IN the history of a nation, it is not just political events that signify a change in ethos. Occasionally, the judiciary, as an important arm of the state and as an articulator of counter-majoritarian viewpoints, gives expression to what it considers to be the soul of the Constitution. Interpreting the Constitution is not an easy task: it requires deft manoeuvring through its lanes and bylanes, without losing sight of the broad road map laid down by its founding fathers. It is also a delicate exercise as it enables the Constitution and the laws to adapt to the changing times, without the lawmakers having to abrogate what seems obsolete.
The Delhi High Courts judgment in the Naz Foundation case, delivered on July 2, is one such turning point in Indias evolution as a modern, forward-looking nation, wedded to the principles of substantive equality, non-discrimination and an inclusive right to life and liberty. In their judgment, Chief Justice Ajit Prakash Shah and Justice S. Muralidhar declared that Section 377 of the Indian Penal Code, 1860, insofar as it criminalises consensual sexual acts of adults in private, is violative of Articles 21, 14 and 15 of the Constitution.
Rarely has a High Court set the legal and constitutional agenda of the country in such lucid terms as Justices Shah and Muralidhar did. Being the apex court in the country, the Supreme Court, no doubt, exercises appellate authority over the Delhi High Court and will, in due course, seek to review and re-examine the High Courts reasoning. However, it will be difficult, even for the Supreme Court, not to acknowledge the profound contribution of the Delhi High Courts judgment in this case to our understanding of Indias constitutional jurisprudence. In the words of an astute observer, it fundamentally alters the relationship between a large disenfranchised, yet largely silent, minority and the hegemonic Indian state.
The salient features of the judgment deserve to be examined, if only to understand their significance.
Section 377 of the IPC is categorised under the sub-chapter titled Of Unnatural Offences and reads as follows:
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.
The Naz Foundation, a non-governmental organisation (NGO), filed a public interest petition in 2004 to challenge the constitutional validity of Section 377, which criminally penalises unnatural offences. The Naz Foundation submitted that Section 377 should apply only to non-consensual penile non-vaginal sex and penile non-vaginal sex involving minors. The Delhi High Court had dismissed the petition on the grounds that there is no cause of action in favour of the petitioner and that such a petition cannot be entertained to examine the academic challenge to the constitutionality of the legislation. However, the Supreme Court in 2006 set aside the High Courts order of dismissal and remitted the case to the High Court for a fresh decision after considering it. The High Court delivered its judgment after hearing all parties to the case. The Union of India, the National Aids Control Organisation (NACO) and other NGOs were respondents in the case.
The Naz Foundation has been active in the field of HIV/AIDS intervention and prevention. This involves interaction with sections of society that are vulnerable to HIV infection, and these include the gay community or individuals described as men who have sex with men (MSM). The petitioner argued that its HIV/AIDS prevention efforts were severely impaired by discriminatory attitudes exhibited by state agencies towards the gay community, or transgendered individuals, under the cover of enforcing Section 377 of the IPC. The Foundation proved, with evidence, that these groups were subjected to abuse, harassment and assault by the public and public authorities.
The Union of India was represented by the Ministry of Home Affairs and also the Ministry of Health and Family Welfare. The Ministries took contradictory positions in their affidavits. The Ministry of Home Affairs resisted the petition on grounds of public morality and argued that Indian society was yet to demonstrate the readiness or willingness to show greater tolerance to homosexuality. On the contrary, NACO and the Ministry of Health and Family Welfare confirmed the petitioners claim that the homosexual community was susceptible to HIV infection and that this high-risk group was mostly reluctant to reveal same sex behaviour because of the fear of the law enforcement agencies. This kept a large section invisible and unreachable, thereby pushing cases of infection underground and making it difficult for public health workers even to gain access to them.
Voices Against Section 377 is a coalition of 12 NGOs which represent child rights, womens rights, human rights, health concerns and the rights of same sex desiring people, including those who identify themselves as lesbians, gays, bisexuals, transgenders, hijras and kothis (collectively referred to as LGBT). As another respondent in this case, Voices argued that Section 377 was an unconstitutional and arbitrary law based on archaic moral and religious notions of sex as being only for procreation. It asserted that Section 377 did not serve any beneficial public purpose or legitimate state interest. On the contrary, it had created an association of criminality towards people with same sex desires, to the extent of bolstering extreme social ostracism of such people, it argued.
The High Court found the understanding of homosexuality as projected by the Additional Solicitor-General (ASG) appearing for Ministry of Home Affairs as being at odds with the current scientific and professional understanding. Citing the Diagnostic and Statistical Manual of Mental Disorders, as revised in 1987 (3rd edition), the High Court said that homosexuality is no longer treated as a disease or disorder and that near-unanimous medical and psychiatric expert opinion now treats it as just another expression of human sexuality.
Disputing the ASGs claim that Section 377 helped to put a brake in the spread of AIDS, the High Court said there was no scientific study or research by any recognised scientific or medical body to show any causal connection existing between decriminalisation of homosexuality and the spread of HIV/AIDS. Similarly, it found the ASGs claim that public morality of homosexual conduct might open the floodgates of delinquent behaviour as not founded upon any substantive material, even from such jurisdictions where sodomy laws have been abolished. It held that moral indignation, howsoever strong, was not a valid basis for overriding an individuals fundamental rights of dignity and privacy. The court held that in our scheme of things, constitutional morality must outweigh the argument of public morality, even if it was the majoritarian view. To stigmatise or to criminalise homosexuals only on account of their sexual orientation would be against constitutional morality, the court explained.
In a sense, the claim of the Ministry of Home Affairs that Section 377 had hardly ever been used in cases of consenting adults made the task of the High Court easier. Citing this claim, the court held that criminalisation of adult same-sex conduct did not serve any public interest. The compelling state interest rather demanded, the High Court said, that public health measures were strengthened by decriminalisation of such activity so that they could be identified and better focussed upon.
The High Courts major contribution lies in expanding the horizons of the right to privacy, as part of Article 21, and constitutional guarantees of substantive equality under Article 14 and interpreting sexual orientation as an analogous ground to sex under Article 15. A brief statement on each of these three advances in our constitutional jurisprudence may be in order.
Citing the Union of Indias estimates of the number of MSM at around 25 lakh and the number of lesbians and transgenders at several lakhs, the High Court said this vast majority was denied moral full citizenship. The High Court thus opined that Section 377 grossly violated their right to privacy and liberty embodied in Article 21 insofar as it criminalised consensual sexual acts between adults in private.
The Supreme Court has held in many cases that though Article 14, guaranteeing equality before the law or equal protection of the laws, forbids class legislation, it does not forbid reasonable classification for the purpose of legislation. Raising the question whether Section 377 was based on a reasonable classification, the court said that consensual sex between adults in private did not cause any harm to anybody. Therefore, the disparate grouping in Section 377 did not take into account relevant factors such as consent, age and the nature of the act or the absence of harm caused to anybody. It was clear to the High Court that Section 377 targeted the homosexual community as a class and was motivated by an animus towards this vulnerable class of people.
Article 15(1) requires that the state shall not discriminate against any citizen on grounds only of religion, race, caste, sex, place of birth or any of them.
Under Article 15(2), no citizen shall, on grounds 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 access to public spaces.
The High Court gave a broader meaning to the expression sex in this Article by holding that sexual orientation was a ground analogous to sex and that discrimination on the basis of sexual orientation was equally barred by Article 15. The High Court deplored the ASGs written submission that the courts had only to interpret the law as it was and had no power to declare the law invalid. This submission, the court said, reflected rather poorly on his understanding of the constitutional scheme. The court explained: A modern democracy while based on the principle of majority rule implicitly recognises 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.
In their conclusion, the Judges subtly summed up the rationale of the judgment by recalling the words of Jawaharlal Nehru, expressed when he moved the Objective Resolution in the Constituent Assembly on December 13, 1946. Nehru said: Words are magic things often enough, but even the magic of words sometimes cannot convey the magic of the human spirit and of a Nations passion. [The Resolution] seeks very feebly to tell the world that we have thought or dreamt of so long, and what we now hope to achieve in the near future.
The High Court explained that where society can display inclusiveness and understanding, those perceived by the majority as deviants or different can be assured of a life of dignity and non-discrimination. This was the spirit behind the Resolution of which Nehru spoke so passionately. A statutory provision, as in Section 377, therefore, has to surrender to the larger constitutional values as envisaged in that resolution.
Observers have noticed significant aspects of the judgment that are of abiding interest. One is that it has given new meaning to identity politics in India.
Says one such observer: By acknowledging the distinct status of persons, whose only common bond is sexual orientation, and addressing them as a collective [actually using the phrase LGBT], the Naz Foundation recognises the emergence of new social identities, while carefully sidestepping lingering concerns about their elite roots and urban biases.
Another observer points out that the mass publicity and fanfare heralding the decision presents a rare opportunity for activists to reshape public opinion and influence a wider social debate about gay rights. It is suggested that in the long run, gays and other disaffected groups cannot rely only on courts to advance their civil rights agenda and that they must build new political coalitions and engage the legislative process.
The judgment, however, is not free from certain perceived flaws. According to a critic, on the basis of the wording of paragraph 132, one cynical, but plausible, way to interpret it is that the bar on Section 377 prosecutions applies only to sexual acts in a private dwelling or establishment. Under this interpretation, the section may still be freely applied to prosecute non-private conduct, sexual acts committed in a public place. Such a result would be particularly unfortunate because many documented instances of harassment have involved very public conduct in parks and public places, it is pointed out.
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