Thursday, 6 March 2014

Why there is no pride in NAZ

On Tuesday, the 28th of January 2014 a two-judge bench of the Supreme Court dismissed the review petition filed by NAZ Foundation against the Supreme Court order upholding the constitutionality of Section 377 of the Indian Penal Code.

In this post we seek to define clearly the contours of the rights enjoyed by the LGBT community in India by tracing the change in the judicial attitude towards the criminality imposed by Section 377 of the IPC insofar as it relates to gay rights.

In essence, Section 377[1] punishes voluntary acts of carnal intercourse “against the order of nature” with a man, woman or animal. A look at the context and the stated intent of the provision facilitates a conclusion that Section 377 had been enacted to impose a judeo-christian moral and ethical standard which criminalizes all non-procreative sexual activity- i.e oral and anal sex. The direct consequence of this provision is that the penile-vaginal sex is the only permitted sexual activity which in the specific context of homosexual intercourse is not possible. 

While this provision has scarcely used for prosecution, the existence of the provision within the penal code has bred insurmountable social stigma against the LGBT community in India and have encouraged a host of police and civilian brutalities targeting members of the LGBT Community. 

NAZ Foundation decided to espouse the cause of the LGBT and shield them against police brutality and exposure to HIV/AIDS. They filed a writ petition challenging the constitutional validity of Section 377 of the IPC insofar as it criminalizes consensual sexual acts between adults in private which was alleged to violate various constitutional safeguards vis Article 14(right to equality), Article 15(Prohibition of discrimination on ground of sex ), Article 19(right to expression) and Article 21 (right to life and liberty). The Petitioner urged the Court to restrict the application of Section 377 to two specific circumstances: non-consensual penile non-vaginal sex and penile non-vaginal sex involving minors.

The Delhi High Court in its very progressive judgment agreed with the petitioner and gave birth to the protection of gay rights in India. Sadly, 4 years later, the Supreme Court of India went several steps back and punctured the need for gay rights by upholding the constitutionality of the impugned provision.

A combined analysis of the conflicting judgments of the Division Bench of the Delhi High Court and Supreme Court is carried out under the following broad heads:

a.       Article 21- Dignity, Autonomy and Privacy
Largely in the words of the Delhi High Court, privacy when understood within the prism of autonomy allows persons to develop human relations without interference from the State. The exercise of autonomy, leads to the development of self - esteem, building of relationships, living a life with dignity and pursuit of legitimate goals. The Delhi High Court stated that sexual orientation and gender falls within the private sphere of an individual which is therefore protected under Article 21 of the Constitution of India. It further acknowledged that one cannot leave behind or detach from the sense of gender or sexual orientation. To establish the next link it referred favorably to The National Gay Coalition for Gay and Lesbian Equality v. The Minister of Justice and held that the expression of sexual identity requires a partner, real or imagined. It is neither the duty nor the prerogative of the State to arrange for the choice of sexual partners but for partners to choose themselves. Quite logically, Section 377 IPC denies a gay person the opportunity for full person-hood included in the notion of life under Article 21 of the Constitution of India.

Before the Delhi High Court, the respondents tried to establish the need for retaining the provision as it formed a reasonable exception on grounds of compelling state interest, public health, public safety and morality.

Arguments in favour of decriminalization sought to establish before the Court that there is a compelling state interest to do so as the existence of Section 377 hampers HIV intervention efforts aimed at sexual minorities. This was countered by the ASG’s argument that public health is in fact one of the reasons why Section 377 should be preserved because there is documentary evidence to show that the risk of transmission of HIV is higher in cases of homosexual intercourse (specifically male-male intercourse) as compared to heterosexual intercourse. Hence the provision furthers the aim of preventing unsafe sexual acts and spread of HIV AIDS.  Fortunately, the Court identified that the true question lay in the understanding of the concept of homosexuality as a form of sexual orientation and not a disease and therefore dismissed the argument put forth by the respondent.

The State presented a strong argument which in essence communicated to the Court that alternate sexual orientation is inconsistent and plainly contradicts the country’s moral fabric. The compelling state interest advanced to justify the provision lay in the protection of morality. The High Court’s response was sharp as the Court recognized the distinction between public morality (general public disapproval) and constitutional morality. The latter, derived from constitutional values and not dependent upon the automatic acceptance of majority opinion is the true test to qualify compelling state interest to abridge fundamental rights.

It is clearly noticeable from the reading of the judgment that the Supreme Court relied on two major principles to justify its decision to uphold the constitutionality of the Section 377. First, the Court granted a wide array of protection to the current state of the law on the ground a strong presumption of constitutionality. Second, the Court relied and perhaps overextended the scope of the principle that the mere fear of abuse of a provision would not render a provision unconstitutional.

The Supreme Court could have taken into account the fact that the apprehensions of brutalities against members of the LGBT community are not empty fears but an inevitable consequence of the existence of such a provision.

b.      Violation of Article 14 & 15
Under the Constitution of India, all persons enjoy a right to equality. In this context, the essence of NAZ’s argument is that Section 377 does not only criminalize the act of homosexual intercourse but also has the direct effect of prejudicing the community and facilitating this social stigma. In accordance with their argument, the violation of Article 14 therefore lies in the fact that homosexuals as a class, are targeted and prejudiced as a result of operation of Section 377.

The Supreme Court, however adopted a different interpretation of Article 14. It stated that while conferring privileges or imposing liability upon similarly situated persons was prohibited under Article 14, it does not forbid classification for the purpose of legislation on the condition that it is not arbitrary. In this specific context ‘arbitrary’ is a rather incomplete term. According to the Court classification that is based on “some” qualities or characteristics and such quality or characteristic has a reasonable nexus with the object sought to be achieved by the Act. The Court does not seem have to have gone into this issue in detail. No reasoning has been offered to distinguish how this general line of argument is different in application to this provision vis-à-vis other penal statutes. Also, the Court seems to have assumed without much discussion that Section 377 independently qualifies as having a rational nexus with the object of the legislation- the IPC. 

In what is perhaps the most difficult conclusion to agree with, the Supreme Court in its judgment states that:
While reading down Section 377 Indian Penal Code, the Division Bench of the High Court overlooked that a miniscule fraction of the country's population constitute lesbians, gays, bisexuals or trans-genders 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 Indian Penal Code and this cannot be made sound basis for declaring that section ultra vires the provisions of Articles 1415 and 21 of the Constitution.”

On the face of it, this line of reasoning has one consuming inconsistency- in order for the Court to be empowered to draw this conclusion it would have to also affirm that the criteria for determining unconstitutionality on the basis of violation of the equality or liberty clause in the Constitution depends upon the number of people affected, which it is, by its own strong line of precedent, precluded from doing.
The allegation of violation of Article 15 also arose out of the same facts and the Delhi High Court understood Article 15 and Article 16 as areas of specific application of Article 14, the genus of the varied species of equality enshrined in the Constitution. The Supreme Court however did not find a violation of Article 15 of the Constitution in this case.

A certain amount of disillusionment is the prevalent in the mood. Perhaps, it arises out of our common agreement to what Delhi HC stated – “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.”

[1] 377. Unnatural offences.-- Whoever voluntarily has carnal intercourse against the order of nature with any man, woman or animal, shall be punished with 1[ 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.


  1. But what is your view on the presumption of constitutionality and the view that repealing outdated laws is the job of the Parliament and not the Supreme Court?

    Isn't taking a view against excessive judicial activism and legislating from the bench , a good move, need of the hour even?

  2. Thank you for your comment. The presumption of constitutionality was extensively discussed by both the Delhi High Court as well as the Supreme Court. The general rule is that the when the constitutionality of a statute is challenged, the burden to prove that it transgresses constitutional principles is on the party alleging the same. The Supreme Court made strong reference to its decision in DS Nakara v. UOI to accept the extension of the presumption of constitutionality to also include the principle of ‘reading down’ a statute or ‘reading into’ the provision to make it effective, workable and ensure the attainment of the object of the Act.
    However, some questions may be raised as to the applicability of the precedent to the instant case. In DS Nakara the Court merely stated that doctrine of severability can be applied to read down or severe an unconstitutional part as long as the statute remains enforceable. In the context of the facts of NAZ the application of the precedent causes a few problems. First, NAZ’s argument was essentially that “against the order of nature” under Section 377 must be read down to exclude homosexual intercourse from its purview. Second, the object of the IPC, the statute in question is not defined clearly enough to merit a determination as to whether the removal of sanction against homosexual intercourse destroys the object of the Indian Penal Code. Thus the discussion relating to severability in the light of the presumption of constitutionally might have been misplaced. Perhaps the most precise understanding of the constitutional scheme in relation to challenge to a pre constitutional legislation arises out of the Supreme Court decision in Anuj Garg v. Hotel Association of India where the court accepted the dynamic and evolving nature of the fundamental rights and conceived of a legislation which might have been constitutional in view of the societal conditions earlier but my not be constitutional in today’s times.
    On the point of the purported excess judicial activism and legislation from the bench, our view is in agreement with the view expressed by the Supreme Court inDS Nakara where the Court stated: “In reading down the memoranda (the impugned legislation), 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.”
    In our opinion, the Court would be within its powers in holding the impugned part of Section 377 unconstitutional, without such judgement qualifying as legislation from the bench.