedom is a fundamental tenet which cannot be

compromised in the name of expediency until and

unless there is a

Heightened level of scrutiny is the normative

threshold for judicial review in such cases.

......

......

......

50. The test to review such a Protective

Discrimination statute would entail a two-pronged

scrutiny:

(a) the legislative interference (induced by s*x

discriminatory legislation in the instant case)

should be justified in principle,

(b) the same should be proportionate in measure.

51. The Court’s task is to determine whether the

measures furthered by the State in form of

legislative mandate, to augment the legitimate

aim of protecting the interests of women are

proportionate to the other bulk of well-settled

gender norms such as autonomy, equality of

opportunity, right to privacy et al. The bottom line

in this behalf would be a functioning modern

democratic society which ensures freedom to

pursue varied opportunities and options without

discriminating on the basis of s*x, race, caste or

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any other like basis. In fine, there should be a

reasonable relationship of proportionality

between the means used and the aim pursued.”

(

109. In

heightened review standard does not make s*x a proscribed

classification, “...

compensate women “for particular economic disabilities

(they have) suffered”, “to promote equal employment

opportunity”, to advance full development of the talent and

capacities of our nation's people. Such classifications may

not be used, as they once were, to create or perpetuate the

legal, social, and economic inferiority of women.”

110. In

1, the Supreme Court refused to apply strict scrutiny to an

affirmative action measure. The Court held that the

principles laid down by the United States Supreme Court

such as 'suspect legislation', 'strict scrutiny' and 'compelling

state necessity' are not applicable for challenging the

validity of reservations or other affirmative action

contemplated under Article 15(5) of the Constitution. [per

Balakrishnan, C.J., Summary point 9 : page 526 of SCC]

111. On a harmonious construction of the two judgments, the

Supreme Court must be interpreted to have laid down that

the principle of 'strict scrutiny' would not apply to affirmative

action under Article 15(5) but a measure that disadvantages

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a vulnerable group defined on the basis of a characteristic

that relates to personal autonomy must be subject to strict

scrutiny.

112. Thus personal autonomy is inherent in the grounds

mentioned in Article 15. The grounds that are not specified

in Article 15 but are analogous to those specified therein, will

be those which have the potential to impair the personal

autonomy of an individual. This view was earlier indicated in

 

Indra Sawhney v. Union of India

217. In

with great clarity:

“.....The bottom line in this behalf would be a

functioning modern democratic society which

ensures freedom to pursue varied opportunities

and options without discriminating on the basis of

s*x, race, caste or any other like basis....”

(emphasis supplied) [para 51 of SCC]

113. As held in

prohibited grounds, it needs to be tested not merely against

“reasonableness” under Article 14 but be subject to “strict

scrutiny”. The impugned provision in Section 377 IPC

criminalises the acts of s*xual minorities particularly men

who have s*x with men and gay men. It disproportionately

impacts them solely on the basis of their s*xual orientation.

The provision runs counter to the constitutional values and

the notion of human dignity which is considered to be the

cornerstone of our Constitution. Section 377 IPC in its

application to s*xual acts of consenting adults in privacy

[WP(C)7455/2001] Page

 

discriminates a section of people solely on the ground of

their s*xual orientation which is analogous to prohibited

ground of s*x. A provision of law branding one section of

people as criminal based wholly on the State’s moral

disapproval of that class goes counter to the equality

guaranteed under Articles 14 and 15 under any standard of

review.

114. A constitutional provision must be construed, not in a narrow

and constricted sense, but in a wide and liberal manner so

as to anticipate and take account of changing conditions and

purposes so that the constitutional provision does not get

atrophied or fossilized but remains flexible enough to meet

the newly emerging problems. [

Union Territory of Delhi

Nagraj v. Union of India

Constitution Bench noted that:

“Constitution is not an ephemeral legal document

embodying a set of legal rules for the passing

hour. It sets out principles for an expanding

future and is intended to endure for ages to come

and consequently to be adapted to the various

crisis of human affairs. Therefore, a purposive

rather than a strict literal approach to the

interpretation should be adopted. A Constitutional

provision must be construed not in a narrow and

constricted sense but in a wide and liberal

manner so as to anticipate and take account of

changing conditions and purposes so that

constitutional provision does not get fossilized but

remains flexible enough to meet the newly

emerging problems and challenges”.[para 19 of

SCC]

[WP(C)7455/2001] Page

 

115. Similar is the sentiment expressed by Kennedy, J. in

 

Lawrence v. Texas

“Had those who drew and ratified the Due Process

Clauses of the Fifth Amendment or the Fourteenth

Amendment known the components of liberty in

its manifold possibilities, they might have been

more specific. They did not presume to have this

insight. They know times can blind us to certain

truths and later generations can see that laws

once thought necessary and proper in fact serve

only to oppress. As the Constitution endures,

persons in every generation can invoke its

principles in their own search for greater

freedom”. [at page 563]

 

SCOPE OF THE COURT'S POWER TO DECLARE A

STATUTORY PROVISION INVALID

 

116. Learned ASG strenuously contended that the Judges must

maintain judicial self-restraint while exercising the power of

judicial review of legislation. There is a broad separation of

powers under the Constitution, and the three organs of the

State – the legislature, the executive and the judiciary, must

respect each other and must not ordinarily encroach into

each others' domain. The legislature is a democratically

elected body which expresses the will of the people, and in a

democracy, this will is not to be lightly frustrated or

obstructed. The Court should, therefore, ordinarily defer to

the decision of the legislature as it is the best judge of what

is good for the community. He placed reliance on a recent

judgment of the Supreme Court in the case of Government

of

where the Court after referring to the classic essay of

[WP(C)7455/2001] Page

 

Professor James Bradley Thayer entitled “The Origin and

Scope of the American Doctrine of Constitutional Law” and

certain observations of Justice Felix Frankfurter, held as

follows:

“46. In our opinion, there is one and only one

ground for declaring an Act of the legislature (or a

provision in the Act) to be invalid, and that is if it

clearly violates some provision of the Constitution

in so evident a manner as to leave no manner of

doubt. This violation can, of course, be in

different ways, e.g. if a State legislature makes a

law which only the Parliamnet can make under

List I to the Seventh Schedule, in which case it will

violate Article 246(1) of the Constitution, or the

law violates some specific provision of the

Constitution (other than the directive principles).

But before declaring the statute to be

unconstitutional, the Court must be absolutely

sure that there can be no manner of doubt that it

violates a provision of the Constitution. If two

views are possible, one making the statute

constitutional and the other making it

unconstitutional, the former view must always be

preferred. Also, the Court must make every effort

to uphold the constitutional validity of a statute,

even if that requries giving a strained

construction or narrowing down its scope vide

Mark Netto v. State of Kerala and Ors. (1979) 1

SCC 23, para 6 of SCC. Also, it is none of the

concern of the Court whether the legislation in its

opinion is wise or unwise.

.......

.......

50. In our opinion judges must maintain judicial

self-restraint while exercising the power of judicial

review of legislation....

51. In our opinion the legislature must be given

freedom to do expermientations in exercising its

powers, provided of course it does not clearly and

flagrantly violate its constitutional limits.

.......

.......

[WP(C)7455/2001] Page

 

57. In our opinion, the court should, therefore,

ordinarily defer to the wisdom of the legislature

unless it enacts a law about which there can be

no manner of doubt about its unconstitutionality.”

117. The learned ASG also referred to the locus classicus

judgment of the Supreme Court in

V.G. Row,

test of reasonableness reads as follows:

“

mind that the test of reasonableness, wherever

prescribed, should be applied to each individual

statute impugned, and no abstract standard, or

general pattern of reasonableness can be laid

down as applicable to all cases. The nature of the

right alleged to have been infringed, the

underlying purpose of the restrictions imposed, the

extent and urgency of the evil sought to be

remedied thereby, the disproportion of the

imposition, the prevailing conditions at the time,

should all enter into the judicial verdict. In

evaluating such elusive factors and forming their

own conception of what is reasonable, in all the

circumstances of a given case, it is inevitable that

the social philosophy and the scale of values of the

Judges participating in the decision should play an

important part, and the limit to their interference

with legislative judgment in such cases can only be

dictated by their sense of responsibility and selfrestraint

and the sobering reflection that the

Constitution is meant not only for people of their

way of thinking but for all, and that the majority of

the elected representatives of the people have, in

authorising the imposition of the restrictions,

considered them to be reasonable.”

118. It is true that the courts should ordinarily defer to the

wisdom of the legislature while exercising the power of

judicial review of legislation. But it is equally well settled

that the degree of deference to be given to the legislature is

dependent on the subject matter under consideration.

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When matters of “high constitutional importance” such as

constitutionally entranched human rights – are under

consideration, the courts are obliged in discharging their

own sovereign jurisdiction, to give considerably less

deference to the legislature than would otherwise be the

case. In

impliedly explicating the scope of power under Article 13 it

was held that if the legislation in question violated a

fundamental right, it would have to be struck down “in

discharge of a duty plainly laid upon the courts by the

Constitution” [para 13 of AIR].

119. In

2 WLR 1389, Lord Hoffmann spoke of the approach in such

cases:

“There is no conflict between human rights and

the democratic principle. Respect for human

rights requires that certain basic rights of

individuals should not be capable in any

circumstances of being overridden by the

majority, even if they think that the public

interest so requires. Other rights should be

capable of being overridden only in very

restricted circumstances. These are rights which

belong to individuals simply by virtue of their

humanity, independently of any utilitarian

calculation. The protection of these basic rights

from majority decision requires that independent

and impartial tribunals should have the power to

decide whether legislation infringes them and

either (as in the United States) to declare such

legislation invalid or (as in the United Kingdom) to

declare that it is incompatible with the governing

human rights instrument. But outside these basic

rights, there are many decisions which have to be

made every day (for example, about the

allocation of resources) in which the only fair

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method of decision is by some person or body

accountable to the electorate. [

v. Environment Secretary

1411]”

120. In this regard, the role of the judiciary can be described as

one of protecting the counter majoritarian safeguards

enumerated in the Constitution. It is apt to refer to the

observations of Justice Robert Jackson in

State Board of Education v. Barnette,

(1943):

“The very purpose of the bill of rights was to

withdraw certain subjects from the vicissitudes of

political controversy, to place them beyond the

reach of majorities and officials and to establish

them as legal principles to be applied by the

Courts. One's right to life, liberty, and property, to

free speech, a free press, freedom of worship and

assembly, and other fundamental rights may not

be submitted to vote: they depend on the outcome

of no elections.” [page 638]

121. We may also refer to the two recent decisions of the

Supreme Court involving the power of the courts to review

Parliament's legislative and non-legislative functions – i.e.

the judgments in

Tamil Nadu & Ors.

Hon'ble Speaker, Lok Sabha & Ors.

In

any law inserted into the Ninth Schedule if it were contrary

to Constitutional provisions. It was observed:

“....the jurisprudence and development around

fundamental rights has made it clear that they are

not limited, narrow rights but provide a broad

check against the violations or excesses by the

State authorities. The fundamental rights have in

[WP(C)7455/2001] Page

 

fact proved to be the most significant

constitutional control on the Government,

particularly legislative power......It cannot be said

that the same Constitution that provides for a

check on legislative power, will decide whether

such a check is necessary or not. It would be a

negation of the Constitution.” [paras 56 & 102]

122. In

regarding the unconstitutionality of the expulsion of

Members of Parliament while simultaneously upholding the

principles of judicial review. The Court began by stating

that the Constitution was the “

and went on to say that:

“Parliament indeed is a coordinate organ and its

views do deserve deference even while its acts

are amenable to judicial scrutiny.....mere

coordinate constitutional status....does not

disentitle this Court from exercising its jurisdiction

of judicial review....” [paras 391 and 431 of SCC]

123. In the present case, the two constitutional rights relied upon

i.e. 'right to personal liberty' and 'right to equality' are

fundamental human rights which belong to individuals

simply by virtue of their humanity, independent of any

utilitarian consideration. A Bill of Rights does not 'confer'

fundamental human rights. It confirms their existence and

accords them protection.

124. In

Reserve Bank of India

highlighted the role of the judiciary as protector of

fundamental rights in following words:

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“Wherever a statute is challenged as violative of

the fundamental rights, its real effect or

operation on the fundamental rights is of primary

importance. It is the duty of the court to be

watchful to protect the constitutional rights of a

citizen as against any encroachment gradually or

stealthily thereon. When a law has imposed

restrictions on the fundamental rights, what the

court has to examine is the substance of the

legislation without being beguiled by the mere

appearance of the legislation. The Legislature

cannot disobey the constitutional mandate by

employing an indirect method. The court must

consider not merely the purpose of the law but

also the means how it is sought to be secured or

how it is to be administered. The object of the

legislation is not conclusive as to the validity of

the legislation...... The court must lift the veil of

the form and appearance to discover the true

character and the nature of the legislation, and

every endeavour should be made to have the

efficacy of fundamental right maintained and the

legislature is not invested with unbounded

power. The court has, therefore, always to guard

against the gradual encroachments and strike

down a restriction as soon as it reaches that

magnitude of total annihilation of the right.”

[para 48 of SCC]

125. After the conclusion of oral hearing, learned ASG filed his

written submissions in which he claimed that the courts

have only to interpret the law as it is and have no power to

declare the law invalid. According to him, therefore, if we

were to agree with the petitioner, we could only make

recommendation to Parliament and it is for Parliament to

amend the law. We are constrained to observe that the

submission of learned ASG reflects rather poorly on his

understanding of the constitutional scheme. It is a

fundamental principle of our constitutional scheme that

every organ of the State, every authority under the

Constitution derives its power or authority under the

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Constitution and has to act within the limits of powers. The

judiciary is constituted as the ultimate interpreter of the

Constitution and to it is assigned the delicate task of

determining what is the extent and scope of the power

conferred on each branch of government, what are the

limits on the exercise of such power under the Constitution

and whether any action of any branch transgresses such

limits. The role of the judiciary is to protect the fundamental

rights. A modern democracy while based on the principle of

majority rule implicitly recognizes the need to protect the

fundamental rights of those who may dissent or deviate

from the majoritarian view. It is the job of the judiciary to

balance the principles ensuring that the government on the

basis of number does not override fundamental rights. After

the enunciation of the basic structure doctrine, full judicial

review is an integral part of the constitutional scheme. To

quote the words of Krishna Iyer, J. “... The compulsion of

constitutional humanism and the assumption of full faith in

life and liberty cannot be so futile or fragmentary that any

transient legislative majority in tantrums against any

minority by three quick readings of a Bill with the requisite

quorum, can prescribe any unreasonable modality and

thereby sterilise the grandiloquent mandate.” [

Gandhi v. Union of India

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INFRINGEMENT OF ARTCILE 19(1)(a) to (d)

 

126. In the light of our findings on the infringement of Articles 21,

14 and 15, we feel it unnecessary to deal with the issue of

violation of Article 19(1)(a) to (d). This issue is left open.

 

DOCTRINE OF SEVERABILITY

 

127. The prayer of the petitioner is to declare Section 377 IPC as

unconstitutional to the extent the said provision affects

private s*xual acts between consenting adults in private.

The relief has been sought in this manner to ensure the

continuance of applicability of Section 377 IPC to cases

involving non-consensual s*x. Our attention was drawn to a

passage from Constitutional Law of India (Fourth Edition,

Vol. 1) by H.M. Seervai, wherein the learned author has

explained the Doctrine of Severability in the following words:

“3.7 Severability we have seen that where two

interpretations are possible, a Court will accept

that interpretation which will uphold the validity

of law. If, however, this is not possible, it

becomes necessary to decide whether the law is

bad as a whole, or whether the bad part can be

severed from the good part. The question of

construction, and the question of severability are

thus two distinct questions”

....

3.9 There are two kinds of severability : a

statutory provision may contain distinct and

separate words dealing with distinct and separate

topics, as for example, one sub-section may apply

it retrospectively. The first sub-section may be

valid and the second void. In such a case, the

Court may delete the second sub-section by

treating it as severable.

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3.10 There is however another kind of

severability namely severability in application, or

severability in enforcement. The question of this

other kind of severability arises when an

impugned provision is one indivisible whole, as for

instance, the definition of a word. Here

severability cannot be applied by deleting an

offending provision and leaving the rest standing.

It becomes necessary therefore to enquire

whether the impugned definition embraces

distinct classes and categories of subject matter

in respect to some of which the Legislature has no

power to legislate or is otherwise subject to a

Constitutional limit. If it is found that the

definition does cover distinct and separate classes

and categories, the Court will restrain the

enforcement of the law in respect of that class of

subjects in respect of which the law is invalid.

This might be done by granting perpetual

injunction restraining the enforcement of law on

the forbidden field, as held in

 

Chamarbaughwalla's Case

3.11 The principle of severability in application

was first adopted by our Sup. Ct. when dealing

with the contention that a tax law must be

declared wholly void if it was bad in part as

transgressing Constitutional limitations. Sastri

C.J., delivering the majority judgment, observed:

“It is a sound rule to extend severability to

include separability in enforcement....and we are

of the opinion that the principle should be applied

in dealing with taxing statutes.....”. He referred to

the decision in

 

(1920) 256 US 642. In Chamarbaughwalla's case,

it was argued that this rule was exceptional and

applied only to taxing statutes. But Venkatarama

Aiyar J. rejected this contention.”

128. In

SC 628, the Constitution Bench laid down:

“When a legislature whose authority, is subject to

limitations aforesaid enacts a law which is wholly

in excess of its powers, it is entirely void and

must be completely ignored. But where the

legislation falls in part within the area allotted to

it and in part outside it, it is undoubtedly void as

to the latter; but does it on that account become

necessarily void in its entirety? The answer to this

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question must depend on whether what is valid

could be separated from what is invalid, and that

is a question which has to be decided by the

Court on a consideration of the provisions of the

Act. This is a principle well established in

American Jurisprudence, Vide Cooley's

Constitutional Limitations, Vol. I, Chap. VII,

Crawford on Statutory Construction, Chap. 16 and

Sutherland on Statutory Construction, 3rd Edn.,

Vol. 2, Chap. 24.” [para 12 of AIR]

In that case, the Court accepted the contention of the

respondent that the principle of severability is applicable

when a statute is partially void for whatever reason that

might be, and that the impugned provisions are severable

and, therefore, enforceable as against competitions which

are of a gambling character. The ratio in

 

Chamarbaugwalla

of Bihar

India

National Thermal Power Corporation

 

CONCLUSION

 

129. The notion of equality in the Indian Constitution flows from

the ‘Objective Resolution’ moved by Pandit Jawaharlal Nehru

on December 13, 1946. Nehru, in his speech, moving this

Resolution wished that the House should consider the

Resolution not in a spirit of narrow legal wording, but rather

look at the spirit behind that Resolution. He said, ”Words are

magic things often enough, but even the magic of words

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sometimes cannot convey the magic of the human spirit and

of a Nation’s passion…….. (The Resolution) seeks very

feebly to tell the world of what we have thought or dreamt

of so long, and what we now hope to achieve in the near

future.” [Constituent Assembly Debates: Lok Sabha

Secretariat, New Delhi: 1999, Vol. I, pages 57-65].

130. If there is one constitutional tenet that can be said to be

underlying theme of the Indian Constitution, it is that of

'inclusiveness'. This Court believes that Indian Constitution

reflects this value deeply ingrained in Indian society,

nurtured over several generations. The inclusiveness that

Indian society traditionally displayed, literally in every

aspect of life, is manifest in recognising a role in society for

everyone. Those perceived by the majority as “deviants' or

'different' are not on that score excluded or ostracised.

131. Where society can display inclusiveness and understanding,

such persons can be assured of a life of dignity and nondiscrimination.

This was the 'spirit behind the Resolution' of

which Nehru spoke so passionately. In our view, Indian

Constitutional law does not permit the statutory criminal law

to be held captive by the popular misconceptions of who the

LGBTs are. It cannot be forgotten that discrimination is antithesis

of equality and that it is the recognition of equality

which will foster the dignity of every individual.

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132. We declare that Section 377 IPC, insofar it criminalises

consensual s*xual acts of adults in private, is violative of

Articles 21, 14 and 15 of the Constitution. The provisions of

Section 377 IPC will continue to govern non-consensual

penile non-v**ginal s*x and penile non-v**ginal s*x involving

minors. By 'adult' we mean everyone who is 18 years of age

and above. A person below 18 would be presumed not to be

able to consent to a s*xual act. This clarification will hold till,

of course, Parliament chooses to amend the law to

effectuate the recommendation of the Law Commission of

India in its 172

deal of confusion. Secondly, we clarify that our judgment

will not result in the re-opening of criminal cases involving

Section 377 IPC that have already attained finality.

We allow the writ petition in the above terms.

CHIEF JUSTICE

JULY 2, 2009 S.MURALIDHAR, J

“nm/v/pk”

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