Suresh Kumar Koushal and another Vs. NAZ Foundation and others
[Civil Appeal No. 10972 of 2013 arising out of SLP(C) No.15436 of 2009]
[Civil Appeal No. 10974 of 2013 arising out of SLP(C) No.37703 of 2013 @ CC NO.13105 of 2009]
[Civil Appeal No. 10986 of 2013 arising out of SLP(C) No.37708 of 2013 @ CC NO.14042 of 2009]
[Civil Appeal No. 10981 of 2013 arising out of SLP(C) No.37705 of 2013 @ CC NO.19478 of 2009]
[Civil Appeal No. 10983 of 2013 arising out of SLP(C) No.20913 of 2009]
[Civil Appeal No. 10984 of 2013 arising out of SLP(C) No.20914 of 2009]
[Civil Appeal No. 10975 of 2013 arising out of SLP(C) No.22267 of 2009]
[Civil Appeal No. 10973 of 2013 arising out of SLP(C) No.24334 of 2009]
[Civil Appeal No. 10985 of 2013 arising out of SLP(C) No.25346 of 2009]
[Civil Appeal No. 10976 of 2013 arising out of SLP(C) No.34187 of 2009]
[Civil Appeal No. 10980 of 2013 arising out of SLP(C) No.36216 of 2009]
[Civil Appeal No. 10982 of 2013 arising out of SLP(C) No.37706 of 2013 @ CC NO.425 of 2010]
[Civil Appeal No. 10977 of 2013 arising out of SLP(C) No.286 of 2010]
[Civil Appeal No. 10978 of 2013 arising out of SLP(C) No.872 of 2010]
[Civil Appeal No. 10979 of 2013 arising out of SLP(C) No.873 of 2010]
G.S. SINGHVI, J.
1. Leave granted.
2. These appeals are directed against order dated 2.7.2009 by which the Division Bench of the Delhi High Court allowed the writ petition filed by NAZ Foundation - respondent No.1 herein, by way of Public Interest Litigation (PIL) challenging the constitutional validity of Section 377 of the Indian Penal Code, 1860 (IPC) in the following terms: "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."
3. The Background facts:
i. Respondent No.1 is a Non-Governmental Organisation (NGO) registered under the Societies Registration Act, 1860 which works in the field of HIV/AIDS intervention and prevention. Its work has focussed on targeting 'men who have sex with men' (MSM) or homosexuals or gays in consonance with the integrationist policy. Alleging that its efforts have been severely impaired by the discriminatory attitudes exhibited by State authorities towards sexual minorities, MSM, lesbians and transgender individuals and that unless self respect and dignity is restored to these sexual minorities by doing away with discriminatory laws such as Section 377 IPC it will not be possible to prevent HIV/AIDS, NAZ Foundation filed WP(C) No. 7455/2001before the Delhi High Court impleading the Government of NCT of Delhi; Commissioner of Police, Delhi; Delhi State Aids Control Society;
National Aids Control Organisation (NACO) and Union of India through Ministry of Home Affairs and Ministry of Health & Family Welfare and prayed for grant of a declaration that Section 377 IPC to the extent it is applicable to and penalises sexual acts in private between consenting adults is violative of Articles 14, 15, 19(1)(a)-(d) and 21 of the Constitution. Respondent No.1further prayed for grant of a permanent injunction restraining Government of NCT of Delhi and Commissioner of Police, Delhi from enforcing the provisions of Section 377 IPC in respect of sexual acts in private between consenting adults.
ii. Respondent No.1 pleaded that the thrust of Section 377 IPC is to penalise sexual acts which are "against the order of nature"; that the provision is based on traditional Judeo-Christian moral and ethical standards and is being used to legitimise discrimination against sexual minorities; that Section 377 IPC does not enjoy justification in contemporary Indian society and that the section's historic and moral underpinning do not resonate with the historically held values in Indian society concerning sexual relations.
Respondent No.1 relied upon 172ndReport of the Law Commission which had recommended deletion of Section 377and pleaded that notwithstanding the recent prosecutorial use of Section377 IPC, the same is detrimental to people's lives and an impediment to public health due to its direct impact on the lives of homosexuals; that the section serves as a weapon for police abuse in the form of detention, questioning, extortion, harassment, forced sex, payment of hush money; that the section perpetuates negative and discriminatory beliefs towards same sex relations and sexual minorities in general; and that as a result of that it drives gay men and MSM and sexual minorities generally underground which cripples HIV/AIDS prevention methods.
According to respondent No.1,Section 377 is used predominantly against homosexual conduct as it criminalises activity practiced more often by men or women who are homosexually active. The evidence that refutes the assumption that non-procreative sexual acts are unnatural includes socio-scientific and anthropological evidence and also the natural presence of homosexuality in society at large.
iii. That private, consensual sexual relations are protected under the right to liberty under Article 21 under the privacy and dignity claim. It was further pleaded that Section 377 IPC is not a valid law because there exists no compelling State interest to justify the curtailment of an important fundamental freedom; that Section 377 IPC insofar as it criminalises consensual, non-procreative sexual relations is unreasonable and arbitrary and therefore violative of Article 14.
iv. Another plea taken by respondent No.1 was that Section 377 creates a classification between "natural" (penile-vaginal) and "unnatural" (penile-non-vaginal) penetrative sexual acts. The legislative objective of penalising unnatural acts has no rational nexus with the classification between natural (procreative) and unnatural (non-procreative) sexual acts and is thus violative of Article 14.
4. By an order dated 2.9.2004, the Division Bench of the High Court dismissed the writ petition by observing that no cause of action has accrued to respondent No.1 and purely academic issues cannot be examined by the Court. The review petition filed by respondent No.1 was also dismissed by the High Court vide order dated 3.11.2004.
5. Respondent No.1 challenged both the orders in SLP (C) Nos. 7217-7218/2005, which were converted to Civil Appeal No. 952/2006. This Court allowed the appeal vide order dated 3.2.2006 and remitted the writ petition for fresh decision by the High Court. The relevant portions of that order are reproduced below: "The challenge in the writ petition before the High Court was to the constitutional validity of Section 377 of the Indian Penal Code, 1860. The High Court, without examining that issue, dismissed the writ petition by the impugned order observing that there is no case of action in favour of the appellant as the petition cannot be filed to test the validity of the Legislation and, therefore, it cannot be entertained to examine the academic challenge to the constitutionality of the provision.
The learned Additional Solicitor General, if we may say so, rightly submits that the matter requires examination and is not of a nature which ought to have been dismissed on the ground afore-stated. We may, however, note that the appeal is being strenuously opposed by Respondent No.6. We are, however, not examining the issue on merits but are of the view that the matter does require consideration and is not of a nature which could have been dismissed on the ground afore- stated. In this view, we set aside the impugned judgment and order of the High Court and remit Writ Petition (C) No.7455 of 2001 for its fresh decision by the High Court."
6. NACO and the Health Ministry had filed counter in the form of an affidavit of Shri M.L. Soni, Under Secretary to the Government of India, Ministry of Health & Family Welfare, National AIDS Control Organisation. He outlined the strategy adopted by NACO for prevention and control of HIV/AIDS in India which includes identification of high risk groups and the provision of necessary tools and information for protection and medical care. The deponent averred that National Sentinel Surveillance Data 2005estimated that HIV prevalence in "men who have sex with men" (MSM) is 8%while in general population it is lesser than 1%. The MSM population is estimated at 25 lacs as of January 2006. Shri Soni also stated that NACO has developed programmes for undertaking targeted interventions among MSM population and that for prevention of HIV/AIDS there is a need for an enabling environment where people indulging in risky behaviour may be encouraged not to conceal information so that they are provided with access to NACO services.
7. On behalf of the Ministry of Home Affairs, Government of India, Shri Venu Gopal, Director (Judicial) filed an affidavit and pleaded that Section377 does not suffer from any constitutional infirmity. Shri Venu Gopal further pleaded that an unlawful act cannot be rendered legitimate because the person to whose detriment it acts consents to it; that Section 377 has been applied only on complaint of a victim and there are no instances of arbitrary use or application in situations where the terms of the section do not naturally extend to Section 377 IPC ; that Section 377 IPC is not violative of Articles 14 and 21 of the Constitution. According to Shri Venu Gopal, Section 377 IPC provides a punishment for unnatural sexual offences, carnal intercourse against the order of nature and does not make any distinction between procreative and non-procreative sex.
8. Joint Action Council Kannur and Shri B.P. Singhal, who were allowed to act as interveners, opposed the prayer made in the writ petition and supported the stand taken by the Government. Another intervener, i.e., Voices Against 377, supported the prayer of respondent No.1 that Section377 should be struck down on the ground of unconstitutionality.
9. The Division Bench of the High Court extensively considered the contentions of the parties and declared that Section 377, insofar as it criminalises consensual sexual acts of adults in private is violative of Articles 21, 14 and 15 of the Constitution. While dealing with the question relating to violation of Article 21, the High Court outlined the enlarged scope of the right to life and liberty which also includes right to protection of one's dignity, autonomy and privacy, the Division Bench referred to Indian and foreign judgments, the literature and international understanding (Yogyakarta Principles) relating to sexuality as a form of identity and the global trends in the protection of privacy and dignity rights of homosexuals and held:
"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 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.
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 transgender 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 protected by constitutional armour. The spirit of Man is at the root of Article 21, absent liberty, other freedoms are frozen.
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 brutalizing 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."
10. The High Court discussed the question whether morality can be aground for imposing restriction on fundamental rights, referred to the judgments in Gobind v. State of Madhya Pradesh and another (1975) 2 SCC148, Lawrence v. Texas 539 U.S. 558 (2003), Dudgeon v. UK, European Court of Human Rights Application No.7525/1976, Norris v. Republic of Ireland, European Court of Human Rights Application No. 10581/1983, The National Coalition for Gay and Lesbian Equality v. The Minister of Justice, South African Constitutional Court 1999 (1) SA 6, the words of Dr. Ambedkar quoting Grotius while moving the Draft Constitution, Granville Austin in his treatise
"The Indian Constitution - Cornerstone of A Nation", the Wolfe den Committee Report, 172nd Law Commission of India Report, the address of the Solicitor General of India before United Nations Human Rights Council, the opinion of Justice Michael Kirby, former Judge of the Australian High Court and observed: "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. 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 Wolfen den 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' 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 realization about urgent need to follow global trends on the issue of sexual 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 criminalization 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- criminalization of such activity, so that they can be identified and better focused upon. 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."
11. The High Court then considered the plea of respondent No.1 that Section 377 is violative of Article 14 of the Constitution, referred to the tests of permissible classification as also the requirements of reasonableness and non-arbitrariness as laid down by this Court and held that the classification created by Section 377 IPC does not bear any rational nexus to the objective sought to be achieved. The observations made by the High Court on this issue are extracted below:
"It is clear that Section 377 IPC , whatever its 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 criminalizing 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 citizen's lives or regulate conduct to which the citizen alone is concerned solely on the basis of public morals. The criminalization 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 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."
12. The High Court took note of the Declaration of Principles of Equality issued by the Equal Rights Trust in April, 2008. It referred to the judgments in The National Coalition for Gay and Lesbian Equality v. The Minister of Justice, Lawrence v. Texas, Romer v Evans, Vriend v. Alberta and held: "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 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].
13. The High Court also discussed the case of Anuj Garg v. Hotel Association of India in detail and made reference to the principles of strict scrutiny and proportionality review as borrowed from the jurisprudence of the US Supreme Court, the Canadian and European Courts and proceeded to observe: "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 a vulnerable group defined on the basis of a characteristic that relates to personal autonomy must be subject to strict scrutiny. 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.... 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 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. 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 (1981) 1 SCC 608, Para 6 of SCC]."
14. Finally, the High Court elaborated upon the scope of the Court's power to declare a statutory provision invalid, referred to the judgments in State of Madras v. V.G. Row, R. (Alconbury Ltd.) v. Environment Secretary, [2001] 2 WLR 1389, West Virginia State Board of Education v. Barnette, 319 US 624 (1943), 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, Peerless General Finance Investment Co. Ltd. v. Reserve Bank of India, (1992) 2 SCC 343 and held:
"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. When matters of "high constitutional importance" such as constitutionally entrenched 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 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. 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 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."
15. The order of the High Court has been challenged by large number of organizations and individuals including Joint Action Council Kannur and Shri B.P. Singhal, who were interveners before the High Court. During the pendency of the special leave petitions several individuals and organisations filed IAs for permission to intervene. All the IAs were allowed vide order dated 7.2.2011 and the applicants were permitted to act as interveners. The details of the parties and interveners before this Court are as under:
Case Number
Name
Description before the Court
Details
SLP (C) No. 15436/2009 (CC No. 9255/2009)
Suresh Kumar Koushal & Anr.
Petitioners (Not parties before the High Court)
Petitioners are citizens of India who believe they have the moral responsibility and duty in protecting cultural values of Indian society.
Samajik Ekta Party
Intervener -IA No. 4/1/2009
The applicant is a political party registered by the Election Commission of India under Sec 29A, Representation of People Act, 1951 vide order dt. 20.4.1995. It is interested in the welfare of the citizens, their rights, functioning of the State and interest of public at large.
Mr. Shyam Benegal
Intervener -IA No. 6/1/2009
The applicant is a film maker and a citizen. He seeks impleadment in the SLP in light of the fact that due to the misunderstanding and confusion of thought with regard to homosexuality, all points of view must be projected before this Hon'ble Court.
Trust God Missionaries
Interveners - IA No. 7/1/2010
The applicant is a registered charitable trust having the main aim to preserve and protect life for humanity and earth and takes support from human rights, social and religious organisations, such as CBCI, NCCI and KCBC, etc. The applicant claims to be vitally interested in the outcome of the appeal and is an affected party.
Minna Saran & Others (Parents of LGBT Children)
Interveners - IA No. 8/1/2010
The applicants are parents of lesbian, gay, bisexual and transgender persons from different professional, socio-cultural backgrounds and different regions of India. They have a direct and immediate stake in the proceedings and are necessary and proper parties. No prejudice will be caused to the petitioners if the applicants are impleaded but the applicants will sufferer irreparable harm and damage as criminalisation not only affects the LGBT persons but also their families. Their struggles of having to understand sexuality at odds with Section 377 IPC have resulted in accepting their children's sexuality and they are acutely aware of the social stigma prejudice, myths and stereotypes that surround the subject of homosexuality in India.
Dr. Shekhar Seshadri & Others (Professor of Psychiatry at the National Institute of Mental Health and Neuro Sciences, Bangalore)
Interveners - IA No.9/1/2010
The Applicants are mental health professionals who have been practising as psychiatrists, clinical psychologists and behavioral psychologists in the field of mental health in reputed medical institutions throughout India. They claim to have had considerable expertise in addressing the mental health concerns of Lesbian, Gay, Bisexual and Transgender persons. The Applicants submit that sexual orientation is an immutable characteristic and is present at birth.
Nivedita Menon & Others (Professor in Political Thought, Jawaharlal Nehru University)Ratna Kapur & Ors.
Interveners - I.A. No.10/1/2010
The Applicants are academicians who wish to contribute to the debate on the issues raised by the judgment and to draw attention to the mental distress caused to the LGBT community.
Interveners - IA No. 13/2011
The applicants are law professors, teachers and research associates with Jindal Global Law School working in different fields of law such as jurisprudence, human rights, sexuality studies and law, criminal justice, and cultural studies and law, and feminist legal theory. They are concerned with the correct interpretation of statutes and the constitutional validity of Section 377 IPC .
SLP (C) No. 24334/2009
Delhi Commission for Protection of Child Rights
Petitioner (Not parties before the High Court)
The petitioner has been constituted under the Commissions for Protection of Child Rights Act, 2005 read with GoI MHA notification dt. 15.1.2008.Under Sec 13(1j) the Commission is empowered to take suo moto notice of deprivation and violation of child rights, non implementation of laws providing for protection and development of children, and non compliance of policy decisions, guidelines or instructions aimed at mitigating hardship and ensuring welfare of children and providing relief. Its functions include: study and monitor matters relating to constitutional and legal rights of children; examine and review safeguards for protection of child rights and effective implementation of the same; review existing law and recommend amendments; look into complaints of taking suo moto action in cases involving violation of child rights; monitor implementation of laws; present reports to the Central Government. It is the moral duty of the Commission to protect the best interest of children and provide them with an atmosphere where the freedom and dignity of all children is safe and a child may bloom without anyfear of abuse, exploitation and deprivation.
CC No. 13105/2009
Ram Murti
Petitioner (not party before the High Court
He is a citizen of India and has a duty to report if something illegal is happening.
SLP (C) No.22267/2009
B.P. Singhal
Petitioner (Respondent 7 - Intervener before the High Court)
SLP (C) No. 34187/2009
B. Krishna Bhat
Petitioner (not a party before the High Court)
The petitioner is a citizen of India and a public spirited individual, social worker and environmentalist who believes in the Rule of Law and has successfully prosecuted a number of PILs in Karnataka High Court, other High Courts and the Supreme Court on issues of protection of green belt, illegal extraction of monies from citizens of Bangalore, property taxes, illegal mining, stray dog menace, development of tanks, shifting of slaughter house, caste based reservation, etc.
SLP (C) No. 286/2010
Joint Action Council, Kannur
Petitioner (respondent 6 - Intervener before the High Court)
SLP (C) No. 872/2010
The Tamil Nadu Muslim Munnetra Kazhagam
Petitioner (not a party before the High Court)
The petitioner is a registered trust working for the betterment of the poor and downtrodden in general and for those belonging to the minority Muslim community in particular. It is a mass based voluntary organisation of Muslims of Tamil Nadu functioning since 1955 in Tamil Nadu. The president appeared before the UN Minority Rights Working Group and the organisation has set up a Tsunami Relief Fund of Rs7 million. It has worked against spread of AIDS and has worked in blood donation and has been given two awards by the Tamil Nadu State AIDS Control Board.
SLP (C) No. 873/2010
Raza Academy
Petitioner (not a party before the High Court)
The petitioner is an organisation working for welfare of the general public and it has done tremendous work in public interest.
SLP (C) No. 36216/200
Krantikati Manuvadi Morcha Party & Anr.
Petitioner (not a party before the High Court)
Krantikari Manuwadi Morcha (Revolutionary Manuist Front), is a Hindutva political organisation in India. It is one of the registered unrecognized political parties in India. The president of KMM is Ram Kumar Bhardwaj, grandson of freedom fighter Rudra Dutt Bhardwaj.
CC No. 19478/2009
Utkal Christian Council rep. by Secretary Miss Jyotsna Rani Patro
Petitioner (not a party before the High Court)
Note: There is no information on the petitioner in the SLP.
CC No. 425/2010
All India Muslim Personal Law Board
Petitioner (not a party before the High Court)
The petitioner is a registered society established to protect and preserve Muslim Personal Laws. It strives to uphold the traditional values and ethos of the Muslim community and promotes essential values of Islam and also a national ethos among Muslims. The members of the society are religious scholars (ulemas), Muslim intellectuals and professionals from different disciplines.
SLP (C) No. 20913/2009
Sh. S.K. Tijarawala
Petitioner (not a party before the High Court)
Petitioner is spokesperson of Yoga Guru Swami Ramdev Ji is running a social welfare trust in the name of "Bharat Swabhiman" Patanjali Yogpeeth Trust. Petitioner is an eminent social worker and writer interested in protecting cultural values of the Indian society.
SLP (C) No. 20914/2009
Apostolic Churches Alliance rep. by its bishop Sam T. Varghese
Petitioner (not a party before the High Court)
With a desire to promote unity, build relationships, and see increased cooperation amongst Churches, a few pastors from growing independent churches in Kerala have come together and formed a body called the "Apostolic Churches Alliance" (ACA). The Alliance has been formed with the primary purpose of addressing spiritual, legal or any other kind of issue which may be relevant to the Churches at any given time or place. The ACA is a registered body with nine Pastors as members of the Core Group and is in its early stages of growth. Pastor Sam T. Varghese of Life Fellowship, Trivandrum, serves as its General Overseer.
SLP (C) No. 25364/2009
Prof. Bhim Singh
Petitioner (not a party before the High Court)
CC No. 14042/2009
Sanatan Dharam Pritinidhi Sabha Delhi (Registered)
Petitioner (not a party before the High Court)
16. ARGUMENTS
16.1 Shri Amrendra Sharan, Senior Advocate appearing for the appellant in Civil Appeal arising out of SLP(C) No.24334/2009 - Delhi Commission for Protection of Child Rights led arguments on behalf of those who have prayed for setting aside the impugned order. He was supported by Shri V. Giri, Senior Advocate appearing for Apostolic Churches Alliance [SLP(C) No.20914/2009] and Utkal Christian Council [SLP(C) No.19478/2009], Shri K. Radhakrishnan, Senior Advocate appearing for intervener - Trust God Missionaries, and S/Shri Sushil Kumar Jain, counsel for the appellant -Kranthikari Manuvadi Morcha Party (SLP(C) No.36216/2009), Huzefa Ahmadiappearing for All India Muslim Personal Law Board (SLP(C) No. CC425/2010),Purshottaman Mulloli appearing in person for Joint Action Council, Kannur(SLP (C) No.286/2010), Ajay Kumar for the appellant - S.K. Tijarawala(SLP(C) No.20913/2009), Praveen Agrawal, counsel for the appellant -Suresh Kumar Koushal (SLP(C) No.15436/2009, H.P. Sharma, counsel for the appellant- B.P. Singhal (SLP(C) No.22267/2009), K.C. Dua, counsel for appellant -S.D. Pritinidhi Sabha Delhi (SLP(C) No.CC 14042/2009), P.V. Yogeswaran for appellant - Bhim Singh (SLP(C) No.25346/2009), Lakshmi Raman Singh, counsel for appellant - Tamil Nadu Muslim Munn. Kazhgam and Mushtaq Ahmad, counsel for appellant - Raza Academy (SLP(C) No.873/2010). Shri Amarendra Sharan made the following arguments:
16.2 That the High Court committed serious error by declaring Section 377IPC as violative of Articles 21, 14 and 15 of the Constitution insofar as it criminalises consensual sexual acts of adults in private completely ignoring that the writ petition filed by respondent no.1 did not contain foundational facts necessary for pronouncing upon constitutionality of a statutory provision. Learned counsel extensively referred to the averments contained in the writ petition to show that respondent no.1 had not placed any tangible material before the High Court to show that Section 377 had been used for prosecution of homosexuals as a class and that few affidavits and unverified reports of some NGOs relied upon by respondent no.1 could not supply basis for recording a finding that homosexuals were being singled out for a discriminatory treatment.
16.3 The statistics incorporated in the affidavit filed on behalf of NACO were wholly insufficient for recording a finding that Section 377 IPC adversely affected control of HIV/AIDS amongst the homosexual community and that decriminalization will reduce the number of such cases.
16.4 The High Court is not at all right in observing that Section 377 IPC obstructs personality development of homosexuals or affects their self-esteem because that observation is solely based on the reports prepared by the academicians and such reports could not be relied upon for grant of a declaration that the section impugned in the writ petition was violative of Articles 14 and 15 of the Constitution. In support of these arguments, learned counsel relied upon the judgments in Southern Petrochemical Industries v. Electricity Inspector (2007) 5 SCC 447, Tamil Nadu Electricity Board v. Status Spinning Mills (2008) 7 SCC 353 and Seema Silkand Sarees v. Directorate of Enforcement (2008) 5 SCC 580.
16.5 That Section 377 IPC is gender neutral and covers voluntary acts of carnal intercourse against the order of nature irrespective of the gender of the persons committing the act. They pointed out that the section impugned in the writ petition includes the acts of carnal intercourse between man and man, man and woman and woman and woman and submitted that no Constitutional right vests in a person to indulge in an activity which has the propensity to cause harm and any act which has the capacity to cause harm to others cannot be validated. They emphasized that anal inter course between two homosexuals is a high risk activity, which exposes both the participating homosexuals to the risk of HIV/AIDS and this become seven grave in case of a male bisexual having intercourse with female partner who may not even be aware of the activity of her partner and is yet exposed to high risk of HIV/AIDS. They argued that Section 377 IPC does not violate the right to privacy and dignity guaranteed under Article 21 of the Constitution.
16.6 That the impugned order does not discuss the concept of "carnal intercourse against the order of nature" and does not adequately show how the section violates the right to privacy and that also the right to privacy can be curtailed by following due process of law and the Code of Criminal Procedure prescribes a fair procedure, which is required to be followed before any person charged of committing an offence under Section377 IPC can be punished. The right to privacy does not include the right to commit any offence as defined under Section 377 IPC or any other section.
16.7 That the legislature has treated carnal intercourse against the order of nature as an offence and the High Court has not given reasons for reading down the section. The presumption of constitutionality is strong and the right claimed should have been directly violated by the statute. Indirect violation is not sufficient for declaring Section 377 IPC violative of Articles 14, 15 and 21 of the Constitution.
16.8 That Article 21 provides that the right to life and liberty is subject to procedure prescribed by law. He referred to the judgments of this Court in A.K. Gopalan v. State of Madras 1950 SCR 88, R.C. Cooper v. Union of India (1970) 1 SCC 248, Maneka Gandhi v. Union of India (1978) 1SCC 248 and submitted that Gopalan's case has not been overruled by Maneka Gandhi's case.
16.9 That the term used in Section 375 IPC , which defines rape is 'sexual intercourse', whereas in Section 377 IPC the expression is 'carnal intercourse'. In Khanu v. Emperor AIR 1925 (Sind), it was held that the metaphor 'intercourse' refers to sexual relations between persons of different sexes where the 'visiting member' has to be enveloped by the recipient organization and submitted that carnal intercourse was criminalized because such acts have the tendency to lead to unmanliness and lead to persons not being useful in society.
16.10 Relying upon the dictionary meanings of the words 'penetration' and 'carnal', Shri Sharan submitted that any insertion into the body with the aim of satisfying unnatural lust would constitute carnal intercourse.
16.11 Assailing the finding of the High Court that Section 377 IPC violates Article 14, Shri Sharan submitted that the section does not create a clause and applies to both man and woman if they indulge in carnal intercourse against the order of nature. Learned senior counsel argued that if the view expressed by the High Court is taken to its logical conclusion, any provision could be declared to be violative of Article 14.Shri Sharan further argued that no class was targeted by Section 377 IPC and no classification had been made and, therefore, the finding of the High Court that this law offended Article 14 as it targets a particular community known as homosexuals or gays is without any basis.
16.12 Shri K. Radhakrishnan, learned senior counsel appearing for intervener in I.A. No.7 - Trust God Missionaries argued that Section 377IPC was enacted by the legislature to protect social values and morals. He referred to Black's Law Dictionary to show that 'order of nature' has been defined as something pure, as distinguished from artificial and contrived. He argued that the basic feature of nature involved organs, each of which had an appropriate place. Every organ in the human body has a designated function assigned by nature. The organs work in tandem and are not expected to be abused. If it is abused, it goes against nature. The code of nature is inviolable. Sex and food are regulated in society. What is pre-ordained by nature has to be protected, and man has an obligation to nature. He quoted a Sanskrit phrase which translated to "you are dust and go back to dust". Learned senior counsel concluded by emphasising that if the declaration made by the High Court is approved, then India's social structure and the institution of marriage will be detrimentally affected and young persons will be tempted towards homosexual activities.
16.13 Shri V. Giri, learned senior counsel argued that Section 377IPC does not classify people into groups but it only describes an offence. He submitted that the High Court made two wrong assumptions: one, that sexual orientation is immutable and two, that sexual orientation can be naturally demonstrated only in a way as contemplated in Section 377 IPC . Learned senior counsel submitted that what has been criminalized by Section377 IPC is just the act, independent of the sex of people or sexual orientation. Shri Giri further submitted that sufficient evidence is not available to support the statement that Section 377 IPC helps with HIV/AIDS prevention. He referred to the scientific study conducted by the National Institute of Health on behavioral patterns and AIDS which shows that HIV/AIDS is higher among MSM. Learned counsel submitted that same sex is more harmful to public health than opposite sex.
16.14 Shri Huzefa Ahmadi submitted that the right to sexual orientation can always be restricted on the principles of morality and health. He referred to the constitutional assembly debates on Article 15 to show that the inclusion of sexual orientation in the term 'sex' was not contemplated by the founding fathers. Shri Ahmadi also referred to the dissenting opinion given by Justice Scalia and Justice Thomas in Lawrence v. Texas wherein it was stated that promotion of majoritarian sexual morality was a legitimate state interest. Shri Ahmadi stressed that Courts, by their very nature, should not undertake the task of legislating. He submitted that the Delhi High Court was not clear if it was severing the law, or reading it down. He argued that if the language of the section was plain, there was no possibility of severing or reading it down. He further argued that, irrespective of the Union Government's stand, so long as the law stands on the statute book, there was a constitutional presumption in its favour.
16.15 Shri Purshottaman Mulloli submitted that the data presented by NACO was fraudulent and manufactured and the disparities and contradictions were apparent.
16.16 Shri Sushil Kumar Jain argued that the High Court was not at all justified in striking down Section 377 IPC on the specious grounds of violation of Articles 14, 15 and 21 of the Constitution and submitted that the matter should have been left to Parliament to decide as to what is moral and what is immoral and whether the section in question should be retained in the statute book. Shri Jain emphasized that mere possibility of abuse of any particular provision cannot be a ground for declaring it unconstitutional.
16.17 Shri Praveen Aggarwal argued that all fundamental rights operate in a square of reasonable restrictions. There is censorship incase of Freedom of Speech and Expression. High percentage of AIDS amongst homosexuals shows that the act in dispute covered under Section 377 IPC is a social evil and, therefore, the restriction on it is reasonable.
17. Shri F.S. Nariman, Senior Advocate appearing for Minna Saranand others (parents of Lesbian Gay Bisexual and Transgender (LGBT)children), led arguments on behalf of the learned counsel who supported the order of the High Court. Shri Nariman referred to the legislative history of the statutes enacted in Britain including Clauses 361 and 362 of the Draft Penal Code, 1837 which preceded the enactment of Section 377 IPC in its present form and made the following arguments:
17.1 Interpretation of Section 377 is not in consonance with the scheme of the IPC, with established principles of interpretation and with the changing nature of society.
17.2 That Section 377 punishes whoever voluntarily has carnal intercourse against the order of nature. This would render liable to punishment-
(a) Any person who has intercourse with his wife other than penile - vaginal intercourse;
(b) Any person who has intercourse with a woman without using a contraceptive.
17.3 When the same act is committed by 2 consenting males, and not one, it cannot be regarded as an offence when-
(i) The act is done in private;
(ii) The act is not in the nature of sexual assault, causing harm to one of the two individuals indulging in it; and
(iii) No force or coercion is used since there is mutual consent.
17.4 Section 377 must be read in light of constitutional provisions which include the "right to be let alone". The difference between obscene acts in private and public is statutorily recognized in Section 294 IPC .
17.5 The phraseology of Section 377 ('Carnal intercourse against the order of nature') is quaint and archaic, it should be given a meaning which reflects the era when it was enacted. (1860)
17.6 Section 377 should be interpreted in the context of its placement in the IPC as criminalizing an act in some way adversely affecting the human body and not an act which is an offence against morals as dealt with in Chapter XIV. The language of Section 377 is qua harm of adverse affection to the body which is the context in which the section appears. It would have to be associated with sexual assault. It is placed at the end of the Chapter XVI (Of Offences affecting the human body) and not in Chapter XIV (Of Offences affecting the Public Health, Safety, Convenience, Decency and Morals).
17.7 Chapter Headings and sub headings provide a guide to interpreting the scope and ambit of Section 377. The Petitioners rely on G.P. Singh, Principles of Statutory Interpretation,13th Ed. 2012, pp 167 -170, Raichuramatham Prabhakar v. Rawatmal Dugar, (2004) 4 SCC 766 at para14 and DPP v. Schild kamp, 1971 A.C. 1 at page 23. Headings or Titles may betaken as a condensed name assigned to indicate collectively the characteristics of the subject matter dealt with by the enactmentunderneath.
17.8 Section 377 is impermissibly vague, delegates policy making powers to the police and results in harassment and abuse of the rights of LGBT persons. The Petitioners rely on State of MP v. Baldeo Prasad, (1961)1 SCR 970 at 989 which held that, 'Where a statute empowers the specified authorities to take preventive action against the citizens it is essential that it should expressly make it a part of the duty of the said authorities to satisfy themselves about the existence of what the statute regards as conditions precedent to the exercise of the said authority. If the statute is silent in respect of one of such conditions precedent, it undoubtedly constitutes a serious infirmity which would inevitably take it out of the provisions of Article 19 (5).'
17.9 Widespread abuse and harassment of LGBT persons u/s 377 has been incontrovertibly established. The appellants rely on paras 21, 22, 50,74 and 94 of the judgment of the Division Bench of the Delhi High Court in Suresh Kumar Koushal v. Naz Foundation which records evidence of various instances of the use of Section 377 to harass members of the LGBT community. These were based on paras 33 and 35 of the Writ Petition filed by the Naz Foundation challenging the vires of Section 377. It was supported by various documents brought on record, such as Human Rights Watch Report, July 2002 titled, "Epidemic of Abuse: Police Harassment of HIV/AIDS Outreach Workers in India"; Affidavits giving instances of torture and sexual abuse; Jayalakshmi v. State, (2007) 4 MLJ 849 dealing with sexual abuse and torture of a eunuch by police; An Order of a Metropolitan Magistrate alleging an offence u/s 377 against two women even though there is an express requirement of penetration under the Explanation to Section377.
17.10 Section 377 is ultra vires of Article 14 as there is no classification apparent on the face of it.17.11 The appellants contend that Section 377 is too broadly phrased as it may include:
(1) Carnal intercourse between husband and wife;
(2)Carnal intercourse between man and woman for pleasure without the possibility of conception of a human being;
(3) Use of contraceptives between man and woman;
(4) Anal sex between husband and wife;
(5)Consenting carnal intercourse between man and man;
(6) Non consenting carnal intercourse between man and man;
(7) Carnal intercourse with a child with or without consent.
17.12 The Section does not lay down any principle or policy for exercise of discretion as to which of all these cases he may investigate. It is silent on whether the offence can be committed taking within its ambit, the most private of places, the home.
17.13 Section 377 targets the LGBT community by criminalizing a closely held personal characteristic such as sexual orientation. By covering within its ambit, consensual sexual acts by persons within the privacy of their homes, it is repugnant to the right to equality.
18. Shri Shyam Divan, learned senior counsel representing respondent No.11-Voices Against 377, made the following arguments:
18.1 Section 377 is ultra vires Articles 14, 15, 19(1)(a) and 21 of the Constitution inasmuch as it violates the dignity and personhood of the LGBT community. Sexual rights and sexuality are a part of human rights and are guaranteed under Article 21. It is scientifically established that consensual same sex conduct is not "against the order of nature". LGBT persons do not seek any special rights. They merely seek their right to equality of not to be criminalized for being who they are. Our Constitution does not deny any citizen the right to fully develop relationships with other persons of the same gender by casting a shadow of criminality on such sexual relationships. Justice Vivian Bose in Krishna v. State of Madras,1951 SCR 621 stated:
'When there is ambiguity or doubt the construction of any clause in the chapter on Fundamental Rights, it is our duty to resolve it in favour of the freedoms so solemnly stressed.' Section 377 in its interpretation and operation targets LGBT persons and deprives them of their full moral citizenship. This Court has developed great human rights jurisprudence in cases concerning under trials, scavengers and bonded labourers to interpret the notion of 'dignity'. The Delhi High Court has exercised its jurisdiction to separate out the offending portion of Section377 IPC. Shri Divan also referred to the legislative history of Section377 IPC and argued that this provision perpetuates violation of fundamental rights of LGBT persons. Shri Divan referred to the incidents, which took place at Lucknow (2002 and 2006), Bangalore (2004 and 2006),Delhi (2006), Chennai (2006), Goa (2007), and Aligarh (2011) to bring home the point that LGBT persons have been targeted by the police with impunity and the judiciary at the grass route level has been extremely slow to recognize harassment suffered by the victims.
He also relied upon 'Homosexuality: A Dilemma in Discourse, Corsini Concise Encyclopedia of Psychology and Behavioural Science', articles written by Prof. Upendra Baxiand Prof. S.P. Sathe, 172nd Report of the Law Commission which contained recommendation for deleting Section 377 IPC and argued that Section 377 has been rightly declared unconstitutional because it infringes right to privacy and right to dignity. He relied upon the statement made by the Attorney General on 22.3.2012 that the Government of India does not find any legal error in the order of the High Court and accepts the same. Shri Divan further argued that Section 377 IPC targets LGBT persons as a class and is, therefore, violative of Articles 14 and 15 of the Constitution.
19. Shri Anand Grover, learned senior counsel for respondent No.1made the following submissions:
19.1 Section 377 criminalises certain sexual acts covered by the expressions "carnal intercourse against the order of nature" between consenting adults in private. The expression has been interpreted to imply penile non vaginal sex. Though facially neutral, these acts are identified and perceived by the broader society to be indulged in by homosexual men.
19.2 By criminalising these acts which are an expression of the core sexual personality of homosexual men, Section 377 makes them out to be criminals with deleterious consequences thus impairing their human dignity.
19.3 Article 21 protects intrusion into the zone of intimate relations entered into in the privacy of the home and this right is violated by Section 377, particularly of homosexual men. The issue is therefore whether protection of the privacy is available to consenting adults who may indulge in "carnal intercourse against the order of nature".
19.4 Section 377 does not fulfill the just fair and reasonable criteria of substantive due process now read into Article 21.
19.5 Criminalisation impairs health services for gay men and thus violates their right to health under Article 21.
19.6 Section 377 is vague and seeks to introduce a classification which is not based on rational criteria and the object it seeks to advance is not a legitimate state object.
19.7 The history of unnatural offences against the order of nature and their enforcement in India during the Mogul time, British time and post independence, shows that the concept was introduced by the British and there was no law criminalising such acts in India. It is based on Judeo-Christian moral and ethical standards which conceive of sex on purely functional terms, that is, for procreation. Post independence the section remained on the statute books and is now seen as part of Indian values and morals.
19.8 Though facially neutral, an analysis of the judgments shows that heterosexual couples have been practically excluded from the ambit of the section and homosexual men are targeted by virtue of their association with the proscribed acts.
19.9 The criminalisation of Section 377 impacts homosexual men at deep level and restricts their right to dignity, personhood and identity, privacy, equality and right to health by criminalising all forms of sexual intercourse that homosexual men can indulge in as the penetrative sexual acts they indulge in are essentially penile non vaginal. It impacts them disproportionately as a class especially because it restricts only certain forms of sexual intercourse that heterosexual persons can indulge in. The expression of homosexual orientation which is an innate and immutable characteristic of homosexual persons is criminalised by Section 377. The section ends up criminalising identity and not mere acts as it is usually homosexual or transgender persons who are associated with the sexual practices proscribed under Section 377 (relied on National Coalition for Gay and Lesbian Equality v. Minster of Justice & Ors. 1998 (12) BCLR 1517(CC), Queen Empress v. Khairati 1884 ILR 6 ALL 204, Noshirwan v. Emperor).While the privacy of heterosexual relations, especially marriage are clothed in legitimacy, homosexual relations are subjected to societal disapproval and scrutiny. The section has been interpreted to limit its application to same sex sexual acts (Govindrajulu, in re, (1886) 1 Weir382. Grace Jayamani v. E Peter AIR 1982 Kar 46, Lohana Vasantlal Devchandv. State). Sexual intimacy is a core aspect of human experience and is important to mental health, psychological well being and social adjustment. By criminalising sexual acts engaged in by homosexual men, they are denied this fundamental human experience while the same is allowed to heterosexuals. The section exposed homosexual persons to disproportionate risk of prosecution and harassment. There have been documented instances of harassment and abuse, for example, Lucknow 2001 and Lucknow 2006.
19.10 Criminalisation creates a culture of silence and intolerance in society and perpetuates stigma and discrimination against homosexuals. Homosexual persons are reluctant to reveal their orientation to their family. Those who have revealed their orientation are faced with shock, denial and rejection and some are even pressurised throug