The Delhi High Court has ruled in Naz Foundation's case that section 377 of the Indian Penal Code is unconstitutional insofar as it criminalizes consensual sexual acts between adults in private. It has evoked mixed reactions and triggered a debate.
Whether or not homosexual conduct should be decriminalized is a ticklish issue, with some merit in both sides of the argument. Without entering the larger debate, this article examines reasons given and the Delhi High Court's approach in drawing its inference.
The exercise becomes necessary because the Delhi High Court's judgment itself is under challenge. Should the approach taken and the reasons given in the judgment found to be erroneous, there would exist good legal grounds to set it aside. Such an eventuality would only further damage the "cause" of homosexuals.
A close look at the Delhi High Court judgment presents a peculiar feature. Almost the entire ruling is based on decisions of foreign courts and international instruments. The Supreme Court has, right from its inception, deprecated the practice of importing into the question of construction of a provision in a given case, the doctrines of democratic theory and practice obtaining in other countries unrelated to the tenor, scheme and words of the provision that is to be construed in that case.
The provision in the instant case is section 377 IPC, which is titled "Unnatural offences" and penalizes any person who "voluntarily has carnal intercourse against the order of nature with any man, woman or animal". The High Court's reference to the foreign courts' views on homosexuality are irrelevant for the interpretation of section 377.
As regards international instruments, it is well settled that "the positive commitment of the State parties ignites legislative action at home but does not automatically make the covenant an enforceable part of the corpus juris of India" (Jolly George Verghese , AIR 1980 SC 470). Moreso, if such instruments are inconsistent with Indian domestic law, as in the present case. Such misplaced reliance by the High Court on foreign judgments and international instruments may vitiate its decision as being based on a legally untenable approach.
The High Court has concluded that section 377 violates Articles 21, 15 and 14 of the Constitution insofar as it criminalizes consensual sexual acts between adults in private. Let us consider reasoning of the High Court.
Article 21 mandates that no one shall be deprived of his life and personal liberty except according to procedure established by law. The Supreme Court has read the right to privacy as being implicit in Article 21, which can be restricted or regulated by law.
The High Court has relied on foreign judgments for the proposition that "if, in expressing one's sexuality, one acts consensually and without harming the other, invasion of that precinct will be a breach of privacy". It, therefore, held that the "sphere of privacy allows persons to develop human relations without interference from the outside community or from the State" and thus the criminalization of "the person's core identity solely on account of his or her sexuality" violates the right to privacy guaranteed by Article 21.
If such a sweeping proposition is to be accepted, one would have to decriminalize the offence of adultery penalized under section 497 IPC. After all, in an adulterous relationship between two adults in private, both are acting consensually and without harming the other. And, how about incest? Should now consensual but incestuous acts between adults in private be treated as legitimate? The very criteria adopted by the High Court for holding that criminalization of homosexuality results in an infringement of Article 21 is, therefore, unsustainable.
The High Court has examined the impact of criminalization of homosexuality and inferred that there is widespread misuse of section 377 to brutalise homosexuals. But then, the Supreme Court has consistently laid down that a law is not to be struck down because it is susceptible to misuse. Rather, the misuse is to be checked . There is always a presumption in favour of the constitutionality of an enactment and that public officials will discharge their duties honestly and in accordance with rules. Misuse of an enactment cannot be the ground to declare it as unconstitutional.
Again, the High Court found that criminalization of homosexuality is an impediment to public health interventions, However, as the Union of India argued, the solution may not be to decriminalize homosexuality but to prevent diseases like AIDS by appropriate education, use of condoms and advocacy of safe sex practices. Decriminalization of homosexuality could, in fact, encourage homosexuality leading to increase in AIDS or other diseases.
Sexual orientation is a ground analogous to "sex" and discrimination on the basis of sexual orientation is not permitted under Article 15, the Court held. However, the Court has not substantiated this by any reference to the legislative intent behind the constitutional provision.
The High Court also found the criminalization of homosexuality as being violative of the equality clause contained in Article 14. It reasoned that the "nature of the provision of section 377 IPC and its purpose is to criminalize private conduct of consenting adults which causes no harm to anyone else. It has no other purpose than to criminalize conduct which fails to conform with the moral or religious views of a section of society". Such purpose, according to the Court, is itself irrational. Let us consider the interplay of morality and religion on homosexuality conduct.
True, notions of morality are subjective and do change over time. Equally true is the fact that morality by itself is not a ground of restriction of fundamental rights. But is morality altogether irrelevant? After all, it is morality which makes incest or adultery abhorrent. Humans do not exist in vaccum. Law is meant to reflect standards of social behaviour. Societal morality is inherent in the very conceptualization of a legal norm.
The Indian Constitution is a single document and the provisions of each Article are a necessary link in the interpretation of the other provisions. Surprisingly, the High Court, while discarding moral or religious belief as a relevant parameter to test the validity of the purpose of section 377, did not even refer to Article 25 of the Constitution: The right to the freedom of conscience and the right to freely profess, practice and propagate religion is subject to public order, morality and health.
Assuming homosexual conduct can be said to flow from freedom of conscience, the restriction in Article 25 necessarily brings in the prevalent notions of acceptable behaviour in the nation's social fabric. It is, therefore, not legitimate for the Court to construe the provisions of Articles 14, 15 and 21 bereft of their context in the constitutional scheme, and without even considering whether homosexuality is hit by public order, morality and health under the opening words of Article 25.
True, a law can, and should, be modified to reflect prevalent societal morality and conduct which, in practice, is regulated more by acceptable moral behaviour and less by law. If the current social norms accept homosexuality, the law should be amended to reflect that position. Thus, the crucial question is not whether morality and religion are relevant to the question of decriminalization of homosexuality, but who is going to determine what is the acceptable social and moral behaviour-the legislature or the judiciary?
It is trite in constitutional democracy that the legislature must be presumed to understand and correctly appreciate the need of its people, that its laws are directed to problems made manifest by experience, and that its discrimination are based on adequate grounds. It is for the legislature to say, if it so wishes, that homosexuality should be decriminalized and to amend the law to reflect such policy. Indeed, the High Court seems to have overstepped its jurisdiction in supplanting the legislative policy underlying section 377 by its own policy to decriminalize homosexuality.