Heterosexuality was used to refer to morbid sexual practices between men and women such as oral and anal intercourse, as opposed to normal procreative sex. The term Homosexuality came out in the late 19th century Europe and used to describe morbid sexual passion between members of the same sex. It was declared unnatural by the colonial laws. The laws prohibiting unnatural sex were imposed across the world through imperial might. It was deeply influenced by the ‘sex is sin’ stance of the Christian bible.

Construction of Hindu temples in stone began around the sixth century of the Common Era. Construction reached climax between the twelfth and the fourteenth century when the grand pagodas of eastern and southern India such as Puri and Tanjore came into being. On the walls and gateways of these magnificent structures we find a variety of images: gods, goddesses, demons, nymphs, sages, warriors, lovers, priests, monsters, dragons, plants and animals. Amongst scenes from epics and legends, one invariably finds erotic images including those that modern law deems unnatural and society considers obscene. Curiously enough, similar images also embellish prayer halls and cave temples of monastic orders such as Buddhism and Jainism built around the same time. Interpretations and judgements aside, these images tell us that the ‘idea’ of same-sex and what the colonial rulers termed ‘unnatural’ intercourse did exist in India.[1]

This article seeks to analyze the extent and manner in which the Carnal intercourse against the order of nature under Section 377[2] of the Indian Penal Code, 1860 makes criminals out of homosexuals. Section 377 is not merely a law about anal sex alone but applies to homosexuality in general. The lack of a consent-based distinction in the offence has made homosexual sex synonymous to rape and equated homosexuality with sexual perversity. Section 377 is the biggest affront to the dignity and humanity of a substantial minority of Indian citizens. In this article, I’ll be analyzing the two landmark judgements i.e., Naz Foundation Judgment and Suresh Koushal Judgement of Delhi High Court and Supreme Court respectively.

Case Analysis

1. Naz Foundation vs. Government of NCT of Delhi and Others

Facts- A public interest action taken before the court brought by the Naz Foundation, an NGO working with the HIV/AIDS sufferers, which argued that section 377 of the Indian Penal Code was unconstitutional. Section 377 entitled “of unnatural offences” has been on the statute books since 1861 and has effectively been interpreted as criminalizing consensual sexual acts between persons of the same sex. The Naz Foundation submitted that the said section is violative of fundamental rights guaranteed under Article 14[3], 15[4], 19[5] and 21[6] of the constitution of India. It brought the action in the public interest on the grounds that its work on combating the spread of HIV/AIDS was being hampered by discrimination experienced by the gay community as a result of Section 377. This discrimination, the petitioners submitted, resulted in the denial of the fundamental human rights, abuse, harassment and assault by the public authorities, thus driving gay community underground and subjecting them to greater vulnerability in violating their fundamental rights.

Arguments-

The Naz Foundation submitted various arguments, which are:
1. The harassment and discrimination of the gay and transgender community in India resulting from the continued existence of Section 377 affected the rights of that community which were guaranteed under the constitution, including the right to equality, the right to non-discrimination, the right to privacy, the right to life and liberty and the right to health.

2. They also argued that the constitution protects the right to privacy (which was not expressly mentioned that time) under the right to life and liberty enshrined under Article 21. Further, they also argued that the right to non-discrimination on the ground of sex in Article 15 should not be read restrictively but should include “Sexual Orientation”. Also contented, that the criminalization of homosexual activity by section 377 discriminated on the grounds of sexual orientation and was therefore contrary to the non-discrimination guaranteed under Article 15.

3. Also, stressed that courts in other jurisdictions have struck down comparable provisions relating to sexual orientation on the grounds that they violated the rights to privacy, dignity and equality.

The Government of India’s Stand:

1. The Ministry of Home Affairs (MHA) and Ministry of Health and Family welfare submitted legal opinions in respect to the writ petition. However, both the ministry came down to the opposite sides of the legal argument offering “completely contradictory affidavits”. The MHA, on one hand argued that the Section 377 should be retained on various grounds that are, first, it provides the prosecution of individuals for the sexual abuse of children. Secondly, it filed a gap in the rape laws. Third, if removed it’ll “flood gates of delinquent behavior” which would not be in the public interest and finally, submitted that Indian society does not morally condone such behavior and law should reflect societal values such as these.

2. By contrast, the ministry of Health and Family Welfare (in conjunction with the National Aids Control Organisation) presented evidence in support of the Naz Foundation’s submission that the continued existence of section 377 is counter productive to the efforts of the HIV/AIDS prevention and treatment. The argued that the removal of section 377 stating that it makes large number of people in risk categories in relation to HIV/AIDA reluctant to come forward for treatment due to fear of law enforcement agencies, and that in driving homosexuality underground t increases risky behavior such as unprotected sex.
Judgment- In the year 2009, the Delhi high court decided this landmark judgement as a victory for equality and social justice but also in terms of its robust legal reasoning the Delhi high court concluded that “Section 377 IPC, insofar as it criminalizes consensual sexual acts of adults in private, is violative of Articles 21, 14 and 15 of the Indian Constitution. The HC began its Article 14 analysis by setting out that any distinction or classification must be based on an intelligible differentia which has a rational relation to the objective sought and must not be unfair or unjust. The court said that the section 377 does not distinguish between private and public acts, or between consensual and non – consensual acts, therefore does not consider relevant factors such as age, consent and the nature of the act or absence of harm. Thus, such criminalization in the absence of evidence of harm seemed arbitrary and unreasonable.

Thus, dealing with the argument that the section 377 was neutral submitted by the MHA, the HC stated that although the provisions on its face was neutral and targeted acts rather than persons, in its operation it unfairly targeted a particular community, having result that all gay men were considered criminal and it therefore violated Article 14.

Also, “Sex” in Article 15 of the Constitution should be interpreted as including sexual orientation on the basis that discrimination on the grounds of the latter is based on the stereotypes of conduct on the basis of sex as argued by the Naz Foundation, the High Court referred to the Human Rights Committee’s decision in which the criminalization of sexual acts between men was considered a violation of Article 2 of the International Covenant on civil and political rights, where a reference to “sex” was taken as including sexual orientation and on the basis of that, HC declared that Section 377 was also unconstitutional on the basis of Article 15 and also, stressed upon the importance of upholding the values of equality , tolerance and inclusiveness in Indian Society.

2. Suresh Kumar Koushal v. Naz Foundation
Facts- The NAZ Foundation (India) Trust (NI) is a New Delhi based NGO that has been working on HIV/AIDS and sexual health from 1994 onwards. They filed a writ petition in the Delhi High Court challenging the constitutional validity of Section 377 of the Indian Penal Code. This section penalizes unlawful sexual acts ‘against the order of nature’ which has the effect of criminalizing even consensual sexual intercourse between two adults of the same sex or even of the opposite sex indulging in penile non-vaginal sexual activities. The petitioner contended that Section 377 encroached upon Articles 14, 15, 19 and 21 of the Constitution of India and also that the section ought not to criminalise consensual penile non-vaginal sex between two consenting adults of the same sex. In a milestone judgment conveyed on July 2, 2009, the Delhi High Court decided that Section 377 of the Indian Penal Code, 1860 disregarded various fundamental rights, including the right to privacy and right to dignity under Article 21, Article 14, and Article 15. The said decision was appealed against in the Supreme Court of India in the Suresh Kumar Koushal and another vs. NAZ Foundation and Others case and it was held that the Delhi High Court was wrong in its findings and was also wrong in reading down the section to allow consensual homosexual activities between two adults of the same sex[7].

Arguments-
The Appellants’ denied that Section 377 was unconstitutional and made a variety of submissions as to why it was not:
1. The High Court committed a severe error by declaring Section 377 to violate Articles 14, 15 and 21 of the Constitution as it ignored the lack of any foundational facts in the Respondent’s writ which would be necessary for pronouncing upon the constitutionality of any statutory provision. The documentary evidence supplied in its place was not a basis for finding that homosexuals were singled out for discriminatory treatment by the law.

2. The statistics incorporated in the Respondent’s petition were insufficient for finding that Section 377 adversely affected the control of HIV AIDS and that decriminalisation would reduce the number of such cases. The Appellants also argued that the data presented was manufactured and fraudulent.

3. Section 377 is entirely gender neutral and covers voluntary acts of carnal intercourse irrespective of the gender of persons committing the act. As no specific class is targeted by the law, no classification has been made, therefore rendering the finding of the High Court that it offended Article 14 to be without basis.

4. Section 377 does not violate the right to privacy and dignity under Article 21 and the right to privacy does not include the right to commit any offence as defined under Section 377 or any other section.

5. If the declaration were approved, India’s social structure and the institution of marriage would be detrimentally affected and it would cause young people to become tempted towards homosexual activities.

6. Courts by their very nature should not undertake the task of legislating which should be left to Parliament. The High Court was unsure whether it was severing the law or reading it down and, as long as the law is on the statute book, there is a constitutional presumption in its favour. Whether a law is moral or immoral is a matter that should be left to Parliament to decide.

The Respondents submitted:
1. Section 377 targets the LGBT community by criminalizing a closely held personal characteristic such as sexual orientation. By covering within its ambit consensual acts between persons within the privacy of their homes, it is repugnant to the right to equality. Sexual rights and sexuality are human rights guaranteed under Article 21. Section 377 therefore deprives LGBT of their full moral citizenship.

2. The criminalization of certain actions which are an expression of the core sexual personality of homosexual men makes them out to be criminals with deleterious consequences impairing their human dignity. As Section 377 outlaw’s sexual activity between men which is by its very nature penile and non-vaginal, it impacts homosexual men at a deep level and restricts their right to dignity, personhood and identity, equality and right to health by criminalizing all forms of sexual intercourse that homosexual men can indulge in.

3. Sexual intimacy is a core aspect of human experience and is important to mental health, psychological wellbeing and social adjustment. By criminalizing sexual acts engaged in by homosexual men, they are denied this human experience while the same is allowed to heterosexuals.

4. The Court should take account of changing values and the temporal reasonableness of Section 377. The Constitution is a living document and it should remain flexible to meet newly emerging problems and challenges. The attitude of Indian society is fast changing and the acts which were treated as an offence should no longer be made punitive.

5. 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 constitutional rights to be truly effectuated.

6. The difference between obscene acts in private and public is recognized in Section 294. It should be read in light of constitutional provisions which include the right to be let alone.

7. Section 377 is impermissibly vague, delegates policy making powers to the police, and results in the harassment and abuse of the rights of LGBT persons. Appellants provided evidence of widespread abuse and harassment (citing judicial evidence and NGO reports).

8. Section 377 does not lay down any principle or policy for exercising discretion as to which of all the cases falling under the broadly phrased law may be investigated. It is silent on whether the offence can be committed within the home.

9. Criminalization increases stigma and discrimination and acts as a barrier to HIV prevention programs. It thwarts health services by preventing the collection of HIV data, impeding dissemination of information, preventing the supply of condoms; limiting access to health services, driving the community underground, preventing disclosure of symptoms, creating an absence of safe spaces leading to risky sex.

Judgment- The supreme court judges overruled the High Court’s previous decision, finding its declaration to be “legally unsustainable”. The Supreme Court ultimately found that Section 377 IPC does not violate the Constitution and dismissed the writ petition filed by the Respondents. Regarding its power to rule on the constitutionality of a law, the Supreme Court acknowledged that it and the High Court are empowered to declare as void any law, whether enacted prior to the enactment of the Constitution or after.

However, it noted that there is a presumption of constitutionality in favour of all laws, including pre-constitutional laws, as the Parliament is deemed to act for the benefit of the people. The Court noted that the doctrine of severability seeks to enable unconstitutional portions of laws to be severed from the constitutional elements of the law in question with the remainder retained and that, alternatively, that Court has the option of “reading down” a law to prevent it from being rendered unconstitutional, whilst refraining from changing the essence of the law. With regard to Section 377 the court observed that whilst it and the High Court were able to review the constitutionality of the law, and were able to strike it down to the extent of its inconsistency with the Constitution, the analysis must be guided by the presumption of constitutionality and the courts must exercise self-restraint.

The court concluded that unless a clear constitutional violation was proved, the court was not empowered to invalidate the law.

In determining the application of Article 14 of the Constitution to the constitutionality of Section 377, the Supreme Court quoted from Re: Special Courts Bill, 1987 (1979) 1 SCC 380, which set out the scope of Article 14, including the principle that legislation need not treat all people exactly the same, but that “all persons similarly circumstanced shall be treated alike both in privileges conferred and liabilities imposed” (emphasis added). Further, the State had “the power of determining who should be regarded as a class for purposes of legislation and in relation to a law enacted on a particular subject” provided that such classification was not “arbitrary” but: “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”.

With little analysis, the court held that: “Those who indulge in carnal intercourse in the ordinary course and those who indulge in canal intercourse against the order of nature constitute different classes [emphasis added] and the people falling in the latter category cannot claim that Section 377 suffers from the vice of arbitrariness and irrational classification”.

In reviewing the reading down of the Section 377 by the High Court, the Supreme Court stated that the High Court had overlooked the fact that “a miniscule fraction of the country’s population constitute lesbians, gays, bisexuals or transgenders” and that over the last 150 years, fewer than 200 persons had been prosecuted under Section 377, concluding from this that “this cannot be made sound basis for declaring that section ultra vires the provisions of Articles 14, 15 and 21 of the Constitution.” The court also regarded the discriminatory treatment complained of by the Naz Foundation as a result of Section 377 as being neither mandated nor condoned by the provision itself and the fact that the police authorities and others misuse Section 377 was not a reflection of the vires of the provision but instead may simply be a relevant factor for Parliament to consider whilst judging whether to amend Section 377.

Regarding the application of Article 21 of the Constitution, the Supreme Court stated that the law must be competently legislated whilst also being just, fair and reasonable, which give rise to notions of legitimate state interest and the principle of proportionality. The court specifically noted that the right to live with dignity had been recognized as a part of Article 21. In assessing the High Court’s ruling that Section 377 violated the right to privacy, autonomy and dignity, the Supreme Court spent little time analyzing the application of Article 21 to Section 377, instead criticizing the High Court for relying too extensively upon judgments from other jurisdictions in its anxiety to protect the “so-called rights of LGBT persons”. It concluded that “Section 377 does not suffer from the vice of unconstitutionality” with no further elaboration.

The judges noted that whilst the court found that Section 377 was not unconstitutional, the legislature was still free to consider the desirability and propriety of deleting or amending the provision.

APPLICATION OF INTERPRETATION OF STATUES
In the case of Naz Foundation, the Delhi Court used the golden rule of interpretation to avoid injustice which would not be avoided if a mechanical interpretation of the language is done when court held that sexual orientation is a ground analogous to sex in Article 15 and Thus, discrimination on the "basis of sexual orientation cannot "be permitted" by Article 15. Thus, section15 was found violative of Article 15.

Also, Court relied on the case of Anuj Garg vs. Hotel Association of India[8] and the principles down in this case. In that case, the act in question was also a pre-constitutional legislation and although it was saved in terms of Article 14, 15 and 19 of the Constitution of India, was held as permissible in law. There is thus no presumption of constitutionality of a colonial legislation. Therefore, though the statute could have been held to be a valid piece of legislation keeping in view the societal condition on those times, but with the changes occurring therein both in the domestic as also international arena such a law can also be declared invalid.

Court also went in to discuss and apply the principle of severability. The prayer of the petitioner was to declare Section 377 IPC as unconstitutional to the extent the said provision affects private sexual acts between consenting adults in private so that applicability of section 377 IPC continues to cases involving non-consensual sex.

Two Kinds of Severability were discussed:
a) Statutory provision may contain distinct and separate words dealing with distinct and separate topics. The first sub section may be valid and the second void. In such a case, the court may delete the second sub section by treating it as severable.

b) There is however another kind of severability namely severability in application, or severability in enforcement. The question of this other kind of severability arises when an impugned provision is one indivisible whole. Here, severability cannot be applied by deleting an offending provision and leaving the rest standing.

Thus, Court applied this second kind of severability to the provision and declared that section 377 IPC, insofar it criminalizes consensual sexual acts of adults in private, is violative of Article 21, 14 and 15 of the constitution. The provisions of Section 377 IPC were held to continue to govern non-consensual penile non-vaginal sex and penile non-vaginal sex involving minors. This clarification was to be hold till, of course, Parliament chooses to amend the law to effectuate the recommendation of the Law Commission of India in its 172nd Report.

In the case of Suresh Koushal, the Apex Court much emphasized on the doctrine of presumption of constitutionality, even in case of a pre-constitutional statute. Court held that 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. 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 the Parliament, which is undisputedly the representative body of the people of India Has not thought it proper to delete this provision. Court further observed 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.

The supreme court also observed that who indulge in carnal intercourse in the ordinary course and those who indulge in carnal intercourse against the order of nature constitutes a different class and the people falling in the same category cannot claim that Section 377 suffers from the vice of arbitrariness and irrational classification. What Section 377 does is merely 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 statues of the same family the person is found guilty. Therefore, the High Court was not considered to be right in declaring Section 377 IPC Ultra vires.

The supreme court also dismissed the “blindfolded” use of foreign judgements by the Delhi High Court. It stated that though these judgements shed considerable light on various aspects of this right and are informative in relation to the plight of sexual minorities, they cannot be applied blindfolded for deciding the constitutionality of the law enacted by the Indian Legislature.
Hence, the court held that Section 377 IPC does not suffer from the vice of unconstitutionality and the judgement passed by the Delhi High Court is legally unsustainable.

Finally, on 6 September 2018, the Court ruled unanimously in Navtej Singh Johar v. Union of India that Section 377 was unconstitutional "in so far as it criminalises consensual sexual conduct between adults of the same sex “.

End-Notes
[1] Did Homosexuality exist in ancient India? Devdutt, http://devdutt.com/articles/applied-mythology/queer/did-homosexuality-exist-in-ancient-india.html (last visited Aug 18, 2018)
[2] 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.
[3] 14. Equality before law
[4] 15. Prohibition of discrimination on grounds of religion, race, caste, sex or place of birth
[5] 19. Protection of certain rights regarding freedom of speech etc.
[6] 21. Protection of life and personal liberty
[7] CIVIL APPEAL 10972 OF 2013
[8] (2008) 3 SCC 1