An Analysis of The Supreme Court Judgment on the Naz Foundation Case

By Pallavi Mund Campus Law Centre, Faculty of Law, University of Delhi (2010-2013) Wednesday, the 11th of December 2013, witnessed the settlement of a vexed question of law, thus disturbing the equilibrium that had been set by the LGBT-friendly judgment passed by the Delhi High Court in 2009 in the case of Naz Foundation v Government of NCT of Delhi. The Supreme Court of India upheld Section 377 of the Indian Penal Code, declaring it to be constitutionally valid. The Indian Penal Code, 1860, drafted by Lord Macaulay, contains Section 377, a penal provision, which finds mention of certain phrases like whoever voluntarily has carnal intercourse and against the order of nature. These phrases are in themselves ambiguous in nature because what might be the order of nature is subjective and is not conducive to clarity. Moreover, the fact that such acts performed voluntarily and of ones own volition are also penal goes to show that this section is essentially violative of ones right to personal choice. The case began in the Delhi High Court in 2001, when Naz Foundation, an NGO working with sex workers, moved the High Court filing a petition for Section 377 to be struck down as it violated the fundamental rights of the individual guaranteed by the Constitution. The case was initially dismissed by the High Court on the ground that it lacked locus standi. Thereafter, it was appealed to the Supreme Court on the limited issue of locus. The Supreme Court remanded the issue back to High Court to be heard afresh. The petitioners submitted that Section 377 be read down and should be applicable only to nonconsensual penile non-vaginal sex and penile non-vaginal sex involving minors. They further submitted that it is violative of Article 14, 15 and 21 of the Constitution. Union Ministry of Health and Family Welfare acknowledged that imposing Section 377 which criminalizes consensual sex between adults of same sex, fettered efforts of HIV prevention in sexual minorities. People who indulge in same-sex activities are afraid to reveal it to medical authorities for fear of criminal sanction by the law enforcement machinery. The Divison Bench of the High Court consisting of Justice A.P. Shah and Justice S. Muralidhar, after referring to Indian and foreign judgments, expert opinions of academicians, literature and the Yogyakarta Principles on the Application of Human Rights in Relation to Sexual Orientation & Gender Identity, in June 2009, overturned the 150 year old section, thereby legalizing consensual homosexual activities among adults. The Court read down Section 377 to exclude adult consensual sex from within its purview. The bench declared Section 377 to be unconstitutional and arbitrary. The 2009 decision had not been appealed by the Government, but religious bodies had challenged it, on the ground that unnatural sexual behavior displayed by the LGBT community is against the morality and ethos of our culture. On 11th December 2013, in the case of Suresh Kumar Koushal & Another v Naz

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Foundation & Others, the Supreme Court observed that Section 377 as a constitutional provision is valid and lacks any constitutional infirmity, thereby overruling the verdict of the Delhi High Court. However, in the opinion of the author, there is arguably a lack of sound reasoning in the judgment and inconsistencies are found within the same paragraphs. The Supreme Court, in paragraph 42 of the judgment, observed: 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 latter 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.1 In the opinion of the author, this observation of the Supreme Court does not fulfill the Classification Test as laid down in In Re: Special Courts Bill, 1978. Assuming there is intelligible differentia between these classes- namely, those who indulge in carnal intercourse in the ordinary course and those who indulge in carnal intercourse against the order of nature, even then, the object is not clear, and the nexus between the differentia and object is equally unclear. Such classification should be based on a rational nexus. The Court is silent on these points. The Supreme Court states that: While reading down Section 377 IPC, the Division Bench of the High Court overlooked that a miniscule fraction of the countrys 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 the section is ultra vires the provisions of Articles 14, 15 and 21 of the Constitution.2 This is again disputed on the ground that Article 14 grants equality before law to all segments of society, irrespective of the size of the community. Article 14 does not make any distinction between a minority and a majority. It guarantees equality before law to one and all. Nowhere does Article 14 say that "the State shall not deny to "any significant fraction of the population" equality before the law...". Every person, and every segment of the population, however minuscule, is protected by the provision. Moreover, the Apex Court is supposed to be the defender of Fundamental Rights of citizens when they are found to be threatened. Even if one persons rights are infringed, the Court has to intervene. In fact, the minorities, which are present in abundance in our country, are the ones who need more protection.

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The expression sexused in Article 15 cannot be read restrictive to gender. It includes sexual orientation within its ambit and hence equality on the basis of sexual orientation is implied in the right against discrimination. The Court cited the Maneka Gandhi case for the proposition that while reviewing Article 21, the constitutionality of a provision has to be checked, "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." Article 21 gives a protective shield against the interference of State into the intimate sexual domain where the sexual acts are carried out with consent. The right to privacy is implicit in the right to life and liberty. Consensual sexual relationships or sexual preferences are an essential part of an individuals personality and lie within the ambit of private space. Therefore, they are an inalienable part of the right to life. Referring to the position of privacy-dignity claims laid down in Gobind vs. State of M.P., where it was observed that if a claimed right is found to be entitled to protection by virtue of it being a fundamental privacy right, a law infringing it has to first satisfy the test of compelling state interest of paramount importance. However, the Court cited no compelling state interest in this case. The judgment ignored the issue of protective privacy and did not address it. The Supreme Court further dismissed the respondents claim that Section 377 was misused by police authorities to perpetrate harassment and torture on people from the LGBT community, by holding that "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." However, the Supreme Court does not seemed to have applied this rationale in the Lal Batti case, where the Court felt that the beacon lights were being misused, and hence interfered, restricting its usage to vehicles of high constitutional functionaries, as it did not want to compromise the dignity of other citizens. In contradiction, the Supreme Court in this case says that the fact that Section 377 is misused by the law enforcing agencies is not enough ground to scrap or read down the section. The Court has completely discounted the experiences of persons subject to this law, thereby proving that the Court regards facial neutrality as enough to shield a law from a challenge of discrimination. This reasoning completely ignores how social context and norms shape and influence the quotidian applications of any law. The Supreme Court observed that although the High Court and Supreme Court, have the power to review the constitutionality of Section 377 and read it down to the extent that it is inconsistent with the Constitution, moderation and self-restraint must be exercised, guided by the presumption of constitutionality. The Supreme Court further said that over the years, about 50 amends have been made to the IPC, the latest being in 2013. The 172 nd Law Commission Report specifically recommended the elimination of this penal provision, but the legislature has 3|Page

not amended it. Hence, the Supreme Court has no say in it due to applicability of the doctrine of separation of powers, which separates the judiciary from the executive and the legislative. This is not conducive to clarity as there has been considerable amount of judicial activism by the Supreme Court in the recent past, where the Court has encroached upon the legislative domain. No other courts have the power to strike down Constitutional amendments, like our Supreme Court and High Courts do. In this case, the Court has not exercised restraint, but abdicated responsibility. The Court also concludes that "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."3 Fundamental rights also include the freedom of personal choice. Right to life and liberty is also with regard to ones body and how an individual wants to use it while indulging in sexual activities. The Courts framing of the act/identity dichotomy completely disregards the fact that a persons sexual orientation is not just a series of acts, but an integral part of ones identity, a way of being. The act/identity distinction is entirely spurious. The author would like to mention that the fact that all the cases (where Section 377 was applied) cited in the judgment refer to non-consensual and coercive situations where the victims were either women or children cannot be discounted while analyzing the manner in which the Section has been applied. The question is whether the Court would rule in a similar manner in a case where it was proved that the intercourse between adults was consensual.

The Apex Court, overruling the 2009 verdict, reinstated Section 377 of the Indian Penal Code and declared the Delhi High Court judgment as legally unsustainable. The law of the land is derived from customs and practices. When customs and traditions change with the passage of time, the law should be altered accordingly, especially if it is redundant. The Courts duty is to interpret the law. Why not interpret it in such a manner that it can actually be applied to the current times? The author believes that the judgment is retrograde and the case should be reheard by a 5 judge bench. Indian Constitution explicitly mandates that substantial questions of constitutional law must be heard by five or more judges and there is good reason to be wary when such questions that have such farreaching impact are heard by just two or three judges.

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