JUSTICE S.MURALIDHAR, AJIT PRAKASH SHAH, CHIEF JUSTICE:
The marginal note refers to the acts proscribed as “unnatural offences”. This expression, however, is not used in the text of Section 377 IPC. The expression “carnal intercourse” is used in Section 377 IPC as distinct from the expression “sexual intercourse”, which appears in Sections 375 and 497 IPC. According to the Concise Oxford Dictionary (ninth edition, 1995), the term “carnal” means “of the body or flesh; worldly” and “sensual, sexual”. Consent is no defence to an offence under Section 377 IPC and no distinction regarding age is made in the section.
The English law was reformed in Britain by the Sexual Offences Act, 1967, which de-criminalised homosexuality and acts of sodomy between consenting adults (above age of 21) pursuant to the report of Wolfenden Committee.
Union of India argues that Indian society is yet to demonstrate readiness or willingness to show greater tolerance to practices of homosexuality.
From the above summary of submissions of the Union of India through the MHA it is clear that the thrust of the resistance to the claim in the petition is founded on the argument of public morality.
Learned ASG submits that there is no fundamental right to engage in the same sex activities. In our country, homosexuality is abhorrent and can be criminalised by imposing proportional limits on the citizens’ right to privacy and equality. Learned ASG submits that right to privacy is not absolute and can be restricted for compelling state interest.
According to him, in the western societies the morality standards are not as high as in India. Learned ASG further submits that Section 377 IPC is not discriminatory as it is gender neutral.
Dignity as observed by L’Heureux-Dube, J is a difficult concept to capture in precise terms [Egan v. Canada, (1995) 29 CRR (2nd) 79 at 106]. At its least, it is clear that the constitutional protection of dignity requires us to acknowledge the value and worth of all individuals as members of our society. It recognises a person as a free being who develops his or her body and mind as he or she sees fit.
The expression “dignity of the individual” finds specific mention in the Preamble to the Constitution of India. V.R. Krishna Iyer, J. observed that the guarantee of human dignity forms part of our constitutional culture [Prem Shankar Shukla v. Delhi Admn.].
Article 12 of the Universal Declaration of Human Rights (1948) refers to privacy and it states: “No one shall be subjected to arbitrary interference with his privacy, family, home or correspondence nor to attacks upon his honour and reputation. Everyone has the right to the protection of the law against such interference or attacks.”
In India, our Constitution does not contain a specific provision as to privacy but the right to privacy has, as we shall presently show, been spelt out by our Supreme Court from the provisions of Article 19(1) (a) dealing with freedom of speech and expression, Article 19(1) (d) dealing with right to freedom of movement and from Article 21, which deals with right to life and liberty.
Olmstead v. United States, 277 US 438 (1928), was a case of wire-tapping or electronic surveillance and where there was no actual physical invasion, the majority held that the action was not subject to Fourth Amendment restrictions. But, in his dissent, Justice Brandeis, stated that the amendment protected the right to privacy which meant “the right to be let alone”, and its purpose was “to secure conditions favourable to the pursuit of happiness”, while recognising “the significance of man’s spiritual nature, of his feelings and intellect: the right sought “to protect Americans in their beliefs, their thoughts, their emotions and their sensations”
Kharak Singh v. The State of U.P., (1964) 1 SCR 332, the U.P. Regulations regarding domiciliary visits were in question and the majority referred to Munn v. Illinois, 94 US 113 (1877), and held that though our Constitution did not refer to the right to privacy expressly, still it can be traced from the right to “life” in Article 21. The majority did not go into the question whether these visits violated the “right to privacy”. But, Subba Rao, J. while concurring that the fundamental right to privacy was part of the right to liberty in Article 21, part of the right to freedom of speech and expression in Article 19(1) (a), and also of the right of movement in Article 19(1) (d), held that the Regulations permitting surveillance violated the fundamental right to privacy.
The right to privacy thus has been held to protect a “private space in which man may become and remain himself”. The ability to do so is exercised in accordance with individual autonomy.
Bowers v. Hardwick (supra) Blackmun, J. cited the following passage from Paris Adult Theatre I v. Slaton, [413 US 49 (1973), page 63] : “Only the most willful blindness could obscure the fact that sexual intimacy is a sensitive, key relationship of human existence, central to family life, community welfare, and the development of human personality. The way in which we give expression to our sexuality is at the core of this area of private intimacy. If, in expressing our sexuality, we act consensually and without harming one another, invasion of that precinct will be a breach of our privacy.”
The sphere of privacy allows persons to develop human relations without interference from the outside community or from the State. The exercise of autonomy enables an individual to attain fulfillment, grow in self-esteem, build relationships of his or her choice and fulfill all legitimate goals that he or she may set. In the Indian Constitution, the right to live with dignity and the right of privacy both are recognised as dimensions of Article 21. Section 377 IPC denies a person’s dignity and criminalises his or her core identity solely on account of his or her sexuality and thus violates Article 21 of the Constitution.
These fundamental rights had their roots deep in the struggle for independence and, as pointed out by Granville Austin in “The Indian Constitution – Cornerstone of A Nation”, “they were included in the Constitution in the hope and expectation that one day the tree of true liberty would bloom in India”.
However persons, having carnal intercourse with any animal, were to be left to their just deserts. Though the Law Commission report would not expressly say so, it is implicit in the suggested amendments that elements of “will” and “consent” will become relevant to determine if the sexual contact (homosexual for the purpose at hand) constitute an offence or not.
In fact, the admitted case of Union of India that Section 377 IPC has generally been used in cases of sexual abuse or child abuse, and conversely that it has hardly ever been used in cases of consenting adults, shows that criminalisation of adult same-sex conduct does not serve any public interest. The compelling state interest rather demands that public health measures are strengthened by de-criminalisation of such activity, so that they can be identified and better focused upon.
The decisions lay down that though Article 14 forbids class legislation, it does not forbid reasonable classification for the purpose of legislation. In order, however, to pass the test of permissible classification, two conditions must be fulfilled, namely, (i) that the classification must be founded on an intelligible differentia which distinguishes persons or things that are grouped together from those that are left out of the group; and (ii) that the differentia must have a rational relation to the objective sought to be achieved by the statute in question.
The other important facet of Article 14 which was stressed in Maneka Gandhi is that it eschews arbitrariness in any form.
It is clear that Section 377 IPC, whatever its present pragmatic application, was not enacted keeping in mind instances of child sexual abuse or to fill the lacuna in a rape law. It was based on a conception of sexual morality specific to Victorian era drawing on notions of carnality and sinfulness. In any way, the legislative object of protecting women and children has no bearing in regard to consensual sexual acts between adults in private.
The Court further held that legislations with pronounced “protective discrimination” aims, such as Section 30, potentially serve as double edged swords. Strict scrutiny should be employed while assessing the implications of this variety of legislations. Legislation should not be only assessed on its proposed aims but rather on the implications and the effects.
We declare that Section 377 IPC, insofar it criminalises consensual sexual acts of adults in private, is violative of Articles 21, 14 and 15 of the Constitution. The provisions of Section 377 IPC will continue to govern non-consensual penile non-vaginal sex and penile non-vaginal sex involving minors.
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