Landmark gay rights ruling to face challenges

By Vivek Vashi, Sushma Nagaraj and Charles Desouza, Bharucha & Partners
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Apublic interest litigation (PIL) filed by Naz Foundation, an NGO engaged in the field of HIV/AIDS prevention, before Delhi High Court, challenged the constitutional validity of section 377 of the Indian Penal Code, 1860, which deals with “unnatural offences”. Naz contended that 377 violated several articles of the Constitution of India, 1950, in that it criminalizes consensual sexual acts between adults in private.

Vivek Vashi Bharucha & Partners
Vivek Vashi
Bharucha & Partners

The PIL was based on the following premises: (a) The concept of “unnatural sexual acts” has historical or logical rationale, and is arbitrary, unreasonable and violates article 14 (which concerns equality before the law); (b) The expression “sex” as used in article 15 (which concerns prohibition of discrimination on the grounds of religion, race, caste, sex or place of birth) should include sexual orientation, criminalization of which therefore violates article 15; (c) 377 infringes article 19 (which concerns protection of certain rights regarding freedom of speech, etc.), specifically article 19(1)(a) to (d), inasmuch as an individual’s ability to make personal statements, right of association, assembly and right to move freely are restricted; (d) 377 abridges article 21 (which concerns protection of life and personal liberty) since sexual orientation figures prominently within an individual’s personality, is at the core of “private space” and is an inalienable component of the right to life and liberty; and (e) 377 is crippling HIV/AIDS prevention efforts since criminalizing private, consensual homosexual acts serves as a weapon for harassment of sexual minorities by law enforcement agencies, with the effect of driving the activities of homosexuals underground.

The Union of India was represented by the Ministry of Home Affairs and the Ministry of Health and Family Welfare, which adopted different stands in relation to the PIL.

The Home Ministry argued for the retention of 377 in the interest of public safety and public health, on the ground that it was generally invoked in cases of alleged child sexual abuse and its deletion could encourage delinquent behaviour. The Home Ministry further referred to the 42nd report of the Law Commission of India (which had observed that Indian society by and large disapproves of homosexuality), saying that disapproval is strong enough to justify homosexual sex being criminalized even if it is undertaken by consenting adults in private.

The National Aids Control Organization, which represented the Health Ministry’s views on the PIL, supported Naz’s position and contended that 377 impaired HIV/AIDS prevention efforts.

On 2 July Delhi High Court found that 377 violated articles 14, 15 and 21 of the constitution. The question of whether 377 violated article 19(1)(a) to (d) was left open. The court further observed that 377 would continue to govern non-consensual penile non-vaginal sex and penile non-vaginal sex involving minors.

The court found that the criminalization of homosexuality subjected homosexuals to harassment, exploitation and humiliation by the law enforcement machinery; 377 denied a person’s dignity, criminalizing his or her core identity solely on the basis of sexual orientation. The court concluded that by criminalizing consensual sexual acts between adults in private, 377 denied homosexuals a “moral full citizenship” and their right to full personhood, and grossly violated their right to privacy and liberty embodied in article 21.

In view of established medical opinion that homosexuality is no longer identified or treated as a disease or disorder but is instead a normal expression of human sexuality, the court rejected the argument that public health considerations justified the retention of 377, finding that the provision failed the “reasonableness” test.

The court found that only “constitutional morality” (and not enforcement of public morality) would amount to a “compelling state interest” to justify invasion of the zone of privacy of adult homosexuals engaged in consensual sex in private.

Section 377 appeared to be neutral in identifying acts rather than groups but it targeted a particular community and thus discriminated unfairly against homosexuals, violating article 14.

The court acceded to Naz’s contention that the word “sex” in article 15(1) should be read expansively to include sexual orientation, noting that this interpretation had been accepted judicially in some countries, and held that discrimination on the basis of sexual orientation is not permitted by article 15. The court further observed that article 15(2) incorporated the notion of horizontal application of rights (i.e., prohibiting discrimination against one citizen by another in matters of access to public spaces). In declaring section 377 unconstitutional and decriminalizing homosexuality, the high court has undoubtedly made a landmark judgment. However, whether the judgment operates throughout the territory of India is uncertain. The judgment was challenged by Suresh Kumar Kaushal, and subsequently by the Christian Apostolic Churches Alliance and Indian yoga guru Baba Ramdev’s disciple SK Tijarawala, who preferred Special Leave Petitions before the Supreme Court. The Supreme Court issued notice to the central government, Naz and others in all three petitions, but declined the petitioners’ request to suspend the operation of the judgment. All matters now stand over to 14 September.

Vivek Vashi is the mainstay of the litigation department at Bharucha & Partners, where Sushma Nagaraj and Charles Desouza are associates.

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