By Nipun Saxena
“The Fundamental Rights are to foster 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 recognizes, protects and celebrates diversity. To stigmatize or to criminalize homosexuals only on account of their sexual orientation would be against the constitutional morality.”
The Hon’ble Supreme Court of India on December 11, 2013 in the case of Suresh Kumar Koushal & Anr. v. Naz Foundation and Others. delivered a verdict which has come down under wide criticism, reproach and anguish from various stakeholders of our citizenry.
The dispute did not merely involve legitimizing or recognizing the rights of a particular section of the society, i.e. the Lesbians, Gays, Bisexuals and Transgenders (LGBT) or homosexuals but on the question whether their very existence in this country makes them liable to be prosecuted and punished for engaging in consensual sexual intercourse in their personal space.
Central to this dispute was an archaic provision of Macaulay’s Indian Penal Code of 1860, Section 377 which criminalizes all forms of sexual intercourse other than penile –vaginal intercourse.
A provision which owes its genesis to the Christian – Judaist values and is alleged to have been transplanted into the Indian System from the annals of the Common Law.
Before adverting to the contentions raised by the parties, it is essential to bring out the scope and ambit of this provision, which stood impugned:
Section 377 of the IPC 1860 Section 377:
“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.”
On a bare reading of this provision, one can only fathom the broad ambit that it commands as it proscribes any sexual intercourse, which is non – natural (penile – vaginal) and may include any one or more of the following categories within its sweep and may result into any one or more of these possible permutations:
Consenting Oral/ Anal Sex between a Male and a Female
Non Consenting Oral/Anal Sex between a Male and a Female
Consenting Oral/Anal Sex between a Male and a Male
Non Consenting Oral/Anal Sex between a Male and a Male
Consenting/ Non Consenting Oral/Anal Sex with a child by an adult Male or a Female
Consenting Carnal intercourse between a Female and a Female
Non Consenting Carnal Intercourse between a Female and a Female
It is pertinent to note that when the said Public Interest Litigation was filed before the Delhi High Court, or the date on which the Special Leave Petition was filed before the Supreme Court, the Criminal Law Amendment Act, 2013 was not in force and therefore all acts of Anal and Oral Sex did not fall within the new definition of Rape but would have squarely fallen within the ambit of Section 377.
Furthermore, unlike Section 375 which defines Rape, the element of “Consent” or “Will” has expressly been excluded within the meaning of Section 377.
This is to mean that even if two consenting adults were involved in a carnal intercourse, they would still be liable to be prosecuted and punished under this provision even if they were doing it in their private space.
It was very clear that this provision did not differentiate between “consensual intercourse” and “nonconsensual intercourse”, clubbed them within the same category, and made them punishable as an offence.
With those class of individuals who fall within the category of MSM (Males who have Sex with Males) any intercourse would be “against the order of nature” as the only way in which they could possibly have an intercourse is through anal/oral sex.
So if X and Y are two Males and decide to have sexual intercourse within the privacy of their own house, this very act becomes a punishable offence.
To make matters worse, this provision further made no distinction between acts done within one’s private space and acts done otherwise.
The cumulative impact of this seemingly lucid provision was that the entire community was precluded from engaging in any form of consensual sexual intercourse, even in the privacy of their own home.
Naz Foundation, an NGO committed towards spreading awareness on HIV AIDS and its prevention and control approached the Hon’ble High Court of Delhi under a Public Interest Litigation stating that this provision was against the following fundamental Rights:
Right to Privacy embedded within Article 21
Right to Freedom of Life with Dignity under Article 21
Right to Freedom of Equality under Article 14
Right to Prohibition from Discrimination on grounds of Sex under Article 15
Right to Freedom of Speech and Expression, Association, Assembly, and the Right to Settle Peacefully under Article 19
Of Arguments and Counter Arguments
The arguments of Naz Foundation in a nutshell before the High Court and Supreme Court were:
It was submitted that the Scheme of the Indian Penal Code of 1860 was to generally punish a conduct which was wrongful (actus reus) accompanied with a wrongful intention (mens rea).
This provision however had the effect which was contrary to the scheme of the Indian Penal Code, for it does not punish the conduct alone, but punishes any intercourse which is consensual in nature by a certain community, which are the homosexuals.
Thus in essence, this provision differentiates between heterosexuals and homosexuals, for on a comparative standpoint, any consensual natural intercourse between two adult heterosexuals is permissible under the law, whereas any consensual non-natural intercourse between homosexuals is not.
This disparity became one of the most important limbs of contention, both before the High Court as well as before the Supreme Court.
It was further argued by the Naz Foundation that the operation of this Section caused a stigma against the identity of the Community, in addition to the already existing moral and social stigma which has forced homosexuals to live in constant fear, social abandonment, abnegation, public embarrassment, hostility and torture, which has resulted into them locking themselves in the closet, and because of which various awareness programs and medical facilities could not be extended.
This provision should therefore be struck down as it is symbolic of punishing a twenty five lakh strong community on the basis of its sexual orientation, especially when a sizeable percentage of homosexuals were suspected of being HIV positive.
This provision therefore serves as a legal impediment, and has also been subjected to deviant misuse by the Police and the law enforcement machinery, against Gays and Transgender.
LGBT persons do not seek any special rights. They merely seek their right to equality of not to be criminalized for being who they are.
Our Constitution does not deny any citizen the right to fully develop relationships with other persons of the same gender by casting a shadow of criminality on such sexual relationships.
That the purpose behind the inception of this Section has now been rendered redundant as India follows a democratic structure, a Constitution in the form of a social document committing certain essential freedoms to its citizens, including the Right to live with Dignity, the Right to make a conscious choice while deciding partner, and the right to have a sexual orientation of one’s choice, and therefore no discrimination should be made on the basis of the same.
Any law doing so would be arbitrary within the meaning of Article 14. Furthermore, Article 15 which prohibits discrimination should be accorded a liberal interpretation so as to include within its ambit “sex” to mean and include a person’s “sexual orientation”.
Therefore any law which prohibits the expression of this sexual orientation should be declared unconstitutional.
The stance taken by the Ministry of Home Affairs and the Ministry of Health and Family Welfare of the Union of India were contradictory to each other before the Delhi High Court.
Ministry of Home affairs ran under the tacit assumption that “homosexuality is unlawful” and suggested that by consenting to an act which is an offence, a person cannot be exculpated from criminal liability.
Ministry of Home Affairs further stated that all the freedoms guaranteed under Articles 14, 15, 19 and 21 were subjected to reasonable restrictions on ground of preservation of health and public morality, and therefore no challenge should be made to a provision if it criminalizes an act to preserve the morality of nation.
India has not yet accorded social recognition to the community, and therefore under the precincts of popular morality, it is only just that Section 377 should stand validated.
If Section 377 IPC is struck down there will be no way the State can prosecute any crime of nonconsensual carnal intercourse against the order of nature or gross male indecency.
Historically speaking, there are only little over than 200 reported cases under Section 377 which have been registered, and most of these cases concern child abuse and sexual abuse.
The law as it exists under Section 377 has not been misused against LGBTs to the extent that it has been shown to exist by the Petitioner, and therefore the law has been serving its purpose, and should be held constitutional.
In absence of any law for the time being in force, which protects a child from sexual abuse, or to fix the lacuna in the existing rape law, Section 377 is the only provision which has been serving the said purpose, and should therefore not be held unconstitutional.
Ministry of Health and NACO submitted that Section 377 was an impediment for the effective implementation of AIDS Awareness and Control Programs and therefore should be declared unconstitutional.
High Court’s Determination:
The rationale adopted by the Hon’ble High Court of Delhi speaking through Chief Justice Shah and Justice Muralidhar unequivocally agreed with all the submissions advanced on behalf of the Naz Foundation.
The reasoning expounded by the Hon’ble High Court suggested that Modern day India was not to be swayed by the archaic provisions which were built on frivolous misconceptions of morality and which have been rendered redundant.
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.
On the issue of violation of Privacy and Freedom of Life with Dignity, the High Court held that the State cannot impinge upon the private or personal life of its citizen, and regulate his personal choices.
If freedom can be accorded under a civil law for a heterosexual person to choose a spouse and respect his/her personal life, the same freedom must extend to homosexuals too.
The fact is that these sexual acts which are criminalized 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.
A provision which harbours such intention is liable to be struck down as being violative of Articles 14, 19 and 21, according to the Golden Triangle Test laid down to ascertain the constitutionality of any provision. Thus Section 377 was held to be unconstitutional as it affected the Fundamental Rights of the homosexual community.
Where did the High Court go wrong?
After having exposited a perfect rationale for the discontinuance of Section 377, the High Court fatally erred in the manner in which it arrived at its final determination. Certain principles of Statutory Construction and interpretation were involved.
The principle of Severability stated that if it is found out that a certain provision is unconstitutional, or bad in law, then the Court has to see whether after separating the bad part, can the good part exist in isolation. If yes, then only that part which is illegal will be struck down.
But if it so happens, (which is what happened in this case), that after removal of the bad part, the entire provision cannot stand in isolation, or could not exist independently, then the entire provision should be struck down as being unconstitutional.
This principle is one of the most basic principles which guides a court in ascertaining the vires or legitimacy of a law.
The Hon’ble High Court however decided to interpret the provision rather than striking it down absolutely. The High Court interpreted and “read down” into law the following three aspects:
Section 377 is invalid, only to the extent that it criminalizes consensual sexual acts of adults in private.
Section 377 will remain operative for all other category of cases, and will continue to govern non-consensual penile non-vaginal sex and penile non-vaginal sex involving minors.
The term “adult” shall mean any person who has attained 18 years of age.
This conclusion proved to be detrimental because the constitutional obligation of a High Court or the Supreme Court, while exercising powers of Judicial Review of a statute is only limited to see whether the Act or any of its provisions are violating any of the provisions of the constitution, or if they are taking away any of the Fundamental Rights.
But instead, the Hon’ble High Court with the noblest intention transgressed its limitations imposed on it by virtue of Separation of Powers, and made a law, which is the job of the legislature.
If the High Court deemed it fit, the entire provision could have been declared unconstitutional, as long as it satisfied the doctrine of severability.
However by reading down the law, the High Court gave an entirely new meaning to the provision, which was definitely not the intention of the Legislature, which is the Supreme law making body in the Country.
This alleged encroachment became the subject matter of numerous petitions and Special Leave Petitions being preferred before the Hon’ble Supreme Court of India.
The Case before Supreme Court
The Petitioners under the SLP’s belonged to a wide array of communities, mostly religious and charitable organizations, and also brought in interveners, family members of MSM couples who supported the claims advanced by the Naz Foundation.
The grounds contested by Petitioners centrally revolved around various divergent propositions, namely:
Homosexuality is a disorder or a disease and therefore Section 377 is the only law which contains this deviant act, by making it punishable, and in accordance with the reasonable restrictions appended to Fundamental Rights therefore the High Court erred in striking down the same.
On grounds of compelling Public Morality, wherein public morality was interpreted to mean, the conception/notion of sectorial majority of the entire population, the State was justified in proscribing and punishing the Act.
That there is justified reasonable classification on the basis of Conduct, and therefore the High Court was wrong in interpreting that this was in any way against the identity of the persons in the LGBT community.
That the High Court could not have read down the law, and ascribe to it an interpretation, which it was not competent to give, as it changed the meaning of the Law entirely.
That there was no legislative intention to change the existing law under Section 377, because if the Parliament so wished, it had ample opportunity to do so on thirty such occasions, the most recent being vide Criminal Law Amendment Act, 2013.
That throughout the history of Section 377, right from its inception, there were 200 registered cases, most of which suggested that the provision is being used to prevent sexual abuse against children. This suggested that the law is not being misused.
The Hon’ble Supreme Court constrained itself to all the above questions.
With respect to the first contention, it was already proven by DSM Reports and other Medical evidences to suggest that Homosexuality is not a disease or a disorder, but is just another state of expression of human sexuality, therefore the same could not be treated to mean or include a disease or a disorder.
Severability v. “Reading Down”
This is one of the most formidable contentions which proved to be to the detriment of Naz Foundation.
Although High Court rendered a perfect rationale in discarding the law as being violative of 14, 19 and 21, yet it did not out rightly declare the provision ultra vires.
It decided to read down the provision, and try to establish some notion of legitimacy in the operation of the Act.
What the High Court in fact did was transgress its limits within the conception of Separation of Powers which is inherent to the Rule of Law, and a foundation stone on which our constitution stands.
In essence it was strenuously contested that the Hon’ble High Court was confused in whether it had to sever the law, or to read it down.
It tried to do both, and therefore erred, because this provision was given a new interpretation which was fundamentally different from what the legislature accorded it to be.
The Judiciary has power to declare a law invalid, but in exercise of that power it could not assume the role of a Legislator and accord novel interpretation to the law.
Furthermore, Constitutionality of a Statute has been deemed to be of extreme significance, because it is a presumption under the law, that an Act of Legislature will always be valid, and legitimate.
This is to suggest that there is a presumption of Constitutionality in favour of an Act.
Every Court which is called upon to determine the legitimacy of a provision has to first be satisfied that there is irrefutable material on record to thwart this presumption, and therefore the Courts should be cautious while determining the question of according legitimacy under the Law.
Simply put, in exercise of its judicial activism, the Courts should not forget an ever more compulsive obligation of Judicial Restraint, because striking down the law should be used as a last resort.
The High Court had therefore clearly erred in wrongly applying the Doctrine of Severability, and by giving a novel interpretation to the provision in question.
The Supreme Court therefore held that in accordance with the principles espoused under the Separation of Powers, it was the constitutional obligation of the Parliament to deem it fit, whether to incorporate any changes under the law.
All that was required to be done was to add a Proviso, which would suggest that no criminal liability under this provision may arise if the sexual intercourse has been consented to between two adults. But the power to do the same was that of Legislature, and not of Judiciary.
Was Naz Foundation responsible for not placing sufficient Evidence on Record to show Violation of Fundamental Rights?
In order to refute the presumption of constitutionality, it has to be established that there has been a tangible violation of the Fundamental Rights, and not merely a possibility that the Fundamental Rights could be abused.
It is very interesting to suggest that the Hon’ble Supreme Court made a trite observation in Paragraph 40 of its judgment on page 78 stating that it was none other than Naz Foundation itself, which had clearly failed to give any tangible evidence to suggest that there was indeed a violation of Fundamental Rights. The relevant extract has been reproduced as under:
“40. The writ petition filed by respondent No.1 was singularly laconic inasmuch as except giving brief detail of the work being done by it for HIV prevention targeting MSM community, it miserably failed to furnish the particulars of the incidents of discriminatory attitude exhibited by the State agencies towards sexual minorities and consequential denial of basic human rights to them. Respondent No.1 has also not furnished the particulars of the cases involving harassment and assault from public and public authorities to sexual minorities.”
According to the Supreme Court, a mere possibility that a provision may be used to discriminate against a particular segment itself will not be sufficient to declare the law invalid.
There has to be sufficient proof which leads to an irrefutable conclusion that there has been an actual breach of Fundamental Rights of individuals. According to the Hon’ble Supreme Court, the Naz Foundation had not lead sufficient evidence to support its claim.
The evidentiary value of NGO Reports, which were placed on record and the growing HIV percentage in LGBT community itself does not show how Section 377 has been misused. In contrast, the Home Ministry placed heavy documentary evidence of all the reported cases under Section 377 which went on to suggest that in an overwhelming majority of cases, Section 377 has been invoked only in cases where children and women were sexually abused.
On the basis of which argument was made that this provision has not been misused rampantly, and that it is functioning reasonably ever since its inception.
Where did the Supreme Court go wrong?
For the Supreme Court, there were two probable lines of thought to be taken.
To either go with the letter of the law under Section 377, presume its constitutionality, and give an orthodox interpretation to it by according it legitimacy.
Or to go with the spirit of the law as it should have been, and in exercise of its plenary powers under Article 142, the Supreme Court could have accorded legitimacy to the decision arrived at by the Hon’ble High Court, and could have dismissed the said provision. But there were certain inherent flaws in adopting either of the reasoning.
The High Court rendered a near perfect rationale for declaring the law as unconstitutional, but did not do so in absolute terms, which was a fatal and incurable error.
As that conclusive determination would become the final operative order of the Court, which was nothing but an act of legislating. According to legitimacy to such an act would have established a bad precedent.
Furthermore, according to the Hon’ble Supreme Court of India the Naz Foundation could not satisfactorily establish that there were violations of the Fundamental Rights of the community, although it is strange to see that on the basis of the same material, the High Court was satisfied that the evidence led was sufficient to suggest that there was an actual breach of fundamental rights, but the same line of reasoning was not adopted by the Supreme Court, which upon perusal of the material placed on record stated that the evidence led was insufficient to prove that there was a violation of the Fundamental Rights.
Error in Classification
It is a cardinal principle of Constitutional Law, that for an act to be valid under Article 14, it has to create a class of individuals to which the provision will apply as against the rest to which this provision shall not apply, and that such classification should be based on an intelligible differentia, which means nothing but a reasonable justification for distinction.
The actual classification was between “criminalizing nonconsensual intercourse against the order of nature” versus “not criminalizing consensual adult intercourse”.
By criminalizing consensual sexual conduct by an adult, the entire community of MSM were being targeted, and therefore this act should have been invalidated. The Hon’ble Supreme Court however adverted to the following reasoning on Page 77:
“…..It is relevant to mention here that the Section 377 IPC does not criminalize a particular people or identity or orientation. It merely identifies certain acts which if committed would constitute an offence. Such a prohibition regulates sexual conduct regardless of gender identity and orientation.”
The provision may prima facie appear to not have criminalized a community, but when an act of sexual intercourse is the only manner in which two gays would express affection, criminalizing this act, would inviolably result into criminalizing their expression of love and a severe restriction on their very being, and thereby stigmatizing the entire community.
Furthermore, Para 42 on Page 82 was another passage, wherein the Supreme Court faulted while determining as to what is the reasonable classification.
Instead of drawing a classification between “consenting Carnal intercourse between two adults” and “nonconsensual carnal intercourse”, the Supreme Court classified “carnal intercourse within ordinary course of nature” as against “carnal intercourse against the order of nature” as two distinct entities.
This in a way suggested that this provision will continue to punish all such acts which are against the ordinary course of nature, irrespective of whether they are consensual or not, or whether they are done publically or privately.
It is only under these two accounts that the reasoning employed by the Supreme Court was widely criticized.
Naz Foundation Case is indeed queer to the extent that it presents two dichotomous views.
An excellent reasoning by the High Court but a flawed conclusion, which was in excess of its powers may have given Naz Foundation the much deserved victory, but also became the very instrument on the basis of which the Supreme Court reversed the conclusion adopted by the High Court, but gave a very flawed reasoning in support of its conclusions.
There also have been remarks that the Supreme Court could have, in the exercise of its Plenary powers laid down guidelines under Article 142, but the same could not have been done, as that would have amounted to an act of legislating, the same act for which it overruled the determination of the High Court.
The fate of the case however rests in the scales of a possible reference to a larger bench in near future, or a possible amendment of the law, which was so graciously endorsed by the Government, perhaps a vital expression of its haste to make a law before the next General Elections.
Be that as may, on a parting note, solace can be sought in the words of Jeremy Bentham who said that Laws governing moral conduct would always be prone to subjectivity, and arbitrary application, at the will of the ruler.