TaxTMI 
TaxTMI 
2013 (12) TMI 1454
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....t 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 ....
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....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.....
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....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 Agains....
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.... 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 restric....
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.... 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 ra....
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....re 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) bu....
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....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 cou....
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....t are as under: Case Number Name Description before the court Details SLP (C) No. 15436/ 2009(CC No. 9255/2009 ) Suresh Kumar Koushal & & Petitioners (Not parties before the High Court ) Petitioners are citizens of India who believe they have the moral responsibility and duty in protecting cultural values of Indian society. Samajik Ekta Party Intervener - IA No. 4/2009 The applicant is a political party registered by the Election Commission of India under Sec 29A, Representation of People Act, 1951 vide order dt. 20.4.1995. It is interested in the welfare of the citizens, their rights, functioning of the State and interest of public at large Page 16 Mr. Shyam Benega Intervener - IA No. 6/2009 The applicant is a film maker and a citizen. He seeks impleadment in the SLP in light of the fact that due to the misunderstanding and confusion of thought with regard to homosexuality, all points of view must be projected before this Hon'ble Cour....
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.... academicians who wish to contribute to the debate on the issues raised by the judgment and to draw attention to the mental distress caused to the LGBT community Ratna Kapur & Ors. Interveners - IA No. 13/2011 The applicants are law professors, teachers and research associates with Jindal Global Law School working in different fields of law such as jurisprudence, human rights, sexuality studies and law, criminal justice, and cultural studies and law, and feminist legal theory. They are concerned with the correct interpretation of statutes and the constitutional validity of Section 377 IPC. SLP (C) No. 24334/2009 Delhi Commission for Protection of Child Rights Petitioner (Not parties before the High Court) The petitioner has been constituted under the Commissions for Protection of Child Rights Act, 2005 read with GoI MHA notification dt. 15.1.2008. Under Sec 13(1j) the Commission is empowered to take suo moto notice of deprivation and violation of child rights, non implementati....
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....rust working for the betterment of the poor and downtrodden in general and for those belonging to the minority Muslim community in particular. It is a mass based voluntary organisation of Muslims of Tamil Nadu functioning since 1955 in Tamil Nadu. The president appeared before the UN Minority Rights Working Group and the organisation has set up a Tsunami Relief Fund of 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. 873/2010 Raza Academy Petitioner (not a party before the High Court) The petitioner is an organisation working for welfare of the general public and it has done tremendous work in public interest SLP (C) No. 36216/200 Krantikati Manuvadi Morcha Party & Anr. Petitioner (not a party before the High Court) Krantikari Manuwadi Morcha (Revolutionary Manuist Front), is a Hindutva political organisation in India. It is one of the registered ....
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..... Bhim Singh Petitioner (not a party before the High Court) CC No. 14042/2009 Sanatan Dharam Pritinidhi Sabha Delhi (Registered) Petitioner (not a party before the High Court) 16. ARGUMENTS 16.1 Shri Amrendra Sharan, Senior Advocate appearing for the appellant in Civil Appeal arising out of SLP(C) No.24334/2009 - Delhi Commission for Protection of Child Rights led arguments on behalf of those who have prayed for setting aside the impugned order. He was supported by Shri V. Giri, Senior Advocate appearing for Apostolic Churches Alliance [SLP(C) No. 20914/2009] and Utkal Christian Council [SLP(C) No.19478/2009], Shri K. Radhakrishnan, Senior Advocate appearing for intervener - Trust God Missionaries, and S/Shri Sushil Kumar Jain, counsel for the appellant - Kranthikari Manuvadi Morcha Party (SLP(C) No.36216/2009), Huzefa 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)....
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.... 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 pr....
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....aran 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 emp....
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....t 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 ....
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.... 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 ....
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....ion 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 ....
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....ces 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 het....
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....ual 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 ....
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.... 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 add....
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....0) 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 h....
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..... 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 o....
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.... 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 o....
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....ll 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 birt....
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.... 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 St....
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....t, 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 exp....
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....ons 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 r....
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....ed 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 ....
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.... 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 in....
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....tory 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 wi....
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.... 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 ....
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....specially, 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....
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.... 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.....
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.... 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 furthera....
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.... 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....
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....ly 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 am....
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....j 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. ....
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.... 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....
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....ion' 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 a....
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....issa 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 t....
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....rson 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). T....
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....alyzing 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 deal....
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.... 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....
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.... 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 discri....
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....cedure for the trial of certain offences is or is not discriminatory and violative of Article 14 must be determined in each case as it arises, for no general rule applicable to all cases can safely be laid down. A practical assessment of the operation of the law in the particular circumstances is necessary. 13. A rule of procedure laid down by law comes as much within the purview of Article 14 as any rule of substantive law and it is necessary that all litigants, who are similarly situated, are able to avail themselves of the same procedural rights for relief and for defence with like protection and without discrimination." 42. Those who indulge in carnal intercourse in the ordinary course and those who indulge in carnal intercourse against the order of nature constitute different classes and the people falling in the later category cannot claim that Section 377 suffers from the vice of arbitrariness and irrational classification. What Section 377 does is merely to define the particular offence and prescribe punishment for the same which can be awarded if in the trial conducted in accordance with the provisions of the Code of Criminal Procedure and other statutes of the same ....
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....ions, 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 pr....
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....ow 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 Court....
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....n 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 ....
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....t 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 ....
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.... 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 ....
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....ny 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 S....
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.... 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 Benc....
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....able 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 it....
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....ure 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 ca....