* 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 nonvaginal
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. Oralgenital
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 nonprocreative
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 NACPIII
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
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gender neutral. If Section 377 IPC is struck down there will
be no way the State can prosecute any crime of nonconsensual
carnal intercourse against the order of nature or
gross male indecency. He hastens to add that Section 377
IPC is not enforced against 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 decriminalised.
He, therefore, submits that the Section 377 IPC
is constitutionally valid.
(iii) Mr.Ravi Shankar Kumar, appearing for respondent
No.6, and Mr.H.P. Sharma, appearing for respondent No.7,
submitted that the petitioner's arguments with respect to
the spread of HIV and AIDS are founded on propaganda and
are not factually correct. Section 377 IPC prevents HIV by
discouraging rampant homosexuality. According to them,
Indian society considers homosexuality to be repugnant,
immoral and contrary to the cultural norms of the country.
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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
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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”
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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]
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PRIVACY
29. Article 12 of the Universal Declaration of Human Rights
(1948) refers to privacy and it states:
"No one shall be subjected to arbitrary interference with
his privacy, family, home or correspondence nor to
attacks upon his honour and reputation. Everyone has
the right to the protection of the law against such
interference or attacks."
Article 17 of the International Covenant of Civil and Political
Rights (to which India is a party), refers to privacy and states
that:
"No one shall be subjected to arbitrary or unlawful
interference with his privacy, family, home and
correspondence, nor to unlawful attacks on his honour
and reputation."
30. The European Convention on Human Rights also states that:
"1. Everyone has the right to respect for his private and
family life, his home and his correspondence.
2. There shall be no interference by a public authority
except such as is in accordance with law and is
necessary in a democratic society in the interests of
national security, public safety or the economic wellbeing
of the country, for the protection of health or
morals or for the protection of the rights and freedoms
of others."
31. In India, our Constitution does not contain a specific
provision as to privacy but the right to privacy has, as we
shall presently show, been spelt out by our Supreme Court
from the provisions of Article 19(1)(a) dealing with freedom
of speech and expression, Article 19(1)(d) dealing with right
to freedom of movement and from Article 21, which deals
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with right to life and liberty. We shall first refer to the caselaw
in US relating to the development of the right to privacy
as these cases have been adverted to in the decisions of our
Supreme Court. 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
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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
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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
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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
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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,
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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
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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
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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.
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[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.
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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
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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
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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 selfworth
in numerous ways, including (a) self-reflection, (b)
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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
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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
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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
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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
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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 antidiscrimination
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 decriminalised
by statute in 1989 in respect of such acts
committed in private between 21 years and older which was
subsequently brought down to age of 18 years or more. In
United States of America though the challenge to sodomy
laws was turned down in 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
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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.
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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
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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_hivaids.
htm]
66. The “Delhi Declaration of Collaboration, 2006” issued
pursuant to International Consultation on Male Sexual Health
and HIV, co-hosted by the Government of India, UNAIDS and
Civil Society Organisations, recognised that: “... the stigma,
discrimination and criminalisation faced by men who have
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
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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, egodystonic
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
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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.
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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
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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
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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;
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(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
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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
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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
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group; and (ii) that the differentia must have a rational
relation to the objective sought to be achieved by the
statute in question. The classification may be founded on
differential basis according to objects sought to be achieved
but what is implicit in it is that there ought to be a nexus,
i.e., causal connection between the basis of classification
and object of the statute under consideration. [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
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and have the right to equal protection and benefit of
the law.
EQUAL TREATMENT
Equal treatment, as an aspect of equality, is not
equivalent to identical treatment. To realise full and
effective equality, it is necessary to treat people
differently according to their different circumstances, to
assert their equal worth and to enhance their
capabilities to participate in society as equals.”
Part-II of the Declaration lays down the right to nondiscrimination.
The right to non-discrimination is stated to
be a free-standing fundamental right, subsumed in the right
to equality. Discrimination is defined as follows:
“Discrimination must be prohibited where it is on
grounds of race, colour, ethnicity, descent, 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
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as having a characteristic associated with a prohibited
ground.
Discrimination may be direct or indirect.
Direct discrimination occurs when for a reason related
to one or more prohibited grounds a person or group of
persons is treated less favourably than another person
or another group of persons is, has been, or would be
treated in a comparable situation; or when for a reason
related to one or more prohibited grounds a person or
group of persons is subjected to a detriment. Direct
discrimination may be permitted only very
exceptionally, when it can be justified against strictly
defined criteria.
Indirect discrimination occurs when a provision,
criterion or practice would put persons having a status
or a characteristic associated with one or more
prohibited grounds at a particular disadvantage
compared with other persons, unless that provision,
criterion or practice is objectively justified by a
legitimate aim, and the means of achieving that aim
are appropriate and necessary.
Harassment constitutes discrimination when unwanted
conduct related to any prohibited ground takes place
with the purpose or effect of violating the dignity of a
person or of creating an intimidating, hostile,
degrading, humiliating or offensive environment.
(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
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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 nonconformity,
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
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harmful to personal confidence and self-esteem.
Compounding that effect is the implicit message
conveyed by the exclusion, that gays and
lesbians, unlike other individuals, are not worthy
of protection. This is clearly an example of a
distinction which demeans the individual and
strengthens and perpetrates [sic] the view that
gays and lesbians are less worthy of protection as
individuals in Canada’s society. The potential
harm to the dignity and perceived worth of gay
and lesbian individuals constitutes a particularly
cruel form of discrimination.”[para 102]
These observations were made in the context of
discrimination on grounds of 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
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ground of sexual orientation as the prohibited ground of sexdiscrimination
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
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characteristics which have the potential to impair the
fundamental dignity of persons as human beings, or to affect
them adversely in a comparably serious manner.
Elaborating on what it means by potential impairment of
dignity, the Court resisted the temptation of laying down any
such 'test' for discerning 'unspecified' grounds, but has this
to say by way of guidelines, “In some cases they relate to
immutable biological attributes or characteristics, in some to
the associational life of humans, in some to the intellectual,
expressive and religious dimensions of humanity and in
some cases to a combination of one or more of these
features”. It needs to be noted that on account of the
prevalent wider knowledge of the discrimination on account
of 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.
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“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 preconstitutional
legislation and although it is saved in terms of
Article 372 of the Constitution, challenge to its validity on
the touchstone of Articles 14, 15 and 19 of the Constitution
of India, is permissible in law. There is thus no presumption
[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].
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107. The Court discussed two distinct concepts – “strict scrutiny”
borrowed from the US jurisprudence, and “proportionality
review” which has its origin in the jurisprudence of Canadian
and European courts. The Court held that the interference
prescribed by the State for pursuing the ends of protection
should be proportionate to the legitimate aims. The standard
for judging the proportionality should be a standard capable
of being called reasonable in a modern democratic society.
The Court further held that legislations with pronounced
“protective discrimination” aims, such as Section 30,
potentially serve as double edged swords. Strict scrutiny
should be employed while assessing the implications of this
variety of legislations. Legislation should not be only
assessed on its proposed aims but rather on the implications
and the effects. The Court then went on to state the
principle of personal autonomy with a special judicial role
when dealing with laws reflecting oppressive cultural norms
that especially target minorities and vulnerable groups.
“.....the issue of 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]
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108. The Court held that Article 15's prohibition of sex
discrimination implies the right to autonomy and selfdetermination,
which places emphasis on individual choice.
Therefore, a measure that disadvantages a vulnerable group
defined on the basis of a characteristic that relates to
personal autonomy must be subject to strict scrutiny.
“46. ....The impugned legislation suffers from
incurable fixations of stereotype morality and
conception of 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
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any other like basis. In fine, there should be a
reasonable relationship of proportionality
between the means used and the aim pursued.”
(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
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a vulnerable group defined on the basis of a characteristic
that relates to personal autonomy must be subject to strict
scrutiny.
112. Thus personal autonomy is inherent in the grounds
mentioned in Article 15. The grounds that are not specified
in Article 15 but are analogous to those specified therein, will
be those which have the potential to impair the personal
autonomy of an individual. This view was earlier indicated in
Indra Sawhney v. Union of India, (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]
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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
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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.
.......
.......
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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 selfrestraint
and the sobering reflection that the
Constitution is meant not only for people of their
way of thinking but for all, and that the majority of
the elected representatives of the people have, in
authorising the imposition of the restrictions,
considered them to be reasonable.”
118. It is true that the courts should ordinarily defer to the
wisdom of the legislature while exercising the power of
judicial review of legislation. But it is equally well settled
that the degree of deference to be given to the legislature is
dependent on the subject matter under consideration.
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When matters of “high constitutional importance” such as
constitutionally entranched human rights – are under
consideration, the courts are obliged in discharging their
own sovereign jurisdiction, to give considerably less
deference to the legislature than would otherwise be the
case. In 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:
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“Wherever a statute is challenged as violative of
the fundamental rights, its real effect or
operation on the fundamental rights is of primary
importance. It is the duty of the court to be
watchful to protect the constitutional rights of a
citizen as against any encroachment gradually or
stealthily thereon. When a law has imposed
restrictions on the fundamental rights, what the
court has to examine is the substance of the
legislation without being beguiled by the mere
appearance of the legislation. The Legislature
cannot disobey the constitutional mandate by
employing an indirect method. The court must
consider not merely the purpose of the law but
also the means how it is sought to be secured or
how it is to be administered. The object of the
legislation is not conclusive as to the validity of
the legislation...... The court must lift the veil of
the form and appearance to discover the true
character and the nature of the legislation, and
every endeavour should be made to have the
efficacy of fundamental right maintained and the
legislature is not invested with unbounded
power. The court has, therefore, always to guard
against the gradual encroachments and strike
down a restriction as soon as it reaches that
magnitude of total annihilation of the right.”
[para 48 of SCC]
125. After the conclusion of oral hearing, learned ASG filed his
written submissions in which he claimed that the courts
have only to interpret the law as it is and have no power to
declare the law invalid. According to him, therefore, if we
were to agree with the petitioner, we could only make
recommendation to Parliament and it is for Parliament to
amend the law. We are constrained to observe that the
submission of learned ASG reflects rather poorly on his
understanding of the constitutional scheme. It is a
fundamental principle of our constitutional scheme that
every organ of the State, every authority under the
Constitution derives its power or authority under the
[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 nondiscrimination. This was the 'spirit behind the Resolution' of which Nehru spoke so passionately. In our view, Indian Constitutional law does not permit the statutory criminal law to be held captive by the popular misconceptions of who the LGBTs are. It cannot be forgotten that discrimination is antithesis of equality and that it is the recognition of equality which will foster the dignity of every individual.
[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
+ 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 nonvaginal
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. Oralgenital
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 nonprocreative
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 NACPIII
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
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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
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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
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gender neutral. If Section 377 IPC is struck down there will
be no way the State can prosecute any crime of nonconsensual
carnal intercourse against the order of nature or
gross male indecency. He hastens to add that Section 377
IPC is not enforced against 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 decriminalised.
He, therefore, submits that the Section 377 IPC
is constitutionally valid.
(iii) Mr.Ravi Shankar Kumar, appearing for respondent
No.6, and Mr.H.P. Sharma, appearing for respondent No.7,
submitted that the petitioner's arguments with respect to
the spread of HIV and AIDS are founded on propaganda and
are not factually correct. Section 377 IPC prevents HIV by
discouraging rampant homosexuality. According to them,
Indian society considers homosexuality to be repugnant,
immoral and contrary to the cultural norms of the country.
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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
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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”
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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]
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PRIVACY
29. Article 12 of the Universal Declaration of Human Rights
(1948) refers to privacy and it states:
"No one shall be subjected to arbitrary interference with
his privacy, family, home or correspondence nor to
attacks upon his honour and reputation. Everyone has
the right to the protection of the law against such
interference or attacks."
Article 17 of the International Covenant of Civil and Political
Rights (to which India is a party), refers to privacy and states
that:
"No one shall be subjected to arbitrary or unlawful
interference with his privacy, family, home and
correspondence, nor to unlawful attacks on his honour
and reputation."
30. The European Convention on Human Rights also states that:
"1. Everyone has the right to respect for his private and
family life, his home and his correspondence.
2. There shall be no interference by a public authority
except such as is in accordance with law and is
necessary in a democratic society in the interests of
national security, public safety or the economic wellbeing
of the country, for the protection of health or
morals or for the protection of the rights and freedoms
of others."
31. In India, our Constitution does not contain a specific
provision as to privacy but the right to privacy has, as we
shall presently show, been spelt out by our Supreme Court
from the provisions of Article 19(1)(a) dealing with freedom
of speech and expression, Article 19(1)(d) dealing with right
to freedom of movement and from Article 21, which deals
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with right to life and liberty. We shall first refer to the caselaw
in US relating to the development of the right to privacy
as these cases have been adverted to in the decisions of our
Supreme Court. 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
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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
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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
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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
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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,
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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
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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
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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.
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[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.
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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
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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
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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 selfworth
in numerous ways, including (a) self-reflection, (b)
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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
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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
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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
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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 antidiscrimination
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 decriminalised
by statute in 1989 in respect of such acts
committed in private between 21 years and older which was
subsequently brought down to age of 18 years or more. In
United States of America though the challenge to sodomy
laws was turned down in 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
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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.
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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
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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_hivaids.
htm]
66. The “Delhi Declaration of Collaboration, 2006” issued
pursuant to International Consultation on Male Sexual Health
and HIV, co-hosted by the Government of India, UNAIDS and
Civil Society Organisations, recognised that: “... the stigma,
discrimination and criminalisation faced by men who have
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
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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, egodystonic
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
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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.
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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
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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;
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(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
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and have the right to equal protection and benefit of
the law.
EQUAL TREATMENT
Equal treatment, as an aspect of equality, is not
equivalent to identical treatment. To realise full and
effective equality, it is necessary to treat people
differently according to their different circumstances, to
assert their equal worth and to enhance their
capabilities to participate in society as equals.”
Part-II of the Declaration lays down the right to nondiscrimination.
The right to non-discrimination is stated to
be a free-standing fundamental right, subsumed in the right
to equality. Discrimination is defined as follows:
“Discrimination must be prohibited where it is on
grounds of race, colour, ethnicity, descent, 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
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as having a characteristic associated with a prohibited
ground.
Discrimination may be direct or indirect.
Direct discrimination occurs when for a reason related
to one or more prohibited grounds a person or group of
persons is treated less favourably than another person
or another group of persons is, has been, or would be
treated in a comparable situation; or when for a reason
related to one or more prohibited grounds a person or
group of persons is subjected to a detriment. Direct
discrimination may be permitted only very
exceptionally, when it can be justified against strictly
defined criteria.
Indirect discrimination occurs when a provision,
criterion or practice would put persons having a status
or a characteristic associated with one or more
prohibited grounds at a particular disadvantage
compared with other persons, unless that provision,
criterion or practice is objectively justified by a
legitimate aim, and the means of achieving that aim
are appropriate and necessary.
Harassment constitutes discrimination when unwanted
conduct related to any prohibited ground takes place
with the purpose or effect of violating the dignity of a
person or of creating an intimidating, hostile,
degrading, humiliating or offensive environment.
(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
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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 nonconformity,
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
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harmful to personal confidence and self-esteem.
Compounding that effect is the implicit message
conveyed by the exclusion, that gays and
lesbians, unlike other individuals, are not worthy
of protection. This is clearly an example of a
distinction which demeans the individual and
strengthens and perpetrates [sic] the view that
gays and lesbians are less worthy of protection as
individuals in Canada’s society. The potential
harm to the dignity and perceived worth of gay
and lesbian individuals constitutes a particularly
cruel form of discrimination.”[para 102]
These observations were made in the context of
discrimination on grounds of 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 sexdiscrimination
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 preconstitutional
legislation and although it is saved in terms of
Article 372 of the Constitution, challenge to its validity on
the touchstone of Articles 14, 15 and 19 of the Constitution
of India, is permissible in law. There is thus no presumption
[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 selfdetermination,
which places emphasis on individual choice.
Therefore, a measure that disadvantages a vulnerable group
defined on the basis of a characteristic that relates to
personal autonomy must be subject to strict scrutiny.
“46. ....The impugned legislation suffers from
incurable fixations of stereotype morality and
conception of 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 selfrestraint
and the sobering reflection that the
Constitution is meant not only for people of their
way of thinking but for all, and that the majority of
the elected representatives of the people have, in
authorising the imposition of the restrictions,
considered them to be reasonable.”
118. It is true that the courts should ordinarily defer to the
wisdom of the legislature while exercising the power of
judicial review of legislation. But it is equally well settled
that the degree of deference to be given to the legislature is
dependent on the subject matter under consideration.
[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 nondiscrimination. This was the 'spirit behind the Resolution' of which Nehru spoke so passionately. In our view, Indian Constitutional law does not permit the statutory criminal law to be held captive by the popular misconceptions of who the LGBTs are. It cannot be forgotten that discrimination is antithesis of equality and that it is the recognition of equality which will foster the dignity of every individual.
[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
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