“Why is it that, as a culture, we are more comfortable seeing two men holding guns than holding hands?” -Earnest Gaines
In the true sense of the word, this quote from Gaines did not apply to our Indian culture, not until the British arrived in the sixteenth century and embarked the amalgamation of the western culture with that of the east. From the treatises such as Arthashastra and Kamasutra to the sculptures at Khajuraho, they all bellow and clamour that the notion of Lesbians, Gays, Bisexuals and Transgender (LGBT) is not something alien to this land, and certainly, was not condemned by the society as they have been for the past 150 years. In fact, they were characterized as ‘third nature’ as opposed to people involved in activities ‘against the order of nature’. Vikram Seth has rightly quoted, “Of all the cruelties that we as human beings can visit on one another, one of the most cruel is to say that you shall not love or make love with the person you love, not because of excessive youth or because of unwillingness, but because he or she comes from a different religion, a different caste, the same village, the same gender. You may say you love each other, that you are happy with each other, that you give each other solace and courage and delight, but your love disgusts me. It runs counter to custom, it is an offence in law, it is against the order of nature, it brings dishonor to our family, it will dilute our blood, it will bring about kali-yuga, it will corrupt everyone around you, and it is an abomination in the sight of the Lord. It must be forbidden.”[i]
G.E. Vahanvati quoted in the United Nations Human Rights Council in the year 2008, “Around the early 19th Century, you probably know that in England they frowned on homosexuality, and therefore there are historical reports that various people came to India to take advantage of its more liberal atmosphere with regard to different kinds of sexual conduct. As a result, in 1860 when we got the Indian Penal Code, which was drafted by Lord Macaulay, they inserted Section 377 which brought in the concept of ‘sexual offences against the order of nature”.[ii] Thus, it was ‘homophobia’ and not ‘homosexuality’ which was imported in the country.
In discharging the duties assigned to it, the Supreme court has to play the role of a ‘sentinel on qui vive’[iii], and it must always regard it as its solemn duty to protect the fundamental rights ‘zealously and vigilantly’[iv]. Renowned economist Amartya Sen was appalled to state that, “The fact that you have to wait for the blessing of the majority in the parliament in order to protect the human rights, and the rights of the minority, and the Supreme Court wouldn’t do anything to it, seems to be a failure of the role of the Supreme Court.”[v] Thus, it would prove to be detrimental to the cause of democracy itself if the courts refused to take cognizance of the violation of the fundamental rights of either an individual, or of the minority. The power of the Court is remedial as well as injunctive in this regard[vi]. To say that the majority, the parliament, has to repeal this law and we won’t do it, what kind of protection do the courts give to the rights of the individual?
21st CENTURY AND THE IMPACT OF SECTION 377 OF INDIAN PENAL CODE
The Indian Penal Code(hereinafter IPC) was drafted in 1860 on the recommendations of first law commission of India established in 1834 under the Charter Act of 1833 under the Chairmanship of Thomas Babington Macaulay and came into force in British India during the early British Raj period in 1862.[vii] Section 377 of the IPC states that anyone who voluntarily has carnal intercourse against the order of the nature with any man, woman or animal, shall be punished with imprisonment for life, or with imprisonment of either description for term which may extend to ten years, and shall also be liable to fine.[viii] This section is titled “Unnatural offences” and comes in chapter XVI of IPC which covers offences affecting the human body.[ix] This section holds men who have sex with men as criminals as their mode of sex is unnatural or non procreative in nature.[x] Such non procreative forms of sex are popularly known as sodomy. Sodomy was historically known in England and Wales as buggery and it was made a felony by the Buggery Act in 1533, during the reign of Henry VIII.[xi] The punishment for those convicted was the death penalty until 1861. The last two persons were executed for sodomy in 1835.[xii] The Government of England set up a Departmental Committee under Sir John Wolfenden that put forward the argument in 1957 that ‘homosexual behaviour between consenting adults in private be no longer a criminal offence’.[xiii] Despite the recommendations of the report, it was not until July 1967 that homosexuality finally became legal in England and Wales.[xiv] It is worth noting here that before IPC was enacted in India there were no fixed laws prohibiting homosexuality or any rules or regulations categorizing sexual activities as natural or unnatural. On the contrary India boasts of sculptures, temples, and a myriad of other architecture that illustrate penile non-vaginal sex between man and woman, man and man, woman and man, group sex etc[xv], all of which was declared illegal after the application of IPC in 1860.
With Wolfenden’s report homosexual behavior gained acceptance in United Kingdom and different parts of Europe. Most of Australia de-criminalized homosexuality by 1997 with Tasmania being the last State to do so. Brazil does not criminalize such acts unless the person involved is below 14 years of age. The bill repealing Canada’s sodomy laws was the Criminal Law Amendment Act, 1968-69 which received royal assent on June 27, 1969. The bill had been introduced in the House of Commons by Pierre Trudeau who famously stated that “there’s no place for the state in the bedrooms of the nation”[xvi]. Thailand decriminalized sodomy in 1956[xvii]. Sweden legalized homosexuality in 1944. The age of consent is 15, regardless of whether the sexual act is heterosexual or homosexual, since equalization in 1972. Countries throughout the world are giving legal recognition to LGBT. Section 377 of IPC does not expressly prohibit the LGBT community from indulging into sexual activities but the activities which have been titled as crime under this section are those which are involved into specifically by the LGBT community. Moreover, this section does not let the accused take the defence of ‘consent’ either. Thus, the existence of this law indirectly prohibits the LGBT community from indulging into something as basic as sex.
The Delhi High Court in Naz Foundation v. Government of NCT Delhi[xviii], declared section 377 violative of Articles 14, 21 and 15, in so far as it criminalized consensual sex between people above the age of 18 in private. Sadly, in the acclaimed democracy of India still the tyranny of majority persists. Notwithstanding the amount of cases put forward by the parties in the aforementioned case, the Supreme Court of India declared the number to be ‘not’ substantial by stating that only 200 people have been convicted in the last 150 years under section 377[xix]. Since the activities of LGBT community are declared illegal by the statute, they directly come within the purview of suspicion by State agencies, and as a consequence, many such cases go unrecorded.
‘READING DOWN’ AND INTERPRETATION OF SECTION 377
Delhi High Court in its judgment in Naz Foundation v. Government of NCT of Delhi ‘read down’ the part of section 377 which violated Articles 14, 15 and 21. Where a legislature has used wide or vague words which may extend the operation of an Act to a subject outside the relevant Entry the Court interprets the wide terms giving them restricted meaning. This is called Reading Down[xx]. The Act with the meaning assigned remains intra vires. The courts avoid striking down an Act. It is a mechanism of applying the doctrine of severability.[xxi]
The basis of the practice of reading down was laid down in a laconic sense in Commissioner of Sales Tax, Madhya Pradesh, Indore and Ors. v. Radhakrishan and Ors[xxii] in the following words: “In considering the validity of a statute the presumption is in favour of its constitutionality and the burden is upon him who attacks it to show that there has been a clear transgression of constitutional principles. For sustaining the presumption of constitutionality the Court may take into consideration matters of common knowledge, matters of common report, the history of the times and may assume every state of facts which can be conceived it must always be presumed that the Legislature understands and correctly appreciates the need of its own people and that discrimination, if any, is based on adequate grounds. It is well settled that courts will be justified in giving a liberal interpretation to the section in order to avoid constitutional invalidity. These principles have given rise to rule of reading down the section if it becomes necessary to uphold the validity of the sections.”
In Minerva Mills Ltd. and Ors. v. Union of India (UOI) and Ors[xxiii], the Court by stating that “the device of reading down is not to be resorted to in order to save the susceptibilities of the law makers, nor indeed to imagine a law of one’s liking to have been passed. One must at least take the Parliament at its word when, especially, it undertakes a constitutional amendment” identified the limitations upon the practice of reading down.
Delhi High Court in its judgment gave perfect rationale which proved the violation of Articles 14, 15 and 21 by section 377 of IPC. It delineated that while 21st Century India is embracing LGBT community, archaic laws, whose objective is now rendered redundant, cannot be allowed to stop this process. It threw light on the lack of distinction between sexual activities in private sphere and public sphere and between consensual and non consensual acts between adults in private. By not making the above mentioned distinction, the classes of men who sex with men, come under the purview of criminals as it is only penile/non-vaginal sex, which has been criminalized by this section, which they can indulge into. Criminalizing consensual sex of any form, as long as it is within the private sphere and not harming anyone directly invalidates the ground for classification under Article 14 as it targets the homosexual community as a class. State does not have the right to regulate a citizen’s personal choices that he makes in his personal or private life. Heterosexuals and homosexuals must have the same freedom to make choices regarding their personal lives.
It was to remove these discrepancies which were infringing the fundamental rights of the LGBT community that the High Court read down section 377 of IPC. Reading down as a mechanism of applying the doctrine of severability is resorted to by the courts when a statute comes in conflict with the provisions of the Constitution. In circumstances such as this, if an interpretation of the statute is possible which can prevent it from being struck down because of its unconstitutionality, then such an interpretation can be utilized by the courts. It is worth observing that Section 377 talks merely about punishment for having carnal intercourse against the order of nature with a man, woman and animal. The vagueness of the language of this section is comprehended from the fact that it does not expressly mention the element of consent or age of the parties involved. Now, there may not be a humongous amount of cases pertaining to harassment of LGBT community owing to this section, but the inclusive nature of it puts the homosexuals under constant threat which in turn infringes their right to lead peaceful lives. They are forced into the realm of constant suspicion and are branded criminals. High Court of Delhi in its judgment[xxiv] read down Section 377 and severed consensual sex between adults in private from its ambit, thereby saving it from being unconstitutional as it was found by the High Court to have been violating Articles 14, 15 and 21. It called its decision a mere clarification that was open to further amendments by the legislature. Moreover, the former attorney general of India Mr. G.E. Vahanvati informed the Supreme Court that the Group of Ministers had recommended that there did not appear to be any legal error in the judgment. The cabinet accepted the recommendations. An affidavit was filed on March 1, 2012 by the home secretary reiterating the recommendations and the fact that the cabinet had accepted these.[xxv]
Honorable Supreme Court in its judgment in Suresh Kumar Koushal and another v Naz Foundation and others[xxvi] declared High Court’s judgment to be legally unsustainable on the grounds that sufficient information regarding harassment of LGBT was not furnished by the respondents and that a mere possibility that a provision may be used to discriminate against a particular segment itself will not be sufficient to declare the law invalid. To quote Noble laureate Amartya Sen, “In 1861, when America was trying to get rid of slavery, India, under the British rule was trying to create a new potential slave…who could be threatened by the police…and if do not arrest them, it always remains a threat.”[xxvii] The overruling of the judgment of the Delhi High Court has once again put the LGBT community under the constant threat of getting arrested for indulging into sexual activities. Most recently the arrest of the Bangalore techie under section 377, for having sexual relations with a man[xxviii] elucidates how the State has gained power to regulate something as personal as sex.
THE PROGRESSIVE FACET OF DELHI HIGH COURT’S DECISION
All that the High Court did was decriminalize gay sex between consenting adults in private. The high court delivered the verdict on a very narrow conspectus of Section 377 till such time Parliament chose to amend the law to effectuate the recommendation of the Law Commission in its 172nd report.[xxix] Reading down of section 377 would have effectuated the legal admission of the LGBT community into the mainstream society. With legal sanctions behind them, they would have finally come at parity with the rest of the classes. With countries around the world abolishing sodomy laws High Court’s decision came as a wave of solace for the much repressed LGBT community in India. This judgment brought the 150 year old law in sync with the needs of current times. Former attorney general of India, Vahanvati said, “Law does not and cannot remain static.”[xxx] India had been more tolerant towards homosexuality than its colonizers were. Introduction of IPC in 1860 brought a queer and suspicious perspective toward them which did not exist earlier. This judgment reflected that India had finally let go of the anti gay mentality that had been imposed on her by her colonizers and was willing to embrace something that had always been an absolutely normal part of her culture. As section 377 of IPC came into limelight it raised questions like: “what is the order of the nature”, “what is natural and unnatural carnal intercourse” and “what was immoral 150 years ago should remain the same even now?” That laws change with time and that they are useful only when they cater to the society’s needs was mirrored in Delhi High Court’s judgment.
The repercussions of socially and legally excluding the LGBT community are borne by other members of the society too. Since this section holds all homosexuals under suspicion, therefore, they remain in the closet and do not come clean about their sexual orientation. Conventions force them to lead normal married lives. However, it is not possible for a person to change ones sexual orientation. The inability to express it freely drives the homosexuals underground where they indulge in sexual activities in hiding. This in turn exposes them to various sexually transmitted diseases which get transferred to their married partners as well. This decision would have helped in bringing about awareness amongst MSM who have been classified by the United Nations as the ‘High Risk Group’. United Nations Member States have time and again emphasized the importance of “addressing the needs of those at the greatest risk of, and most vulnerable to, new infection as indicated by such factors as … sexual practices.”[xxxi] In 2005, 22 governments from different regions along with representatives of non-governmental organizations and people living with HIV as members of the UNAIDS governing board, called for the development of programmes targeted at key affected groups and populations, including men who have sex with men, describing this as “one of the essential policy actions for HIV prevention”.[xxxii] At the 2006 High Level Meeting on AIDS, the Member States and civil society members reiterated the commitment underlining the need for “full and active participation of vulnerable groups … and to eliminate all forms of discrimination against them …. while respecting their privacy and confidentiality”.[xxxiii]
All these efforts by international organizations in trying to curb the metastasizing of HIV got a boost after the Delhi High Court judgment. It was a giant leap forward not only in the realm of human rights but also in the health sector.
Democracy dictates a system in which, every citizen can, without fear of retribution, breathe, express him, and pursue his or her interests. It enables him to live a life of his choice to the extent he does not encroach upon the rights of the other people.[xxxiv] The doctrine of separation of power, though not announced in the Indian constitution, has been impliedly preached by the framers, as, to ensure an efficient governance, a certain level of interdependence among the three organs of the State is imperative. The repercussions of imparting absolute powers to a particular organ could be adverse, as in the words of Lord Acton “Power corrupts and absolute power tends to corrupt absolutely”.
In a country with a written constitution, courts have the additional function of safeguarding the supremacy of Constitution by interpreting and applying its provisions and keeping all authorities within the constitutional framework.[xxxv] The power to pronounce upon the validity of the laws is a part of the judicial review[xxxvi] which is a basic and essential feature of the Constitution of India.[xxxvii] C.J. Chandrachud aptly said “It is the function of the Judges, nay their duty, to pronounce upon the validity of laws. If the courts were totally deprived of that power, the fundamental rights conferred on the people will become a mere adornment because rights without remedies are as writ in water. A controlled constitution will then become uncontrolled.”[xxxviii] Thus, the role of the judiciary is like a watching tower above all the big structures of the other limbs of the State from which it keeps a watch like a sentinel on the functions of the other limbs of the State as to whether they are working in accordance with the law and the Constitution, the Constitution being supreme[xxxix].
In light of the judgment given by the Delhi High Court, it would be inappropriate to say that in interpreting section 377, the court overstepped its jurisdiction. Its decision did not amount to enactment or making of a new law, but a mere clarification to the ambiguity inherent in the section. Such steps become imperative when the State, for one or other reasons, conforms to the status quo principle and in the process, neglects the changing needs of the society and the dynamic nature of law. The Government (State) cannot escape from its prime duty, i.e., rendering services for the welfare of the citizens showing that is over-burdened with day to day functioning[xl], or for associated reasons. The functions of a modern State unlike the police States of old are not confined to mere collection of taxes or maintenance of laws and protection of the realm from external or internal enemies. A modern State is certainly expected to engage in all activities necessary for the promotion of the social and economic welfare of the community.[xli] And when the fundamental rights of a minority community such as the LGBTs are so grossly violated, it is indispensable that courts step in to counterbalance the injustice. The Honorable Supreme Court of India has correctly stated thus: “Solomon’s Throne was supported by lions on both sides; Let them be lions, but yet lions under the throne; being circumspect that they do not check or oppose any points of sovereignty”[xlii], i.e., ‘Majesty of Justice system’ (Solomon’s Throne) is supported by the Legislature and the Executive (the ‘Lions’) from both sides, nevertheless, these Legislature and Executive are under the control of Judiciary. Legislature and Executive must not go against any point of Sovereignty.[xliii]
[i] Vikram Seth, Vikram Seth on Section 377 and Gay Rights in India, INDIATODAYIN, (December 20th, 2013)
[ii] Manoj Mitta, Ancient India didn’t think homosexuality was against nature, TOI, June 27th, 2009, 1
The delegation of India in the United Nations Human Rights Council in 2008 answered Sweden when India’s record in maintaining equality amongst people irrespective of their sexual orientation was questioned in the light of the petition pending before Delhi High Court seeking to decriminalize homosexuality, “Now in India we didn’t have this concept of something being ‘against the order of nature’. It was essentially a Western concept, which has remained over the years.”
[iii] State of madras v. V.G. Row, 1952 SCR 597:AIR 1950 SC 124, 126
[iv] Daryao v. State of U.P., (1962) 1 SCR 574, 582: AIR 1961 SC 1457, 1461
[v] Amartya Sen, Very disappointed with Supreme Court on homosexuality verdict: Amartya Sen, Ndtv, (December 17th, 2013), https://www.ndtv.com/video/player/left-right-centre/very-disappointed-with-supreme-court-on-homosexuality-verdict-amartya-sen/301763
[vi] M.C. Mehta v. Union of India, 1987 1 SCC 395: AIR 1987 SC 1086. 1091
[vii] Universal Law Publishing, Universal’s Guide to Judicial Service Examination 2 (11th ed. 2011)
[viii] Indian Penal Code, 1860, § 377
[ix] Indian Penal Code, 1860
[x] Most courts hold penile nonvaginal sex as unnatural as conception is not a possibility in this case
[xi] The Law in England, 1290-1885, Fordham University: The Jesuit University Of New York, (accessed on 28th November, 2014), https://www.fordham.edu/halsall/pwh/englaw.asp
[xii] Old Bailey Proceedings, 21st September 1835, The Proceedings Of The Old Bailey: London’s Central Criminal Court, 1674 To 1913, (accessed on 28th November, 2014), https://www.oldbaileyonline.org/
[xiii] Learning Timelines: Sources from History, British Library, (accessed on 27th November 2014) https://www.bl.uk/learning/timeline/item107413.html
[xiv] Supra note xiv
[xv] Khajuraho temples and Konark Sun Temple
[xvi] Omnibus Bill: ‘There’s no place for the state in the bedrooms of the nation’, CBC Digital Archives, (accessed on 27th November 2014), https://www.webcitation.org/69rtGGDLm
[xvii] Assessment of sexual health needs of males who have sex with males in Laos and Thailand conducted for pact by OBE Naz Foundation International February 2005.
[xviii] 160 Delhi Law Times 277
[xix] Suresh Kumar Koushal and Another v Naz Foundation and Others, Civil Appeal No.10972 of 2013. Decided on 11 December 2013.
[xx] Brij KIshore Sharma, Introduction to The Constitution of India, 278, (4th ed. 2007)
[xxi] Supra note xx
[xxii] 1970 AIR 732, 1969 SCR (2) 939
[xxiii] (1980) 3 SCC 625
[xxiv] Supra note xix
[xxv] Goolam E Vahanvati, Law can’t remain static: Government told SC that Section 377 didn’t reflect Indian values, The Times Of India, (13th December, 2013), https://timesofindia.indiatimes.com/edit-page/Law-cant-remain-static-Government-told-SC-that-Section-377-didnt-reflect-Indian-values/articleshow/27246846.cms
[xxvi] Supra note xx
[xxvii] Supra note vi
[xxviii] Bangalore techie arrested under Section 377 after wife discovers he is gay, IBN Live, (30th October, 2014), https://ibnlive.in.com/news/bangalore-techie-arrested-under-section-377-after-wife-discovers-he-is-gay/509444-62-129.html
[xxix] Bishwajit Bhattacharyya, Section 377: The government slept it out on decriminalization, The Economic Times, (18th December, 2013) https://articles.economictimes.indiatimes.com/2013-12-18/news/45338452_1_delhi-high-court-delhi-hc-law-officer
[xxx] Supra note xxvi
[xxxi] The 2001 UN General Assembly Special Session (UNGASS) Declaration of Commitment on HIV/AIDS, held on 25-27 June, 2001
[xxxii] UNAIDS Intensifying HIV Prevention, Geneva, Joint United Nations Programme on HIV/AIDS held in the year 2005. Since then, country and regional consultations have confirmed that the stigma, discrimination and criminalization faced by men who have sex with men are major barriers to the movement for universal access to HIV prevention, treatment, care and support.
[xxxiii] ¶64 of 2001 Declaration of Commitment on HIV/AIDS and ¶20 and ¶29 of the 2006 Political Declaration on HIV/AIDS.
[xxxiv] Nidhi Singh and Anurag Vijay, Separation of Powers: Constitutional Plan and Practice, International Journal of Scientific and Research Publications, 3, IJSRP, 1,1 (November 2013).
[xxxv] M.P. Jain, Indian Constitutional Law, 201, (6th ed. 2010).
[xxxvi] Minerva Mills Ltd. and Ors. v. Union of India (UOI) and Ors, (1980) 3 SCC 625.
[xxxvii] Bhagwati J., in S.P. Sampath Kumar v. Union of India, (1987) 1 SCC 124.
[xxxviii] Supra note 3
[xxxix] Untwalia J., in Union of India v Sankalchand Himatlal Sheth, AIR 1977 SC 2328.
[xl] Tej Bahadur Singh, Principle of Separation of Powers and Concentration of Authority, ijtr, (Issue 4 and 5 1996).
[xli] supra note vii.
[xlii] Quoted from Francis Bacon’s “Essay of Judicature” in S.C. Advocates-on-Record Association v. Union of India, AIR 1994 SC 268 at p. 301.
[xliii] supra note vii