Supreme court Landmark judgment on Homosexuality [FULL TEXT JUDGMENT]

REPORTABLE
IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
CIVIL APPEAL NO.10972 OF 2013
(Arising out of SLP (C) No.15436 of 2009)
Suresh Kumar Koushal and another
... Appellants
versus
NAZ Foundation and others
... Respondents

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. 7455/2001 before 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.1 further prayed for grant of a permanent injunction restraining Government of
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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 172nd Report of
the Law Commission which had recommended deletion of Section 377 and
pleaded that notwithstanding the recent prosecutorial use of Section 377 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-
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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
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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 2005 estimated that HIV prevalence in “men
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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 Section 377 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,
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supported the prayer of respondent No.1 that Section 377 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 judgements, 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 fulfilment,
grow in self-esteem, build relationships of his or her choice and fulfil
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.
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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 a ground
for imposing restriction on fundamental rights, referred to the judgments in
Gobind v. State of Madhya Pradesh and another (1975) 2 SCC 148, 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 –
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Cornerstone of A Nation”, the Wolfenden 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 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’
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.”
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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
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discrimination severely affects the rights and interests
homosexuals and deeply impairs their dignity.”
12.
of
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.
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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
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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
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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
SLP (C) No.
15436/2009
(CC
No.
9255/2009)
Name
Suresh
Kumar
Koushal
Anr.
Description
before the
Court
Petitioners
(Not
parties
& before the High
Court)
Details
Petitioners are citizens of India
who believe they have the moral
responsibility
and
duty
in
protecting cultural values of Indian
society.
Samajik Ekta Intervener
– The applicant is a political party
Party
IA No. 4/2009 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.
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Mr.
Shyam Intervener
– The applicant is a film maker and a
Benegal
IA No. 6/2009 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 Interveners – The applicant is a registered
Missionaries
IA No. 7/2010 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 Interveners – The applicants are parents of
  & lesbian,
  Others IA No. 8/2010 gay,
  (Parents bisexual
  of and
  LGBT transgender persons from different
  Children) 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 Interveners - The Applicants are mental health
Seshadri professionals who have been
& IA No. 9/2010 practising as psychiatrists, clinical
Others psychologists
(Professor of and
Psychiatry at behavioral
the National psychologists in the field of mental
Institute health
of in
  reputed
 medical
institutions throughout India. They
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Mental Health claim to have had considerable
and expertise in addressing the mental
Neuro health concerns of Lesbian, Gay,
Sciences, Bisexual and Transgender persons.
Bangalore) The Applicants submit that sexual
          orientation is an immutable
         characteristic and is present at
        birth.
Nivedita The Applicants are academicians
Interveners - who wish to contribute to the
Menon debate on the issues raised by the
& I.A. judgment and to draw attention to
No. the mental distress caused to the
Others LGBT community.
10/2010
(Professor in
Political
Thought,
Jawaharlal
Nehru
University)
Ratna Kapur Interveners – The applicants are law professors,
& Ors.
IA
No. teachers and research associates
13/2011
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. Delhi
24334/2009
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
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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 any fear of abuse,
exploitation and deprivation.
CC Petitioner (not He is a citizen of India and has a
No. Ram Murti party
13105/2009 before duty to report if something illegal is
          the High Court happening.
SLP (C) No. B.P. Singhal Petitioner
22267/2009 (Respondent 7
          –
           Intervener
          before
         the
        High Court)
SLP (C) No. B.
Krishna Petitioner (not
34187/2009
Bhat
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. Joint Action Petitioner
286/2010
Council,
(respondent 6
Kannur
–
Intervener
before
the
High Court)
SLP (C) No. The
Tamil
872/2010
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
1
Page 18
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 Rs 7 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. Raza Petitioner (not The petitioner is an organisation
873/2010 a party before working for welfare of the general
Academy the public and it has done tremendous
        High work in public interest.
        Court)
SLP (C) No. Krantikati Petitioner (not Krantikari Manuwadi Morcha
36216/200 a party before (Revolutionary Manuist Front), is a
Manuvadi the Hindutva political organisation in
Morcha Party High India. It is one of the registered
& Anr. Court) unrecognized political parties in
             India. The president of KMM is
            Ram Kumar Bhardwaj, grandson of
           freedom fighter Rudra Dutt
          Bhardwaj.
CC Petitioner (not Note: There is no information on
No. Utkal a party before the petitioner in the SLP.
19478/2009 the
Christian High
Council rep. Court)
by Secretary
Miss Jyotsna
Rani Patro
CC Petitioner (not The petitioner is a registered
No. All a party before society established to protect and
India the preserve Muslim Personal Laws. It
425/2010 High strives to uphold the traditional
Muslim Court) values and ethos of the Muslim
Personal Law community and promotes essential
Board 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. Sh. Petitioner is spokesperson of Yoga
S.K. Petitioner (not Guru Swami Ramdev Ji is running
20913/2009 a social welfare trust in the name of
Tijarawala “Bharat Swabhiman” Patanjali
a party before Yogpeeth Trust. Petitioner is an
the eminent social worker and writer
High
Court)
1
Page 19
interested in protecting cultural
values of the Indian society.
SLP (C) No. Apostolic
20914/2009
Churches
Alliance rep.
by its bishop
Sam
T.
Varghese
SLP (C) No. Prof.
25364/2009
Singh
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.
Bhim Petitioner (not
a party before
the
High
Court)
CC
No. Sanatan
14042/2009
Dharam
Pritinidhi
Sabha Delhi
(Registered)
16.
Petitioner (not
a party before
the
High
Court)
Petitioner (not
a party before
the
High
Court)
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
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Page 20
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 Ahmadi appearing 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 377 IPC
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
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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 Silk and 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
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emphasized that anal intercourse between two homosexuals is a high risk activity,
which exposes both the participating homosexuals to the risk of HIV/AIDS and
this becomes even 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 Section 377 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.
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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) 1 SCC 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
2
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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 377 IPC 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 377 IPC
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
2
Page 25
counsel submitted that what has been criminalized by Section 377 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
2
Page 26
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 in case 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 Saran and
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:
2
Page 27
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.
2
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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 para 14 and DPP v.
Schildkamp, 1971 A.C. 1 at page 23. Headings or Titles may be taken as a
condensed name assigned to indicate collectively the characteristics of the subject
matter dealt with by the enactment underneath.
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).’
2
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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 Section 377.
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
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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
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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 Section 377 IPC. Shri Divan also referred to the
legislative history of Section 377 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 Encyclopaedia of Psychology and
Behavioural Science’, articles written by Prof. Upendra Baxi and 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
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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.1 made
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 fulfil 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.
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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 a
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
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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 Weir 382. Grace Jayamani v. E Peter
AIR 1982 Kar 46, Lohana Vasantlal Devchand v. 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 through abuse and marriage to cure themselves. They are
subjected to conversion therapies such as electro-convulsive therapy although
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homosexuality is no longer considered a disease or a mental disorder but an
alternate variant of human sexuality and an immutable characteristic which cannot
be changed. Infact the American Psychiatry Association and American
Psychological Association filed an amicus brief in Lawrence v. Texas
demonstrating the harm from and the groundlessness of the criminalisation of
same sex sexual acts.
19.11
Fundamental rights must be interpreted in an expansive and
purposive manner so as to enhance the dignity of the individual and worth of the
human person. The Constitution is a living document and it should remain flexible
to meet newly emerging problems and challenges. The rights under Articles 14, 19
and 21 must be read together. The right to equality under Article 14 and the right
to dignity and privacy under Article 21 are interlinked and must be fulfilled for
other rights to be truly effectuated. International law can be used to expand and
give effect to fundamental rights guaranteed under our Constitution. This includes
UDHR, ICCPR and ICESCR which have been ratified by India. In particular the
ICCPR and ICESCR have been domesticated through enactment of Section 2 of
the Protection of Human Rights Act 1993 (Francis Coralie Mullin v.
Administrator, UT of Delhi (1981) 1 SCC 608, M. Nagaraj v. UoI (2006) 8 SCC
212, Maneka Gandhi v. UoI (1978) 1 SCC 248, Tractor Export v. Tarapore &
Co., (1969) 3 SCC 562, Jolly George v. Bank of Cochin (1980) 2 SCC 360,
Gramaphone Company of India Ltd. v. Birendra Bahadur Pandey (1984) 2 SCC
534, Vellore Citizens Welfare Forum v. UoI (1996) 5 SCC 647, Vishaka & Ors.
v. State of Rajasthn & Ors (1997) 6 SCC 241, PUCL v. UoI & Anr (1997) 1 SCC
3
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301, PUCL v. UoI & Anr (1997) 3 SCC 433, Apparel Export Promotion Council
v. A.K. Chopra (1999) 1 SCC 759, Pratap Singh v. State of Jharkhand (2005) 3
SCC 551, PUCL v. UoI & Anr. (2005) 2 SCC 436, Entertainment Network
(India) Ltd. v. Super Cassette Industries (2008) 12 SCC 10, Smt. Selvi v. State of
Karnataka (2010) 7 SCC 263).
19.12
Section 377 violates the right to privacy, dignity and health
guaranteed under Article 21 of all persons especially homosexual men.
19.13
Section 377 fails the criteria of substantive due process under Article
21 as it infringes upon the private sphere of individuals without justification which
is not permissible. The principle has been incorporated into Indian jurisprudence
in the last few years after the Maneka Gandhi case. The test of whether a law is
just fair and reasonable has been applied in examining the validity of state action
which infringes upon the realm of personal liberty (Mithu v. State of Punjab
(1983) 2 SCC 277, Selvi v. State of Karnataka (2010) 7 SCC 263, State of Punjab
v. Dalbir Singh (2012) 2 SCALE 126, Rajesh Kumar v. State through Govt of
NCT of Delhi (2011) 11 SCALE 182).
19.14
The guarantee of human dignity forms a part of Article 21 and our
constitutional culture. It seeks to ensure full development and evolution of
persons. It includes right to carry on functions and activities which constitute the
bare minimum of expression of the human self. The right is intimately related to
the right to privacy. Dignity is linked to personal self realisation and autonomy.
Personal intimacies and sexual relations are an important part of the expression of
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oneself. In light of the right to privacy, dignity and bodily integrity, there should
be no restriction on a person’s decision to participate or not participate in a sexual
activity. By making certain sexual relations between consenting adults a crime,
Section 377 by its existence demeans and degrades people and imposes an
examination on sexual intercourse. This is regardless of whether it is enforced. By
denying sexual expression which is an essential experience of a human being,
Section 377 violates the dignity of homosexual men in particular. Sex between
two men can never be penile vaginal and hence virtually all penile penetrative acts
between homosexual men are offences. As the society associates these acts with
homosexual men they become suspect of committing an offence thus creating fear
and vulnerability and reinforcing stigma of being a criminal (refer to Francis
Coralie Mullin, Prem Shankar Shukla v. Delhi Administration (1980) 3 SCC 526,
Maharashtra University of Health Science and Ors. v. Satchikitsa Prasarak
Mandal and Ors. (2010) 3 SCC 786, Kharak Singh, Noise Pollution (V), In re
(2005) 5 SCC 733, DK Basu v. State of WB (1997) 1 SCC 416, Gobind, Suchita
Srivastava v. Chandigarh Administration (2009) 9 SCC 1, Egan v. Canada [1995]
2 SCR 513, Law v. Canada (Minister of Employment and Immigration [1999] 1
SCR 497, Lawrence v. Texas, National Coalition of Gay and Lesbian Equality &
Ors.).
19.15
Right to health is an inherent part of the right to life under Article 21,
it is recognised by the ICESC which has been domesticated through Section 2 of
the Protection of Human Rights Act 1993. Article 12 of the ICESCR requires
states to take measures to protect and fulfil the health of all persons. States are
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obliged to ensure the availability and accessibility of health services, information,
education facilitates and goods without discrimination especially to vulnerable and
marginalised sections of the population. The Govt. has committed to addressing
the needs of those at the greatest risk of HIV including MSM and transgendered
persons. The risk of contracting HIV through unprotected penile anal sex is higher
than through penile vaginal sex. The HIV prevalence in MSM is 7.3% which is
disproportionately higher than in that of the general population which is less than
0.5%. The prevalence continues to rise in many States and this is because of the
stigmatisation of the MSM population due to which they are not provided with
sexual health services including prevention services such as condoms. Due to
pressure, some MSM also marry women thus acting as a bridge population.
Criminalisation increases stigma and discrimination and acts as a barrier to HIV
prevention programmes. Section 377 thwarts health services by preventing
collection of HIV data, impeding dissemination of information, forcing
harassment, threats and closure upon organisations who work with MSM,
preventing supply of condoms as it is seen as aiding an offence; limits access to
health services, driving the community underground; prevents disclosure of
symptoms; increases sexual violence and harassment against the community; and
creates an absence of safe spaces leading to risky sex. There are little if any
negative consequences of decriminalisation and studies have shown a reduction in
STDs (sexually transmitted diseases) and increased psychological adjustment.
19.16
Section 377 is vague and arbitrary. It is incapable of clear
construction such that those affected by it do not know the true intention as it does
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not clearly indicate the prohibition. The expression “carnal intercourse against the
order of nature” has not been defined in the statute. In the absence of legislative
guidance, courts are left to decide what acts constitute the same. A study of the
cases shows that application has become inconsistent and highly varied. From
excluding oral sex to now including oral sex, anal sex and penetration into
artificial orifices such as folded palms or between thighs by terming them as
imitative actors or acts of sexual perversity, the scope has been so broadened that
there is no reasonable idea of what acts are prohibited. It is only clear that penile
vaginal acts are not covered. This results in arbitrary application of a penal law
which is violative of Article 14 (refer to AK Roy v. UoI (1982) 1 SCC 271, KA
Abbas v. UoI and Anr. (1970) 2 SCC 760, Harish Chandra Gupta v. State of UP
AIR 1960 All 650, Subhash Chandra and Anr. v. Delhi Subordinate Services
Selection Board (2009) 15 SCC 458).
19.17
Section 377 distinguishes between carnal intercourse which is
against the order of nature and not against the order of nature. This classification
is unintelligible. It is arbitrary and not scientific. Due to an absence of legislative
guidance it is left to the Court to decide what constitutes against the order of
nature. The test in this regard has shifted from acts without possibility of
procreation to imitative acts to acts amounting to sexual perversity. These
parameters cannot be discerned on an objective basis.
The object of the
classification which seeks to enforce Victorian notion of sexual morality which
included only procreative sex is unreasonable as condemnation of non procreative
sex is no longer a legitimate state object. Furthermore advancing public morality
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is subjective and cannot inform intrusions in personal autonomy especially since it
is majoritarian. Even assuming that the section was valid when it was enacted in
1861, the unreasonableness is pronounced with time and the justification does not
hold valid today. (refer to DS Nakara v. UoI (1983) 1 SCC 305, Kartar Singh v.
State of Punjab (1994) 3 SCC 569, M Nagaraj v. UoI (2006) 8 SCC 212, Anuj
Garg v. Hotel Association of India (2008) 3 SCC 1, Deepak Sibal v. Punjab
University (1989) 2 SCC 145, Suchita Srivastava v. Chandigarh Administration).
19.18
Section 377 is disproportionate and discriminatory in its impact on
homosexuals. The law must not only be assessed on its proposed aims but also on
its implications and effects. Though facially neutral, the section predominantly
outlaws sexual activity between men which is by its very nature penile non
vaginal. While heterosexual persons indulge in oral and anal sex, their conduct
does not attract scrutiny except when the woman is underage or unwilling. In fact,
Courts have even excluded married heterosexual couples from the ambit of
Section 377. When homosexual conduct is made criminal, this declaration itself is
an invitation to perpetrate discrimination. It also reinforces societal prejudices.
(Anuj Garg v. Hotel Association of India, Peerless General Finance Investment
Co. Ltd. v. Reserve Bank of India (1992) 2 SCC 343, Grace Jayamani v. EP Peter
AIR 1982 Kant. 46, Lawrence v. Texas, National Coalition for Gay and Lesbian
Equality, Dhirendra Nadan v. State–Criminal Case Nos.HAA0085 & 86 of 2005
(Fiji High Court).
19.19
Section 377 violates Article 15 by discriminating on the ground of
sexual orientation as although facially neutral it treats homosexual men unequally
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compared to heterosexuals and imposes an unequal burden on them. The general
purport of Article 15 is to prohibit discrimination on the grounds enumerated
therein. It is contended that as Article 15(3) uses the expression “women” the word
sex in Article 15(1) must partake the same character. However it is submitted that
Article 15(3) must not be allowed to limit the understanding of Article 15(1) and
reduce it to a binary norm of man and woman only. This becomes clear when
Article 15(2) is applied to transgendered persons who identify as a third gender. For
example, Government of India has introduced an option for “others” in the sex
column of the passport application form. This can be achieved only if the expression
“sex” is read to be broader than the binary norm of biological sex as man or woman.
The Constitution is a living document and the Court can breathe content into rights.
The underlying purpose against sex discrimination is to prevent differential
treatment for the reasons of non conformity with normal or natural sexual or gender
roles. Sex relations are intricately tied to gender stereotypes. Accordingly
discrimination on the ground of sex necessarily includes discrimination on the basis
of sexual orientation. Like gender discrimination, discrimination on the basis of
sexual orientation is directed against an immutable and core characteristic of human
personality. Even international law recognises sexual orientation as being included
in the ground “sex”. The determination of impact of a legislation must be taken in
a contextual manner taking into account the content, purpose, characteristics and
circumstances of the law. Section 377 does not take into account the differences
in individuals in terms of their sexual orientation and makes sexual practices
relevant to and associated with a class of homosexual persons criminal. It
criminalises acts which are normal sexual expressions for homosexual men
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because they can only indulge in penetrative acts which are penile non vaginal.
Distinction based on a prohibited ground cannot be allowed regardless of how
laudable the object is. If a law operates to discriminate against some persons only
on the basis of a prohibited ground, it must be struck down. (M Nagaraj v. UoI,
Anuj Garg v. Hotel Association of India, Toonen v. Australia, Egan v. Canada,
Vriend v. Alberta, Punjab Province v. Daulat Singh AIR 1946 PC 66, State of
Bombay v. Bombay Education Society [1955] SCR 568 ). Shri Grover also
submitted that the Courts in other countries have struck down similar laws that
criminalise same-sex sexual conduct on the ground that they violate the right to
privacy, dignity and equality.
20.
Shri Ashok Desai, learned senior counsel, who appeared for Shri
Shyam Benegal argued that Section 377 IPC, which is a pre-Constitution statute,
should be interpreted in a manner which may ensure protection of freedom and
dignity of the individuals.
He submitted that the Court should also take
cognizance of changing values and temporal reasonableness of a statute. Shri
Desai emphasized that the attitude of the society is fast changing and the acts
which were treated as offence should no longer be made punitive. He referred to
medical literature to show that sexuality is a human condition and argued that it
should not be regarded as a depravity or a sin or a crime. Learned senior counsel
submitted that in view of Section 377 IPC which stigmatized homosexuality, not
only homosexuals but their families face stigma and discrimination. He referred
to the recommendations made by 172nd Law Commission Report for deleting
Section 377 IPC, the survey conducted by Outlook Magazine giving the statistics
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of the persons who indulged in different sexual practices, the support extended by
the eminent persons including Swami Agnivesh, Soli J. Sorabjee (Senior
Advocate), Capt. Laxmi Sehgal, Aruna Roy, Prof. Amartya Sen and Prof.
Upendra Baxi for deleting Section 377 IPC and submitted that the impugned order
should be upheld. Learned senior counsel further argued that Section 377 IPC,
which applies to same sex relations between consenting adults violates the
constitutional guarantee of equality under Articles 14 and 15 and the High Court
rightly applied Yogyakarta principles for de-criminalisation of the section
challenged in the writ petition filed by respondent No.1. He supported the High
Court’s decision to invoke the principle of severability. Shri Ram Jethmalani,
Senior Advocate, who did not argue the case, but filed written submissions also
supported the impugned order and argued that the High Court did not commit any
error by declaring Section 377 IPC as violative of Articles 14, 15 and 21 of the
Constitution.
21.
The learned Attorney General, who argued the case as Amicus, invited our
attention to affidavit dated 1.3.2012 filed on behalf of the Home Ministry to show
that the Group of Ministers constituted for looking into the issue relating to
constitutionality of Section 377 IPC recommended that there is no error in the
impugned order, but the Supreme Court may take final view in the matter. The
learned Attorney General submitted that the declaration granted by the High Court
may not result in deletion of Section 377 IPC from the statute book, but a proviso
would have to be added to clarify that nothing contained therein shall apply to any
sexual activity between the two consenting adults in private. Learned Attorney
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General also emphasised that the Court must take cognizance of the changing
social values and reject the moral views prevalent in Britain in the 18th century.
22.
Shri P.P. Malhotra, learned Additional Solicitor General, who appeared on
behalf of the Ministry of Home Affairs, referred to the affidavit filed before the
Delhi High Court wherein the Ministry of Home Affairs had opposed de-
criminalisation of homosexuality and argued that in its 42nd Report, the Law
Commission had recommended retention of Section 377 IPC because the societal
disapproval thereof was very strong.
Learned Additional Solicitor General
submitted that the legislature, which represents the will of the people has decided
not to delete and it is not for the Court to import the extra-ordinary moral values
and thrust the same upon the society. He emphasized that even after 60 years of
independence, Parliament has not thought it proper to delete or amend Section
377 IPC and there is no warrant for the High Court to have declared the provision
as ultra vires Articles 14,15 and 21 of the Constitution.
23.
Shri Mohan Jain, learned Additional Solicitor General who appeared on
behalf of the Ministry of Health, submitted that because of their risky sexual
behaviour, MSM and female sex workers are at a high risk of getting HIV/AIDS
as compared to normal human beings. He pointed out that as in 2009, the
estimated number of MSM was 12.4 lakhs.
24.
We have considered the arguments/submissions of the learned counsel and
perused the detailed written submissions filed by them. We have also gone
through the voluminous literature placed on record and the judgments of other
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jurisdictions to which reference has been made in the impugned order and on
which reliance has been placed by the learned counsel who have supported the
order under challenge.
25.
We shall first deal with the issue relating to the scope of judicial review of
legislations. Since Section 377 IPC is a pre-Constitutional legislation, it has been
adopted after enactment of the Constitution, it will be useful to analyse the ambit
and scope of the powers of the superior Courts to declare such a provision as
unconstitutional. Articles 13, 14, 15, 19, 21, 32, 226 and 372 of the Constitution,
which have bearing on the issue mentioned herein above read as under:
“13. Laws inconsistent with or in derogation of the
fundamental rights.—(1) All laws in force in the territory of
India immediately before the commencement of this
Constitution, in so far as they are inconsistent with the
provisions of this Part, shall, to the extent of such inconsistency,
be void.
(2) The State shall not make any law which takes away or
abridges the rights conferred by this Part and any law made in
contravention of this clause shall, to the extent of the
contravention, be void.
(3) In this Article, unless the context otherwise requires,—
(a) “law” includes any Ordinance, order, bye-law, rule,
regulation, notification, custom or usage having in the territory of
India the force of law;
(b) “laws in force” includes laws passed or made by a
Legislature or other competent authority in the territory of India
before the commencement of this Constitution and not
previously repealed, notwithstanding that any such law or any
part thereof may not be then in operation either at all or in
particular areas.
(4) Nothing in this Article shall apply to any amendment of this
Constitution made under Article 368.
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14. Equality before law.— The State shall not deny to any
person equality before the law or the equal protection of the laws
within the territory of India.
15. Prohibition of discrimination on grounds of religion,
race, caste, sex or place of birth-
(1) The State shall not discriminate against any citizen on
grounds only of religion, race, caste, sex, place of birth or any of
them.
(2) No citizen shall, on ground only of religion, race, caste, sex,
place of birth or any of them, be subject to any disability,
liability, restriction or condition with regard to -
(a) access to shops, public restaurants, hotels and places of
public entertainment; or
(b) the use of wells, tanks, bathing ghats, roads and places of
public resort maintained whole or partly out of State funds or
dedicated to the use of general public.
(3) Nothing in this article shall prevent the State from making
any special provision for women and children.
(4) Nothing in this article or in clause (2) or article 29 shall
prevent the State from making any special provision for the
advancement of any socially and educationally backward classes
of citizens or for the Scheduled Castes and the Scheduled
Tribes.
(5) Nothing I this article or in sub-clause (g) of clause () of
article 19 shall prevent the State from making any special
provision, by law, for the advancement of any socially and
educationally backward classes of citizen or for the Scheduled
Castes or Scheduled Tribes in so far as such special provisions
relate to their admission to educational institutions including
private educational institutions, whether aided or unaided by the
State, other than the minority educational institutions referred to
in Clause (1) of article 30.
19. Protection of certain rights regarding freedom of speech
etc.- (1) All citizens shall have the right-
(a) to freedom of speech and expression;
(b) to assemble peaceably and without arms;
to form associations or unions;
(d) to move freely throughout the territory of India;
(e) to reside and settle in any part of the territory of India; and
(f) omitted
(g) to practise any profession, or to carry on any occupation,
trade or business.
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(2) Nothing in sub-clause (a) of clause (1) shall affect the
operation of any existing law, or prevent the State from making
any law, in so far as such law imposes reasonable restrictions on
the exercise of the right conferred by the said sub-clause in the
interests of the sovereignty and integrity of India, the security of
the State, friendly relations with foreign States, public order,
decency or morality or in relation to contempt of court,
defamation or incitement to an offence.
(3) Nothing in sub-clause (b) of the said clause shall affect the
operation of any existing law in so far as it imposes, or prevent
the State from making any law imposing, in the interests of the
sovereignty and integrity of India or public order, reasonable
restrictions on the exercise of the right conferred by the said sub-
clause.
(4) Nothing in sub-clause of the said clause shall affect the
operation of any existing law in so far as it imposes, or prevent
the State from making any law imposing, in the interests of the
sovereignty and integrity of India or public order or morality,
reasonable restrictions on the exercise of the right conferred by
the said sub-clause.
(5) Nothing in sub-clauses (d) and (e) of the said clause shall
affect the operation of any existing law in so far as it imposes, or
prevent the State from making any law imposing, reasonable
restrictions on the exercise of any of the rights conferred by the
said sub-clauses either in the interests of the general public or for
the protection of the interests of any Scheduled Tribe.
(6) Nothing in sub-clause (g) of the said clause shall affect the
operation of any existing law in so far as it imposes, or prevent
the State from making any law imposing, in the interests of the
general public, reasonable restrictions on the exercise of the
right conferred by the said sub-clause, and, in particular, nothing
in the said sub-clause shall affect the operation of any existing
law in so far as it relates to, or prevent the State from making
any law relating to,-
(i) the professional or technical qualifications necessary for
practising any profession or carrying on any occupation, trade or
business, or
(ii) the carrying on by the State, or by a corporation owned or
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controlled by the State, of any trade, business, industry or
service, whether to the exclusion, complete or partial, of citizens
or otherwise.
21. Protection of life and personal liberty. — No person shall
be deprived of his life or personal liberty except according to
procedure established by law.
32. Remedies for enforcement of rights conferred by this
Part.—
(1) The right to move the Supreme Court by appropriate
proceedings for the enforcement of the rights conferred by this
Part is guaranteed.
(2) The Supreme Court shall have power to issue directions or
orders or writs, including writs in the nature of habeas corpus,
mandamus, prohibition, quo warranto and certiorari, whichever
may be appropriate, for the enforcement of any of the rights
conferred by this Part.
(3) Without prejudice to the powers conferred on the Supreme
Court by clauses (1) and (2), Parliament may by law empower
any other court to exercise within the local limits of its
jurisdiction all or any of the powers exercisable by the Supreme
Court under clause (2).
(4) The right guaranteed by this Article shall not be suspended
except as otherwise provided for by this Constitution.
226. Power of High Courts to issue certain writs.—
(1) Notwithstanding anything in Article 32, every High Court
shall have power, throughout the territories in relation to which it
exercises jurisdiction, to issue to any person or authority,
including in appropriate cases, any Government, within those
territories directions, orders or writs, including writs in the
nature of habeas corpus, mandamus, prohibition, quo warranto
and certiorari, or any of them, for the enforcement of any of the
rights conferred by Part III and for any other purpose.
(2) The power conferred by clause (1) to issue directions, orders
or writs to any Government, authority or person may also be
exercised by any High Court exercising jurisdiction in relation to
the territories within which the cause of action, wholly or in part,
arises for the exercise of such power, notwithstanding that the
seat of such Government or authority or the residence of such
person is not within those territories.
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(3) Where any party against whom an interim order, whether by
way of injunction or stay or in any other manner, is made on, or
in any proceedings relating to, a petition under clause (1),
without—
(a) furnishing to such party copies of such petition and all
documents in support of the plea for such interim order; and
(b) giving such party an opportunity of being heard, makes an
application to the High Court for the vacation of such order and
furnishes a copy of such application to the party in whose favour
such order has been made or the counsel of such party, the High
Court shall dispose of the application within a period of two
weeks from the date on which it is received or from the date on
which the copy of such application is so furnished, whichever is
later, or where the High Court is closed on the last day of that
period, before the expiry of the next day afterwards on which the
High Court is open; and if the application is not so disposed of,
the interim order shall, on the expiry of that period, or, as the
case may be, the expiry of the said next day, stand vacated.
(4) The power conferred on a High Court by this Article shall
not be in derogation of the power conferred on the Supreme
Court by clause (2) of Article 32.
372. Continuance in force of existing laws and their
adaptation.—
(1) Notwithstanding the repeal by this Constitution of the
enactments referred to in
Article 395 but subject to the other provisions of this
Constitution, all the law in force in the territory of India
immediately before the commencement of this Constitution shall
continue in force therein until altered or repealed or amended by
a competent Legislature or other competent authority.
(2) For the purpose of bringing the provisions of any law in force
in the territory of India into accord with the provisions of this
Constitution, the President may by order make such adaptations
and modifications of such law, whether by way of repeal or
amendment, as may be necessary or expedient, and provide that
the law shall, as from such date as may be specified in the order,
have effect subject to the adaptations and modifications so
made, and any such adaptation or modification shall not be
questioned in any court of law.
(3) Nothing in clause (2) shall be deemed—
(a) to empower the President to make any adaptation or
modification of any law after the expiration of three years from
the commencement of this Constitution; or
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(b) to prevent any competent Legislature or other competent
authority from repealing or amending any law adapted or
modified by the President under the said clause.
Explanation I.—The expression “law in force” in this Article
shall include a law passed or made by a Legislature or other
competent authority in the territory of India before the
commencement of this Constitution and not previously repealed,
notwithstanding that it or parts of it may not be then in operation
either at all or in particular areas.
Explanation II.—Any law passed or made by a Legislature or
other competent authority in the territory of India which
immediately before the commencement of this Constitution had
extra-territorial effect as well as effect in the territory of India
shall, subject to any such adaptations and modifications as
aforesaid, continue to have such extra-territorial effect.
Explanation III.—Nothing in this Article shall be construed as
continuing any temporary law in force beyond the date fixed for
its expiration or the date on which it would have expired if this
Constitution had not come into force.
Explanation IV.—An Ordinance promulgated by the Governor
of a Province under section 88 of the Government of India Act,
1935, and in force immediately before the commencement of this
Constitution shall, unless withdrawn by the Governor of the
corresponding State earlier, cease to operate at the expiration of
six weeks from the first meeting after such commencement of
the Legislative Assembly of that State functioning under clause
(1) of Article 382, and nothing in this Article shall be construed
as continuing any such Ordinance in force beyond the said
period.”
26.
A plain reading of these Articles suggests that the High Court and this
Court are empowered to declare as void any pre-Constitutional law to the extent
of its inconsistency with the Constitution and any law enacted post the enactment
of the Constitution to the extent that it takes away or abridges the rights conferred
by Part III of the Constitution. In fact a constitutional duty has been cast upon this
Court to test the laws of the land on the touchstone of the Constitution and
provide appropriate remedy if and when called upon to do so. Seen in this light
the power of judicial review over legislations is plenary. However, keeping in
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mind the importance of separation of powers and out of a sense of deference to
the value of democracy that parliamentary acts embody, self restraint has been
exercised by the judiciary when dealing with challenges to the constitutionality of
laws. This form of restraint has manifested itself in the principle of presumption of
constitutionality.
27.
The principle was succinctly enunciated by a Constitutional Bench in Ram
Krishna Dalmia v. Shri Justice S.R. Tendolkar and Ors. AIR 1958 SC 538 in the
following words:
“... (b) that there is always a presumption in favour of the
constitutionality of an enactment and the burden is upon him
who attacks it to show that there has been a clear transgression
of the constitutional principles;
(c) that it must be presumed that the legislature understands and
correctly appreciates the need of its own people, that its laws are
directed to problems made manifest by experience and that its
discriminations are based on adequate grounds;
(d) that the legislature is free to recognise degrees of harm and
may confine its restrictions to those cases where the need is
deemed to be the clearest;
(e) that in order to sustain the presumption of constitutionality
the court may take into consideration matters of common
knowledge, matters of common report, the history of the times
and may assume every state of facts which can be conceived
existing at the time of legislation; and
(f) that while good faith and knowledge of the existing
conditions on the part of a legislature are to be presumed, if
there is nothing on the face of the law or the surrounding
circumstances brought to the notice of the court on which the
classification may reasonably be regarded as based, the
presumption of constitutionality cannot be carried to the extent
of always holding that there must be some undisclosed and
unknown reasons for subjecting certain individuals or
corporations to hostile or discriminating legislation.”
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The application of the above noted principles to pre-Constitutional statutes
was elucidated in the following words:
“18. It is neither in doubt nor in dispute that Clause 1 of Article
13 of the Constitution of India in no uncertain terms states that
all laws in force in the territory of India immediately before the
commencement of the Constitution, in so far as they are
inconsistent with the provisions of Part III there, shall, to the
extent of such inconsistency, be void. Keeping in view the fact
that the Act is a pre-constitution enactment, the question as
regards its constitutionality will, therefore, have to be judged as
being law in force at the commencement of the Constitution of
India [See Keshavan Madhava Menon v. The State of Bombay -
1951CriLJ 680 . By reason of Clause 1 of Article 13 of the
Constitution of India, in the event, it be held that the provision is
unconstitutional the same having regard to the prospective nature
would be void only with effect from the commencement of the
Constitution. Article 372 of the Constitution of India per force
does not make a pre-constitution statutory provision to be
constitutional. It merely makes a provision for the applicability
and enforceability of pre-constitution laws subject of course to
the provisions of the Constitution and until they are altered,
repealed or amended by a competent legislature or other
competent authorities.”
Referring to that case, the Court in Anuj Garg v. Hotel Association of India
and Ors. (2008) 3 SCC 1, while dealing with the constitutionality of Section 30 of
Punjab Excise Act, 1914, this Court observed:
“7. The Act is a pre-constitutional legislation. 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. While embarking on
the questions raised, it may be pertinent to know that a statute
although 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.”
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In John Vallamattom and Anr. v. Union of India AIR 2003 SC 2902, this
Court, while referring to an amendment made in UK in relation to a provision
which was in pari materia with Section 118 of Indian Succession Act, observed:
“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.”
Referring to the changing legal scenario and having regard to the
Declaration on the Right to Development adopted by the World Conference on
Human Rights as also Article 18 of the United Nations Covenant on Civil and
Political Rights, 1966, this Court observed:
“It is trite that having regard to Article 13(1) of the Constitution,
the constitutionality of the impugned legislation is required to be
considered on the basis of laws existing on 26-1-1950, but while
doing so the court is not precluded from taking into
consideration the subsequent events which have taken place
thereafter. It is further trite that 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.”
Presumption of constitutionality:
28.
Every legislation enacted by Parliament or State Legislature carries with it a
presumption of constitutionality.
This is founded on the premise that the
legislature, being a representative body of the people and accountable to them is
aware of their needs and acts in their best interest within the confines of the
Constitution. There is nothing to suggest that this principle would not apply to
pre-Constitutional laws which have been adopted by the Parliament and used with
or without amendment. If no amendment is made to a particular law it may
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represent a decision that the Legislature has taken to leave the law as it is and this
decision is no different from a decision to amend and change the law or enact a
new law. In light of this, both pre and post Constitutional laws are manifestations
of the will of the people of India through the Parliament and are presumed to be
constitutional.
29.
The doctrine of severability and the practice of reading down a statute both
arise out of the principle of presumption of constitutionality and are specifically
recognized in Article 13 which renders the law, which is pre-Constitutional to be
void only to the extent of inconsistency with the Constitution. In R.M.D.
Chamarbaugwalla v. The Union of India (UOI) AIR 1957 SC 628, a Constitution
Bench of this Court noted several earlier judgments on the issue of severability
and observed as follows:
“The doctrine of severability rests, as will presently be shown,
on a presumed intention of the legislature that if a part of a
statute turns out to be void, that should not affect the validity of
the rest of it, and that that intention is to be ascertained from the
terms of the statute. It is the true nature of the subject-matter of
the legislation that is the determining factor, and while a
classification made in the statute might go far to support a
conclusion in favour of severability, the absence of it does not
necessarily preclude it.
When a statute is in part void, it will be enforced as regards the
rest, if that is severable from what is invalid. It is immaterial for
the purpose of this rule whether the invalidity of the statute
arises by reason of its subject-matter being outside the
competence of the legislature or by reason of its provisions
contravening constitutional prohibitions.
26. That being the position in law, it is now necessary to
consider whether the impugned provisions are severable in their
application to competitions of a gambling character, assuming of
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course that the definition of 'prize competition' in s. 2(d) is wide
enough to include also competitions involving skill to a
substantial degree. It will be useful for the determination of this
question to refer to certain rules of construction laid down by the
American Courts, where the question of severability has been
the subject of consideration in numerous authorities. They may
be summarised as follows:
1. In determining whether the valid parts of a statute are
separable from the invalid parts thereof, it is the intention of the
legislature that is the determining factor. The test to be applied is
whether the legislature would have enacted the valid part if it
had known that the rest of the statute was invalid. Vide Corpus
Juris Secundum, Vol. 82, p. 156; Sutherland on Statutory
Construction, Vol. 2, pp. 176-177.
2. If the valid and invalid provisions are so inextricably mixed up
that they cannot be separated from one another, then the
invalidity of a portion must result in the invalidity of the Act in
its entirety. On the other hand, if they are so distinct and
separate that after striking out what is invalid, what remains is in
itself a complete code independent of the rest, then it will be
upheld notwithstanding that the rest has become unenforceable.
Vide Cooley's Constitutional Limitations, Vol. 1 at pp. 360-361;
Crawford on Statutory Construction, pp. 217-218.
3. Even when the provisions which are valid are distinct and
separate from those which are invalid, if they all form part of a
single scheme which is intended to be operative as a whole, then
also the invalidity of a part will result in the failure of the whole.
Vide Crawford on Statutory Construction, pp. 218-219.
4. Likewise, when the valid and invalid parts of a statute are
independent and do not form part of a scheme but what is left
after omitting the invalid portion is so thin and truncated as to be
in substance different from what it was when it emerged out of
the legislature, then also it will be rejected in its entirety.
5. The separability of the valid and invalid provisions of a statute
does not depend on whether the law is enacted in the same
section or different sections; (Vide Cooley's Constitutional
Limitations, Vol. 1, pp. 361-362); it is not the form, but the
substance of the matter that is material, and that has to be
ascertained on an examination of the Act as a whole and of the
setting of the relevant provisions therein.
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6. If after the invalid portion is expunged from the statute what
remains cannot be enforced without making alterations and
modifications therein, then the whole of it must be struck down
as void, as otherwise it will amount to judicial legislation. Vide
Sutherland on Statutory Construction, Vol. 2, p. 194.
7. In determining the legislative intent on the question of
separability, it will be legitimate to take into account the history
of the legislation, its object, the title and the preamble to it. Vide
Sutherland on Statutory Construction, Vol. 2, pp. 177-178.”
30.
Another significant canon of determination of constitutionality is that the
Courts would be reluctant to declare a law invalid or ultra vires on account of
unconstitutionality. The Courts would accept an interpretation, which would be in
favour of constitutionality rather than the one which would render the law
unconstitutional. Declaring the law unconstitutional is one of the last resorts taken
by the Courts. The Courts would preferably put into service the principle of
'reading down' or 'reading into' the provision to make it effective, workable and
ensure the attainment of the object of the Act. These are the principles which
clearly emerge from the consistent view taken by this Court in its various
pronouncements including the recent judgment in Namit Sharma v. Union of India
(2013)1 SCC 745.
In D.S. Nakara and Ors. v. Union of India (UOI) (1983) 1 SCC 305 a
Constitution Bench of this Court elucidated upon the practice of reading down
statutes as an application of the doctrine of severability while answering in
affirmative the question whether differential treatment to pensioners related to the
date of retirement qua the revised formula for computation of pension attracts
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Article 14 of the Constitution. Some of the observations made in that judgment
are extracted below:
“66. If from the impugned memoranda the event of being in
service and retiring subsequent to specified date is severed, all
pensioners would be governed by the liberalised pension
scheme. The pension will have to be recomputed in accordance
with the provisions of the liberalised pension scheme as salaries
were required to be recomputed in accordance with the
recommendation of the Third Pay Commission but becoming
operative from the specified date. It does therefore appear that
the reading down of impugned memoranda by severing the
objectionable portion would not render the liberalised pension
scheme vague, unenforceable or unworkable.
67. In reading down the memoranda, is this Court legislating? Of
course 'not' When we delete basis of classification as violative of
Article 14, we merely set at naught the unconstitutional portion
retaining the constitutional portion.
68. We may now deal with the last submission of the learned
Attorney General on the point. Said the learned Attorney-
General that principle of severability cannot be applied to
augment the class and to adopt his words 'severance always cuts
down the scope, never enlarges it'. We are not sure whether
there is any principle which inhibits the Court from striking
down an unconstitutional part of a legislative action which may
have the tendency to enlarge the width and coverage of the
measure. Whenever classification is held to be impermissible
and the measure can be retained by removing the
unconstitutional portion of classification, by striking down words
of limitation, the resultant effect may be of enlarging the class. In
such a situation, the Court can strike down the words of
limitation in an enactment. That is what is called reading down
the measure. We know of no principle that 'severance' limits the
scope of legislation and can never enlarge it.”
The basis of the practice of reading down was succinctly laid down in
Commissioner of Sales Tax, Madhya Pradesh, Indore and Ors. v. Radhakrishan
and Ors. (1979) 2 SCC 249 in the following words:
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“In considering the validity of a statute the presumption is in
favour of its constitutionality and the burden is upon him who
attacks it to show that there has been a clear transgression of
constitutional principles. For sustaining the presumption of
constitutionality the Court may take into consideration matters of
common knowledge, matters of common report, the history of
the times and may assume every state of facts which can be
conceived it must always be presumed that the Legislature
understands and correctly appreciates the need of its own people
and that discrimination, if any, is based on adequate grounds. It
is well settled that courts will be justified in giving a liberal
interpretation to the section in order to avoid constitutional
invalidity. These principles have given rise to rule of reading
down the section if it becomes necessary to uphold the validity
of the sections.”
In Minerva Mills Ltd. and Ors. v. Union of India (UOI) and Ors. (1980) 3
SCC 625, the Court identified the limitations upon the practice of reading down:
“69. The learned Attorney General and the learned Solicitor
General strongly impressed upon us that Article 31C should be
read down so as to save it from the challenge of
unconstitutionality. It was urged that it would be legitimate to
read into that Article the intendment that only such laws would
be immunised from the challenge under Articles 14 and 19 as do
not damage or destroy the basic structure of the Constitution.
The principle of reading down the provisions of a law for the
purpose of saving it from a constitutional challenge is well-
known. But we find it impossible to accept the contention of the
learned Counsel in this behalf because, to do so will involve a
gross distortion of the principle of reading down, depriving that
doctrine of its only or true rationale when words of width are
used inadvertently. The device of reading down is not to be
resorted to in order to save the susceptibilities of the law
makers, nor indeed to imagine a law of one's liking to have been
passed. One must at least take the Parliament at its word when,
especially, it undertakes a constitutional amendment.”
This was further clarified in Delhi Transport Corporation v. D.T.C.
Mazdoor Congress and Ors. 1991 Supp (1) SCC 600. In his concurring opinion,
Ray, J. observed:
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“On a proper consideration of the cases cited hereinbefore as
well as the observations of Seervai in his book 'Constitutional
Law of India' and also the meaning that has been given in the
Australian Federal Constitutional Law by Coin Howard, it is
clear and apparent that where any term has been used in the Act
which per se seems to be without jurisdiction but can be read
down in order to make it constitutionally valid by separating and
excluding the part which is invalid or by interpreting the word in
such a fashion in order to make it constitutionally valid and
within jurisdiction of the legislature which passed the said
enactment by reading down the provisions of the Act. This,
however, does not under any circumstances mean that where the
plain and literal meaning that follows from a bare reading of the
provisions of the Act, Rule or Regulation that it confers
arbitrary, uncancalised, unbridled, unrestricted power to
terminate the services of a permanent employee without
recording any reasons for the same and without adhering to the
principles of natural justice and equality before the law as
envisaged in Article 14 of the Constitution, cannot be read down
to save the said provision from constitutional invalidity by
bringing or adding words in the said legislation such as saying
that it implies that reasons for the order of termination have to be
recorded. In interpreting the provisions of an Act, it is not
permissible where the plain language of the provision gives a
clear and unambiguous meaning can be interpreted by reading
down and presuming certain expressions in order to save it from
constitutional invalidity.”
31.
From the above noted judgments, the following principles can be culled
out:
(i)
The High Court and Supreme Court of India are empowered to declare as
void any law, whether enacted prior to the enactment of the Constitution or
after. Such power can be exercised to the extent of inconsistency with the
Constitution/contravention of Part III.
(ii)
There is a presumption of constitutionality in favour of all laws, including
pre-Constitutional laws as the Parliament, in its capacity as the
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representative of the people, is deemed to act for the benefit of the people
in light of their needs and the constraints of the Constitution.
(iii)
The doctrine of severability seeks to ensure that only that portion of the
law which is unconstitutional is so declared and the remainder is saved.
This doctrine should be applied keeping in mind the scheme and purpose
of the law and the intention of the Legislature and should be avoided where
the two portions are inextricably mixed with one another.
(iv)
The court can resort to reading down a law in order to save it from being
rendered unconstitutional. But while doing so, it cannot change the essence
of the law and create a new law which in its opinion is more desirable.
32.
Applying the afore-stated principles to the case in hand, we deem it proper
to observe that while the High Court and this Court are empowered to review the
constitutionality of Section 377 IPC and strike it down to the extent of its
inconsistency with the Constitution, self restraint must be exercised and the
analysis must be guided by the presumption of constitutionality. After the
adoption of the IPC in 1950, around 30 amendments have been made to the
statute, the most recent being in 2013 which specifically deals with sexual
offences, a category to which Section 377 IPC belongs. The 172nd Law
Commission Report specifically recommended deletion of that section and the
issue has repeatedly come up for debate.
not to amend the law or revisit it.
However, the Legislature has chosen
This shows that Parliament, which is
undisputedly the representative body of the people of India has not thought it
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proper to delete the provision. Such a conclusion is further strengthened by the
fact that despite the decision of the Union of India to not challenge in appeal the
order of the Delhi High Court, the Parliament has not made any amendment in the
law. While this does not make the law immune from constitutional challenge, it
must nonetheless guide our understanding of character, scope, ambit and import.
33.
It is, therefore, apposite to say that unless a clear constitutional violation is
proved, this Court is not empowered to strike down a law merely by virtue of its
falling into disuse or the perception of the society having changed as regards the
legitimacy of its purpose and its need.
34.
We may now notice the relevant provisions of the IPC.
“Section 375. Rape.-A man is said to commit "rape" who, except in
the case hereinafter excepted, has sexual intercourse with a woman
under circumstances falling under any of the six following
descriptions:-
First.-Against her will.
Secondly.-Without her consent.
Thirdly.-With her consent, when her consent has been obtained by
putting her or any person in whom she is interested in fear of death
or of hurt.
Fourthly.-With her consent, when the man knows that he is not her
husband, and that her consent is given because she believes that he
is another man to whom she is or believes herself to be lawfully
married.
Fifthly.-With her consent, when, at the time of giving such consent,
by reason of unsoundness of mind or intoxication or the
administration by him personally or through another of any
stupefying or unwholesome substance, she is unable to understand
the nature and consequences of that to which she gives consent.
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Sixthly.-With or without her consent, when she is under sixteen
years of age.
Explanation.-Penetration is sufficient to constitute the sexual
intercourse necessary to the offence of rape.
Exception.-Sexual intercourse by a man with his own wife, the wife
not being under fifteen years of age, is not rape.
376. Punishment for rape.--(1) Whoever, except in the cases
provided for by sub-section (2), commits rape shall be punished
with imprisonment of either description for a term which shall not
be less than seven years but which may be for life or for a term
which may extend to ten years and shall also be liable to fine unless
the woman raped is his own wife and is not under twelve years of
age, in which case, he shall be punished with imprisonment of either
description for a term which may extend to two years or with fine or
with both:
Provided that the court may, for adequate and special reasons to be
mentioned in the judgment, impose a sentence of imprisonment for a
term of less than seven years.
(2) Whoever,-
(a) being a police officer commits rape-
(i) within the limits of the police station to which he is appointed; or
(ii) in the premises of any station house whether or not situated in
the police station to which he is appointed; or
(iii) on a woman in his custody or in the custody of a police officer
subordinate to him; or
(b) being a public servant, takes advantage of his official position
and commits rape on a woman in his custody as such public servant
or in the custody of a public servant subordinate to him; or
(c) being on the management or on the staff of a jail, remand home
or other place of custody established by or under any law for the
time being in force or of a women's or children's institution takes
advantage of his official position and commits rape on any inmate of
such jail, remand home, place or institution; or
(d) being on the management or on the staff of a hospital, takes
advantage of his official position and commits rape on a woman in
that hospital; or
(e) commits rape on a woman knowing her to be pregnant; or
(f) commits rape on a woman when she is under twelve years of
age; or
(g) commits gang rape,
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shall be punished with rigorous imprisonment for a term which shall
not be less than ten years but which may be for life and shall also be
liable to fine:
Provided that the court may, for adequate and special reasons to be
mentioned in the judgment, impose a sentence of imprisonment of
either description for a term of less than ten years.
Explanation 1.-Where a women's is raped by one or more in a group
of persons acting in furtherance of their common intention, each of
the persons shall be deemed to have committed gang rape within the
meaning of this sub-section.
Explanation 2.-"women's or children's institution" means an
institution, whether called and orphanage or a home for neglected
women or children or a widows' home or by any other name, which
is established and maintained for the reception and care of women
or children.
Explanation 3.-"hospital" means the precincts of the hospital and
includes the precincts of any institution for the reception and
treatment of persons during convalescence or of persons requiring
medical attention or rehabilitation.
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.”
35.
Before proceeding further, we may also notice dictionary meanings of some
words and expressions, which have bearing on this case.
Buggery – a carnal copulation against nature; a man or a woman
with a brute beast, a man with a man, or man unnaturally with a
woman. This term is often used interchangeably with “sodomy”.
(Black’s Law Dictionary 6th Edn. 1990)
Carnal – Pertaining to the body, its passions and its appetites
animal; fleshy; sensual; impure; sexual. People v. Battilana, 52 Cal.
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App.2d 685, 126 P.2d 923, 928 (Black’s Law Dictionary 6 th edn.
1990)
Carnal knowledge – Coitus; copulation; the act of a man having
sexual bodily connections with a woman; sexual intercourse. Carnal
knowledge of a child is unlawful sexual intercourse with a female
child under the age of consent. It is a statutory crime, usually a
felony. Such offense is popularly known as “statutory rape”. While
penetration is an essential element, there is “carnal knowledge” if
there is the slightest penetration of the sexual organ of the female by
the sexual organ of the male. State v. Cross, 2000 S.E.2d 27, 29. It
is not necessary that the vagina be entered or that the hymen be
ruptured; the entering of the vulva or labia is sufficient. De Armond
v. State, Okl. Cr., 285 P.2d 236. (Black’s Law Dictionary 6th edn.
1990)
Nature – (1) A fundamental quality that distinguishes one thing
from another; the essence of something. (2) Something pure or true
as distinguished from something artificial or contrived. (3) The
basic instincts or impulses of someone or something (Black’s Law
Dictionary 9th edn).
LEGISLATIVE HISTORY OF SECTION 377
ENGLAND
36.
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. Such offences were dealt with by the
ecclesiastical Courts.
The Buggery Act 1533, formally an Act for the punishment of the vice of
Buggerie (25 Hen. 8 c. 6), was an Act of the Parliament of England that was
passed during the reign of Henry VIII. It was the country's first civil sodomy law.
The Act defined buggery as an unnatural sexual act against the will of God and
man and prescribed capital punishment for commission of the offence. This Act
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was later defined by the Courts to include only anal penetration and bestiality.
The Act remained in force until its repeal in 1828.
The Buggery Act of 1533 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. Oral-genital sexual acts were removed from the definition of
buggery in 1817.
The Act was repealed by Section 1 of the Offences against the Person Act
1828 (9 Geo.4 c.31) and by Section 125 of the Criminal Law (India) Act 1828
(c.74). It was replaced by Section 15 of the Offences against the Person Act 1828,
and ection 63 of the Criminal Law (India) Act 1828, which provided that buggery
would continue to be a capital offence.
With the enactment of the Offences against the Person Act 1861 buggery
was no longer a capital offence in England and Wales. It was punished with
imprisonment from 10 years to life.
INDIA
37.
The offence of sodomy was introduced in India on 25.7.1828 through the
Act for Improving the Administration of Criminal Justice in the East Indies
(9.George.IV).
Chapter LXXIV Clause LXIII “Sodomy” – “And it be enacted, that every
person convicted of the abominable crime of buggery committed with either
mankind or with any animal, shall suffer death as a felon”.
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In 1837, a Draft Penal Code was prepared which included: Clauses 361 –
“Whoever intending to gratify unnatural lust, touches for that purpose any person
or any animal or is by his own consent touched by any person for the purpose of
gratifying unnatural lust, shall be punished with imprisonment of either description
for a term which may extend to fourteen years, and must not be less than two
years”; and Clause 362 - “Whoever intending to gratify unnatural lust, touches for
that purpose any person without that person’s free and intelligent consent, shall be
punished with imprisonment of either description for a term which may extend to
life and must not be less than seven years, and shall also be liable to fine.”
In Note M of the Introductory Report of Lord Macaulay to the Draft Code
these clauses were left to his Lordship in Council without comment observing
that:
“Clauses 361 and 362 relate to an odious class of offences
respecting which it is desirable that as little as possible be said. We
leave without comment to the judgment of his Lordship in Council
the two Clauses which we have provided for these offences. We are
unwilling to insert, either in the text, or in the notes, anything which
could have given rise to public discussion on this revolting subject;
as we are decidedly of the opinion that the injury which would be
done to the morals of the community by such discussion would far
more than compensate for any benefits which might be derived from
legislative measures framed with the greatest precision.”
[Note M on Offences Against the Body in Penal Code of 1837 –
Report of the Indian Law Commission on the Penal Code, October
14, 1837.]
However, in Report of the Commissioner’s Vol XXVIII it was observed
that the clauses and the absence of comments had created “a most improper
ambiguity”. Some members noted that the existing law on the subject is dead
letter and also that the said offence had been omitted in revised statutes of
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Massachusetts and does not appear in the French Penal Code unless the sufferer is
below 10 years of age.
“451. The Law Commissioners observe that Clauses 361 and 362
relate to an odious class of offences, respecting which it is desirable
that as little as possible should said. They therefore leave the
provisions proposed therein without comment to the judgment of the
governor-General in Council. Mr A.D. Campbell in concurrence
with Mr. Blane, censures the false delicacy which has in their
opinion caused a most improper ambiguity in these clauses, leaving
it uncertain whether they apply to the mere indecent liberties, or
extend to the actual commission of an offence of the nature
indicated.
452. It appears to us clear enough, that it was meant to strike at the
root of the offence by making the first act tending to it liable to the
same punishment, if the Judge shall deem it proper, as the offence
actually accomplished. This is a new principle, and it would have
been better if the Commissioners had explained for what reason
they adopted it, in respect to the offences here contemplated in
particular. We conceive that there is a very weighty objection to the
clauses in question, in the opening which they will afford to
calumny, if for an act so slight as may come within the meaning of
the word, “touches”, a man may be exposed to such a revolting
charge and suffer the ignominy of a public trial upon it.
453. Colonel Sleeman advises the omission of both these clauses,
deeming it most expedient to leave offences against nature silently
to the odium of society. It may give weight to this suggestion to
remark that the existing law on the subject is almost a dead letter, as
appears from the fact that in three years only six cases came before
the Nizamut Adawlut at Calcutta, although it is but true, we fear
that the frequency of the abominable offence in question “remains”
as Mr AD Campbell expresses it, “a horrid stain upon the land.
454. Mr. Livingstone, we observe, makes no mention of offences of
this nature in his code for Louisiana, and they are omitted in the
revised statutes of Massachusetts, of which the Chapter “of
offences against the Lives and Persons of Individuals” is appended
to the 2d Report of the English Criminal Law Commissioners. By
the French Penal Code, offences of this description do not come
within the scope of the law, unless they are effected or attempted by
violence, except the sufferer be under the age of ten years.”
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[Comment of the Law Commissioners on clauses 361 and 362 in
Report on the Indian Penal Code,1848.]
38.
The IPC along with Section 377 as it exists today was passed by the
Legislative Council and the Governor General assented to it on 6.10.1860.
The
understating of acts which fall within the ambit of Section 377 has changed from
non-procreative (Khanu v. Emperor) to imitative of sexual intercourse (Lohana
Vasantlal v. State AIR 1968 Guj 352) to sexual perversity (Fazal Rab v. State of
Bihar AIR 1963, Mihir v. Orissa 1991 Cri LJ 488). This would be illustrated by
the following judgments:
R. V. Jacobs (1817), Russ. & Ry. 331, C. C. R. -The offence of Sodomy can
only be committed per anum.
Govindarajula In re. (1886) 1 Weir 382-Inserting the penis in the mouth would
not amount to an offence under Section 377 IPC.
Khanu v. Emperor AIR 1925 Sind 286.
"The principal point in this case is whether the accused (who is
clearly guilty of having committed the sin of Gomorrah coitus per
os) with a certain little child, the innocent accomplice of his
abomination, has thereby committed an offence under Section 377,
Indian Penal Code.
Section 377 punishes certain persons who have carnal intercourse
against the order of nature with inter alia human beings. Is the act
here committed one of carnal intercourse? If so, 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".
"Intercourse may be defined as mutual frequent action by members
of independent organisation. Commercial intercourse is thereafter
referred to; emphasis is made on the reciprocity".
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"By metaphor the word 'intercourse' like the word 'commerce' is
applied to the relations of the sexes. Here also 'there is the
temporary visitation of one organism by a member of other
organisation, for certain' clearly defined and limited objects. The
primary object of the visiting organization is 'to obtain euphoria by
means of a detent of the nerves consequent on the sexual crisis'."
"But there is no intercourse unless the visiting member is enveloped
at least partially by the visited organism, for intercourse connotes
reciprocity. Looking at the question in this way it would seem that
sin of Gomorrah is no less carnal intercourse than the sin of
sodomy".
"it is to be remembered that the Penal Code does not, except in
Section 377, render abnormal sexual vice punishable at all. In
England indecent assaults are punishable very severely. It is
possible that under the Penal Code, some cases might be met by
prosecuting the offender for simple assault, but that is a
compoundable offence and in any case the patient could in no way
be punished. It is to be supposed that the Legislature intended that a
Tegellinus should carry on his nefarious profession perhaps vitiating
and depraving hundreds of children with perfect immunity?
I doubt not therefore, that cotius per os is punishable under Section
377, Indian Penal Code."
Khandu v. Emperor 35 Cri LJ 1096 : (AIR 1934 Lah 261)-"Carnal intercourse
with a bullock through nose is an unnatural offence punishable under Section 377,
Penal Code."
Lohana Vasantlal Devchand v. The State AIR 1968 Guj 252.
In this case, there were three accused. Accused 1 and 2 had already
committed the offence, in question, which was carnal intercourse per anus, of the
victim boy. The boy began to get a lot of pain and consequently, accused 2 could
not succeed having that act. He therefore voluntarily did the act in question by
putting his male organ in the mouth of the boy and there was also seminal
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discharge and the boy had to vomit it out. The question that arose for
consideration therein was as to whether the insertion of the male organ by the
second accused into the orifice of the mouth of the boy amounted to an offence
under Section 377 IPC.
The act was the actual replacement of desire of coitus and would amount to
an offence punishable under Section 377. There was an entry of male penis in the
orifice of the mouth of the victim. There was the enveloping of a visiting member
by the visited organism. There was thus reciprocity; intercourse connotes
reciprocity. It could, therefore, be said that the act in question amounted to an
offence punishable under Section 377.
What was sought to be conveyed by the explanation was that even mere
penetration would be sufficient to constitute carnal intercourse, necessary to the
offence referred to in Section 377. Seminal discharge, i.e., the full act of
intercourse was not the essential ingredient to constitute an offence in question.
It is true that the theory that the sexual intercourse is only meant for the
purpose of conception is an out-dated theory. But, at the same time it could be
said without any hesitation of contradiction that the orifice of mouth is not,
according to nature, meant for sexual or carnal intercourse. Viewing from that
aspect, it could be said that this act of putting a male-organ in the mouth of a
victim for the purposes of satisfying sexual appetite would be an act of carnal
intercourse against the order of nature.
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In State of Kerala v. Kundumkara Govindan and Anr., 1969 Cri LJ 818, the
Kerala High Court observed:
“18. Even if I am to hold that there was no penetration into the
vagina and the sexual acts were committed only between the thighs,
I do not think that the respondents can escape conviction under
Section 377 of the Penal Code. The counsel of the respondents
contends (in this argument the Public Prosecutor also supports him)
that sexual act between the thighs is not intercourse. The argument
is that for intercourse there must be encirclement of the male organ
by the organ visited; and that in the case of sexual act between the
thighs, there is no possibility of penetration.
19. The word 'intercourse' means 'sexual connection' (Concise
Oxford Dictionary). In Khanu v. Emperor AIR 1925 Sind 286 the
meaning of the word 'intercourse' has been considered:
Intercourse may be defined as mutual frequent action by members
of independent organization.
Then commercial intercourse, social intercourse, etc. have been
considered; and then appears:
By a metaphor the word intercourse, like the word commerce, is
applied to the relations of the sexes. Here also there is the
temporary visitation of one organism by a member of the other
organization, for certain clearly defined and limited objects. The
primary object of the visiting organization is to obtain euphoria by
means of a detent of the nerves consequent on the sexual crisis. But
there is no intercourse unless the visiting member is enveloped at
least partially by the visited organism, for intercourse connotes
reciprocity.
Therefore, to decide whether there is intercourse or not, what is to
be considered is whether the visiting organ is enveloped at least
partially by the visited organism. In intercourse between the thighs,
the visiting male organ is enveloped at least partially by the
organism visited, the thighs: the thighs are kept together and tight.
20. Then about penetration. The word 'penetrate' means in the
concise Oxford Dictionary 'find access into or through, pass
through.' When the male organ is inserted between the thighs kept
together and tight, is there no penetration? The word 'insert' means
place, fit, thrust.' Therefore, if the male organ is 'inserted' or 'thrust'
between the thighs, there is 'penetration' to constitute unnatural
offence.
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21. Unnatural offence is defined in Section 377 of the Penal Code;
whoever voluntarily has carnal intercourse against the order of
nature with any man, woman or animal commits unnatural offence.
The act of committing intercourse between the thighs is carnal
intercourse against the order of nature. Therefore committing
intercourse by inserting the male organ between the thighs of
another is an unnatural offence. In this connection, it may be noted
that the act in Section 376 is "sexual intercourse" and the act in
Section 377 is carnal intercourse against the order of nature."
22. The position in English law on this question has been brought to
my notice. The old decision of Rex v. Samuel Jacobs (1817) Russ
& Ry 381 CCE lays down that penetration through the mouth does
not amount to the offence of sodomy under English law. The
counsel therefore argues that sexual intercourse between the thighs
cannot also be an offence under Section 377 of the Penal Code. In
Sirkar v. Gula Mythien Pillai Chaithu Maho. mathu 1908 TLR Vol
XIV Appendix 43 a Full Bench of the Travancore High Court held
that having connection with a person in the mouth was an offence
under Section 377 of the Penal Code. In a short judgment, the
learned Judges held that it was unnecessary to refer to English
Statute Law and English text books which proceeded upon an
interpretation of the words sodomy, buggery and bestiality; and that
the words used in the Penal Code were very aim pie and died
enough to include all acts against the order of nature. My view on
the question is also that the words of Section 377 are simple and
wide enough to include any carnal intercourse again tithe order of
nature within its ambit. Committing intercourse between the thighs
of another is carnal intercourse against the order of nature.”
In Fazal Rab Choudhary v. State of Bihar (1982) 3 SCC 9 - While reducing the
sentence of the appellant who was convicted for having committed an offence
under Section 377 IPC upon a young boy who had come to his house to take a
syringe, the Court observed:
“3. The offence is one under Section 377 I.P.C., which implies
sexual perversity. No force appears to have been used. Neither the
notions of permissive society nor the fact that in some countries
homosexuality has ceased to be an offence has influenced our
thinking. However in judging the Depravity of the action for
determining quantum of sentence, all aspects of the matter must be
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kept in view. We feel there is some scope for modification of
sentence. Having examined all the relevant aspects bearing on the
question of nature of offence and quantum of sentence, we reduce
the substantive sentence to R.I. for 6 months. To the extent of this
modification in the sentence, the appeal is allowed.”
In Kedar Nath S/o Bhagchand v. State of Rajasthan, 1985 (2) WLN 560, the
Rajasthan High Court observed:
“19. The report (Ex. P. 24) shows that the rectal swear was positive
for spermatozoa, which resembled with human-spermatozoa. The
presence of the human-spermatozoa in the rectum of the deceased
has been held to be a definite proof of fact that the boy has been
subjected to the carnal intercourse against the course of nature. We
are in agreement with the above conclusion arrived at by the learned
trial Court as, in the facts and circumstances of the case, the
presence of human spermatozoa in the rectum of the deceased who
was a young boy, leads to only one conclusion that he was
subjected to the carnal intercourse against the course of nature.”
In Calvin Francis v. Orissa 1992 (2) Crimes 455, the Orissa High Court
outlined a case in which a man inserted his genital organ into the mouth of a 6
year old girl and observed:
“8. In order to attract culpability under Section 377, IPC, it has to be
established that (i) the accused had carnal intercourse with man,
woman or animal, (ii) such intercourse was against the order of
nature, (iii) the act by the accused was done voluntarily; and (iv)
there was penetration. Carnal intercourse against the order of nature
is the gist of the offence in Section 377. By virtue of the Explanation
to the Section, it is necessary to prove penetration, however little, to
constitute the carnal intercourse. Under the English law, to
constitute a similar offence the act must be in that part where
sodomy is usually committed. According to that law, the unnatural
carnal intercourse with a human being generally consists in
penetration per anus. In R. v. Jacobs : (1817) B&R 331 CCR and in
Govindarajulu in re (1886) 1 Weir 382, it was held that the act in a
child's mouth does not constitute the offence. But in Khanu v.
Emperor : AIR 1925 sind 286 it was held that coitus per os is
punishable under the Section.
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9. In terms of Section 377, IPC, whoever voluntarily has carnal
intercourse against the order of nature with any man, woman or
animal, commits the offence. Words used are quite comprehensive
and an act like putting male organ into victim's mouth which was an
initiative act of sexual intercourse for the purpose of his satisfying
the sexual appetite, would be an act punishable under Section 377,
IPC.
10. In Corpus Juris Secundum, Volume 81, op. 368-370, the
following comments have been made.
"Words used in statutory definitions of the crime of Sodomy have
been frequently construed as more comprehensive and as not
depending on, or limited by the common law definition of the crime,
at least as not dependent on the narrower definition of sodomy
afforded by some of the common law authorities and are generally
interpreted to include within their provisions all acts of unnatural
copulation, whether with mankind or beast. Other authorities,
however, have taken a contrary view, holding that the words used in
the statute are limited by the common law definition of the crime
where the words of the statute themselves are not explicit as to what
shall be included.
It is competent for the legislature to declare that the doing of certain
acts shall constitute the crime against nature even-though they
would not have constituted that crime at common law, and the
statutory crime against nature is not necessarily limited to the
common law crime of sodomy, but in imposing a punishment for the
common law crime it is not necessary for the legislature to specify
in the statute the particular acts which shall constitute the crime.
Under statutes providing that whoever has carnal copulation with a
beast, or in any opening of the body, except sexual parts, with
another being, shall be guilty of sodomy, it has been held that the
act of cunnilingus is not a crime, but that taking the male sex organ
into the mouth is sodomy. On the other hand, under such a statute it
has been held that the crime of sodomy cannot be committed unless
the sexual organ of accused is involved, but there is also authority
to the contrary. Under a statute defining sodomy as the carnal
knowledge and connection against the order of nature by man with
man, or in the same unnatural manner with woman, it has been held
that the crime cannot be committed by woman with woman.
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A statute providing that any person who shall commit any act or
practice of sexual perversity, either with mankind or beast on
conviction shall be punished, is not limited to instances involving
carnal copulation, but is restricted to cases involving the sex organ
of at least one of the parties. The term 'sexual perversity' does not
refer to every physical contact by a male with the body of the
female with intent to cause sexual satisfaction to the actor, but the
condemnation of the statute is limited to unnatural conduct
performed for the purpose of accomplish; abnormal sexual
satisfaction for the actor. Under a statute providing that any person
participating in the act or copulating the mouth of one person with
the sexual organ of another is guilty of the offence a person is guilty
of violating the statute when he has placed his mouth on the genital
organ of another, and the offence may be committed by two persons
of opposite sex.
11. Though there is no statutory definition of 'sodomy', Section 377
is comprehensive to engulf any act like the alleged act. View similar
to mine was expressed in Lohana Vasantlal Devchand and Ors. v.
The State : AIR 1963 Guj 252 and in Khanu's case (supra). The
orifice of the mouth is not, according to nature, meant for sexual or
carnal intercourse. 'Intercourse' may be defined as mutual frequent
action by members of independent organisation. Commercial
intercourse is therefore referred to; emphasis is made on the
reciprocity. By metaphor the word 'intercourse' like the word
'commerce' is applied to the relations of the sexes. Here also there is
the temporary visitation of one organism by a member of the other
organisation, for certain clearly defined and limited objects. The
primary object of the visiting organisation is to obtain euphoria by
means of a detent of the nerves consequent on the sexual crisis. But
there is no intercourse unless the visiting member is enveloped at
least partially by the visited organism, for intercourse connotes
reciprocity, and in this view it would seem that sin of Gomorrah is
no less carnal intercourse than the sin of sodomy. These aspects
have been illuminatingly highlighted in Khanu's case (supra).
12. In Stroud's Judicial Dictionary, the word 'buggery' is said to be
synonymous with sodomy. In K. J. Ayer's Manual of Law Terms
and Phrases (as Judicially Expounded), the meaning of the word
'sodomy' is stated to be a carnal knowledge committed against the
order of Nature by a man with a man or in the same unnatural
manner with a woman, or by a man or woman in any manner with a
beast. This is called buggery. As observed in Lohan Vasantlal
Devchand's case (supra), sodomy will be a species and unnatural
offence will be a generis. In that view of the matter, there can be no
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scope for any doubt that the act complained of in punishable under
Sec. 377, IPC.”
Similar views were expressed in State v. Bachmiya Musamiya, 1999 (3)
Guj LR 2456 and Orissa High Court in Mihir alias Bhikari Charan Sahu v. State
1992 Cri LJ 488. However, from these cases no uniform test can be culled out to
classify acts as “carnal intercourse against the order of nature”. In our opinion the
acts which fall within the ambit of the section can only be determined with
reference to the act itself and the circumstances in which it is executed. All the
aforementioned cases refer to non consensual and markedly coercive situations
and the keenness of the court in bringing justice to the victims who were either
women or children cannot be discounted while analyzing the manner in which the
section has been interpreted. We are apprehensive of whether the Court would
rule similarly in a case of proved consensual intercourse between adults. Hence it
is difficult to prepare a list of acts which would be covered by the section.
Nonetheless in light of the plain meaning and legislative history of the section, we
hold that Section 377 IPC would apply irrespective of age and consent. It is
relevant to mention here that the Section 377 IPC does not criminalize a particular
people or identity or orientation. It merely identifies certain acts which if
committed would constitute an offence. Such a prohibition regulates sexual
conduct regardless of gender identity and orientation.
39.
We shall now consider the question whether the High Court was justified in
entertaining challenge to Section 377 IPC despite the fact that respondent No.1
had not laid factual foundation to support its challenge. This issue deserves to be
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prefaced by consideration of
some precedents.
In Southern Petrochemical
Industries v. Electricity Inspector (2007) 5 SCC 447, this Court considered
challenge to the T.N. Tax Consumption or Sale of Electricity Act, 2003. While
dealing with the question whether the 2003 Act was violative of the equality
clause enshrined in Article 14 of the Constitution, this Court made the following
observations:
“In absence of necessary pleadings and grounds taken before the
High Court, we are not in a position to agree with the learned
counsel appearing on behalf of the appellants that only because
Section 13 of the repealed Act is inconsistent with Section 14 of the
2003 Act, the same would be arbitrary by reason of being
discriminatory in nature and ultra vires Article 14 of the
Constitution of India on the premise that charging section provides
for levy of tax on sale and consumption of electrical energy, while
the exemption provision purports to give power to exempt tax on
“electricity sold for consumption” and makes no corresponding
provision for exemption of tax on electrical energy self-generated
and consumed.”
In Seema Silk and Sarees v. Directorate of Enforcement (2008) 5 SCC
580, this Court considered challenge to Sections 18(2) and (3) of the Foreign
Exchange Regulation Act, 1973, referred to paragraphs 69, 70 and 74 of the
Southern Petrochemical Industries v. Electricity Inspector (supra) and observed:
“In absence of such factual foundation having been pleaded, we
are of the opinion that no case has been made out for declaring the
said provision ultra vires the Constitution of India.”
40.
The writ petition filed by respondent No.1 was singularly laconic inasmuch
as except giving brief detail of the work being done by it for HIV prevention
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targeting MSM community, it miserably failed to furnish the particulars of the
incidents of discriminatory attitude exhibited by the State agencies towards sexual
minorities and consequential denial of basic human rights to them. Respondent
No.1 has also not furnished the particulars of the cases involving harassment and
assault from public and public authorities to sexual minorities. Only in the
affidavit filed before this Court on behalf of the Ministry of Health and Family
Welfare, Department of AIDS Control it has been averred that estimated HIV
prevalence among FSW (female sex workers) is 4.60% to 4.94%, among MSM
(men who have sex with men) is 6.54% to 7.23% and IDU (injecting drug users)
is 9.42% to 10.30%. The total population of MSM as in 2006 was estimated to be
25,00,000 and 10% of them are at risk of HIV. The State-wise break up of
estimated size of high risk men who have sex with men has been given in
paragraphs 13 and 14 of the affidavit. In paragraph 19, the State-wise details of
total adult population, estimated adult HIV prevalence and estimated number of
HIV infections as in 2009 has been given. These details are wholly insufficient for
recording a finding that homosexuals, gays, etc., are being subjected to
discriminatory treatment either by State or its agencies or the society.
41.
The question whether a particular classification is unconstitutional was
considered in Re: Special Courts Bill, 1978 (1979) 1 SCC 380. Speaking for
majority of the Constitution Bench, Chandrachud, CJ, referred to large number of
precedents relating to the scope of Article 14 and concluded several propositions
including the following:
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“1. The first part of Article 14, which was adopted from the Irish
Constitution, is a declaration of equality of the civil rights of all
persons within the territories of India. It enshrines a basic principle
of republicanism. The second part, which is a corollary of the first
and is based on the last clause of the first section of the Fourteenth
Amendment of the American Constitution, enjoins that equal
protection shall be secured to all such persons in the enjoyment of
their rights and liberties without discrimination of favourtism. It is
a pledge of the protection of equal laws, that is, laws that operate
alike on all persons under like circumstances.
2. The State, in the exercise of its governmental power, has of
necessity to make laws operating differently on different groups or
classes of persons within its territory to attain particular ends in
giving effect to its policies, and it must possess for that purpose
large powers of distinguishing and classifying persons or things to
be subjected to such laws.
3. The Constitutional command to the State to afford equal
protection of its laws sets a goal not attainable by the invention
and application of a precise formula. Therefore, classification need
not be constituted by an exact or scientific exclusion or inclusion
of persons or things. The Courts should not insist on delusive
exactness or apply doctrinaire tests for determining the validity of
classification in any given case. Classification is justified if it is not
palpably arbitrary.
4. The principle underlying the guarantee of Article 14 is not that
the same rules of law should be applicable to all persons within the
Indian Territory or that the same remedies should be made
available to them irrespective of differences of circumstances. It
only means that all persons similarly circumstanced shall be treated
alike both in privileges conferred and liabilities imposed. Equal
laws would have to be applied to all in the same situation, and
there should be no discrimination between one person and another
if as regards the subject-matter of the legislation their position is
substantially the same.
5. By the process of classification, the State has the power of
determining who should be regarded as a class for purposes of
legislation and in relation to a law enacted on a particular subject.
This power, no doubt, in some degree is likely to produce some
inequality; but if a law deals with the liberties of a number of well-
defined classes, it is not open to the charge of denial of equal
protection on the ground that it has no application to other persons.
Classification thus means segregation in classes which have a
systematic relation, usually found in common properties and
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characteristics. It postulates a rational basis and does not mean
herding together of certain persons and classes arbitrarily.
6. The law can make and set apart the classes according to the
needs and exigencies of the society and as suggested by
experience. It can recognise even degree of evil, but the
classification should never be arbitrary, artificial or evasive.
7. The classification must not be arbitrary but must be rational, that
is to say, it must not only be based on some qualities or
characteristics which are to be found in all the persons grouped
together and not in others who are left out but those qualities or
characteristics must have a reasonable relation to the object of the
legislation. In order to pass the test, two conditions must be
fulfilled, namely, (1) that the classification must be founded on an
intelligible differentia which distinguishes those that are grouped
together from others and (2) that differentia must have a rational
relation to the object sought to be achieved by the Act.
8. The differentia which is the basis of the classification and the
object of the Act are distinct things and what is necessary is that
there must be a nexus between them. In short, while Article 14
forbids class discrimination by conferring privileges or imposing
liabilities upon persons arbitrarily selected out of a large number of
other persons similarly situated in relation to the privileges sought
to be conferred or the liabilities proposed to be imposed, it does
not forbid classification for the purpose of legislation, provided
such classification is not arbitrary in the sense above mentioned.
9. If the legislative policy is clear and definite and as an effective
method of carrying out that policy a discretion is vested by the
statute upon a body of administrators or officers to make selective
application of the law to certain classes or groups of persons, the
statute itself cannot be condemned as a piece of discriminatory
legislation. In such cases, the power given to the executive body
would import a duty on it to classify the subject-matter of
legislation in accordance with the objective indicated in the statute.
If the administrative body proceeds to classify persons or things on
a basis which has no rational relation to the objective of the
legislature, its action can be annulled as offending against the equal
protection clause. On the other hand, if the statute itself does not
disclose a definite policy or objective and it confers authority on
another to make selection at its pleasure, the statute would be held
on the face of it to be discriminatory, irrespective of the way in
which it is applied.
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10. Whether a law conferring discretionary powers on an
administrative authority is constitutionally valid or not should not
be determined on the assumption that such authority will act in an
arbitrary manner in exercising the discretion committed to it.
Abuse of power given by law does occur; but the validity of the
law cannot be contested because of such an apprehension.
Discretionary power is not necessarily a discriminatory power.
11. Classification necessarily implies the making of a distinction or
discrimination between persons classified and those who are not
members of that class. It is the essence of a classification that upon
the class are cast duties and burdens different from those resting
upon the general public. Indeed, the very idea of classification is
that of inequality, so that it goes without saying that the mere fact
of inequality in no manner determines the matter of
constitutionality.
12. Whether an enactment providing for special procedure for the
trial of certain offences is or is not discriminatory and violative of
Article 14 must be determined in each case as it arises, for no
general rule applicable to all cases can safely be laid down. A
practical assessment of the operation of the law in the particular
circumstances is necessary.
13. A rule of procedure laid down by law comes as much within
the purview of Article 14 as any rule of substantive law and it is
necessary that all litigants, who are similarly situated, are able to
avail themselves of the same procedural rights for relief and for
defence with like protection and without discrimination.”
42.
Those who indulge in carnal intercourse in the ordinary course and those
who indulge in carnal intercourse against the order of nature constitute different
classes and the people falling in the later category cannot claim that Section 377
suffers from the vice of arbitrariness and irrational classification. What Section
377 does is merely to define the particular offence and prescribe punishment for
the same which can be awarded if in the trial conducted in accordance with the
provisions of the Code of Criminal Procedure and other statutes of the same
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family the person is found guilty. Therefore, the High Court was not right in
declaring Section 377 IPC ultra vires Articles 14 and 15 of the Constitution.
43.
While reading down Section 377 IPC, the Division Bench of the High
Court overlooked that a miniscule fraction of the country’s population constitute
lesbians, gays, bisexuals or transgenders and in last more than 150 years less than
200 persons have been prosecuted (as per the reported orders) for committing
offence under Section 377 IPC and this cannot be made sound basis for declaring
that section ultra vires the provisions of Articles 14, 15 and 21 of the Constitution.
44.
The vagueness and arbitrariness go to the root of a provision and may
render it unconstitutional, making its implementation a matter of unfettered
discretion. This is especially so in case of penal statues. However while analyzing
a provision the vagaries of language must be borne in mind and prior application
of the law must be considered. In A.K. Roy and Ors. v. Union of India and Ors.
(1982) 1 SCC 271, a Constitution Bench observed as follows:
“67. The requirement that crimes must be defined with appropriate
definiteness is regarded as a fundamental concept in criminal law
and must now be regarded as a pervading theme of our Constitution
since the decision in Maneka Gandhi [1978] 2 SCR 621 . The
underlying principle is that every person is entitled to be informed
as to what the State commands or forbids and that the life and
liberty of a person cannot be put in peril on an ambiguity. However,
even in the domain of criminal law, the processes of which can
result in the taking away of life itself, no more than a reasonable
degree of certainty has to be accepted as a fact. Neither the criminal
law nor the Constitution requires the application of impossible
standards and therefore, what is expected is that the language of the
law must contain an adequate warning of the conduct which may
fall within the prescribed area, when measured by common
understanding. In criminal law, the legislature frequently uses vague
expressions like 'bring into hatred or contempt', 'maintenance of
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harmony between different religious groups' or 'likely to cause
disharmony or hatred or ill-will', or 'annoyance to the public', (see
Sections 124A, 153A(1)(b), 153B(1)(c), and 268 of the Penal
Code). These expressions, though they are difficult to define, do not
elude a just application to practical situations. The use of language
carries with it the inconvenience of the imperfections of language.”
In K.A. Abbas v. The Union of India (UOI) and Anr. (1970) 2 SCC 780 the
Court observed:
“46. These observations which are clearly obiter are apt to be too
generally applied and need to be explained. While it is true that the
principles evolved by the Supreme Court of the United States of
America in the application of the Fourteenth Amendment were
eschewed in our Constitution and instead the limits of restrictions
on each fundamental right were indicated in the clauses that follow
the first clause of the nineteenth Article, it cannot be said as an
absolute principle that no law will be considered bad for sheer
vagueness. There is ample authority for the proposition that a law
affecting fundamental rights may be so considered. A very pertinent
example is to be found in State of Madhya Pradesh and Anr. v.
Baldeo Prasad where the Central Provinces and Berar Goondas Act
1946 was declared void for uncertainty. The condition for the
application of Sections 4 and 4A was that the person sought to be
proceeded against must be a goonda but the definition of goonda in
the Act indicated no tests for deciding which person fell within the
definition. The provisions were therefore held to be uncertain and
vague.
47. The real rule is that if a law is vague or appears to be so, the
court must try to construe it, as far as may be, and language
permitting, the construction sought to be placed on it, must be in
accordance with the intention of the legislature. Thus if the law is
open to diverse construction, that construction which accords best
with the intention of the legislature and advances the purpose of
legislation, is to be preferred. Where however the law admits of no
such construction and the persons applying it are in a boundless sea
of uncertainty and the law prima facie takes away a guaranteed
freedom, the law must be held to offend the Constitution as was
done in the case of the Goonda Act. This is not application of the
doctrine of due process. The invalidity arises from the probability of
the misuse of the law to the detriment of the individual. If possible,
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the Court instead of striking down the law may itself draw the line
of demarcation where possible but this effort should be sparingly
made and only in the clearest of cases.”
45.
We may now deal with the issue of violation of Article 21 of the
Constitution. The requirement of substantive due process has been read into the
Indian Constitution through a combined reading of Articles 14, 21 and 19 and it
has been held as a test which is required to be satisfied while judging the
constitutionality of a provision which purports to restrict or limit the right to life
and liberty, including the rights of privacy, dignity and autonomy, as envisaged
under Article 21. In order to fulfill this test, the law must not only be competently
legislated but it must also be just, fair and reasonable. Arising from this are the
notions of legitimate state interest and the principle of proportionality. In Maneka
Gandhi v. Union of India (supra), this Court laid down the due process
requirement in the following words:
“13. Articles dealing with different fundamental rights contained in
Part III of the Constitution do not represent entirely separate
streams of rights which do not mingle at many points. They are all
parts of an integrated scheme in the Constitution. Their waters must
mix to constitute that grand flow of unimpeded and impartial Justice
(social, economic and political), Freedom (not only of thought,
expression, belief, faith and worship, but also of association,
movement, vocation or occupation as well as of acquisition and
possession of reasonable property), of Equality (of status and of
opportunity, which imply absence of unreasonable or unfair
discrimination between individuals, groups and classes), and of
Fraternity (assuring dignity of the individual and the unity of the
nation), which our Constitution visualises. Isolation of various
aspects of human freedom, for purposes of their protection, is
neither realistic nor beneficial but would defeat the very objects of
such protection....
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... But the mere prescription of some kind of procedure cannot ever
meet the mandate of Article 21. The procedure prescribed by law
has to be fair, just and reasonable, not fanciful, oppressive or
arbitrary. The question whether the procedure prescribed by a law
which curtails or takes away the personal liberty guaranteed by
Article 21 is reasonable or not has to be considered not in the
abstract or on hypothetical considerations like the provision for a
full-dressed hearing as in a Courtroom trial, but in the context,
primarily, of the purpose which the Act is intended to achieve and
of urgent situations which those who are charged with the duty of
administering the Act may be called upon to deal with. Secondly,
even the fullest compliance with the requirements of Article 21 is
not the journey's end because, a law which prescribes fair and
reasonable procedure for curtailing or taking away the personal
liberty guaranteed by Article 21 has still to meet a possible
challenge under other provisions of the Constitution like, for
example, Articles 14 and 19.”
46.
The right to privacy has been guaranteed by Article 12 of the Universal
Declaration of Human Rights (1948), Article 17 of the International Covenant of
Civil and Political Rights and European Convention on Human Rights. It has been
read into Article 21 through an expansive reading of the right to life and liberty.
The scope of the right as also the permissible limits upon its exercise have been
laid down in the cases of Kharak Singh v. State of UP & Ors. (1964) 1 SCR 332
and Gobind v. State of MP (1975) 2 SCC 148 which have been followed in a
number of other cases.
In Kharak Singh v. The State of U.P. and Ors. (supra)
the majority said that 'personal liberty' in Article 21 is comprehensive to include
all varieties of rights which make up personal liberty of a man other than those
dealt with in Article 19(1) (d). According to the Court, while Article 19(1) (d)
deals with the particular types of personal freedom, Article 21 takes in and deals
with the residue. The Court said:
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“We have already extracted a passage from the judgment of Field J.
in Munn v. Illinois (1877) 94 U.S. 113, where the learned Judge
pointed out that 'life' in the 5th and 14th Amendments of the U.S.
Constitution corresponding to Article 21 means not merely the right
to the continuance of a person's animal existence, but a right to the
possession of each of his organs-his arms and legs etc. We do not
entertain any doubt that the word 'life' in Article 21 bears the same
signification. Is then the word 'personal liberty' to be construed as
excluding from its purview an invasion on the part of the police of
the sanctity of a man's home and an intrusion into his personal
security and his right to sleep which is the normal comfort and a
dire necessity for human existence even as an animal ? It might not
be in appropriate to refer here to the words of the preamble to the
Constitution that it is designed to "assure the dignity of the
individual" and therefore of those cherished human value as the
means of ensuring his full development and evolution. We are
referring to these objectives of the framers merely to draw attention
to the concepts underlying the Constitution which would point to
such vital words as 'personal liberty' having to be construed in a
reasonable manner and to be attributed that sense which would
promote and achieve those objectives and by no means to stretch
the meaning of the phrase to square with any preconceived notions
or doctrinaire Constitutional theories.”
47.
In Gobind v. State of M.P. (supra) the Court observed:
“22. There can be no doubt that privacy-dignity claims deserve to
be examined with care and to be denied only when an important
countervailing interest is shown to be superior. If the Court does
find 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 a state interest is
of such paramount importance as would justify an infringement of
the right. Obviously, if the enforcement of morality were held to be
a compelling as well as a permissible state interest, the
characterization of ft claimed rights as a fundamental privacy right
would be of far less significance. The question whether enforcement
of morality is a state interest sufficient to justify the infringement of
a fundamental privacy right need not be considered for the purpose
of this case and therefore we refuse to enter the controversial
thicket whether enforcement of morality is a function of state.
23. Individual autonomy, perhaps the central concern of any system
of limited government, is protected in part under our Constitution by
explicit Constitutional guarantees. "In the application of the
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Constitution our contemplation cannot only be of what has been but
what may be." Time works changes and brings into existence new
conditions. Subtler and far reaching means of invadings privacy will
make it possible to be heard in the street what is whispered in the
closet. Yet, too broad a definition of privacy raises serious
questions about the propriety of judicial reliance on a right that is
not explicit in the Constitution. Of course, privacy primarily
concerns the individuals. It therefore relates to and overlaps with
the concept of liberty. The most serious advocate of privacy must
confess that there are serious problems of defining the essence and
scope of the right. Privacy interest in autonomy must also be placed
in the context of other rights and values.
24. Any right to privacy must encompass and protect the personal
intimacies of the home, the family marriage, motherhood,
procreation and child rearing. This catalogue approach to the
question is obviously not as instructive as it does not give analytical
picture of that distinctive characteristics of the right of privacy.
Perhaps, the only suggestion that can be offered as unifying
principle underlying the concept has been the assertion that a
claimed right must be a fundamental right implicit in the concept of
ordered liberty.
25. Rights and freedoms of citizens are set forth in the Constitution
in order to guarantee that the individual, his personality and those
things stamped with his personality shall be free from official
interference except where a reasonable basis for intrusion exists.
"Liberty against government" a phrase coined by Professor Corwin
express this idea forcefully. In this sense, many of the fundamental
rights of citizens can be described as contributing to the right to
privacy.
26. As Ely says: "There is nothing to prevent one from using the
word 'privacy' to mean the freedom to live one's life without
governmental interference. But the Court obviously does not so use
the term. Nor could it, for such a right is at stake in every case" see
"The Wages of Crying Wolf: A Comment on Roe v. Wade, 82 Yale
L.J. 920.
27. There are two possible theories for protecting privacy of home.
The first is that activities in the home harm others only to the extent
that they cause offence resulting from the mere thought that
individuals might he engaging in such activities and that such 'harm'
is not Constitutionally protective by the state. The second is that
individuals need a place of sanctuary where they can be free from
societal control. The importance of such a sanctuary is that
individuals can drop the mask, desist for a while from projecting on
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the world the image they want to be accepted as themselves, an
image that may reflect the values of their peers rather than the
realities of their natures see 26 Standford Law Rev. 1161 at 1187.
28. The right to privacy in any event will necessarily have to go
through a process of case-by-case development. Therefore, even
assuming that the right to personal liberty, the right to move freely
throughout the territory of India and the freedom of speech create
an independent right of privacy as an emanation from them which
one can characterize as a fundamental right, we do not think that the
right is absolute.”
48.
The issues of bodily integrity and the right to sexual choices have been
dealt with by this Court in Suchita Srivastava and Anr. v. Chandigarh
Administration (2009) 9 SCC 1, in context of Section 3 of the Medical
Termination of Pregnancy Act, 1971, observed:
“11. A plain reading of the above-quoted provision makes it clear
that Indian law allows for abortion only if the specified conditions
are met. When the MTP Act was first enacted in 1971 it was largely
modelled on the Abortion Act of 1967 which had been passed in the
United Kingdom. The legislative intent was to provide a qualified
'right to abortion' and the termination of pregnancy has never been
recognised as a normal recourse for expecting mothers. There is no
doubt that a woman's right to make reproductive choices is also a
dimension of 'personal liberty' as understood under Article 21 of the
Constitution of India. It is important to recognise that reproductive
choices can be exercised to procreate as well as to abstain from
procreating. The crucial consideration is that a woman's right to
privacy, dignity and bodily integrity should be respected. This
means that there should be no restriction whatsoever on the exercise
of reproductive choices such as a woman's right to refuse
participation in sexual activity or alternatively the insistence on use
of contraceptive methods. Furthermore, women are also free to
choose birth-control methods such as undergoing sterilisation
procedures. Taken to their logical conclusion, reproductive rights
include a woman's entitlement to carry a pregnancy to its full term,
to give birth and to subsequently raise children. However, in the
case of pregnant women there is also a 'compelling state interest' in
protecting the life of the prospective child. Therefore, the
termination of a pregnancy is only permitted when the conditions
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specified in the applicable statute have been fulfilled. Hence, the
provisions of the MTP Act, 1971 can also be viewed as reasonable
restrictions that have been placed on the exercise of reproductive
choices.”
49. In Mr. X v. Hospital Z (1998) 8 SCC 296, this court observed:
“25. As one of the basic Human Rights, the right of privacy is not
treated as absolute and is subject to such action as may be lawfully
taken for the prevention of crime or disorder or protection of health
or morals or protection of rights and freedoms of others.
26. Right of Privacy may, apart from contract, also arise out of a
particular specific relationship which may be commercial,
matrimonial, or even political. As already discussed above, Doctor-
patient relationship, though basically commercial, is, professionally,
a matter of confidence and, therefore. Doctors are morally and
ethically bound to maintain confidentiality. In such a situation,
public disclosure of even true private facts may amount to an
invasion of the Right of Privacy which may sometimes lead to the
clash of person's "right to be let alone" with another person's right to
be informed.
27. Disclosure of even true private facts has the tendency to disturb
a person's tranquility. It may generate many complexes in him and
may even lead to psychological problems. He may, thereafter, have
a disturbed life all through. In the face of these potentialities, and as
already held by this Court in its various decisions referred to above,
the Right of Privacy is an essential component of right to life
envisaged by Article 21. The right, however, is not absolute and
may be lawfully restricted for the prevention of crime, disorder or
protection of health or morals or protection of rights and freedom of
others.
28. Having regard to the fact that the appellant was found to be
HIV(+), its disclosure would not be violative of either the rule of
confidentiality or the appellant's Right of Privacy as Ms. Akali with
whom the appellant was likely to be married was saved in time by
such disclosure, or else, she too would have been infected with the
dreadful disease if marriage had taken place and consummated.”
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50.
The right to live with dignity has been recognized as a part of Article 21
and the matter has been dealt with in Francis Coralie Mullin v. Administrator,
Union Territory of Delhi and Ors. (1981) 1 SCC 608 wherein the Court observed:
“8. But the question which arises is whether the right to life is
limited only to protection of limb or faculty or does it go further and
embrace something more. 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 one-self in diverse forms, freely moving about and
mixing and commingling with fellow human beings. Of course, the
magnitude and content of the components of this right would
depend upon the extent of the economic development of the
country, but it must, in any view of the matter, include the right to
the basic necessities of life and also the right to carry on such
functions and activities as constitute the bare minimum expression
of the human-self. 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. Now obviously, any form of torture or cruel,
inhuman or degrading treatment would be offensive to human
dignity and constitute an inroad into this right to live and it would,
on this view, be prohibited by Article 21 unless it is in accordance
with procedure prescribed by law, but no law which authorises and
no procedure which leads to such torture or cruel, inhuman or
degrading treatment can ever stand the test of reasonableness and
non-arbitrariness: it would plainly be unconstitutional and void as
being violative of Articles 14 and 21.”
51. Respondent No.1 attacked Section 377 IPC on the ground that the same has
been used to perpetrate harassment, blackmail and torture on certain persons,
especially those belonging to the LGBT community. In our opinion, this treatment
is neither mandated by the section nor condoned by it and the mere fact that the
section is misused by police authorities and others is not a reflection of the vires
of the section. It might be a relevant factor for the Legislature to consider while
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judging the desirability of amending Section 377 IPC. The law in this regard has
been discussed and clarified succinctly in Sushil Kumar Sharma v. Union of India
and Ors. (2005) 6 SCC 281 as follows:
“11. It is well settled that mere possibility of abuse of a provision of
law does not per se invalidate a legislation. It must be presumed,
unless contrary is proved, that administration and application of a
particular law would be done "not with an evil eye and unequal
hand" (see: A. Thangal Kunju Musaliar v. M. Venkatachalam Potti,
Authorised Official and Income-Tax Officer and Anr.)
:
[1956]29ITR349(SC) .
12. In Budhan Choudhry and Ors. v. State of Bihar : 1955CriLJ374
a contention was raised that a provision of law may not be
discriminatory but it may land itself to abuse bringing about
discrimination between the persons similarly situated. This court
repelled the contention holding that on the possibility of abuse of a
provision by the authority, the legislation may not be held arbitrary
or discriminatory and violative of Article 14 of the Constitution.
13. From the decided cases in India as well as in United States of
America, the principle appears to be well settled that if a statutory
provision is otherwise intra-vires, constitutional and valid, mere
possibility of abuse of power in a given case would not make it
objectionable, ultra-vires or unconstitutional. In such cases, "action"
and not the "section" may be vulnerable. If it is so, the court by
upholding the provision of law, may still set aside the action, order
or decision and grant appropriate relief to the person aggrieved.
14. In Mafatlal Industries Ltd. and Ors. v. Union of India and Ors. :
1997(89)ELT247(SC) , a Bench of 9 Judges observed that mere
possibility of abuse of a provision by those in charge of
administering it cannot be a ground for holding a provision
procedurally or substantively unreasonable. In Collector of Customs
v. Nathella Sampathu Chetty : 1983ECR2198D(SC) this Court
observed:
"The possibility of abuse of a statute otherwise valid does not
impart to it any element of invalidity." It was said in State of
Rajasthan v. Union of India
: [1978]1SCR1 "it must be
remembered that merely because power may sometimes be abused,
it is no ground for denying the existence of power. The wisdom of
man has not yet been able to conceive of a Government with power
sufficient to answer all its legitimate needs and at the same time
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incapable of mischief." (Also see: Commissioner, H.R.E. v. Sri
Lakshmindra Thirtha Swamiar of Sri Shirur Meth
:
[1954]1SCR1005 .
15. As observed in Maulavi Hussein Haji Abraham Umarji v. State
of Gujarat MANU/SC/0567/2004 : 2004CriLJ3860 . Unique Butle
Tube Industries (P) Ltd. v. U.P. Financial Corporation and Ors. :
[2002]SUPP5SCR666 and Padma Sundara Rao (dead) and Ors. v.
State of Tamil and Ors. [2002]255ITR147(SC) , while interpreting
a provision, the Court only interprets the law and cannot legislate it.
If a provision of law is misused and subjected to the abuse of the
process of law, it is for the legislature to amend, modify or repeal it,
if deemed necessary.”
52.
In its anxiety to protect the so-called rights of LGBT persons and to declare
that Section 377 IPC violates the right to privacy, autonomy and dignity, the High
Court has extensively relied upon the judgments of other jurisdictions. Though
these judgments shed considerable light on various aspects of this right and are
informative in relation to the plight of sexual minorities, we feel that they cannot
be applied blindfolded for deciding the constitutionality of the law enacted by the
Indian legislature. This view was expressed as early as in 1973 in Jagmohan
Singh v. State of U.P. (1973) 1 SCC 20. In that case, a Constitutional Bench
considered the legality of the death sentence imposed by the Sessions Judge,
Shahjahanpur, which was confirmed by the Allahabad High Court. One of the
arguments raised by the counsel for the appellant was that capital punishment has
been abolished in U.S. on the ground of violation of the 8 th Amendment. While
considering that argument, this Court observed:
“13. Reference was made by Mr Garg to several studies made by
Western scholars to show the ineffectiveness of capital punishment
either as a detterent or as appropriate retribution. There is large
volume of evidence compiled in the West by kindly social reformers
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and research workers to confound those who want to retain the
capital punishment. The controversy is not yet ended and
experiments are made by suspending the death sentence where
possible in order to see its effect. On the other hand most of these
studies suffer from one grave defect namely that they consider all
murders as stereotypes, the result of sudden passion or the like,
disregarding motivation in each individual case. A large number of
murders is undoubtedly of the common type. But some at least are
diabolical in conception and cruel in execution. In some others
where the victim is a person of high standing in the country society
is liable to be rocked to its very foundation. Such murders cannot be
simply wished away by finding alibis in the social maladjustment of
the murderer. Prevalence of such crimes speaks, in the opinion of
many, for the inevitability of death penalty not only by way of
deterrence but as a token of emphatic disapproval by the society.
14. We have grave doubts about the expediency of transplanting
Western experience in our country. Social conditions are different
and so also the general intellectual level. In the context of our
Criminal Law which punishes murder, one cannot ignore the fact
that life imprisonment works out in most cases to a dozen years of
imprisonment and it may be seriously questioned whether that sole
alternative will be an adequate substitute for the death penalty. We
have not been referred to any large-scale studies of crime statistics
compiled in this country with the object of estimating the need of
protection of the society against murders. The only authoritative
study is that of the Law Commission of India published in 1967. It
is its Thirty-fifth Report. After collecting as much available material
as possible and assessing the views expressed in the West both by
abolitionists and the retentionists the Law Commission has come to
its conclusion at paras 262 to 264. These paragraphs are
summarized by the Commission as follows at p. 354 of the Report:
“The issue of abolition or retention has to be decided on a
balancing of the various arguments for and against retention. No
single argument for abolition or retention can decide the issue. In
arriving at any conclusion on the subject, the need for protecting
society in general and individual human beings must be borne in
mind.
It is difficult to rule out the validity of, or the strength behind,
many of the arguments for abolition. Nor does the Commission treat
lightly the argument based on the irrevocability of the sentence of
death, the need for a modern approach, the severity of capital
punishment, and the strong feeling shown by certain sections of
public opinion in stressing deeper questions of human values.
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Having regard, however, to the conditions in India, to the variety
of the social upbringing of its inhabitants, to the disparity in the
level of morality and education in the country, to the vastness of its
area, to the diversity of its population and to the paramount need for
maintaining law and order in the country at the present juncture,
India cannot risk the experiment of abolition of capital punishment.
Arguments which would be valid in respect of one area of the
world may not hold good in respect of another area, in this context.
Similarly, even if abolition in some parts of India may not make a
material difference, it may be fraught with serious consequences in
other parts.
On a consideration of all the issues involved, the Commission is
of the opinion, that capital punishment should be retained in the
present state of the country.”
The Court also referred to an earlier judgment in State of Madras v. V.G.
Row 1952 SCR 597. In that case, Patanjali Sastri, CJ. observed:
“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 to 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 self-restraint 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”.
The responsibility of Judges in that respect is the greater, since the
question as to whether capital sentence for murder is appropriate in
modern times has raised serious controversy the world over,
sometimes, with emotional overtones. It is, therefore, essential that
we approach this constitutional question with objectivity and proper
measure of self-restraint.”
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53.
The afore-stated judgment was relied upon in Surendra Pal v. Saraswati
Arora (1974) 2 SCC 600. Learned counsel who appeared for the appellant in that
case relied upon a passage from Halsbury’s Laws of England on the issue of
presumption of undue influence in the case of parties engaged to be married.
While refusing to rely upon the proposition laid down in Halsbury’s laws of
England, this Court observed:
“The family law in England has undergone a drastic change,
recognised new social relationship between man and woman. In our
country, however, even today a marriage is an arranged affair. We
do not say that there are no exceptions to this practice or that there
is no tendency, however imperceptible, for young persons to choose
their own spouses, but even in such cases the consent of their
parents is one of the desiderata which is sought for. Whether it is
obtained in any given set of circumstances is another matter. In such
arranged marriages in this country the question of two persons
being engaged for any appreciable time to enable each other to meet
and be in a position to exercise undue influence on one another very
rarely arises. Even in the case of the marriage in the instant case, an
advertisement was resorted to by Bhim Sain. The person who
purports to reply is Saraswati’s mother and the person who replied
to her was Bhim Sain’s Personal Assistant. But the social
considerations prevailing in this country and ethos even in such
cases persist in determining the respective attitudes. That apart, as
we said earlier, the negotiations for marriage held in Saraswati’s
sister’s house have all the appearance of a business transaction. In
these circumstances that portion of the statement of the law in
Halsbury which refers to the presumption of the exercise of undue
influence in the case of a man to a woman to whom he is engaged to
be married would hardly be applicable to conditions in this country.
We have had occasion to point out the danger of such statements of
law enunciated and propounded for meeting the conditions existing
in the countries in which they are applicable from being blindly
followed in this country without a critical examination of those
principles and their applicability to the conditions, social norms and
attitudes existing in this country. Often statements of law applicable
to foreign countries as stated in compilations and learned treatises
are cited without making a critical examination of those principles
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in the background of the conditions that existed or exist in those
countries. If we are not wakeful and circumspect, there is every
likelihood of their being simply applied to cases requiring our
adjudication without consideration of the background and various
other conditions to which we have referred. On several occasions
merely because courts in foreign countries have taken a different
view than that taken by our courts or in adjudicating on any
particular matter we were asked to reconsider those decisions or to
consider them for the first time and to adopt them as the law of this
country.
No doubt an objective and rational deduction of a principle, if it
emerges from a decision of foreign country, rendered on pari
materia legislative provisions and which can be applicable to the
conditions prevailing in this country will assist the Court in arriving
at a proper conclusion. While we should seek light from whatever
source we can get, we should however guard against being blinded
by it.”
54.
In view of the above discussion, we hold that Section 377 IPC does not
suffer from the vice of unconstitutionality and the declaration made by the
Division Bench of the High court is legally unsustainable.
55.
The appeals are accordingly allowed, the impugned order is set aside and
the writ petition filed by respondent No.1 is dismissed.
56.
While parting with the case, we would like to make it clear that this Court
has merely pronounced on the correctness of the view taken by the Delhi High
Court on the constitutionality of Section 377 IPC and found that the said section
does not suffer from any constitutional infirmity. Notwithstanding this verdict, the
competent legislature shall be free to consider the desirability and propriety of
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deleting Section 377 IPC from the statute book or amend the same as per the
suggestion made by the Attorney General.
..........................................................J.
(G.S. SINGHVI)
...........................................................J.
(SUDHANSU JYOTI MUKHOPADHAYA)
New Delhi
December 11, 2013
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