Naz Foundation vs Government Of Nct Of Delhi on 2 July, 2009
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Delhi High Court
* IN THE HIGH COURT OF DELHI AT NEW DELHI + WP(C) No.7455/2001
% Date of decision : 2nd July, 2009 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 1 of 105 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 sexual acts between adults in
private. The challenge is founded on the plea that Section 377 IPC, on account
of it covering sexual 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-vaginal sex and penile
non- vaginal sex 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 2 of 105 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 sex other than heterosexual penile-vaginal. 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. Oral- genital sexual 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 3 of 105 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 "sexual 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, sexual". Consent
is no defence to an offence under Section 377 IPC [WP(C)7455/2001] Page 4 of
105 and no distinction regarding age is made in the section. In Khanu v.
Emperor, AIR 1925 Sind 286, Kennedy A.J.C. held that "section 377 IPC punishes
certain persons who have carnal intercourse against the order of nature with
inter alia human beings.... [if the oral sex 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 coitus per os is
impossible."[page 286] It appears that the courts had earlier held in R. V.
Jacobs (1817) Russ & Ry 331 C.C.R., and Govindarajula In re., (1886) 1 Weir
382, that inserting 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 sex, anal sex and penetration of other orifices. In Lohana Vasantlal
Devchand v. State, AIR 1968 Guj 252, the issue was whether oral sex amounted
to an offence under Section 377 IPC. It was held that the "orifice of the mouth
is not, according to nature, meant for sexual or carnal intercourse." In Calvin
Francis v. Orissa, 1992 (2) Crimes 455, relying on Lohana, it was held that
oral sex fell within the ambit of Section 377 IPC. The Court used the
references to the Corpus Juris Secundum relating to sexual perversity and
abnormal sexual satisfaction as the guiding criteria. In Fazal Rab Choudhary v.
State of Bihar, AIR 1983 SC 323, it was observed that Section 377
[WP(C)7455/2001] Page 5 of 105 IPC implied "sexual perversity". It is evident
that the tests for attracting the penal provisions have changed from the non-
procreative to imitative to sexual perversity.
5. The English law was reformed in Britain by the Sexual Offences Act, 1967,
which de-criminalised homosexuality 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 homosexual 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 sex with men" (MSM). For
sake of convenient reference, they would hereinafter be referred to as
"homosexuals" or "gay" persons or gay community. Homosexuals, 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 6 of 105 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 sex in purely
functional terms, i.e., for the purpose of procreation only. Any non-
procreative sexual activity is thus viewed as being "against the order of
nature". The submission is that the legislation criminalising consensual oral
and anal sex 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 sexual assault and abuse. By criminalising private,
consensual same-sex conduct, Section 377 IPC serves as the weapon for police
abuse; detaining and questioning, extortion, harassment, forced sex, payment
of hush money; and perpetuates negative and discriminatory beliefs towards
same-sex relations and sexuality minorities; which consequently drive the
activities of gay men and MSM, as well as sexuality 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 homosexuality as [WP(C)7455/2001] Page 7 of 105 a
disease and regard sexual 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,
sexual 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 sexual relations, and since private, consensual, sexual relations or
sexual 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
sexual relations (homosexual) 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 8 of 105
submission that Section 377 IPC has a damaging impact upon the lives of
homosexuals inasmuch as it not only perpetuates social stigma and police/public
abuse but also drives homosexual 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 sexual acts" has no
rational nexus to the classification created between procreative and non-
procreative sexual 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 "sex" as used in Article 15 cannot
be read restrictive to "gender" but includes "sexual orientation" and, thus
read, equality on the basis of sexual orientation is implied in the said
fundamental right against discrimination. The petitioner argues that
criminalization of predominantly homosexual activity through Section 377 IPC is
discriminatory on the basis of sexual orientation and, therefore, violative of
Article 15. It is further the case of the petitioner that the prohibition
against homosexuality in Section 377 IPC curtails or [WP(C)7455/2001] Page 9 of
105 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
sexual preferences, right of association/assembly and right to move freely so
as to engage in homosexual conduct are restricted and curtailed.
10. Broadly on the above reasoning, it has been submitted that there is a case
for consensual sexual intercourse (of the kind mentioned above; i.e.
homosexual) 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
sexual abuse and for complementing lacunae in the rape laws and not mere
[WP(C)7455/2001] Page 10 of 105 homosexuality. 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 homosexuality.
Proceeding on the assumption that homosexuality 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 42nd report of the
Commission wherein it was observed that Indian society by and large disapproved
of homosexuality, 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 11 of 105 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 homosexual conduct, Union of India seeks to
attribute this trend of change to increased tolerance shown by such societies
to new sexual behaviour or sexual 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 homosexuality. 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 12 of 105 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 homosexual 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 13 of 105 generally described as 'High Risk
Groups' (HRG), broadly include men who have sex with men (MSM) and female sex
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 sexual
practices by reducing sexual partners, being faithful to a single partner
abstaining from casual sex 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 14 of 105 v. Ensuring availability of safe blood and
blood products; and
vi. Reinforcing the traditional Indian moral values of abstinence, delayed
sexual 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 NACP- III Planning, January 2006 estimated that there are about
25 lakh MSM (Men having sex 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 15 of 105
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 sex 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
homosexual groups renders risky sexual practices to go unnoticed and
unaddressed inasmuch as the fear of harassment by law [WP(C)7455/2001] Page 16
of 105 enforcement agencies leads to sex 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 sex 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 sex
desiring people including those who identify as Lesbian, Gay, Bisexual,
Transgenders, Hijra and Kothi persons (which are referred to 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 [WP(C)7455/2001] Page 17 of 105 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,
Bisexual 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 sex only for procreation. It asserts
that criminalisation of adult consensual sex 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 sexual acts has created an association of criminality
towards people with same sex 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 18
of 105 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 sexual health amongst
MSMs raided its office, seized safe sex 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
hijra (eunuch) from Bangalore, who was at a public place dressed in female
clothing. The person was subjected to gang rape, forced to have oral and anal
sex 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
[WP(C)7455/2001] Page 19 of 105 merely because of his sexual identity. Reference
was made to a judgment of the High Court of Madras reported as Jayalakshmi v.
The State of Tamil Nadu, (2007) 4 MLJ 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 sex. 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 homosexual. He was physically assaulted with wooden
sticks, taken to police post where he was subjected to sexual and degrading
abusive language. During the incarceration in the police post over the night,
four police [WP(C)7455/2001] Page 20 of 105 men actually raped and sexually
abused him including forcing him to have oral and anal sex. The respondent No.8
has relied upon several other instances of fundamental rights violation of
homosexuals 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 21 of 105 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 homosexuals or gay
community. It also unreasonably and unjustly infringes upon the right of
privacy, both zonal and decisional. It also conveys the message that
homosexuals 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 homosexuals 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 22 of 105 material has been placed on
record which shows that the Indian society is vibrant, diverse and democratic
and homosexuals have significant support in the population. It is submitted
that courts in other jurisdictions have struck down similar laws that
criminalise same-sex sexual 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 sexual 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 sexual acts between consenting adults or
in the alternative to read down Section 377 IPC to exclude consenting same-sex
sexual acts between adults. (ii) In reply, learned ASG submits that there is
no fundamental right to engage in the same sex activities. In our country,
homosexuality 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 sexual mores in foreign countries
cannot justify de-criminalisation of homosexuality 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
[WP(C)7455/2001] Page 23 of 105 gender neutral. If Section 377 IPC is struck
down there will be no way the State can prosecute any crime of non- consensual
carnal intercourse against the order of nature or gross male indecency. He
hastens to add that Section 377 IPC is not enforced against homosexuals 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 sex 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 sexual act.
People will have the freedom to canvass any opinion of their choice including
the opinion that homosexuality must be de- criminalised. 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 homosexuality. According to them, Indian society considers
homosexuality to be repugnant, immoral and contrary to the cultural norms of
the country. [WP(C)7455/2001] Page 24 of 105 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 Maneka Gandhi v. Union of India,
(1978) 1 SCC 248, a rather narrow and constricted meaning was given to the
guarantee embodied in Article 21. But in Maneka Gandhi, a seven-Judge Bench
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 25 of 105 for
future development of the law enlarging this most fundamental of the
fundamental rights. This decision in Maneka Gandhi became the starting point
for a very significant evolution of the law culminating in the decisions in
M.H. Hoskot v. State of Maharashtra, (1978) 3 SCC 544, Hussainara Khatoon and
Ors. v. Home Secretary State of Bihar, (1980) 1 SCC 81, Sunil Batra v. Delhi
Admn., (1978) 4 SCC 494, Prem Shankar Shukla v. Delhi Admn., (1980) 3 SCC 526,
Francis Coralie Mullin v. 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 [Egan v. Canada, (1995) 29 CRR (2nd) 79 at 106]. At its least,
it is clear that 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 26 of 105 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 [Prem Shankar Shukla v.
Delhi Admn. (supra),page 529 of SCC].
27. In Francis Coralie Mullin v. Administrator, Union Territory of Delhi and
others (supra), Justice P.N. Bhagwati explained the concept of right to dignity
in the following terms:
"... We think that the right to life includes the right to live 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 Law v. Canada (Ministry of Employment and
Immigration), [1999 1 S.C.R. 497] 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 27 of 105 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 well- being 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 28
of 105 with right to life and liberty. We shall first refer to the case- law 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. Olmstead v. United States,
277 US 438 (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 Griswold v. State of Connecticut, 381 US 479 (1965), 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 Griswold it was established that the right to make certain decisions
regarding sexual conduct extends beyond [WP(C)7455/2001] Page 29 of 105 the
marital relationship. In Eisenstadt v. Baired, 405 US 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. Jane Roe v. Wade, 410 US 113 (1973), was a case in which 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 30 of 105 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 Planned Parenthood of
Southeastern Pa v. Casey, 505 US 833 (1992), the Court again confirmed 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 Kharak Singh v. The State of U.P., (1964) 1 SCR 332, the U.P.
Regulations regarding domiciliary visits were in question and the majority
referred to Munn v. Illinois, 94 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 31 of 105 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 Gobind v. State of M.P., (1975) 2
SCC 148, in which Mathew, J. developed the law as to privacy from where it was
left in Kharak Singh. The learned Judge referred to Griswold v. Connecticut
and Jane Roe v. Henry Wade and observed: "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
Olmstead v. United States, 277 US 438, 471 the significance of man's 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 32 of 105 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 R. Rajagopal v. State of T.N., (1994) 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 District Registrar and Collector, Hyderabad and another v. Canara Bank
and another, (2005) 1 SCC 496, [WP(C)7455/2001] Page 33 of 105 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, People's Union for Civil Liberties v. Union of India, (1997) 1
SCC 301 and Sharda v. Dharampal, (2003) 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 Gobind v. State of M.P.
(supra) 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 Bowers, Attorney General of Georgia v. Hardwick et al, 478 US 186
(1986), made it clear that the 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 34 of 105 nurture human relationships without interference
from the outside community. The way in which one gives expression to one's
sexuality is at the core of this area of private intimacy. If, in expressing
one's sexuality, one acts consensually and without harming the other, invasion
of that precinct will be a breach of privacy. (Ackermann J. in The National
Coalition for Gay and Lesbian Equality v. The Minister of Justice, decided by
Constitutional Court of South Africa on 9th October, 1998).
41. In Bowers v. Hardwick (supra) Blackmun, J. cited the following passage from
Paris Adult Theatre I v. Slaton, [413 US 49 (1973), page 63] :
"Only the most willful blindness could obscure the fact that sexual 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 sexuality is at the core of this area of private
intimacy. If, in expressing our sexuality, 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 sexual 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 35 of 105 Human Rights. The sexual
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 sexual orientation or gender identity.
43. On 26th March, 2007, a group of human rights experts 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 sexual 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 sexual orientation and gender identity issues, with
seven States specifically referring to the Yogyakarta Principles.
[WP(C)7455/2001] Page 36 of 105 [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 "sexual orientation" and
"gender identity" as follows: "Sexual Orientation" is understood to refer to
each person's capacity for profound emotional, affectional and sexual attraction
to, and intimate and sexual relations with, individuals of a different gender or
the same gender or more than one gender;"
"Gender Identity" is understood to refer to each person's deeply felt internal
and individual experience of gender, which may or may not correspond with the
sex 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:
Human beings of all sexual orientation and gender identities are entitled to
the full enjoyment of all human rights;
All persons are entitled to enjoy the right to privacy, regardless
of sexual orientation or gender identity;
Every citizen has a right to take part in the 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 sexual orientation or gender identity.
[WP(C)7455/2001] Page 37 of 105
45. Prof Edwin Cameron in his Article "Sexual Orientation and the Constitution
: A Test Case for Human Rights", (1993) 110 SALJ 450 defines sexual
orientation:
".... sexual orientation is defined by reference to erotic attraction: in the
case of heterosexuals, to members of the opposite sex; in the case of gays and
lesbians, to members of the same sex. Potentially a homosexual or gay or lesbian
person can therefore be anyone who is erotically attracted to members of his or
her own sex."
46. In Bernstein and Others v. Bester and Others NNO, 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, sexual 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 District Registrar &
Collector, Hyderabad v. Canara Bank (Supra) Lahoti, CJ. referred to
observations of Stevens, J. in Thornburgh v. American College of O and G, 476
US 747 (1986), that "the concept of privacy 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 38 of 105 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 homosexual or not, the sense of gender and sexual
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 sexual 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 sexuality 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 The
National Coalition for Gay and Lesbian Equality v. The Minister of Justice
(supra)].
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 39 of 105 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 sexuality 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 homosexuals 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
homosexuals. He categorises how sodomy laws reinforce public abhorrence of
lesbians and gays resulting in an erosion of self-esteem and self- worth in
numerous ways, including (a) self-reflection, (b) [WP(C)7455/2001] Page 40 of
105 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-sex 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 homosexuality are earlier noted
by us. We may quote another glaring example. During Colonial period in India,
eunuchs (hijras) were criminalised by virtue 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 41
of 105 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
hijra community still continues.
51. In 2006, the State of Tamil Nadu vide G.O. (Ms) No.199 dated 21.12.2006
recognising that "aravanis (hijras) are 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 42 of 105 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 sex 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 homosexuality 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 sexual 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 43 of 105 protected by
constitutional armour. The spirit of Man is at the root of Article 21, absent
liberty, other freedoms are frozen. [Maneka Gandhi (supra) at para 76 SCC]
GLOBAL TRENDS IN PROTECTION OF PRIVACY DIGNITY RIGHTS OF HOMOSEXUALS
53. The first successful international human rights cases concerning the
privacy on same-sex relations were taken under the ECHR. In Dudgeon v. The
United Kingdom, 45 Eur. Ct. H.R. (ser. A) (1981), and Norris v. Republic of
Ireland, 142 Eur. Ct. H.R. (ser. A) (1988), the criminalisation of such
practices was deemed a violation of the privacy protection in Article 8 of the
ECHR. In Dudgeon v. The United Kingdom, the European Court of Human Rights held
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 sexual 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 Norris v.
Republic of Ireland, the European Court of Human Rights ruled that Ireland's
blanket prohibition on gay sex breached the ECHR. The Court quoted with
approval the finding of an Irish Judge that:
"[o]ne of the effects of criminal sanctions against homosexual acts is to
reinforce the misapprehension and general prejudice of the public and increase
the anxiety and guilt feelings of homosexuals leading, on [WP(C)7455/2001]
Page 44 of 105 occasion, to depression and the serious consequences which can
follow ..." [para 21]
54. In Modinos v. Cyprus, 259 Eur. Ct. H.R. (ser. A) (1993), the 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 Toonen v. Australia, (No.488/1992 CCPR/C/ 50/D/488 /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 homosexual conduct does not amount to a guarantee that no
actions will be brought against homosexuals 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 The National Coalition for Gay and Lesbian Equality v. The Minister of
Justice (supra), the Constitutional Court 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 sexual intercourse per anum
between men: regardless [WP(C)7455/2001] Page 45 of 105 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 sexual conduct which is identified by our broader society
with homosexuals. 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 sexual 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 sexual 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 Lawrence v. Texas, 539 US 558 (2003), holding the Texas sodomy laws as
unconstitutional, the US Supreme Court reversed its earlier decision in Bowers
v. Hardwick (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 sexuality 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 homosexual 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 46 of 105 .....When homosexual conduct is made criminal
by the law of the State, that declaration in and of itself is an invitation to
subject homosexual 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 sexual
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
Dudgeon v. United Kingdom (supra), sodomy between adult 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 homosexual 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
10th 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 47 of 105 of Tasmania, had by
1982 de-criminalised sexual acts in private between consenting adults and had
also passed anti- discrimination laws which prohibited discrimination on the
ground, amongst others, of sexual orientation. Tasmania repealed offending
sections in its Criminal Code in 1997 in view of the decision of United Nations
Human Rights Committee in Toonen v. Australia. Consensual sexual relations
between adult males have been de-criminalised in New Zealand. In Canada,
consensual adult sodomy ("Buggery") and so-called "gross indecency" were de-
criminalised 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 Bowers v. Hardwick (supra), but subsequently in Lawrence
v.Texas, the sodomy laws 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 sexual orientation is not expressly protected in the equality
provisions of their constitutions. Homosexuality 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, dated 24th
August, 2005 and 20th September, 2006 struck down similar [WP(C)7455/2001]
Page 48 of 105 sodomy laws. To the same effect is the judgment of the High
Court of Fiji in Dhirendra Nandan & Another v. State, Criminal Appeal Case No.
HAA 85 & 86 of 2005, decided on 26th August, 2005. Nepalese Supreme Court has
also struck down the laws criminalising homosexuality in 2008 [Supreme Court of
Nepal, Division Bench, Initial Note of the Decision 21.12.2007].
59. On 18th "December, 2008, in New York, the UN General Assembly was presented
with a statement endorsed by 66 States from around the world calling for an end
to discrimination based on sexual 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 sexual 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 sexual
relations between consenting adults [WP(C)7455/2001] Page 49 of 105 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 sex
between adults of the same sex, hampers HIV intervention efforts aimed at
sexual 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
50 of 105 fundamental right to life under Article 21. [Paschim Banga Khet
Mazdoor Samity v. State of W.B., (1996) 4 SCC 37].
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-sex 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 sex with women, their female sexual
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 sexual 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
51 of 105 The freedoms include the right to control one's health and body,
including sexual 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, sex, language, religion, political or other opinion, national or
social origin, property, birth, physical or mental disability, health status
(including HIV/AIDS), sexual 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 ... sexual practices." In 2005, 22 governments from different
regions along with [WP(C)7455/2001] Page 52 of 105 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 sex 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 sex 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 sex with men and address stigma and discrimination in society and in the
workplace by amending laws prohibiting sexual acts between consenting adults in
private; enforcing anti-discrimination; providing legal [WP(C)7455/2001] Page
53 of 105 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 sex 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 sexual 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 : http://nhrc.nic.in/Publications/report_hiv- aids.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 sex
with men, gay men and transgender people are major barriers to universal access
to HIV prevention and treatment" [Delhi Declaration of Collaboration : 26th
[WP(C)7455/2001] Page 54 of 105 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 sex workers or homosexuals 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
17th International Conference on Aids in Mexico City is reported to have stated
"....structural discrimination against those who are vulnerable to HIV such as
sex 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 sex with men, must go" [Reported in Indian
Express: August 9,2006 http://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
homosexuality is not a disease or a disorder and is just another expression of
human sexuality. Homosexuality was [WP(C)7455/2001] Page 55 of 105 removed from
the Diagnostic and Statistical Manual of Mental Disorders (DSM) in 1973 after
reviewing evidence that homosexuality is not a mental disorder. In 1987, ego-
dystonic homosexuality was not included in the revised third edition of the DSM
after a similar review. In 1992, the World Health Organisation removed
homosexuality from its list of mental illnesses in the International
Classification of Diseases (ICD 10). Guidelines of the ICD 10 reads:
"disorders of sexual preference are clearly differentiated from disorders of
gender identity and homosexuality 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 Lawrence v.
Texas:
"According to current scientific and professional understanding, however, the
core feelings and attractions that form the basis for adult sexual orientation
typically emerge between middle childhood and early adolescence. Moreover, these
patterns of sexual attraction generally arise without any prior sexual
experience." [page 7 of Amicus brief] Thus, homosexuality is not a disease or
mental illness that needs to be, or can be, 'cured' or 'altered', it is just
another expression of human sexuality.
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 56 of 105 section dealing with Asia to
highlight that HIV /AIDS is transmitted through the route of sex and
specifically that of sex 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 sex" in which unprotected anal sex 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 sex and that men-to-men
sex 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 homosexuals instead need medical treatment and further that AIDS can be
prevented by appropriate education, use of condoms and advocacy of other safe
sex practices.
70. We are unable to accede to the submissions of learned ASG. The
understanding of homosexuality, 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 57 of 105 as revised in 1987 (3rd edition),
"homosexuality" is no longer treated as a disease or disorder and now near
unanimous medical and psychiatric expert opinion treats it as just another
expression of human sexuality.
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 United Nations General Assembly Declaration of Commitment on HIV/AIDS,
2001, at para 64; NACO, MoHFW, National AIDS Control Programme Phase III (2007-
2012) Strategy and Implementation Plan, November 2006, at 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 58 of 105 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 homosexual
conduct.
72. The submission of ASG that Section 377 IPC helps in putting a brake in the
spread of AIDS and if consensual same-sex 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 homosexual as well as
heterosexual 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
homosexuality 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 Toonen v. State of
Australia (supra) before Human Rights Committee was rejected with the following
observations: [WP(C)7455/2001] Page 59 of 105 "As far as the public health
argument of the Tasmanian authorities is concerned, the Committee notes that the
criminalization of homosexual 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
homosexual activity tend to impede public health programmes "by driving
underground many of the people at the risk of infection". Criminalization of
homosexual 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 homosexual 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 homosexuals but generally used in cases
involving child abuse or sexual 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 homosexuals 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 60 of 105 MORALITY AS A GROUND OF A RESTRICTION TO
FUNDAMENTAL RIGHTS
75. As held in Gobind (supra), if the court does find that a 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 sex, enforcement of public morality does not amount to a
"compelling state interest" to justify invasion of the zone of privacy of adult
homosexuals engaged in consensual sex in private without intending to cause
harm to each other or others. In Lawrence v. Texas (supra), the Court held that
moral disapproval is not by itself a legitimate state interest to justify a
statute that bans homosexual 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 homosexual persons seek to enter. The case does involve two
adults who, with full and mutual consent from each other, engaged in sexual
practices common to a homosexual 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 sexual 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 [WP(C)7455/2001]
Page 61 of 105 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 Dudgeon v. United Kingdom (supra), the UK 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 62 of 105 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 homosexual
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 homosexual 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
homosexual 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 Norris v. Republic of Ireland (supra), the Court drew a comparison with
the Dudgeon case and relied on 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 homosexual orientation like the applicant. Although members of the
public who regard
homosexuality as immoral may be shocked,
[WP(C)7455/2001] Page 63 of 105 offended or disturbed by the commission by
others of private homosexual 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 64 of 105 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 homosexuals only on account of
their sexual orientation would be against the constitutional morality.
[WP(C)7455/2001] Page 65 of 105
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 The
National Coalition for Gay and Lesbian Equality v. The Minister of Justice
(supra):
"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 homosexual 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 66 of 105 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 sexual 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 172nd report, the Law Commission has recommended 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 sexual offences laws in the light of increased incidents of
custodial rape and crime of sexual 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 [WP(C)7455/2001] Page 67 of 105
Commission discussed various provisions related to sexual 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 sexual
offences/assaults, which in particular penalize not only the sexual 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 vagina (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 vagina (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 68 of 105 (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 sexual
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 sexual assault."
Pertinently, the major thrust of the recommendation is on the word
'Person' which makes the sexual offences gender [WP(C)7455/2001] Page 69 of 105
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 sexual 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 sexual
contact with part of body or with an object, any part of body of another
person. This section specifically penalizes the person committing unlawful
sexual 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 sexual contact (homosexual 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 sexual
differences. In [WP(C)7455/2001] Page 70 of 105 response to a question from the
delegate from Sweden on the state of homosexual rights in India, he stated:
"Around the early 19th Century, you probably know that in England they frowned
on
homosexuality, 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 sexual 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 "sexual 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 homosexuality 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".
[The address of the Solicitor General of India before United Nations
Human Rights Council: rtsp://webcast.un.org/ondemand/ conferences/unhrc/upr/1st
/hrc080410pm-ng.rm?start=02:18:32& 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 homosexual 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:
Wrong in legal principle because they
exceed the proper ambit and function of the criminal law in a
modern society;
Wrong because they oppress a minority in
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 71 of 105 they are like other laws of colonial times that
disadvantages people on the ground of their race or sex;
Wrong because they fly in the face of
modern scientific knowledge about the
incidence and variety of human sexuality;
and
Wrong because they put a cohort of citizens into a position of
stigma and shame that
makes it hard to reach them with vital
messages about safe sexual conduct,
essential in the age of HIV/AIDS.
[Homosexual Law Reform : An Ongoing Blind Spot of the Commonwealth of
Nations by the Hon'ble Michael Kirby AC CMG, 16th National Commonwealth Law
Conference, Hong Kong, 8th April, 2009].
86. The argument of the learned ASG that public morality of homosexual 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 (172nd) of
Law Commission on the subject instead shows heightened realisation about
urgent need to follow global trends on the issue of sexual [WP(C)7455/2001]
Page 72 of 105 offences. In fact, the admitted case of Union of India that
Section 377 IPC has generally been used in cases of sexual abuse or child
abuse, and conversely that it has hardly ever been used in cases of consenting
adults, shows that criminalisation of adult same- sex 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
sexual 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
[WP(C)7455/2001] Page 73 of 105 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. [Budhan Choudhry v. State of Bihar,
AIR 1955 SC 191]. In 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. [Deepak Sibal v.
Punjab University, (1989) 2 SCC 145]
89. The other important facet of Article 14 which was stressed in Maneka Gandhi
is that it eschews arbitrariness in any form. The Court reiterated what was
pointed out by the majority in E.P. Royappa v. State of Tamil Nadu, (1974) 4
SCC 3 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, (1981) 1 SCC 722 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 74 of 105 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 sex 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 homosexual 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 homosexuality. It is clear that Section 377 IPC, whatever its
[WP(C)7455/2001] Page 75 of 105 present pragmatic application, was not enacted
keeping in mind instances of child sexual abuse or to fill the lacuna in a
rape law. It was based on a conception of sexual 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
sexual acts between adults in private. The second legislative purpose
elucidated is that Section 377 IPC serves the cause of public health by
criminalising the homosexual 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 sexual
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 sexual 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 76 of 105
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 homosexuals 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 77
of 105 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 non-
discrimination. 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, sex, 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, sexual 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. (emphasis supplied)
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 [WP(C)7455/2001]
Page 78 of 105 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. (emphasis supplied)
[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 [WP(C)7455/2001] Page 79 of 105 these
sexual acts which are criminalised are associated more closely with one class
of persons, namely, the homosexuals as a class. Section 377 IPC has the effect
of viewing all gay men as criminals. When everything associated with
homosexuality 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 sexual non- conformity, persecuted, marginalised and turned in
on itself. [Sachs, J. in The National Coalition for Gay and Lesbian Equality
v. The Minister of Justice, para 108].
95. As Justice O'Connor succinctly stated in her concurring opinion in Lawrence
v. Texas (supra):
"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 homosexual. 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 Romer v. Evans, 517 U.S. 620 (1996), the challenge was to an amendment
to Colorado's Constitution which named as a solitary class persons who were
homosexuals, lesbians, or bisexual either by "orientation, conduct, practices
or relationships" and deprived them of protection under the state anti-
discrimination laws. The US Supreme Court [WP(C)7455/2001] Page 80 of 105
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, 339 U.S. 629, 635 (1950) (quoting Shelley v. Kraemer, 334, U.S. 1,
22 (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]
"A second and related point is that laws of the 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 Vriend v. Alberta, (1998) 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 [WP(C)7455/2001] Page 81 of 105 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
sexual orientation in the employment field and would apply with even greater
force to the criminalisation of consensual sex 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 'sex'. The argument of the petitioner is that 'sex' in Article
15(1) must be read expansively to include a prohibition of discrimination on
the [WP(C)7455/2001] Page 82 of 105 ground of sexual orientation as the
prohibited ground of sex- discrimination cannot be read as applying to gender
simpliciter. The purpose underlying the fundamental right against sex
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 sexual orientation is
itself grounded in stereotypical judgments and generalization about the conduct
of either sex. 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, sex, language, religion,
political or other opinion, national or social region, property, birth or other
status". In Toonen v. Australia (supra), the Human Rights Committee, while
holding that certain provisions of the Tasmanian Criminal Code which
criminalise various forms of sexual conduct between men violated the ICCPR,
observed that the reference to 'sex' in Article 2, paragraphs 1 and 26 (of the
ICCPR) is to be taken as including 'sexual orientation'. [WP(C)7455/2001]
Page 83 of 105
101. Despite the fact that Section 15(1) of the Canadian Charter does not
expressly include sexual orientation as a prohibited ground of discrimination,
the Canadian Supreme Court has held that sexual 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 homosexuals" and the emerging
consensus among legislatures (at para 176), as well as previous judicial
decisions (at para 177), that sexual orientation is a ground analogous to those
listed in s.15(1). [Vriend v. Alberta (supra) per Cory J. para 90].
102. Similarly, in Corbiere v. Canada, [1999] 2 S.C.R. 203, the 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, 1997 (3) SA 1012 (CC) that 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,
1998 (1) SA 300 (CC), the Court further developed the idea to say that there
will be discrimination on an unspecified ground if it is based on attributes or
[WP(C)7455/2001] Page 84 of 105 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 sexual orientation, the South African constitution, when it was
drafted, specifically included that as a ground.
104. We hold that sexual orientation is a ground analogous to sex and that
discrimination on the basis of sexual 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 sexual orientation is impermissible even on the horizontal
application of the right enshrined under Article 15.
[WP(C)7455/2001] Page 85 of 105 "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 Anuj Garg v. Hotel Association of India, (2008) 3 SCC 1, which has important
bearing on the present case. In Anuj Garg, constitutional validity of 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
pre- constitutional 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 [WP(C)7455/2001] Page 86 of 105 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 John Vallamattom v. Union of India, (2003) 6 SCC 611:
"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 sexes 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 sex 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].
[WP(C)7455/2001] Page 87 of 105
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 biological difference between sexes gathers an overtone of
societal conditions so 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]
[WP(C)7455/2001] Page 88 of 105
108. The Court held that Article 15's prohibition of sex discrimination
implies the right to autonomy and self- determination, 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 sexual 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 compelling
state purpose. 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 sex 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 sex, race, caste or [WP(C)7455/2001] Page 89 of
105 any other like basis. In fine, there should be a reasonable relationship of
proportionality between the means used and the aim pursued." (emphasis supplied)
109. In Anuj Garg, the Court, however, clarified that the heightened review
standard does not make sex a proscribed classification, "...sex
classifications" may be used to 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 Ashok Kumar Thakur v. Union of India, (2008) 6 SCC 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 [WP(C)7455/2001] Page 90 of 105 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, (1992) Supp. 3 SCC
217. In Anuj Garg, S.B. Sinha, J. emphasised this aspect 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 sex, race, caste or any other like basis...."
(emphasis supplied) [para 51 of SCC]
113. As held in Anuj Garg, if a law discriminates on any of the 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 sexual minorities particularly men
who have sex with men and gay men. It disproportionately impacts them solely on
the basis of their sexual 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
sexual acts of consenting adults in privacy [WP(C)7455/2001] Page 91 of 105
discriminates a section of people solely on the ground of their sexual
orientation which is analogous to prohibited ground of sex. 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. [Francis Coralie Mullin v. Union Territory
of Delhi (supra), para 6 of SCC]. In M. Nagraj v. Union of India, (2006) 8 SCC
212,the 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 92 of 105
115. Similar is the sentiment expressed by Kennedy, J. in Lawrence v. Texas
(supra):
"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 Andhra Pradesh v. P. Laxmi Devi, (2008) 4 SCC 720, where the
Court after referring to the classic essay of [WP(C)7455/2001] Page 93 of 105
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 94 of 105
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 State of Madras v. V.G. Row, AIR 1952 SC 196, wherein para 15
dealing with test of reasonableness reads as follows:
"15. It is important in this context to bear in 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 self- restraint 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.
[WP(C)7455/2001] Page 95 of 105 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 State of Madras v. V.G.Row (supra), while 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 R. (Alconbury Ltd.) v. Environment Secretary, [2001] 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 [WP(C)7455/2001] Page
96 of 105 method of decision is by some person or body accountable to the
electorate. [R. (Alconbury Ltd.) v. Environment Secretary [2001] 2 WLR 1389, at
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 West
Virginia State Board of Education v. Barnette, 319 US 624 (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 I.R. Coelho (Dead) by LRs v. State
of Tamil Nadu & Ors., (2007) 2 SCC 1 and Raja Ram Pal v. Hon'ble Speaker, Lok
Sabha & Ors., (2007) 3 SCC 184. In Coelho, the Supreme Court held that it could
strike down 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 97 of 105 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 Raja Ram Pal case, the Court disposed of the arguments 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 "supreme lex in this country" 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 Peerless General Finance Investment Co. Ltd. v. Reserve Bank of India,
(1992) 2 SCC 343, the Court highlighted the role of the judiciary as protector
of fundamental rights in following words:
[WP(C)7455/2001] Page 98 of 105 "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
[WP(C)7455/2001] Page 99 of 105 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." [Maneka Gandhi v.
Union of India (supra), para 81 of SCC]. [WP(C)7455/2001] Page 100 of 105
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 sexual 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 sex. 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.
[WP(C)7455/2001] Page 101 of 105 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 (1957) S.C.R. 930. 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 Bowman v. Continental Oil Co., (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 R.M.D. Chamarbaugwalla v. Union of India, AIR 1957 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 [WP(C)7455/2001]
Page 102 of 105 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 was followed in Kedar Nath v. State of
Bihar, AIR 1962 SC 955, Bhim Singhji v. Union of India, (1981) 1 SCC 166 and
State of Andhra Pradesh v. National Thermal Power Corporation, (2002) 5 SCC
203. 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 [WP(C)7455/2001] Page 103 of 105
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 non- discrimination. 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 anti- thesis of equality and that it is the
recognition of equality which will foster the dignity of every individual.
[WP(C)7455/2001] Page 104 of 105
132. We declare that Section 377 IPC, insofar it criminalises consensual
sexual 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-vaginal sex and penile non-vaginal sex 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 sexual 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 172nd Report which we
believe removes a great 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"
[WP(C)7455/2001] Page 105 of 105