By Prachi Verma and Yashika Sharma, Amity Law School, Delhi
Editor’s Note: This paper discusses the controversial judgment of the Supreme Court in the case of Suresh Kumar Koushal v. Naz Foundation. It also discusses the 2009 Judgment of the Delhi High Court which decriminalised homosexuality. The Supreme Court has failed to provide a uniform test of what all acts constitute ‘carnal intercourse against the order of the nature’. The judgment led to tremendous unrest among LGBT activists and the Parliament has failed to amend the law so far. Therefore, according to the Author, the Judiciary needs to step in in such cases to ensure that the fundamental rights of the citizens are protected.
The landmark judgement in Suresh Kumar Koushal and another v Naz foundation and others (2013), reinforced the values of 19th century by interpreting the law against so called ‘miniscule fraction’ of the society. Section 377 of IPC, 1860 criminalises acts of carnal intercourse. It not only takes into its purview people who are homosexual but also the ones with heterosexual tendencies. This concept was adopted from Common law, and thus, is based on Judo- Christian morals. Under Common law ‘Buggery’ is the term used for ‘unnatural offences’, and by the Sexual Offences Act,1967 – consensual buggery in private, by those who have attained the age of 21years, was legalised ,whereas, earlier it was considered to be a felony. In 2000 this law was further modified and the age limit was reduced to 16years.
In 2009, Delhi High Court, read down this law by synchronising it with today’s time, and therefore, excluded the acts of carnal intercourse, by consenting adults in private. There is a presumption of constitutionality with regard to pre-constitutional laws, but the same can be declared ultra virus, to the extent of inconsistency with the fundamental rights of the people under Article 13(1) of the Constitution of India. It is said to be in violation of the following fundamental rights i.e. right to privacy and dignity (Article 21), freedom of expression (Article 19(1) (a)) and right to equality (Article 14 & 15). Right to privacy is read along with right to personal liberty (Article 21). It means ‘to be left alone’ without any unwarranted interference by the State, until and unless, one’s conduct harms the State. Such a right is given to safeguard one’s own privacy, family, marriage which concerns oneself only. Consensual sexual relation between two adults in private forms the indispensable part of privacy.
State cannot regulate these relations (whether sexual or carnal intercourse) as they do not cause harm to anyone else. Further, right to life (Article 21) does not just mean ‘a life of mere animal existence’. It is inclusive of right to live with dignity. This section tends to encourage stigma towards homosexuals because homosexuals are more likely to indulge into penile non-vaginal intercourse, which is prohibited under this section. By the virtue of this section homosexuals are more vulnerable to be accused of ‘unnatural offence’ charge even though their act is consensual. Therefore, they might be criminalised on the basis of their sexual identity. Therefore, it violates this Article. Moreover, this restricts freedom to choose sexual identity for oneself. This abridges the freedom of expression. Also, this section violates right to healthy life of LGBT (lesbian, gay, bisexual and transgender) because they might avoid being treated for HIV/AIDS due the apprehension of being criminalised. Thus, it is jeopardising public health.
Judgement concluded, while applying this section, it will eventually “end up unfairly targeting LGBT because sexual acts that are criminalised, are closely associated to homosexuals”. This leads to an unequal treatment on the basis of sexual identity. Therefore, this section infringes Article 14. Judgement further stated, sexual orientation is said to be analogous to sex as mentioned in Article 15(1). Thus, discrimination on the ground of sexual orientation is prohibited under Article 15. Hence, section 377 is inconsistent with fundamental rights and under its constitutional duty Delhi HC was correct to read down the section consistent with fundamental rights. Prima facie this section aims to be gender neutral, but it tends to create an inferior status for people with homosexual tendency. This section criminalises acts of homosexual nature and is adversely affecting people’s freedom of choice and amounts to discrimination, and “discrimination is considered to be antithesis of equality and derogatory to the dignity of an individual”.
In 2013, Supreme Court overruled the judgement of 2009 passed by the Delhi High court, regarding its judgement to be ‘legally unsustainable’. As Delhi high court rightly pointed out, the legislative objective to enact this section was to impose public morality prevailing in Victorian era, by criminalising consensual carnal intercourse between adults. Moreover, objective to enact this law in that era could not be to prevent AIDS! Concept of morality is subjective in nature; it changes with time and opinion of the people living in that era. For instance, widow marriage in pre independence era was against morality but the same is acceptable in today’s time. Child marriage back then was a norm and it still continues in some custom, but now it is penalised by law as it goes against public morality. Similarly, sati pratha was accepted earlier, but it has been penalised, since it no longer stands as a logical act in the minds of the people of today. Mr. F.S. Nariman once argued that this section is placed under chapter titled of offences affecting human body and not under chapter titled of offences affecting public safety, health, decency and morals.
Therefore, this section should be interpreted in consonance with the subject matter as mentioned in the heading of the concerned chapter. Carnal intercourse with the consent of the parties involved cannot be said to be people indulging in acts harmful for their body because consent of the same implies their knowledge of the consequences which may flow from the act. This section does not help in preventing AIDS; on the contrary it makes homosexuals the most vulnerable group, hesitant to come forward for treatment of AIDS; as argued by counsel of NACO. Supreme Court has failed to provide a uniform test of what all acts constitute ‘carnal intercourse against the order of the nature’. Further, the understanding of acts, which fall under the sphere of ‘carnal intercourse against the order of nature’ have changed from non procreative to imitative sexual intercourse to sexual perversity as developed in various case laws over the years. Thus, the section is being subject to vagueness and arbitrariness. Supreme Court did distinguish between ‘carnal intercourse in ordinary nature’ and ‘carnal intercourse against the order of the nature’ but it did not explain these two phrases.
‘Order of nature’ is something pure, as distinguished from artificial and contrived, as defined in Black’s Law Dictionary. Deducing from this something that is against the order of the nature will be impure or artificial. Therefore, not carnal intercourse, that is against the order of nature, between two consenting adults to be made as a crime but abortion, use of contraception and celibacy should also constitute as a crime, since they too are artificial and one may say that these are against the order of the nature because they do not help to procreate but instead these acts act as an impediment in the process of procreation. Mr. F.S Nariman, senior advocate, appearing for Minna Saran and others (parents of LGBT children), led arguments on behalf of the learned counsel who supported the order of the high court of Delhi.
The Wolfenden Committee, which sat on the same issue, relied implicitly on J.S. Mill’s ‘Harm Principle’ in their approach. Mill had argued, “The sole end for which mankind are warranted, individually or collectively, in interfering with the liberty of action of any of their number, is self protection[…] The only purpose for which power can be rightfully exercised over any member of a civilized community, against his will, is to prevent harm to others”. Former Law minister Mr. Kapil Sibal had previously said government could change the law, but did not spell out the time limit. It is the prerogative of the Supreme Court under the Constitution to test the constitutionality of the law. They are exercising their prerogative. We have the prerogative to make laws. It is difficult to built consensus in the Parliament on any particular issue, as pointed out by the Union Home Minister. Judiciary is the third pillar of democracy, which plays an important role when executive in the Parliament is ineffective, to ensure that no one is deprived of the rights, they are entitled to. In the modern age, every individual has freedom of choice, and we should respect it. There is nothing ‘unnatural’ in these relationships and the law should be amended at the earliest. The Supreme Court decision on gay sex is not just a blow to homosexual rights, but also to HIV/AIDS medical intervention programme. UNAIDS press release stated that after Delhi high court judgement, sites providing HIV services to LGBT witnessed more than 50% increase. The issue is not just about LGBT human rights and we shouldn’t have to beg.
National and International human rights organisation are applying Martin Luther King’s principal of injustice anywhere being a threat to justice everywhere as a barometer to measure to Supreme Court order upholding the criminalisation of homosexuality. Whereas, same-sex marriages have never been legal in India but such a marriage was recognised by a Gurgaon court in July, 2011. Taking just the total adult population of India- 18 plus, which is voting age- of 762 million that would put gays at close to 100 million at the upper end of the range. This is significant given that India’s largest minority community is about 170 million. A look at countries with a long history of struggle for LGBT rights, supported by largely liberal minded public, proves this. Such has been the force of this public opinion that the United Nations issued a landmark report in 2011 that showed widespread violence and discrimination based on a person’s sexual and gender identity. Ninety-four member states of the United Nations have sponsored the declaration in support of LGBT rights in either the General Assembly, the Human Rights Council, or in both.
The unrest among the people regarding the judgement is so much that, a protest rally was held at the Academy of Fine Arts campus in Kolkata, the very spot where the LGBT community had celebrated the Delhi high court judgement. Also, gay right Activists vowed to set up protests against what they felt was infringement of human rights. Not just them, but every human being felt so, and will continue to feel the same, until the law is amended. So far the Parliament has failed to amend the law, in such a case it becomes the responsibility of the Judiciary to do the needful in order to protect fundamental rights.
Edited by Hariharan Kumar