By Oindrilla Mukherjee, KIIT Law School
Editor’s Note: Much discourse has taken place in an attempt to highlight the plight of those who have been discriminated on the basis of their sexual orientation or gender identity. The Supreme Court’s judgment to overrule the well reasoned Delhi High Court judgment in Naz Foundation vs. Government of NCT of Delhi has evoked a bitter response from the all corners due to its failure in upholding the interests of the LGBT community. The Court, in Suresh Koushal vs. Naz Foundation, held that § 377 doesn’t suffer from any constitutional infirmity and in effect criminalized homosexuality once again. The author, in this paper attempts a critical analysis of this regressive judgment.
T.H Green said “……It is the business of the State to maintain conditions without which a free exercise of the human faculties is impossible.” The Indian Constitution is first and foremost a social document. [i]Fundamental Rights and Directive Principles of State Policy are the conscience of the Indian Constitution as pointed out by Granville Austin in his book “The Indian Constitution-Cornerstone of a Nation”. [ii] The Fundamental Rights are in general, those rights of citizens or those negative obligations on the part of the State not to encroach on individual liberty. The idea of Fundamental Rights was first conceptualized in the Bill of Rights of the American Constitution and has been adopted into the Indian one. The State, in addition to obeying the Constitution’s negative orders not to interfere with the liberties of the citizens must satisfy its commitment to ensure that the rights of the citizens are not being infringed by the society.
In this project, Article 14, Article 15, and Article 21 shall be dealt with, which envisage equality, anti-discrimination on the grounds of sex and life and personal liberty respectively. The project concerns itself with the topic of gay rights or to be more specific LGBT (Lesbians, Gays, Bisexuals and Transgender) rights, which has been one of the themes of heated discussion and debate across the globe. The Delhi High Court passed a judgment in favor of the LGBTs in the year 2009 in the landmark judgment of NAZ Foundation v Government of N.C.T Delhi [iii] (hereinafter referred to as the NAZ Foundation case), declaring Section 377 of the Indian Penal Code which criminalizes homosexuality in India to be unconstitutional and violative of Articles 14, 15 and 21 and read down the section, allowing consensual sexual activity between two homosexuals above 18 years of age.
The matter went to appeal to the Supreme Court of India in Suresh Kumar Koushal and another v NAZ Foundation and Others[iv] where the Supreme Court struck down the decision by the High Court in the NAZ Foundation Case. This project deals with the constitutionality of Section 377 of the Indian Penal Code which criminalizes sexual activity ‘against the order of nature’. i.e. criminalizes any sexual activity other than the heterosexual penile-vaginal.[v] Homosexuality is the sexual propensity for persons of one’s own sex. The cultural construction of sexuality discredits any sexual activity that is ‘not beneficial’ of the male semen Homosexuality is condemned and penalized because it leads to the loss of the semen which holds the seed for procreation.[vi]
Homosexuality, until very recently, was considered to be an aberrance or abnormality and for this very reason, gay people were subjected to torture, discipline and even corrective rapes to cure them of it. The legislative history of Section 377 suggests that homosexuality and sodomy as a crime was first recorded or chronicled in Fleta 1920 in England and later in Britton, 1300. Such acts later were penalized under the Buggery Act, 1553, which prescribed death penalty by way of hanging for the perpetrators and it was re-enacted by Queen Elizabeth I in the year 1563. The offense of sodomy was first introduced in India through the Act for Improving the Administration of Criminal Justice in the East Indies. In 1837, a Draft Penal Code was prepared where Clauses 361 and 362 dealt with ‘Unnatural sexual offenses’ which were later incorporated in Section 377 as a part of the Indian Penal Code under offenses with respect to human body and under a separate heading of ‘unnatural offenses’ and reads as follows[vii]:
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.
Legal elucidation of the section reveals that consent is no defense to an offense under this section and no qualification with respect to age is made in the section although that is there for other heinous crimes with respect to the body and human life under the Indian Penal Code. [viii]
Facts of the Case
The NAZ Foundation (India) Trust (NI) is a New Delhi based NGO that has been working on HIV/AIDS and sexual health from 1994 onwards. They filed a writ petition in the Delhi High Court challenging the constitutional validity of Section 377 of the Indian Penal Code. This section penalizes unlawful sexual acts ‘against the order of nature’ which has the effect of criminalizing even consensual sexual intercourse between two adults of the same sex or even of the opposite sex indulging in penile non-vaginal sexual activities. The petitioner contended that Section 377 encroached upon Articles 14, 15, 19 and 21 of the Constitution of India and also that the section ought not to criminalize consensual penile non-vaginal sex between two consenting adults of the same sex.
In a milestone judgment conveyed on July 2, 2009, the Delhi High Court decided that Section 377 of the Indian Penal Code, 1860 disregarded various fundamental rights, including the right to privacy and right to dignity under the fundamental right to life and liberty (Article 21), the right to equality (Article 14), and forbiddance of separation on grounds of sex (Article 15). The said decision was appealed against in the Supreme Court of India in the Suresh Kumar Koushal and another v NAZ Foundation and Others case and it was held that the Delhi High Court was wrong in its findings and was also wrong in reading down the section to allow consensual homosexual activities between two adults of the same sex. [ix]
The major issues that emerged before the Court for its attention and consideration involved the violation of Fundamental Rights under Article 14, 15 and 21 of the Constitution of India. In this paper, the author will be dealing with two of the major issues.
1. Whether Section 377 violates any of the provisions of Part III of the Constitution of India and therefore whether it is constitutionally valid or not?
2. Whether Section 377, in so far it criminalizes consensual sexual activity of two adults of the same sex in private, is violating Article 21(Right to life and personal liberty) guaranteed by the Constitution of India?
Arguments and Analysis
NAZ Foundation case is an earnest emphasis of the vision of India’s founding fathers to build an ‘inclusive’ and ‘tolerant’ republic. The decision is a reminder that the Indian Constitution is a vibrant, living document and its wide insurances must be alterably translated to include new circumstances and tests. [x] It was argued by the Respondents that Section 377 is based on traditional Judeo-Christian moral and ethical standards and is being used to legitimize discrimination against sexual minorities, i.e. LGBTs. They also contended that the section is detrimental to people’s lives and public health because of its direct impact on the lives of the homosexuals and serves as a weapon for police abuse. [xi]
It was further argued by the Respondents that Section 377, in so far as it criminalizes consensual sexual activities between two adults of the same sex and heterosexual penile non vaginal sexual intercourse between consenting adults is violative of Articles 14, 15 and 21 of the Indian Constitution. With regard to the first issue, the petitioners argued that Section 377, on the face of it, does not mention or classify any particular group or gender and hence is not violative of Article 14 and 15 and 21 respectively. The Court accepted their arguments and held that Section 377 is not violative of Articles 14, 15 and 21 and that carnal intercourse, as intended and defined by the petitioners to mean unnatural lust ought to be punished. Justice Singhvi also said that Section 377 is pre-constitutional legislation and if it were violative of any of the rights guaranteed under Part III, then the Parliament would have noticed the same and repealed the section long ago.
Based on this reasoning, he declared the section to be constitutionally valid. He also said that doctrine of severability and the practice of reading down a particular section flows from the presumption of constitutionality and that in the said case, the Delhi High Court’s decision to read down the section was wrong because there is no part of the section that can be severed without affecting the section as a whole which also happens to be the only law which governs cases of paedophilia and tyke sexual abuses and assaults. So, the Supreme Court held that Section 377 of the Indian Penal Code does not suffer from any constitutional infirmity and left the matter to the competent legislature to consider the desirability and legitimacy of deleting the Section from the statute book or altering the same to allow consensual sexual activity between two adults of the same sex in private.
Article 21 guarantees us the right to life and protection of personal liberty. The private, consensual sexual relations are protected under the right to personal liberty under Article 21 under the privacy and dignity claim. While considering the issue of Article 21, The High Court sketched out the broadened extent of the right to life and liberty which also incorporates right to protection of one’s dignity, autonomy and privacy, the Division Bench referred to Indian and foreign judgments, the Yogyakarta Principles[xii] identifying with sexuality as a structure of personality and the worldwide patterns in the assurance of security and nobility privileges of gay people and held:
“The sphere of privacy allows person 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 relationships of his or her own choice, and fulfill all legitimate goals that he/she may set. In the Indian Constitution, the right to live with dignity and the right of privacy[xiii] are recognised as dimensions of Article 21. Section 377 of IPC denies a person’s dignity and criminalizes 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 denies a gay person the right to full personhood which is implicit in notion of life under Article 21 of the Constitution.“[xiv]
In Maneka Gandhi v Union of India[xv], the Court reiterated that the term ‘personal liberty’ is of “the widest amplitude and it covers a variety of rights which go to constitute the personal liberty of a man.” Sexual orientation and sexual activity is a matter of one’s privacy.
In the same case, the court went on to explain the intention of the founding fathers regarding regulation of Article 21 and said “Thus expanded and read for interpretative purposes, Article 21 clearly brings out the implication, that the Founding Fathers recognized the right of the State to deprive a person of his life or personal liberty in accordance with fair, just and reasonable procedure established by law.” But, in the above case, Section 377 is used arbitrarily and it classifies between procreative sexual activities and non-procreative sexual activities which show no compelling State interest to make such a law to regulate and deny such an important fundamental right.
Thus, consensual sexual activities between two adults of the same sex should not be regulated by a law as it violates their Fundamental Rights and a person’s choice of sexual accomplice is no business of the State to regulate on. Section 377 is abused to brutalize the persons belonging to the gay community. Popular morality, as distinct from constitutional morality as derived from constitutional values, is based on shifting notions of right and wrong and as of today, a large chunk of elite population is in favor of the LGBT rights and hence, this shows that the State is not even going by the popular morality but by its own morality and if there is any type of morality that can pass the test of compelling state interest, it should be constitutional morality.
Formatted on 16th March 2019.
[i] GRANVILLE AUSTIN, INDIAN CONSTITUTION-CORNERSTONE OF A NATION, 50
[iii] 2010 CriLJ 94
[iv] CIVIL APPEAL 10972 OF 2013
[v] 2010 CriLJ 94
[vi] RUKMINI SEN, ‘Breaking Silences, Celebrating New Spaces: Mapping Elite Responses to the ‘Inclusive’ Judgment’ 2 NUJS Law Review 481 (2009)
[vii] CIVIL APPEAL 10972 OF 2013
[viii] 2010 CriLJ 94
[ix] CIVIL APPEAL 10972 OF 2013
[x] VIKRAM RAGHAVAN, ‘Navigating the Noteworthy and Nebulous in NAZ Foundation’ 2 NUJS Law Review 399 (2009)
[xi] CIVIL APPEAL 10972 OF 2013
[xii] The Yogyakarta Principles are a set of principles on the application of international human rights law in relation to sexual orientation and gender identity. The Principles affirm binding international legal standards with which all States must comply. They promise a different future where all people born free and equal in dignity and rights can fulfil that precious birthright.
[xiii] AIR 1963 SC 1295 and (1975) 2 SCC 148
[xiv]2010 CriLJ 94
[xv] AIR 1978 SC 597