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Sec.377 of I.P.C. – constitutionally valid – Unnatural offences – Same sex marriage – Bombay high court declared the sec.377 as unconstitutional – Apex court set aside the orders of Bombay high court – and held that sec.377 is a valid one – marriage between same sex is an offence under sec.377 still – Notwithstanding this verdict, the competent legislature shall be free to consider the desirability and propriety of deleting Section 377 IPC from the statute book or amend the same as per the suggestion made by the Attorney General. = Suresh Kumar Koushal and another … Appellants versus NAZ Foundation and others … Respondents = published in/ Cited in / Reported in judis.nic.in/supremecourt/filename=41070

Sec.377 of I.P.C. – constitutionally valid – Unnatural offences – Same sex marriage –

 

English: penal code

English: penal code (Photo credit: Wikipedia)

 

Bombay high court declared the sec.377 as unconstitutional – Apex court set aside the orders of Bombay high court – and held that  sec.377 is a valid one – marriage between same sex is an offence under sec.377 still –  Notwithstanding this verdict, the competent legislature  shall  be  free  to consider the desirability and propriety of deleting  Section  377  IPC  from the statute book or amend the  same  as  per  the  suggestion  made  by  the Attorney General. = 

 

 

 

 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.”  =

 

 

 

 

 “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 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 deleting  Section  377  IPC  from

 

the statute book or amend the  same  as  per  the  suggestion  made  by  the

 

Attorney General.

 

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
with
CIVIL APPEAL NO.10974 OF 2013
(Arising out of SLP(C) No.37703 of 2013 @ CC NO.13105 of 2009)

 

CIVIL APPEAL NO.10986 OF 2013
(Arising out of SLP(C) No.37708 of 2013 @ CC NO.14042 of 2009)

 

CIVIL APPEAL NO.10981 OF 2013
(Arising out of SLP(C) No.37705 of 2013 @ CC NO.19478 of 2009)

 

CIVIL APPEAL NO.10983 OF 2013
(Arising out of SLP(C) NO.20913 of 2009)

 

CIVIL APPEAL NO.10984 OF 2013
(Arising out of SLP(C) NO.20914 of 2009)

 

CIVIL APPEAL NO.10975 OF 2013
(Arising out of SLP(C) NO.22267 of 2009)

 

CIVIL APPEAL NO.10973 OF 2013
(Arising out of SLP(C) NO.24334 of 2009)

 

CIVIL APPEAL NO.10985 OF 2013
(Arising out of SLP(C) NO.25346 of 2009)

 

CIVIL APPEAL NO.10976 OF 2013
(Arising out of SLP(C) NO.34187 of 2009)

 
CIVIL APPEAL NO.10980 OF 2013
(Arising out of SLP(C) NO.36216 of 2009)

 

CIVIL APPEAL NO.10982 OF 2013
(Arising out of S.L.P.(C) No.37706 of 2013 @ CC NO.425 of 2010)

 

CIVIL APPEAL NO.10977 OF 2013
(Arising out of SLP(C) NO.286 of 2010)

 

CIVIL APPEAL NO.10978 OF 2013
(Arising out of SLP(C) NO.872 of 2010)

 

CIVIL APPEAL NO.10979 OF 2013
(Arising out of SLP(C) NO.873 of 2010)

 

 

 

JUDGMENT
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 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-
procreative sexual acts are unnatural includes socio-scientific and
anthropological evidence and also the natural presence of homosexuality in
society at large.

 
(iii) That private, consensual sexual relations are protected under the
right to liberty under Article 21 under the privacy and dignity claim. It
was further pleaded that Section 377 IPC is not a valid law because there
exists no compelling State interest to justify the curtailment of an
important fundamental freedom; that Section 377 IPC insofar as it
criminalises consensual, non-procreative sexual relations is unreasonable
and arbitrary and therefore violative of Article 14.

 
(iv) Another plea taken by respondent No.1 was that Section 377 creates a
classification between “natural” (penile-vaginal) and “unnatural” (penile-
non-vaginal) penetrative sexual acts. The legislative objective of
penalising unnatural acts has no rational nexus with the classification
between natural (procreative) and unnatural (non-procreative) sexual acts
and is thus violative of Article 14.

 
4. By an order dated 2.9.2004, the Division Bench of the High Court
dismissed the writ petition by observing that no cause of action has
accrued to respondent No.1 and purely academic issues cannot be examined by
the Court. The review petition filed by respondent No.1 was also dismissed
by the High Court vide order dated 3.11.2004.

 
5. Respondent No.1 challenged both the orders in SLP (C) Nos. 7217-
7218/2005, which were converted to Civil Appeal No. 952/2006. This Court
allowed the appeal vide order dated 3.2.2006 and remitted the writ petition
for fresh decision by the High Court. The relevant portions of that order
are reproduced below:

 
“The challenge in the writ petition before the High Court was to the
constitutional validity of Section 377 of the Indian Penal Code, 1860.
The High Court, without examining that issue, dismissed the writ
petition by the impugned order observing that there is no case of
action in favour of the appellant as the petition cannot be filed to
test the validity of the Legislation and, therefore, it cannot be
entertained to examine the academic challenge to the constitutionality
of the provision.

 
The learned Additional Solicitor General, if we may say so, rightly
submits that the matter requires examination and is not of a nature
which ought to have been dismissed on the ground afore-stated. We
may, however, note that the appeal is being strenuously opposed by
Respondent No.6. We are, however, not examining the issue on merits
but are of the view that the matter does require consideration and is
not of a nature which could have been dismissed on the ground afore-
stated. In this view, we set aside the impugned judgment and order of
the High Court and remit Writ Petition (C) No.7455 of 2001 for its
fresh decision by the High Court.”

 

 

 

 

 
6. NACO and the Health Ministry had filed counter in the form of an
affidavit of Shri M.L. Soni, Under Secretary to the Government of India,
Ministry of Health & Family Welfare, National AIDS Control Organisation. He
outlined the strategy adopted by NACO for prevention and control of
HIV/AIDS in India which includes identification of high risk groups and the
provision of necessary tools and information for protection and medical
care. The deponent averred that National Sentinel Surveillance Data 2005
estimated that HIV prevalence in “men who have sex with men” (MSM) is 8%
while in general population it is lesser than 1%. The MSM population is
estimated at 25 lacs as of January 2006. Shri Soni also stated that NACO
has developed programmes for undertaking targeted interventions among MSM
population and that for prevention of HIV/AIDS there is a need for an
enabling environment where people indulging in risky behaviour may be
encouraged not to conceal information so that they are provided with access
to NACO services.

 
7. On behalf of the Ministry of Home Affairs, Government of India, Shri
Venu Gopal, Director (Judicial) filed an affidavit and pleaded that 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, 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. 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 – 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.”

 
11. The High Court then considered the plea of respondent No.1 that
Section 377 is violative of Article 14 of the Constitution, referred to the
tests of permissible classification as also the requirements of
reasonableness and non-arbitrariness as laid down by this Court and held
that the classification created by Section 377 IPC does not bear any
rational nexus to the objective sought to be achieved. The observations
made by the High Court on this issue are extracted below:

 
“It is clear that Section 377 IPC, whatever its present pragmatic
application, was not enacted keeping in mind instances of child sexual
abuse or to fill the lacuna in a rape law. It was based on a
conception of sexual morality specific to Victorian era drawing on
notions of carnality and sinfulness. In any way, the legislative
object of protecting women and children has no bearing in regard to
consensual sexual acts between adults in private. The second
legislative purpose elucidated is that Section 377 IPC serves the
cause of public health by criminalizing the homosexual behaviour. As
already held, this purported legislative purpose is in complete
contrast to the averments in NACO’s affidavit. NACO has specifically
stated that enforcement of Section 377 IPC adversely contributes to
pushing the infliction underground, make risky sexual practices go
unnoticed and unaddressed. Section 377 IPC thus hampers HIV/AIDS
prevention efforts. Lastly, as held earlier, it is not within the
constitutional competence of the State to invade the privacy of
citizen’s lives or regulate conduct to which the citizen alone is
concerned solely on the basis of public morals. The criminalization of
private sexual relations between consenting adults absent any evidence
of serious harm deems the provision’s objective both arbitrary and
unreasonable. The state interest “must be legitimate and relevant” for
the legislation to be non-arbitrary and must be proportionate towards
achieving the state interest. If the objective is irrational, unjust
and unfair, necessarily classification will have to be held as
unreasonable. The nature of the provision of Section 377 IPC and its
purpose is to criminalise private conduct of consenting adults which
causes no harm to anyone else. It has no other purpose than to
criminalise conduct which fails to conform with the moral or religious
views of a section of society. The discrimination severely affects the
rights and interests of homosexuals and deeply impairs their dignity.”

 
12. The High Court took note of the Declaration of Principles of Equality
issued by the Equal Rights Trust in April, 2008. It referred to the
judgments in The National Coalition for Gay and Lesbian Equality v. The
Minister of Justice, Lawrence v. Texas, Romer v Evans, Vriend v. Alberta
and held:

 
“Section 377 IPC is facially neutral and it apparently targets not
identities but acts, but in its operation it does end up unfairly
targeting a particular community. The fact is that these sexual acts
which are criminalised are associated more closely with one class of
persons, namely, the homosexuals as a class. Section 377 IPC has the
effect of viewing all gay men as criminals. When everything associated
with homosexuality is treated as bent, queer, repugnant, the whole gay
and lesbian community is marked with deviance and perversity. They are
subject to extensive prejudice because what they are or what they are
perceived to be, not because of what they do. The result is that a
significant group of the population is, because of its sexual
nonconformity, persecuted, marginalised and turned in on itself.
[Sachs, J. in The National Coalition for Gay and Lesbian Equality v.
The Minister of Justice, para 108].

 

 

 
13. The High Court also discussed the case of Anuj Garg v. Hotel
Association of India in detail and made reference to the principles of
strict scrutiny and proportionality review as borrowed from the
jurisprudence of the US Supreme Court, the Canadian and European Courts and
proceeded to observe:

 
“On a harmonious construction of the two judgments, the Supreme Court
must be interpreted to have laid down that the principle of ‘strict
scrutiny’ would not apply to affirmative action under Article 15(5)
but a measure that disadvantages a vulnerable group defined on the
basis of a characteristic that relates to personal autonomy must be
subject to strict scrutiny.

 
Thus personal autonomy is inherent in the grounds mentioned in Article
15. The grounds that are not specified in Article 15 but are analogous
to those specified therein, will be those which have the potential to
impair the personal autonomy of an individual. This view was earlier
indicated in Indra Sawhney v. Union of India, (1992) Supp. 3 SCC 217….

 
As held in Anuj Garg, if a law discriminates on any of the prohibited
grounds, it needs to be tested not merely against “reasonableness”
under Article 14 but be subject to “strict scrutiny”. The impugned
provision in Section 377 IPC criminalises the acts of sexual
minorities particularly men who have sex with men and gay men. It
disproportionately impacts them solely on the basis of their sexual
orientation. The provision runs counter to the constitutional values
and the notion of human dignity which is considered to be the
cornerstone of our Constitution. Section 377 IPC in its application to
sexual acts of consenting adults in privacy discriminates a section of
people solely on the ground of their sexual orientation which is
analogous to prohibited ground of sex. A provision of law branding one
section of people as criminal based wholly on the State’s moral
disapproval of that class goes counter to the equality guaranteed
under Articles 14 and 15 under any standard of review.

 
A constitutional provision must be construed, not in a narrow and
constricted sense, but in a wide and liberal manner so as to
anticipate and take account of changing conditions and purposes so
that the constitutional provision does not get atrophied or fossilized
but remains flexible enough to meet the newly emerging problems.
[Francis Coralie Mullin v. Union Territory of Delhi (1981) 1 SCC 608,
Para 6 of SCC].”

 
14. Finally, the High Court elaborated upon the scope of the Court’s
power to declare a statutory provision invalid, referred to the judgments
in State of Madras v. V.G. Row, R. (Alconbury Ltd.) v. Environment
Secretary, [2001] 2 WLR 1389, West Virginia State Board of Education v.
Barnette, 319 US 624 (1943), I.R. Coelho (Dead) by LRs v. State of Tamil
Nadu & Ors., (2007) 2 SCC 1 and Raja Ram Pal v. Hon’ble Speaker, Lok Sabha
& Ors., (2007) 3 SCC 184, Peerless General Finance Investment Co. Ltd. v.
Reserve Bank of India, (1992) 2 SCC 343 and held:

 
“It is true that the courts should ordinarily defer to the wisdom of
the legislature while exercising the power of judicial review of
legislation. But it is equally well settled that the degree of
deference to be given to the legislature is dependent on the subject
matter under consideration. When matters of “high constitutional
importance” such as constitutionally entrenched human rights – are
under consideration, the courts are obliged in discharging their own
sovereign jurisdiction, to give considerably less deference to the
legislature than would otherwise be the case.

 
In the present case, the two constitutional rights relied upon i.e.
‘right to personal liberty’ and ‘right to equality’ are fundamental
human rights which belong to individuals simply by virtue of their
humanity, independent of any utilitarian consideration. A Bill of
Rights does not ‘confer’ fundamental human rights. It confirms their
existence and accords them protection.

 
After the conclusion of oral hearing, learned ASG filed his written
submissions in which he claimed that the courts have only to interpret
the law as it is and have no power to declare the law invalid.
According to him, therefore, if we were to agree with the petitioner,
we could only make recommendation to Parliament and it is for
Parliament to amend the law. We are constrained to observe that the
submission of learned ASG reflects rather poorly on his understanding
of the constitutional scheme. It is a fundamental principle of our
constitutional scheme that every organ of the State, every authority
under the Constitution derives its power or authority under the
Constitution and has to act within the limits of powers. The judiciary
is constituted as the ultimate interpreter of the Constitution and to
it is assigned the delicate task of determining what is the extent and
scope of the power conferred on each branch of government, what are
the limits on the exercise of such power under the Constitution and
whether any action of any branch transgresses such limits. The role of
the judiciary is to protect the fundamental rights. A modern democracy
while based on the principle of majority rule implicitly recognizes
the need to protect the fundamental rights of those who may dissent or
deviate from the majoritarian view. It is the job of the judiciary to
balance the principles ensuring that the government on the basis of
number does not override fundamental rights. After the enunciation of
the basic structure doctrine, full judicial review is an integral part
of the constitutional scheme. To quote the words of Krishna Iyer, J.
“… The compulsion of constitutional humanism and the assumption of
full faith in life and liberty cannot be so futile or fragmentary that
any transient legislative majority in tantrums against any minority by
three quick readings of a Bill with the requisite quorum, can
prescribe any unreasonable modality and thereby sterilise the
grandiloquent mandate.”

 

 

 
15. The order of the High Court has been challenged by large number of
organizations and individuals including Joint Action Council Kannur and
Shri B.P. Singhal, who were interveners before the High Court. During the
pendency of the special leave petitions several individuals and
organisations filed IAs for permission to intervene. All the IAs were
allowed vide order dated 7.2.2011 and the applicants were permitted to act
as interveners. The details of the parties and interveners before this
Court are as under:

 

 

 
|Case Number|Name |Description |Details |
| | |before the | |
| | |Court | |
|SLP (C) No.|Suresh |Petitioners |Petitioners are citizens of|
|15436/2009 |Kumar |(Not parties|India who believe they have|
|(CC No. |Koushal & |before the |the moral responsibility |
|9255/2009) |Anr. |High Court) |and duty in protecting |
| | | |cultural values of Indian |
| | | |society. |
| |Samajik |Intervener –|The applicant is a |
| |Ekta Party |IA No. |political party registered |
| | |4/2009 |by the Election Commission |
| | | |of India under Sec 29A, |
| | | |Representation of People |
| | | |Act, 1951 vide order dt. |
| | | |20.4.1995. It is interested|
| | | |in the welfare of the |
| | | |citizens, their rights, |
| | | |functioning of the State |
| | | |and interest of public at |
| | | |large. |
| |Mr. Shyam |Intervener –|The applicant is a film |
| |Benegal |IA No. |maker and a citizen. He |
| | |6/2009 |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 |
| |Missionarie|– IA No. |registered charitable trust|
| |s |7/2010 |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 |
| |& Others |– IA No. |of lesbian, gay, bisexual |
| |(Parents of|8/2010 |and transgender persons |
| |LGBT | |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 |
| |Seshadri & |- IA No. |health professionals who |
| |Others |9/2010 |have been practising as |
| |(Professor | |psychiatrists, clinical |
| |of | |psychologists and |
| |Psychiatry | |behavioral psychologists in|
| |at the | |the field of mental health |
| |National | |in reputed medical |
| |Institute | |institutions throughout |
| |of Mental | |India. They claim to have |
| |Health and | |had considerable expertise |
| |Neuro | |in addressing the mental |
| |Sciences, | |health concerns of Lesbian,|
| |Bangalore) | |Gay, Bisexual and |
| | | |Transgender persons. The |
| | | |Applicants submit that |
| | | |sexual orientation is an |
| | | |immutable characteristic |
| | | |and is present at birth. |
| |Nivedita |Interveners |The Applicants are |
| |Menon & |- I.A. No. |academicians who wish to |
| |Others |10/2010 |contribute to the debate on|
| |(Professor | |the issues raised by the |
| |in | |judgment and to draw |
| |Political | |attention to the mental |
| |Thought, | |distress caused to the LGBT|
| |Jawaharlal | |community. |
| |Nehru | | |
| |University)| | |
| |Ratna Kapur|Interveners |The applicants are law |
| |& Ors. |– IA No. |professors, teachers and |
| | |13/2011 |research associates with |
| | | |Jindal Global Law School |
| | | |working in different fields|
| | | |of law such as |
| | | |jurisprudence, human |
| | | |rights, sexuality studies |
| | | |and law, criminal justice, |
| | | |and cultural studies and |
| | | |law, and feminist legal |
| | | |theory. They are concerned |
| | | |with the correct |
| | | |interpretation of statutes |
| | | |and the constitutional |
| | | |validity of Section 377 |
| | | |IPC. |
|SLP (C) No.|Delhi |Petitioner |The petitioner has been |
|24334/2009 |Commission |(Not parties|constituted under the |
| |for |before the |Commissions for Protection |
| |Protection |High Court) |of Child Rights Act, 2005 |
| |of Child | |read with GoI MHA |
| |Rights | |notification dt. 15.1.2008.|
| | | |Under Sec 13(1j) the |
| | | |Commission is empowered to |
| | | |take suo moto notice of |
| | | |deprivation and violation |
| | | |of child rights, non |
| | | |implementation of laws |
| | | |providing for protection |
| | | |and development of |
| | | |children, and non |
| | | |compliance of policy |
| | | |decisions, guidelines or |
| | | |instructions aimed at |
| | | |mitigating hardship and |
| | | |ensuring welfare of |
| | | |children and providing |
| | | |relief. Its functions |
| | | |include: study and monitor |
| | | |matters relating to |
| | | |constitutional and legal |
| | | |rights of children; examine|
| | | |and review safeguards for |
| | | |protection of child rights |
| | | |and effective |
| | | |implementation of the same;|
| | | |review existing law and |
| | | |recommend amendments; look |
| | | |into complaints of taking |
| | | |suo moto action in cases |
| | | |involving violation of |
| | | |child rights; monitor |
| | | |implementation of laws; |
| | | |present reports to the |
| | | |Central Government. It is |
| | | |the moral duty of the |
| | | |Commission to protect the |
| | | |best interest of children |
| | | |and provide them with an |
| | | |atmosphere where the |
| | | |freedom and dignity of all |
| | | |children is safe and a |
| | | |child may bloom without any|
| | | |fear of abuse, exploitation|
| | | |and deprivation. |
|CC No. |Ram Murti |Petitioner |He is a citizen of India |
|13105/2009 | |(not party |and has a duty to report if|
| | |before the |something illegal is |
| | |High Court |happening. |
|SLP (C) No.|B.P. |Petitioner | |
|22267/2009 |Singhal |(Respondent | |
| | |7 – | |
| | |Intervener | |
| | |before the | |
| | |High Court) | |
|SLP (C) No.|B. Krishna |Petitioner |The petitioner is a citizen|
|34187/2009 |Bhat |(not a party|of India and a public |
| | |before the |spirited individual, social|
| | |High Court) |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 |Petitioner | |
|286/2010 |Action |(respondent | |
| |Council, |6 – | |
| |Kannur |Intervener | |
| | |before the | |
| | |High Court) | |
|SLP (C) No.|The Tamil |Petitioner |The petitioner is a |
|872/2010 |Nadu Muslim|(not a party|registered trust working |
| |Munnetra |before the |for the betterment of the |
| |Kazhagam |High Court) |poor and downtrodden in |
| | | |general and for those |
| | | |belonging to the minority |
| | | |Muslim community in |
| | | |particular. It is a mass |
| | | |based voluntary |
| | | |organisation of Muslims of |
| | | |Tamil Nadu functioning |
| | | |since 1955 in Tamil Nadu. |
| | | |The president appeared |
| | | |before the UN Minority |
| | | |Rights Working Group and |
| | | |the organisation has set up|
| | | |a Tsunami Relief Fund of 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 |The petitioner is an |
|873/2010 |Academy |(not a party|organisation working for |
| | |before the |welfare of the general |
| | |High Court) |public and it has done |
| | | |tremendous work in public |
| | | |interest. |
|SLP (C) No.|Krantikati |Petitioner |Krantikari Manuwadi Morcha |
|36216/200 |Manuvadi |(not a party|(Revolutionary Manuist |
| |Morcha |before the |Front), is a Hindutva |
| |Party & |High Court) |political organisation in |
| |Anr. | |India. It is one of the |
| | | |registered unrecognized |
| | | |political parties in India.|
| | | |The president of KMM is Ram|
| | | |Kumar Bhardwaj, grandson of|
| | | |freedom fighter Rudra Dutt |
| | | |Bhardwaj. |
|CC No. |Utkal |Petitioner |Note: There is no |
|19478/2009 |Christian |(not a party|information on the |
| |Council |before the |petitioner in the SLP. |
| |rep. by |High Court) | |
| |Secretary | | |
| |Miss | | |
| |Jyotsna | | |
| |Rani Patro | | |
|CC No. |All India |Petitioner |The petitioner is a |
|425/2010 |Muslim |(not a party|registered society |
| |Personal |before the |established to protect and |
| |Law Board |High Court) |preserve Muslim Personal |
| | | |Laws. It strives to uphold |
| | | |the traditional values and |
| | | |ethos of the Muslim |
| | | |community and promotes |
| | | |essential values of Islam |
| | | |and also a national ethos |
| | | |among Muslims. The members |
| | | |of the society are |
| | | |religious scholars |
| | | |(ulemas), Muslim |
| | | |intellectuals and |
| | | |professionals from |
| | | |different disciplines. |
|SLP (C) No.|Sh. S.K. |Petitioner |Petitioner is spokesperson |
|20913/2009 |Tijarawala |(not a party|of Yoga Guru Swami Ramdev |
| | |before the |Ji is running a social |
| | |High Court) |welfare trust in the name |
| | | |of “Bharat Swabhiman” |
| | | |Patanjali Yogpeeth Trust. |
| | | |Petitioner is an eminent |
| | | |social worker and writer |
| | | |interested in protecting |
| | | |cultural values of the |
| | | |Indian society. |
|SLP (C) No.|Apostolic |Petitioner |With a desire to promote |
|20914/2009 |Churches |(not a party|unity, build relationships,|
| |Alliance |before the |and see increased |
| |rep. by its|High Court) |cooperation amongst |
| |bishop Sam | |Churches, a few pastors |
| |T. Varghese| |from growing independent |
| | | |churches in Kerala have |
| | | |come together and formed a |
| | | |body called the “Apostolic |
| | | |Churches Alliance” (ACA). |
| | | |The Alliance has been |
| | | |formed with the primary |
| | | |purpose of addressing |
| | | |spiritual, legal or any |
| | | |other kind of issue which |
| | | |may be relevant to the |
| | | |Churches at any given time |
| | | |or place. The ACA is a |
| | | |registered body with nine |
| | | |Pastors as members of the |
| | | |Core Group and is in its |
| | | |early stages of growth. |
| | | |Pastor Sam T. Varghese of |
| | | |Life Fellowship, |
| | | |Trivandrum, serves as its |
| | | |General Overseer. |
|SLP (C) No.|Prof. Bhim |Petitioner | |
|25364/2009 |Singh |(not a party| |
| | |before the | |
| | |High Court) | |
|CC No. |Sanatan |Petitioner | |
|14042/2009 |Dharam |(not a party| |
| |Pritinidhi |before the | |
| |Sabha Delhi|High Court) | |
| |(Registered| | |
| |) | | |

 
16. ARGUMENTS

 

16.1 Shri Amrendra Sharan, Senior Advocate appearing for the appellant in
Civil Appeal arising out of SLP(C) No.24334/2009 – Delhi Commission for
Protection of Child Rights led arguments on behalf of those who have prayed
for setting aside the impugned order. He was supported by Shri V. Giri,
Senior Advocate appearing for Apostolic Churches Alliance [SLP(C) No.
20914/2009] and Utkal Christian Council [SLP(C) No.19478/2009], Shri K.
Radhakrishnan, Senior Advocate appearing for intervener – Trust God
Missionaries, and S/Shri Sushil Kumar Jain, counsel for the appellant –
Kranthikari Manuvadi Morcha Party (SLP(C) No.36216/2009), Huzefa 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 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 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.

 

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 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 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
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:

 

17.1 Interpretation of Section 377 is not in consonance with the
scheme of the IPC, with established principles of interpretation and with
the changing nature of society.

 

17.2 That Section 377 punishes whoever voluntarily has carnal
intercourse against the order of nature. This would render liable to
punishment- (a) Any person who has intercourse with his wife other than
penile – vaginal intercourse; (b) Any person who has intercourse with a
woman without using a contraceptive.

 

17.3 When the same act is committed by 2 consenting males, and not
one, it cannot be regarded as an offence when- (i) The act is done in
private; (ii) The act is not in the nature of sexual assault, causing harm
to one of the two individuals indulging in it; and (iii) No force or
coercion is used since there is mutual consent.

 

17.4 Section 377 must be read in light of constitutional provisions
which include the “right to be let alone”. The difference between obscene
acts in private and public is statutorily recognized in Section 294 IPC.

 

17.5 The phraseology of Section 377 (‘Carnal intercourse against the
order of nature’) is quaint and archaic, it should be given a meaning which
reflects the era when it was enacted. (1860)

 

17.6 Section 377 should be interpreted in the context of its
placement in the IPC as criminalizing an act in some way adversely
affecting the human body and not an act which is an offence against morals
as dealt with in Chapter XIV. The language of Section 377 is qua harm of
adverse affection to the body which is the context in which the section
appears. It would have to be associated with sexual assault. It is placed
at the end of the Chapter XVI (Of Offences affecting the human body) and
not in Chapter XIV (Of Offences affecting the Public Health, Safety,
Convenience, Decency and Morals).

 

17.7 Chapter Headings and sub headings provide a guide to
interpreting the scope and ambit of Section 377. The Petitioners rely on
G.P. Singh, Principles of Statutory Interpretation,13th Ed. 2012, pp 167 –
170, Raichuramatham Prabhakar v. Rawatmal Dugar, (2004) 4 SCC 766 at 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).’

 

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 between man and man; (6) Non consenting
carnal intercourse between man and man; (7) Carnal intercourse with a child
with or without consent.

 

17.12 The Section does not lay down any principle or policy for
exercise of discretion as to which of all these cases he may investigate.
It is silent on whether the offence can be committed taking within its
ambit, the most private of places, the home.

 

17.13 Section 377 targets the LGBT community by criminalizing a
closely held personal characteristic such as sexual orientation. By
covering within its ambit, consensual sexual acts by persons within the
privacy of their homes, it is repugnant to the right to equality.

 

18. Shri Shyam Divan, learned senior counsel representing
respondent No.11-Voices Against 377, made the following arguments:

 

18.1 Section 377 is ultra vires Articles 14, 15, 19(1)(a) and 21 of
the Constitution inasmuch as it violates the dignity and personhood of the
LGBT community. Sexual rights and sexuality are a part of human rights and
are guaranteed under Article 21. It is scientifically established that
consensual same sex conduct is not “against the order of nature”. LGBT
persons do not seek any special rights. They merely seek their right to
equality of not to be criminalized for being who they are. Our Constitution
does not deny any citizen the right to fully develop relationships with
other persons of the same gender by casting a shadow of criminality on such
sexual relationships. Justice Vivian Bose in Krishna v. State of Madras,
1951 SCR 621 stated: ‘When there is ambiguity or doubt the construction of
any clause in the chapter on Fundamental Rights, it is our duty to resolve
it in favour of the freedoms so solemnly stressed.’ Section 377 in its
interpretation and operation targets LGBT persons and deprives them of
their full moral citizenship. This Court has developed great human rights
jurisprudence in cases concerning under trials, scavengers and bonded
labourers to interpret the notion of ‘dignity’. The Delhi High Court has
exercised its jurisdiction to separate out the offending portion of 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 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.

 

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 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 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
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 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 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 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 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 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 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 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 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 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.

 
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.

 

(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
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.

 
(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
(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 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.”

 
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.”

 
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 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 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.

 
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 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:
“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:
“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 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.
However, the Legislature has chosen not to amend the law or revisit it.
This shows that Parliament, which is undisputedly the representative body
of the people of India has not thought it 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.

 
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,

 
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.
App.2d 685, 126 P.2d 923, 928 (Black’s Law Dictionary 6th 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 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”.
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 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.”

 
[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”.

 
“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 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.

 

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.

 

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 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.

 

 

 
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.

 

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 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 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 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:

 

“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
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.

 

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 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 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, 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….

 

… 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:

 

“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
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
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
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.”

 
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 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 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 8th
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 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.
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.”

 
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 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 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[pic]
———————–
98

 

 

 

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