* IN THE HIGH COURT OF DELHI AT NEW DELHI + WP(C) No.7455/2001 % Date of decision : 2nd July, 2009 Naz Foundation .... Petitioner Through: Mr.Anand Grover, Sr.Advocate with Mr.Trideep Pais, Ms.Shivangi Rai and Ms.Mehak Sothi and Ms.Tripti Tandon, Advocates versus Government of NCT of Delhi and Others .... Respondents Through : Mr.P.P. Malhotra, ASG with Mr.Chetan Chawla, Advocate for UOI. Ms.Mukta Gupta, Standing Counsel (Crl.) with Mr.Gaurav Sharma and Mr.Shankar Chhabra, Advocates for GNCT of Delhi. Mr.Ravi Shankar Kumar with Mr.Ashutosh Dubey, Advocates for respondent No.6/Joint Action Council Kannur. Mr.H.P.Sharma, Advocate for respondent No.7/Mr.B.P. Singhal. Mr.S.Divan, Sr. Advocate with Mr.V.Khandelwal, Mr.Arvind Narain, Ms.S. Nandini, Mr.Mayur Suresh, Ms.Vrinda Grover and Mr.Jawahar Raja, Advocates for respondent No.8-Voices against 377. CORAM: HON’BLE THE CHIEF JUSTICE HON’BLE DR. JUSTICE S.MURALIDHAR 1.Whether reporters of the local news papers be allowed to see the judgment? Y 2.To be referred to the Reporter or not ? Y 3. Whether the judgment should be reported in the Digest?Y [WP(C)7455/2001] Page 1 of 105 AJIT PRAKASH SHAH, CHIEF JUSTICE: 1. This writ petition has been preferred by Naz Foundation, a Non Governmental Organisation (NGO) as a Public Interest Litigation to challenge the constitutional validity of Section 377 of the Indian Penal Code, 1860 (IPC), which criminally penalizes what is described as “unnatural offences”, to the extent the said provision criminalises consensual sexual acts between adults in private. The challenge is founded on the plea that Section 377 IPC, on account of it covering sexual acts between consenting adults in private infringes the fundamental rights guaranteed under Articles 14, 15, 19 & 21 of the Constitution of India. Limiting their plea, the petitioners submit that Section 377 IPC should apply only to non-consensual penile non-vaginal sex and penile non- vaginal sex involving minors. The Union of India is impleaded as respondent No.5 through Ministry of Home Affairs and Ministry of Health & Family Welfare. Respondent No.4 is the National Aids Control Organisation (hereinafter referred to as “NACO”) a body formed under the aegis of Ministry of Health & Family Welfare, Government of India. NACO is charged with formulating and implementing policies for the prevention of HIV/AIDS in India. Respondent No.3 is the Delhi State Aids Control Society. Respondent No.2 is the Commissioner of Police, Delhi. Respondents No.6 to 8 are individuals and NGOs, who were permitted to intervene on their request. The writ petition was dismissed [WP(C)7455/2001] Page 2 of 105 by this Court in 2004 on the ground that there is no cause of action in favour of the petitioner and that such a petition cannot be entertained to examine the academic challenge to the constitutionality of the legislation. The Supreme Court vide order dated 03.02.2006 in Civil Appeal No.952/2006 set aside the said order of this Court observing that the matter does require consideration and is not of a nature which could have been dismissed on the aforesaid ground. The matter was remitted to this Court for fresh decision. HISTORY OF THE LEGISLATION 2. At the core of the controversy involved here is the penal provision Section 377 IPC which criminalizes sex other than heterosexual penile-vaginal. The legislative history of the subject indicates that the first records of sodomy as a crime at Common Law in England were chronicled in the Fleta, 1290, and later in the Britton, 1300. Both texts prescribed that sodomites should be burnt alive. Acts of sodomy later became penalized by hanging under the Buggery Act of 1533 which was re-enacted in 1563 by Queen Elizabeth I, after which it became the charter for the subsequent criminalisation of sodomy in the British Colonies. Oral- genital sexual acts were later removed from the definition of buggery in 1817. And in 1861, the death penalty for buggery was formally abolished in England and Wales. [WP(C)7455/2001] Page 3 of 105 However, sodomy or buggery remained as a crime "not to be mentioned by Christians." 3. Indian Penal Code was drafted by Lord Macaulay and introduced in 1861 in British India. Section 377 IPC is contained in Chapter XVI of the IPC titled “Of Offences Affecting the Human Body”. Within this Chapter Section 377 IPC is categorised under the sub-chapter titled “Of Unnatural Offences” and reads as follows: “377. Unnatural Offences - Whoever voluntarily has carnal intercourse against the order of nature with any man, woman or animal, shall be punished with 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." JUDICIAL INTERPRETATION 4. 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 [WP(C)7455/2001] Page 4 of 105 and no distinction regarding age is made in the section. In Khanu v. Emperor, AIR 1925 Sind 286, Kennedy A.J.C. held that “section 377 IPC punishes certain persons who have carnal intercourse against the order of nature with inter alia human beings.... [if the oral sex committed in this case is carnal intercourse], it is clearly against the order of nature, because the natural object of carnal intercourse is that there should be the possibility of conception of human beings, which in the case of coitus per os is impossible.”[page 286] It appears that the courts had earlier held in R. V. Jacobs (1817) Russ & Ry 331 C.C.R., and Govindarajula In re., (1886) 1 Weir 382, that inserting the penis in the mouth would not amount to an offence under Section 377 IPC. Later, Section 377 IPC has been interpreted to cover oral sex, anal sex and penetration of other orifices. In Lohana Vasantlal Devchand v. State, AIR 1968 Guj 252, the issue was whether oral sex amounted to an offence under Section 377 IPC. It was held that the “orifice of the mouth is not, according to nature, meant for sexual or carnal intercourse.” In Calvin Francis v. Orissa, 1992 (2) Crimes 455, relying on Lohana, it was held that oral sex fell within the ambit of Section 377 IPC. The Court used the references to the Corpus Juris Secundum relating to sexual perversity and abnormal sexual satisfaction as the guiding criteria. In Fazal Rab Choudhary v. State of Bihar, AIR 1983 SC 323, it was observed that Section 377 [WP(C)7455/2001] Page 5 of 105 IPC implied “sexual perversity”. It is evident that the tests for attracting the penal provisions have changed from the non-procreative to imitative to sexual perversity. 5. 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. The Committee advising the Parliament had recommended in 1957 repeal of laws punishing homosexual conduct. THE CHALLENGE 6. The petitioner NGO has been working in the field of HIV/AIDS Intervention and prevention. This necessarily involves interaction with such sections of society as are vulnerable to contracting HIV/AIDS and which include gay community or individuals described as “men who have sex with men” (MSM). For sake of convenient reference, they would hereinafter be referred to as “homosexuals” or “gay” persons or gay community. Homosexuals, according to the petitioner, represent a population segment that is extremely vulnerable to HIV/AIDS infection. The petitioner claims to have been impelled to bring this litigation in public interest on the ground that HIV/AIDS prevention efforts were found to be severely impaired by discriminatory attitudes exhibited by state agencies towards gay community, MSM or trans-gendered individuals, under the cover of [WP(C)7455/2001] Page 6 of 105 enforcement of Section 377 IPC, as a result of which basic fundamental human rights of such individuals/groups (in minority) stood denied and they were subjected to abuse, harassment, assault from public and public authorities. 7. According to the petitioner, Section 377 IPC is based upon traditional Judeo-Christian moral and ethical standards, which conceive of sex in purely functional terms, i.e., for the purpose of procreation only. Any non-procreative sexual activity is thus viewed as being “against the order of nature”. The submission is that the legislation criminalising consensual oral and anal sex is outdated and has no place in modern society. In fact, studies of Section 377 IPC jurisprudence reveal that lately it has generally been employed in cases of child sexual assault and abuse. By criminalising private, consensual same-sex conduct, Section 377 IPC serves as the weapon for police abuse; detaining and questioning, extortion, harassment, forced sex, payment of hush money; and perpetuates negative and discriminatory beliefs towards same-sex relations and sexuality minorities; which consequently drive the activities of gay men and MSM, as well as sexuality minorities underground thereby crippling HIV/AIDS prevention efforts. Section 377 IPC thus creates a class of vulnerable people that is continually victimised and directly affected by the provision. It has been submitted that the fields of psychiatry and psychology no longer treat homosexuality as [WP(C)7455/2001] Page 7 of 105 a disease and regard sexual orientation to be a deeply held, core part of the identities of individuals. 8. The petitioner submits that while right to privacy is implicit in the right to life and liberty and guaranteed to the citizens, in order to be meaningful, the pursuit of happiness encompassed within the concepts of privacy, human dignity, individual autonomy and the human need for an intimate personal sphere require that privacy – dignity claim concerning private, consensual, sexual relations are also afforded protection within the ambit of the said fundamental right to life and liberty given under Article 21. It is averred that no aspect of one’s life may be said to be more private or intimate than that of sexual relations, and since private, consensual, sexual relations or sexual preferences figure prominently within an individual’s personality and lie easily at the core of the “private space”, they are an inalienable component of the right of life. Based on this line of reasoning, a case has been made to the effect that the prohibition of certain private, consensual sexual relations (homosexual) provided by Section 377 IPC unreasonably abridges the right of privacy and dignity within the ambit of right to life and liberty under Article 21. The petitioner argues that fundamental right to privacy under Article 21 can be abridged only for a compelling state interest which, in its submission, is amiss here. Also based on the fundamental right to life under Article 21 is the further [WP(C)7455/2001] Page 8 of 105 submission that Section 377 IPC has a damaging impact upon the lives of homosexuals inasmuch as it not only perpetuates social stigma and police/public abuse but also drives homosexual activity underground thereby jeopardizing HIV/AIDS prevention efforts and, thus, rendering gay men and MSM increasingly vulnerable to contracting HIV/AIDS. 9. Further, it has been submitted on behalf of the petitioner that Section 377 IPC's legislative objective of penalizing “unnatural sexual acts” has no rational nexus to the classification created between procreative and non- procreative sexual acts, and is thus violative of Article 14 of the Constitution of India. Section 377's legislative objective is based upon stereotypes and misunderstanding that are outmoded and enjoys no historical or logical rationale which render it arbitrary and unreasonable. It is further the case of the petitioner that the expression “sex” as used in Article 15 cannot be read restrictive to “gender” but includes “sexual orientation” and, thus read, equality on the basis of sexual orientation is implied in the said fundamental right against discrimination. The petitioner argues that criminalization of predominantly homosexual activity through Section 377 IPC is discriminatory on the basis of sexual orientation and, therefore, violative of Article 15. It is further the case of the petitioner that the prohibition against homosexuality in Section 377 IPC curtails or [WP(C)7455/2001] Page 9 of 105 infringes the basic freedoms guaranteed under Article 19 (1) (a) (b) (c) & (d); in that, an individual’s ability to make personal statement about one’s sexual preferences, right of association/assembly and right to move freely so as to engage in homosexual conduct are restricted and curtailed. 10. Broadly on the above reasoning, it has been submitted that there is a case for consensual sexual intercourse (of the kind mentioned above; i.e. homosexual) between two willing adults in privacy to be saved and excepted from the penal provision contained in Section 377 IPC. REPLY BY UNION OF INDIA – CONTRADICTORY STANDS OF MINISTRY OF HOME AFFAIRS AND MINISTRY OF HEALTH & FAMILY WELFARE 11. A rather peculiar feature of this case is that completely contradictory affidavits have been filed by two wings of Union of India. The Ministry of Home Affairs (MHA) sought to justify the retention of Section 377 IPC, whereas the Ministry of Health & Family Welfare insisted that continuance of Section 377 IPC has hampered the HIV/AIDS prevention efforts. We shall first deal with the affidavit of the Ministry of Home Affairs. The Director (Judicial) in the Ministry of Home Affairs, Government of India, in his affidavit, seeks to justify the retention of Section 377 IPC on the statute book broadly on the reason that it has been generally invoked in cases of allegation of child sexual abuse and for complementing lacunae in the rape laws and not mere [WP(C)7455/2001] Page 10 of 105 homosexuality. This penal clause has been used particularly in cases of assault where bodily harm is intended and/or caused. It has been submitted that the impugned provision is necessary since the deletion thereof would well open flood gates of delinquent behaviour and can possibly be misconstrued as providing unfettered licence for homosexuality. Proceeding on the assumption that homosexuality is unlawful, it has been submitted in the affidavit that such acts cannot be rendered legitimate only because the person to whose detriment they are committed has given consent to it. Conceding ground in favour of right to respect for private and family life, in the submission of Union of India, interference by public authorities in the interest of public safety and protection of health as well as morals is equally permissible. 12. Terming the issues raised in the petition at hand as a subject relating to policy of law rather than that of its legality, Union of India relies upon the reports of Law Commission of India particularly on the issue whether to retain or not to retain Section 377 IPC. Reference has been made to 42nd report of the Commission wherein it was observed that Indian society by and large disapproved of homosexuality, which disapproval was strong enough to justify it being treated as a criminal offence even where the adults indulge in it in private. Union of India submits that law cannot run separately from the society since it only [WP(C)7455/2001] Page 11 of 105 reflects the perception of the society. It claims that at the time of initial enactment, Section 377 IPC was responding to the values and morals of the time in the Indian society. It has been submitted that in fact in any parliamentary secular democracy, the legal conception of crime depends upon political as well as moral considerations notwithstanding considerable overlap existing between legal and safety conception of crime i.e. moral factors. 13. Acknowledging that there have been legal reforms in a large number of countries so as to de-criminalise homosexual conduct, Union of India seeks to attribute this trend of change to increased tolerance shown by such societies to new sexual behaviour or sexual preference. Arguing that public tolerance of different activities undergoes change with the times in turn influencing changes in laws, it is sought to be pointed out that even the reforms in the nature of Sexual Offences Act, 1967 (whereby buggery between two consenting adults in private ceased to be an offence in the United Kingdom) had its own share of criticism on the ground that the legislation had negatived the right of the state to suppress 'social vices'. Union of India argues that Indian society is yet to demonstrate readiness or willingness to show greater tolerance to practices of homosexuality. Making out a case in favour of retention of Section 377 IPC in the shape it stands at present, Union of India relies on the arguments of public morality, public health and healthy [WP(C)7455/2001] Page 12 of 105 environment claiming that Section 377 IPC serves the purpose. 14. 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. Though the MHA has referred to the issue of public health and healthy environment, the affidavit has not set out elaborately the said defence. AFFIDAVIT OF NACO / MINISTRY OF HEALTH & FAMILY WELFARE 15. National Aids Control Organisation (NACO) has submitted its response in the shape of an affidavit affirmed by the Under Secretary of Ministry of Health and Family Welfare, which thus also represents the views of the said Ministry of the Government of India. The submissions of NACO only confirm the case set out by the petitioner that homosexual community (MSM etc.) is particularly susceptible to attracting HIV/AIDS in which view a number of initiatives have been taken by NACO to ensure that proper HIV intervention and prevention efforts are made available to the said section of the society by, amongst other things, protecting and promoting their rights. In the reply affidavit, NACO states that the groups identified to be at greater risk of acquiring and transmitting HIV infection due to a high level of risky behaviour and insufficient capacity or power for decision making to protect themselves from infection, [WP(C)7455/2001] Page 13 of 105 generally described as 'High Risk Groups' (HRG), broadly include men who have sex with men (MSM) and female sex workers and injecting drug users. 16. NACO has adopted a strategy for preventing and further transmission of infection, which include the following efforts: (a) The strategy for preventing and the further transmission of infection includes: i. Making the General Population and High Risk Groups aware through strategic IEC (Information Education Communication) & BCC (Behaviour Change Communication) providing them with the necessary tools and information for protecting themselves from HIV infection. ii. Motivating safer sexual practices by reducing sexual partners, being faithful to a single partner abstaining from casual sex and the correct and consistent use of condoms. iii. Controlling Sexually Transmitted Infections (STIs) among High Risk Groups along with promoting use of condoms as preventive measure. iv. Peer education and Community participation (being the essential component of Primary Health Care). [WP(C)7455/2001] Page 14 of 105 v. Ensuring availability of safe blood and blood products; and vi. Reinforcing the traditional Indian moral values of abstinence, delayed sexual debut till marriage and fidelity among youth and other impressionable groups of population. (b) To create an enabling socio-economic environment so that all sections of population can have access to proper information, health care & counseling services to protect themselves from the infection and at the same time empower families and communities to provide better care & support to people living with HIV/AIDS. (c) Improving services for the care of people living with AIDS both in hospital and at homes through community care. 17. In the reply affidavit filed on behalf of NACO, it has been submitted that the report of the Expert Group on Size Estimation of Population with High Risk Behaviour for NACP- III Planning, January 2006 estimated that there are about 25 lakh MSM (Men having sex with men). The National Sentinel Surveillance Data 2005 shows that more than 8% of the population of MSM is infected by HIV while the HIV prevalence among the general population is estimated to be lesser than 1%. Given the high vulnerability of MSM to HIV [WP(C)7455/2001] Page 15 of 105 infection, NACO has developed programmes for undertaking targeted interventions among them. These projects are implemented by NGOs with financial support from NACO. Presently 1,46,397 MSM (6%) are being covered through 30 targeted interventions. Under the targeted intervention projects, the objectives are to: a. reduce number of partners and by bringing about a change in their behaviour; b. reduce their level of risk by informing them about and providing access to condoms; c. providing access to STD services. 18. According to the submissions of NACO, those in the High Risk Group are mostly reluctant to reveal same sex behaviour due to the fear of law enforcement agencies, keeping a large section invisible and unreachable and thereby pushing the cases of infection underground making it very difficult for the public health workers to even access them. It illustrates this point by referring to the data reflected in the National Baseline Behaviour Surveillance Survey (NBBSS of 2002) which indicates that while 68.6% MSM population is aware about the methods of preventing infection, only 36% of them actually use condoms. NACO has further submitted that enforcement of Section 377 IPC against homosexual groups renders risky sexual practices to go unnoticed and unaddressed inasmuch as the fear of harassment by law [WP(C)7455/2001] Page 16 of 105 enforcement agencies leads to sex being hurried, particularly because these groups lack 'safe place', utilise public places for their indulgence and do not have the option to consider or negotiate safer sex practices. It is stated that the very hidden nature of such groups constantly inhibits/impedes interventions under the National AIDS Control Programme aimed at prevention. Thus NACO reinforces the plea raised by the petitioner for the need to have an enabling environment where the people involved in risky behaviour are encouraged not to conceal information so that they can be provided total access to the services of such preventive efforts. RESPONSES OF OTHER RESPONDENTS 19. 'Voices against Section 377 IPC' (hereinafter referred to as “respondent No.8”) is a coalition of 12 organisations that represent child rights, women's rights, human rights, health concerns as well as the rights of same sex desiring people including those who identify as Lesbian, Gay, Bisexual, Transgenders, Hijra and Kothi persons (which are referred to in the affidavit as “LGBT”). It has been submitted on its behalf that organisations that constitute respondent No.8 are involved in diverse areas of public and social importance and that in the course of their work they have repeatedly come across gross violation of basic human rights of “LGBT” persons, both as a direct and indirect consequence of the enforcement of Section 377 IPC. It relies upon its report [WP(C)7455/2001] Page 17 of 105 tilted 'Rights for All : Ending Discrimination under Section 377' published in 2004 to create awareness about negative impact of this law on society in general and Lesbian, Gay, Bisexual and Transgenders people in particular. 20. Respondent No.8 supports the cause espoused by the petitioner in this PIL and avers that Section 377 IPC, which criminalises 'carnal intercourse against the order of the nature', is an unconstitutional and arbitrary law based on archaic moral and religious notions of sex only for procreation. It asserts that criminalisation of adult consensual sex under Section 377 IPC does not serve any beneficial public purpose or legitimate state interest. On the contrary, according to respondent No.8, Section 377 IPC by criminalising the aforementioned kinds of sexual acts has created an association of criminality towards people with same sex desires. It pleads that the continued existence of this provision on the statute book creates and fosters a climate of fundamental rights violations of the gay community, to the extent of bolstering their extreme social ostracism. 21. To illustrate the magnitude and range of exploitation and harsh and cruel treatment experienced as a direct