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Naz on Gay Pride

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NAZ ON GAY PRIDE:
HAS HOMOSEXUALITY BEEN LEGALISED IN INDIA?

Sujoy Chatterjee
Student, National Law University, Jodhpur

I. INTRODUCTION: HISTORY OF S.377

Sir Fitz-James Stephen, in his treatise on the History of Criminal Law , has opined, “The Indian Penal Code may be described as the criminal law of England…to suit the circumstances of British India.”

S.377 of The Indian Penal Code, which proscribes “Unnatural Offences”, is one such import of Victorian standards of morality as prevalent in Britain at that time. S.377, at the time of its introduction in India in 1861, was contrary to existing Indian law which did not treat sodomy as a crime.
S.377 proscribes “carnal intercourse against the order of nature”. The marginal note refers to the acts proscribed as "unnatural offences", but this expression is not used in the text of S.377. The expression "carnal intercourse" is used in the text of the Section, as distinct from the expression "sexual intercourse", which appears in S.375 and S.497 of the Indian Penal Code. But the expression “carnal intercourse” itself is not defined, nor does S.377 provide any explanation or illustration as to what acts are proscribed. This was initially a source of great confusion as to what acts fall under the ambit of the term “carnal intercourse”.

In Government v. Bapoji Bhatt it was held that the act of putting a penis in a boy’s mouth is not covered by S.377, since this provision is based on English sodomy law and hence requires that the act be “in that part where sodomy is usually committed”, meaning thereby the anus. It was later reaffirmed in Govindrajulu, in re that inserting the penis in the mouth would not amount to an offence under 377 IPC

However, in Khanu v. Emperor, it was held that “S.377 IPC punishes persons who have carnal intercourse against the order of nature with inter alia human beings, and if the oral sex committed is in the nature of carnal intercourse, it is clearly against the order of nature. It was further held in this case that the natural object of carnal intercourse is that there should be the possibility of conception of human beings.
It was held that the “sin of Gomorrah”—“coitus per os” (oral sex)—is no less carnal intercourse than the “sin of Sodom”—“coitus per anus” (anal sex) and was covered by S.377 IPC. Thus the court evolved the non-procreative test for acts to be covered under S.377 and this law has been settled ever since.

However the legal position as to the applicability of consent as a criterion for avoiding liability under S.377 remained unanswered. The most relevant case in this regard is Khanu v Emperor wherein the appellant was convicted on the grounds that the unnatural carnal act was not consensual and involved a minor boy.

In light of the above precedents, the position of law surrounding S.377 was that any non-procreative carnal intercourse (including both anal and oral sex) could be taken cognizance of under S.377.
The issue of consensual intercourse was never directly addressed, but consent had not been totally discarded from S.377. This was apparent from the fact that in the history of application of S.377 in Indian Courts, there has only been one prosecution of consensual sex between adult men, and that too had happened in a public place.

The outcome of such precedents has been that S.377 has invariably been associated with homosexuality. The very nature of alternate sexual orientation is such that it involves intercourse which is non-procreative in nature. The biological and physiological attributes of homosexuals, and gay men in particular, are such that consummation of any relationship between two such individuals involves anal sex or oral sex. Such intercourse, being non-procreative in nature, would automatically fall under “carnal intercourse against the order of nature” as stated in S.377. The implication is that every homosexual giving expression to his sexual urges becomes a de facto criminal under S.377.
Contemporary societal conventions of hetero-normality and homophobia have stemmed from this blanket of criminalisation that has been unequivocally cloaked around the gay community by The Indian Penal Code.

It is in this light that the judgment delivered by the Delhi High Court in Naz Foundation and Ors. v. Govt. of NTP and Ors. (Hereinafter referred to as the Naz judgment) becomes significant. This judgment breaks new ground in the legal position surrounding criminalisation of homosexuality and merits a comprehensive analysis regarding the reasons for reading down the provisions of S.377 and whether such reasons can be sustained on appeal in the Supreme Court.

II. THE JUDGMENT: BREAKING NEW GROUND

The Delhi High Court delivered a landmark judgment on 2nd July 2009 in the case of Naz Foundation v. Govt of NCT and Ors. , which has effectively decriminalised consensual intercourse indulged in by people of the same-sex couples by reading down S.377.
The very heart and soul of this judgment is based on the violation of Right to Life of homosexuals under Art.21, The Court placed reliance on the submissions of NACO, which stated that homosexuals 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 was further held that S.377 violates a person’s Right to Privacy and denies a person's dignity, effectively criminalising his core identity solely on account of his sexuality, thus denying a gay person a right to full personhood which is implicit in the notion of ‘life’ under Art.21 of the Constitution.
The crux of this judgment is also the violation of Art.14 by S.377, which the Court held was by disparately applying the impugned Section against homosexuals as a class without any reasonable rationale. According to the Court, the purported legislative object of S.377 to protect women and children has no bearing in regard to consensual sexual acts between adults in private. The Court negated the second legislative purpose elucidated by the Additional Solicitor General that S.377 serves the cause of public health by criminalising the homosexual behavior by relying on the averments in NACO's affidavit. NACO has specifically stated that enforcement of S.377 adversely contributes to pushing the infliction underground, make risky sexual practices go unnoticed and unaddressed. S.377 thus hampers HIV/AIDS prevention efforts. The conclusion which the Court reached to was that the discrimination caused to MSM and gay community is unfair and unreasonable and, therefore, in breach of Art.14 of the Constitution.
However the Court endeavoured to travel beyond these violations for decriminalizing homosexuality. It is submitted that the Naz Foundation judgment is significant not only for decriminalising adult homosexuality, but for breaking new ground and delving into previously unexplored and unsettled legal avenues.

II.I PRIVACY, COMPELLING STATE INTEREST AND MORALITY

The Naz Foundation judgment embarked on a well researched approach to show how Right to Privacy has been implicitly read into Art.21. It elaborately discussed Kharak Singh v. State of U.P. and Gobind v. State of Madhya Pradesh and elucidated on the restrictions on the Fundamental Right to Privacy. The bench begins by stating that a law infringing a fundamental privacy right must satisfy a “compelling state interest.”
The Court referred to Mathew, J.’s observations in Gobind’s case , where he had held that privacy - dignity claims deserve to be examined with care and to be denied only when an important countervailing interest is shown to be superior, or where a compelling state interest was shown. It was further held that if a court finds that a claimed right is entitled to protection as a fundamental privacy right, a law infringing it must satisfy the compelling state interest test, and the question would then be whether the state interest is of such paramount importance as would justify an infringement of the right.
The issue whether enforcement of morality is a State interest sufficient to justify infringement of fundamental "privacy right" was not addressed in Gobind . The Supreme Court refused "to enter into the controversial thicket whether enforcement of morality is a function of the State" in that case.
In that regard, the Naz Foundation case has gone one step further by stating that public morality or public disapproval of certain acts is not a valid justification for curtailing right to privacy as interpreted into Art.21. The Court sought to negate the argument of preserving popular morality as a compelling state interest for keeping S.377 untouched by holding that moral indignation, howsoever strong, could not be a valid basis for overriding a person’s fundamental rights of dignity and privacy.
II.II CONSTITUTIONAL MORALITY
The Court further went on to hold that popular morality, as distinct from constitutional morality derived from constitutional values, is based on shifting and subjecting notions of right and wrong. Rebutting the notion that public disapproval of homosexual conduct is an accurate barometer of morality, the judgment argues that it is “constitutional morality” rather than popular morality that ought to be the applicable yardstick. If there is any type of "morality" that can pass the test of compelling state interest, it must be "constitutional" morality and not public morality.
The Court referred to Dr. Ambedkar’s strong insistence on this aspect of constitutional morality while moving the Draft Constitution, when he was quoted as saying that apart from having a written Constitution, it was imperative to have “diffusion of constitutional morality, not merely among the majority of any community but throughout the whole.”
The judgment went on to explain constitutional morality by laying emphasis on Granville Austin’s treatise "The Indian Constitution - Cornerstone of A Nation" where Austin had said that the Indian Constitution is first and foremost a social document aimed at furthering the goals of the social revolution by recognizing, protecting and celebrating diversity. The Fundamental Rights, therefore, were to foster the social revolution by creating a society egalitarian to the extent that all citizens were to be equally free from coercion or restriction by the state, or by society privately. The Delhi High Court held that to stigmatise or to criminalise homosexuals only on account of their sexual orientation would be against constitutional morality.
Though the principle of public morality being subservient to Constitutional morality as propounded by the Delhi High Court is laudable, questions may be raised about the practical implementation of such a principle. Naz Foundation does not explicitly mention that any morality-based legislation or governmental action is no longer permitted. Rather, it argues that mere public disapproval is an inadequate reason to restrict a fundamental right.
It is submitted that the implication of such an interpretation is that the State may come up with policies and legislations based on public morality, but only to the extent that it does not encroach a person’s Fundamental Rights. With regard to S.377, the court held that infringing a homosexual’s Fundamental Rights based on the reasoning of public morality was unconstitutional.

II.III SEX BEING ANALOGOUS TO SEXUAL ORIENTATION

The court relied heavily on a number of foreign cases to interpret sexual orientation as being analogous to sex and thus held that discrimination on the grounds of sexual orientation is prohibited under Art.15. The Court placed heavy reliance on Toonen v. Australia , where the Human Rights Committee observed that the reference to 'sex' in Article 2, paragraphs 1 and 26 (of the International Covenant on Civil and Political Rights) is to be taken as including 'sexual orientation'.
The case of Corbiere v. Canada was also referred to, where the Canadian Supreme Court identified the thread running through certain analogous grounds to those against which discrimination was prohibited- "what these grounds have in common is the fact that they often serve as the basis for stereotypical decisions made not on the basis of merit but on the basis of a personal characteristic that is immutable or changeable only at unacceptable cost to personal identity."

Reliance was also placed on Prinsloo v. Van Der Linde , where it was held that discrimination on unspecified grounds is usually based on attributes attached to a person and such discrimination impairs his Fundamental dignity as a human being. The Court also quoted Harksen v. Lane , where unspecified grounds were defined as immutable biological attributes, associational life of humans, intellectual and expressive dimensions of humanity or a combination of one or more of these features.

In this regard it is also pertinent to note that the Court cited medical and psychiatric opinion in paragraphs 67 and 68 to show that homosexuality is not a disease or disorder, but an expression of human sexuality. It is submitted that the Court endeavoured to hold discriminatory treatment on the basis of sexual orientation as discrimination on unspecified grounds. Sexual orientation is a biological attribute so intricately attached to a person that any discrimination on such ground impairs his dignity.
The court opined in paragraph 112 that the grounds which are not specified in Art.15 but are analogous to those specified therein, will be those which have the potential to impair the personal autonomy of an individual. The Court sought to uphold the spirit of Art.15, which is to prevent discriminatory treatment on the basis of stereotypical generalization about the conduct of each gender. Such discrimination, even if it is based on certain unspecified grounds in Art.15 like sexual orientation, is violative of the spirit of Art.15. Hence the discourse on whether the Court should have made “sexual orientation” analogous to “sex” as stated in Art.15 is rendered academic to a large extent.

However it is pertinent to note that if indeed sexual orientation is an implied ground for protection from discrimination under Art.15, as stated in this judgment, then the constitutional validity of marriage laws which expressly state that marriage can only be solemnised between a man and a woman have to be reviewed accordingly.

II.IV HORIZONTAL APPLICATION OF FUNDAMENTAL RIGHTS

Chief Justice K.G. Balakrishnan has recently remarked that while Fundamental Rights are mostly enforceable against the State, some of them are directed against both the State and private actors.
The most important feature of Fundamental Rights is that they give the higher judiciary a clear set of criteria to regulate relations between citizens and the State (i.e. vertical application of rights) and also between citizens themselves (i.e. horizontal application of rights).

The Naz Foundation judgement in Paragraph 104 is consistent with the above remarks and states as an obiter that Article 15(2) is meant to be read horizontally, implying that even private persons have to adhere to the Constitutional scheme embodied in Article 15(2). The learned judges were of the opinion that discrimination on the basis of sexual orientation by both State and citizens is impermissible under Art.15(2) of the Constitution.

The issue of whether the Fundamental Rights are to be read as enforceable against citizens or against the State only has been a contentious topic in constitutional law. Its relevance lies in the fact that while acts or omissions of the State which purport to infringe on Fundamental Rights can be taken cognizance of under Art.32 and Art.226, the same act or omission emanating from a private citizen may not fall within the jurisdiction of the Higher Judiciary under the aforementioned Articles.
Classical theory and early cases such as P.D. Shamdasani v. Central Bank of India and Vidya Verma v. Shiv Narain Verma lean towards an understanding of these rights being “vertical”. Such an interpretation implies that Fundamental Rights as included in Part III of the Constitution are a guarantee against State action as distinguished from violation of such rights by private parties.
This line of argument was reinforced by the Supreme Court in its recent decision in Zoroastrian Co-operative Housing Society Limited v. District Registrar Co-operative Societies , where it allowed a housing society to rent and sell accommodation only to members of a particular religious community.

The recent trend of greater horizontal application of Fundamental Rights can be seen in the Supreme Court’s attempt to widen the scope of State under Art.12 to mean any “agency or instrumentality” of the State. However such an attempt still fails to cover the grey areas surrounding private individuals. A private body or individual whose autonomy is not controlled to any extent by the State would not fall within “agency or instrumentality” of State. Going by the principle laid down in Ajay Hasia , such private bodies and individuals would not be expected to adhere to Constitutional standards and the judiciary can enforce private bodies to comply with such values.
In Vishaka v. State of Rajasthan the Supreme Court finally opened up to the horizontal application of fundamental rights and held private employers liable for sexual harassment of employees in the work place. This view was endorsed in Communist Party of India (M) v. Bharat Kumar where the Supreme Court held that no political party or organisation can claim that it is entitled to prevent citizens not in sympathy with its viewpoints from exercising their fundamental rights
Article 15 of the Constitution forbids the State from discriminating against any person on the basis of his or her race, caste, creed, sex, and so on. However, except for the Civil Rights Act, 1955, which prohibits discrimination on the basis of caste, Indian law has largely disallowed the horizontal citizen-to-citizen application of the right against discrimination. Reports of discrimination by medical establishments, private employers and educational institutions on the basis of religion, caste and HIV status are not rare. Such division of civil society into ghettoes facilitates the insularity of different groups and nurses prejudice among them.
The Naz Foundation judgment has taken the first step by explicitly stating that discrimination by citizens on the basis of a person’s sexual orientation is against the basic tenet of Art.15(2) and is hence impermissible. It has broken new ground by emphasizing on the horizontal applicability of Art.15(2), i.e. making it enforceable against private individuals as well as State. The judgment does not limit itself to merely decriminalizing consensual homosexual acts between adults under S.377, but goes beyond “Unnatural Offences” to recognize the civil rights guaranteed to homosexuals under Art.15(2).
Hence this judgment purports to bring to an end the decades-old practice of stereotyping homosexuals and treating them with disdain and contempt. The Court has elucidated on the essence of Art.15 by holding that it aims at preventing behaviour that treats people differently for reason of not being in conformity with generalization concerning "normal" or "natural" gender roles. Discrimination on the basis of sexual orientation is itself grounded in stereotypical judgments and generalization about the conduct of either sex. Even though such practices may not be totally eradicated and homosexuals across the country may still be subject to ridicule, this judicial pronouncement regarding the constitutional validity of S.377 has the potential to become the bedrock behind the legal and socio-political strategy to curb such tendencies.

II.V IMPLIED DESUETUDE
In paragraph 86 of the judgment, the Bench made a significant reference to the Additional Solicitor General’s argument that S.377 should be saved because it 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.
The High Court initially rejected this contention in paragraph 74 as contrary to evidence and testimony proffered by the Petitioners. Interestingly, the Bench returns to this argument in paragraph 86 to reason that if S.377 has not been used to prosecute adult same-sex conduct, one can legitimately question whether such conduct should at all be criminally proscribed. In other words, the Court countered the Additional Solicitor General’s argument by stating that a statutory provision which has fallen into disuse should not be maintained.
Although Naz Foundation does not directly refer to it, there is an old Common Law doctrine called “Desuetude” that supports this line of reasoning. For Desuetude to be applicable, the statute in question must have been in disuse for a substantial period of time and some form of contrary practice must have evolved during this period. This doctrine is not alien to India, and has been recognized by the Supreme Court in Municipal Corporation v. Bharat Forge .
It is submitted that the Court may not have made an explicit reference to Desuetude because the petitioners did not bring up this issue during the course of their arguments. It is also pertinent to note that for Desuetude to have been directly applicable for S.377, it not only required disuse of S.377 over a substantial period of time, but that some form of contrary practice should have evolved during this period.
It is submitted that while it may have been argued that S.377 has almost never been used for prosecution of consensual adult homosexual sex to illustrate the redundancy of criminalizing consensual homosexual acts, this provision has undeniably been used to harass, intimidate and extort money from homosexuals and transgender people. Based on such reports, it would perhaps have been difficult to satisfy all the elements of Desuetude.
Nevertheless, the Court’s observations in paragraph 86 may be interpreted as a tacit recognition of the age-old Common Law Doctrine of Desuetude.

II.VI READING DOWN OF S.377:SEVERABILITY IN ENFORCEMENT
The High Court referred to Seervai’s Constitutional Law of India to show that the Doctrine of Severability could be made applicable without rendering an impugned Section in its entirety as unconstitutional. It is submitted that the Court perhaps took cognizance of the fact that if S.377 in its whole was struck down, it would leave cases of non-consensual non-vaginal intercourse and carnal intercourse with minors without any penal provision since there are no Indian laws which specifically criminalise such forms of sexual abuse.
The Court applied an alternative form of the Doctrine of Severability, namely Severability in Enforcement, which the Supreme Court had made use of in R.M.D. Chamarbaugwalla v. Union of India . The Court explained that this type of Severability arises when an impugned provision is one indivisible whole and severability cannot be applied by deleting an offending provision and leaving the rest standing. In such a situation, it becomes necessary to enquire whether the impugned definition covers distinct and separate classes and categories. If that be the case, the Court can restrain the enforcement of the law in respect of that class of subjects in respect of which the law is invalid, by granting perpetual injunction restraining the enforcement of law on the forbidden field. The Delhi High Court went on to declare that the provisions of S.377 IPC will continue to govern non-consensual penile non-vaginal sex and penile non-vaginal sex involving minors. It emphasized on the fact that consensual intercourse indulged in private between adults who are above 18 years of age would no longer fall within the purview of S.377.
Hence the Court has effectively granted a perpetual injunction restraining the enforcement of S.377 against such acts. But taking into consideration the fact that such a Section is required for prosecuting anal/oral sex with minors, the Court held that this Section can be invoked in all such matters which fall within its definition.

III. LOOPHOLES IN THE JUDGMENT: PLAYING THE DEVIL’S ADVOCATE
The Naz Foundation judgment is bound to face a multi-pronged attack from conservative sections of society, who view decriminalization of homosexual intercourse as an unbridled license to indulge in delinquent and morally unacceptable behaviour. This opposition will grounded in the fact that such sections of society will argue the matter from a moralistic rather than a legal perspective - Hence issues of destroying the social fabric of family life and Indian culture will be raised.
Although the Delhi High Court’s tactful resort to supremacy of Constitutional Morality may negate such arguments in the Supreme Court, there is ample scope of attacking the Naz Foundation judgment on purely legal grounds. Even if the reading down of S.377 is upheld in the apex court, the following issues as settled by the Naz judgment may be reviewed by the Supreme Court:
III.I APPLICABILITY OF STRICT SCRUTINY
The Delhi High Court made use of the test of Strict Scrutiny, which is a doctrine evolved by the US Supreme Court for scrutinizing classifications, to decide the Naz case. The Court referred to Anuj Garg v. Hotel Association of India , where it was held that if a law discriminates on any of the prohibited grounds, it needs to be tested not merely against "reasonableness" under Article 14 but be subject to "strict scrutiny". However the use of Strict Scrutiny has been decisively rejected by the Supreme Court in Ashok Kumar Thakur v. Union of Indiar , a subsequent Constitutional Bench judgment. Yet the Naz Foundation insisted that it could still use strict scrutiny based on the Supreme Court’s decision in Anuj Garg .
The Naz Foundation judgment has sought to read the two cases harmoniously. The Delhi High Court interpreted the apparent conflict created by these Supreme Court judgments by stating that the principle of 'strict scrutiny' would not apply to affirmative action under Article 15(5) but a measure that disadvantages a vulnerable group defined on the basis of a characteristic that relates to personal autonomy must be subject to strict scrutiny.
The High Court’s reasoning on this issue can be considered to be rather disingenuous for several reasons.
 Anuj Garg was a decision of a two-judge bench while Ashok Kumar Thakur was a Constitutional Bench decision. To that effect, Ashok Kumar Thakur overrules Anuj Garg.
 Ashok Kumar Thakur was the later decision, handed down several months after Anuj Garg; and ordinarily the subsequent larger bench decision should carry more weight than an earlier decision from a smaller bench.
 There is nothing in Ashok Kumar Thakur to indicate that its refusal to apply strict scrutiny was only confined to affirmative action.
 It is difficult to reconcile the High Court’s reasoning with the Supreme Court’s 2003 decision in John Vallamattom v. Union of India . The case involved the constitutionality of Section 118 of the Indian Succession Act (affecting the right of Indian Christians to make so-called death-bed charitable dispositions). It was not an affirmative action decision, yet Justice Khare was skeptical about the application of Strict Scrutiny in that particular case.
The American doctrine of Strict Scrutiny was invented to scrutinize classifications because the U.S. Constitution does not contain anti-discrimination provisions, such as Articles 15 and 16 of our Constitution. Importing such a doctrine into the Indian scenario when provisions against discrimination are present in the Constitution and when the Supreme Court has expressed its reservation about using such a doctrine is a decision which in all likelihood will be challenged before the Supreme Court in due course of time.

III.II THE EQUALITY CONUNDRUM
The Naz judgment addresses the issue of equality under Art.14 in the latter part of the judgment, by which time it had already resolved that S.377 violates the penumbral fundamental right of privacy-dignity. Limiting itself to this extent would still have been sufficient ammunition for its conclusion that S.377 is unconstitutional. In fact, it is for this reason that the bench felt it was unnecessary to deal with the argument based on the fundamental freedoms in Art.19. Yet the Bench proceeded to dispose of the matter on the grounds of Equality and has created an Achilles’ Heel for itself in the process.
The judgment concedes in paragraph 94 that S.377 is facially neutral. This is indeed quite apparent from the use of the word “whoever” in S.377. Case laws under the Section show that it has been used in prosecutions involving oral sex and anal sex. The Bench further proceeds to point out that “sexual acts, which are criminalized are associated more closely with one class of persons, namely the homosexuals as a class”. This part of the judgment is not watertight, and the Court has not endeavoured to justify its stance.
Even from mere textual reading, it is quite apparent that S.377 proscribes “unnatural” carnal intercourse irrespective of whether they involve same-sex or opposite sex partners. No evidence or authority has been placed on record to suggest that anal sex or oral sex is an exclusively homosexual preserve. It may be argued that even heterosexual couples could resort to such intercourse, and if such be the case, even heterosexuals will fall within the purview of the proscribed acts under S.377. Therefore, this aspect of the Naz Foundation judgment may not convince the Supreme Court if and when the appeal comes up for hearing before it and could be exploited by concerned parties.
In an attempt to bolster its reasoning that S.377 is exclusively hostile to gays, the Bench cites Justice O’Connor’s opinion in Lawrence v. Texas in which she held that the underlying statute in question targets homosexuals as a class. But what it has failed to mention, either intentionally or otherwise, is that in the Lawrence case the statute only targeted homosexual conduct. This is apparent from the very title of the statute, which was the “Texas Homosexual Conduct Statute.” It is for this reason that Justice O'Connor was able to file a concurring opinion in Lawrence and bring in the equal protection clause. It is pertinent to note in this regard that this very Judge had upheld the validity of a similar statute in Bowers Case , because the statute in question in that case , like S.377, was facially neutral and applied to both same-sex and opposite-sex conduct.
It is quite apparent that the Delhi High Court has not considered the application of S.377 against heterosexual conduct, when there is nothing in the Section which prevents a Court from doing so. Although in implementation it can be agreed with the Naz Foundation judgment that S.377 does end up unfairly targeting the gay community, it remains to be seen whether the Supreme Court will accept this argument.
Such skepticism may be attributed to the fact that in Indian jurisprudence a facially neutral law is very rarely successfully challenged on the ground that it is enforced in a discriminatory manner. Reliance can be placed in this regard to the case of P. Rathinam v. Union of India which was with respect to S.309 of the Indian Penal Code, which criminalizes an attempt to commit suicide. Initially the Bombay High Court struck down S.309 on the ground of equal protection, and the Supreme Court concurred by stating that the provision did not provide adequate guidance and was susceptible to arbitrary application. However the Supreme Court overruled this contention in Rathinam by its own judgment in Gian Kaur v. State of Punjab . The Constitutional Bench in Gian Kaur rejected the challenge to S.309 on equal protection grounds by indicating that S.309 was not discriminatory and did not violate Art.14 of the Constitution.

III.III “CHRISTMAS TREE” EFFECT
Reflecting the growing cosmopolitanism of the Indian judiciary, the Delhi High Court cites a large number of international and comparative constitutional sources. References have been made to judgments from Hong Kong, Fiji, and Nepal in the Naz Foundation judgment, and they are undeniably important because they remind the legal fraternity that recognition of gay rights is not limited to a luxurious western application.

But precisely because it includes so much material, it is submitted that Naz Foundation is like an over-decked Christmas Tree with decorations obscuring virtually every bit of legal reasoning which is given by the Court. The fact that almost no shred of information seemed to be too obscure to be included in the judgment will work against a cogent and logical understanding of this landmark case in the history of homosexuality.

Naz Foundation also relies on several international “soft-law” sources, such as the “Yogyakarta Principles,” and the “London Declaration of Principles on Equality” to argue that there is an emerging norm of International Law on sexual orientation. As appealing as these principles might be, they do not qualify as authentic sources of international law, since they are mostly products of academic discussions which are yet to have been adopted by the International community. They are not general principles of international law, much less customary International Law.
Citing authorities which do not hold any binding or persuasive value as the basis of reasoning in the Naz case is a gaping loophole in the judgment, which may be exploited in challenges made to the judgment in times to come.

IV. JURISDICTION OF THE JUDGMENT

One of the most hotly debated issues surrounding the Naz Foundation judgment is whether it is applicable only in Delhi or throughout the country. Such a controversy arises from the fact that since the Delhi High Court can only hear matters which lie within its territorial jurisdiction, can a judgment delivered by this Court have extra-territorial jurisdiction.
In other words, it is a contentious debate as to whether the reading down of S.377 is applicable only within the territorial jurisdiction of the Delhi High Court or to all parts of the country.

In this regard, a significant reference can be made to a statement made by the Supreme Court in Kusum Ingots v. Union of India , where the apex court has made the following pertinent observation in relation to the extent of applicability of a High Court judgment:
“An order passed on a writ petition questioning the constitutionality of a Parliamentary Act, whether interim or final, keeping in view the provisions contained in Art.226(2) of the Constitution, will have effect throughout the territory of India, subject to the applicability of the Act.”

This passage leads to the conclusion that any order given by a High Court on a writ petition which pertains to the constitutionality of a Central Act shall be effective throughout all parts of the country where such an Act is applicable.

If this is taken to be the position of Law, the Naz judgment on the reading down of S.377 of The Indian Penal Code (a Central Act) delivered on a writ petition is effective throughout the country and has effectuated a new interpretation of S.377 in all parts of the country. This will come as a relief to homosexuals residing outside Delhi, as they are also protected from the fangs of S.377 by this judgment.

However there are certain subsequent judgments like Ambika Industries v. Commissioner, Central Excise Duty and Durgesh Sharma v. Jayshree , which appear to suggest that a High Court’s judgment cannot apply beyond its jurisdiction.

The ambiguity surrounding this vexed question of the applicability of a High Court judgment beyond its jurisdiction remains, but the Naz judgment continues to have persuasive value in all other Courts of the country by virtue of being the only case of its kind in the recent history of Indian litigation.

V. AFTERMATH OF NAZ: THE ROAD AHEAD

The Naz Foundation judgment has created ripples throughout the country and abroad. While the judgment has significantly been welcomed by the UNAIDS Human Rights and Law Team , it has evoked strongly negative responses from various traditionalist quarters. Certain conservative sections have strongly criticised this judgment on religious and moral grounds. Suresh Kumar Koushal, Baba Swami Ramdev and others have appealed against the Delhi High Court judgment to the Supreme Court, arguing that decriminalizing consensual sex between persons of the same sex goes against religious teachings, would give rise to “gay parlours” and “gay prostitution” and “lead to the spread of HIV/AIDS.”
Even among the LGBT (Lesbians, Gays, Bisexuals and Transsexuals) Community, Gay Rights activists, NGOs working in the field of AIDS awareness and homosexuality and certain sections of civil society, who have heralded this judgment as a landmark victory in the long struggle for decriminalising alternate sexual preferences, there is some concern of negative repercussions. It is quite possible that this judgment will not end homophobia and the devastating effects such discrimination has on the lives of LGBT people in India. The possibility of organized social backlash against LGBT people as their issues and identities are made more public and prominent in mainstream media cannot be ruled out as well. There is also some criticism that the reading down of S.377 will not make a significant difference in the hardship faced by vernacular (non-English speaking) youth and economically disempowered people who harbour alternate sexual preferences.
Despite these concerns, the overwhelming feeling among such sections is that the positive verdict in Delhi has tremendous symbolic value and could lead to more public debate, more challenges to other repressive morality laws and increased support for social change in India with respect to the stigma attached to homosexuality. In fact any non-hetero-normative person facing forced marriages, forced confinement by the family and forced separation from same sex partners has the legal backing of the Naz judgment to ensure that he is not treated as a social pariah merely on the basis of his or her orientation.
The Supreme Court has refused to grant an interim stay on the Naz Foundation judgment. Instead of suspending the new interpretation of S.377 as laid down by the Delhi High Court, the Supreme Court has stated that it would not take any decision before the Central Government makes its stand on the matter known.
In this regard it is pertinent to note that the Central Government had not appealed against the decision of the Delhi High Court and has merely been made a de facto party to the appeal. This development, coupled with the mellowed down response evoked from the Union Law Minister, Health Minister and Home Minister in the immediate aftermath of the Delhi High Court ruling, it may be reasonable to assume that the Central Government’s stance on this matter will be a lot less fiercer than the stance of the other so-called “homophobic” Appellants.

VI. CRITICAL COMMENTS
It is submitted that the common perception surrounding the Naz Foundation judgment that it approves and glorifies the practice of homosexuality is totally misplaced. In essence homosexuality has not been legalized, much less advocated or championed. The judgment merely attempts to protect the Fundamental Rights guaranteed to all by the Constitution, which has resulted in decriminalization of consensual homosexuality or unnatural sex practiced in privacy between consenting adults, keeping such acts outside the purview of S.377. The Supreme Court has the opportunity to take cognizance of new arguments before settling the law surrounding the controversy arising out of this judgment.
Till then, homosexuals can rely on the Naz Foundation judgment for assurance that they have been freed from the stigma of being criminals under S.377 merely for expressing their desires and feelings for their loved ones. If some adults because of their sexual orientation are impelled to express and fulfill their affection with same sex persons in the privacy of their bedrooms without causing any offence or harm to anybody except for self-appointed custodians of Indian culture, they can no longer be treated as criminals. Their personal liberty cannot be violated nor can they be discriminated against for their alleged ‘unnatural’ acts.

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