Cover Story

Section 377 Constitutional Despite Puttaswamy?

Despite the Supreme Court’s calling into question, in the Puttaswamy case, its own ruling in the Suresh Koushal case and, in principle, endorsing the view taken by the Delhi High Court in the Naz Foundation case, the unconstitutionality of Section 377 is still far from certain, and it might be hard but is not impossible for the provision to survive judicial scrutiny if settled principles of constitutional jurisprudence are adhered to, says HEMRAJ SINGH.


The bedroom goings-on must be no concern of the State unless there is a violation of the law involved, which is precisely the point one would do well to bear in mind when it comes to the issue of the constitutionality of Section 377 of the Indian Penal Code in the light of the observations made by a nine-judge bench of the Supreme Court of India speaking unanimously in Justice K. S. Puttaswamy (Retd.) v. Union Of India, W.P. (Civil) No. 220/2015. Commission of crime is a complete exception to Right to Privacy and it cannot be argued that one is free to commit a crime in privacy unless it can be argued that the categorization of a particular act as crime is by itself a violation of Right to Privacy and for that reason the legal proscription of the act is beyond the legislative competence of the Legislature on account of a constitutional bar. That Section 377 vis-a-vis the homosexuals is a violation of Right to Privacy and must be struck down as unconstitutional for that reason might not be as easy an argument to make as it seems even after the adverse view taken by the Supreme Court in the Right to Privacy case of its own ruling in Suresh Kumar Koushal v. NAZ Foundation, (2014) 1 SCC 1.

In Puttaswamy, the Supreme Court faulted its own ruling in Suresh Koushal mainly on two grounds. One, that the de minimis rationale taken by the Court in Suresh Koushal in asserting that “there have been only two hundred prosecutions for violating Section 377” is not sustainable as “the de minimis hypothesis is misplaced because the invasion of a fundamental right is not rendered tolerable when a few, as opposed to a large number of persons, are subjected to hostile treatment.” And, two, the observation in Suresh Koushal that the Delhi High Court had erroneously relied upon international precedents “in its anxiety to protect the so-called rights of LGBT persons” was also unsustainable. The Supreme Court observed in Puttaswamy:

“The chilling effect on the exercise of the right poses a grave danger to the unhindered fulfilment of one’s sexual orientation, as an element of privacy and dignity. The chilling effect is due to the danger of a human being subjected to social opprobrium or disapproval, as reflected in the punishment of crime.  Hence the Koushal rationale that prosecution of a few is not an index of violation is flawed and cannot be accepted. Consequently, we disagree with the manner in which Koushal has dealt with the privacy – dignity based claims of LGBT persons on this aspect.”

The Supreme Court also observed, “The purpose of elevating certain rights to the stature of guaranteed fundamental rights is to insulate their exercise from the disdain of majorities, whether legislative or popular. The guarantee of constitutional rights does not depend upon their exercise being favourably regarded by majoritarian opinion. The test of popular acceptance does not furnish a valid basis to disregard rights which are conferred with the sanctity of constitutional protection.”

“The right to privacy and the protection of sexual orientation lie at the core of the fundamental rights guaranteed by Articles 14, 15 and 21 of the Constitution,” the Supreme Court concluded in Puttaswamy.

The Puttaswamy observations are hard to find fault with, but to conclude that they necessarily sound the judicial death knell for Section 377 might be a little too hasty because Puttaswamy questions the Koushal ruling on limited grounds and only with respect to the enforcement of Section 377 against a particular group of people whereas Section 377 criminalizes a wide range of acts but does not specifically criminalize ‘sexual orientation’.

Before the 2014 ruling of the Supreme Court in Suresh Koushal overruled the reading down of Section 377 by the Delhi High Court in Naz Foundation v Government of NCT, WP (C) No.7455/2001 (delivered on July 2, 2009), the present writer questioned the wisdom of the Naz Foundation judgement of the Delhi High Court in a Cover Story article titled ‘Section 377: Questionable exercise of Judicial Review’ (Lawyers Update, August 2009, Vol. XV, Part 8). Interestingly, the article presupposes Right to Privacy to be a Fundamental Right and postulates — perhaps erroneously — that for a successful prosecution of an individual for an act of Unnatural Sex under Section 377, the State machinery, in order to gather evidence, would necessarily need to breach Right to Privacy, which, being a Fundamental Right, stands beyond the reach of the State. Any evidence gathered by breach of Right to Privacy would be inadmissible in evidence, and the prosecution would necessarily fail in all cases involving consensual acts of ‘Unnatural Sex’, and that is how Right to Privacy as a Fundamental Right acts as a safeguard against the abuse of Section 377 and takes the sting out of the provision with respect to the people — homosexuals or heterosexuals — involved in consensual ‘Unnatural Sex’ in private.

The very obvious underlying assumption is that the State is precluded by law from making individuals involved in consensual ‘Unnatural Sex’ testify against each other, for that would involve breach of Right to Privacy unless the consent itself is under challenge and one cannot be a ‘consenting victim’ of a crime so long as the consent is legally valid. Since a consensual sexual act is a ‘private act’ fully covered under Right to Privacy, the State is further barred from leading evidence to establish ‘Unnatural Sex’ because that, again, would involve a breach of Right to Privacy. In short, if Right to Privacy is allowed its full scope and swing, it would effectively rule out prosecution in all cases of consensual ‘Unnatural Sex’ between all couples, homosexual or heterosexual, without having to engage in any ‘reading down’, much less striking down, of Section 377 because Right to Privacy arrests and seals off the questionable stretch of the provision. The advantage of the approach is that it covers both hetrosexual and homosexual couples, and does not prevent the application of the provision in cases where the consent is invalid or is simply not there. The fact that the 2009 article referred to above contemplates such a reading of Right to Privacy in the context of Section 377 that saves the provision from the constitutional axe without exposing the couples engaging in consensual ‘Unnatural Sex’ to prosecution indicates that the questionable application of Section 377 against couples engaging in consensual ‘Unnatural Sex’ and Right to Privacy are not mutually exclusive so as to necessarily warrant a ‘reading down’, which is also why the article questions the Delhi High Court judgment in the Naz Foundation case mainly on the grounds of ‘necessity’ and ‘presumption of constitutionality’. And the Right to Privacy ruling in Puttaswamy does not quite blunt that argument because it is a settled principle of constitutional and statutory interpretation that if an alternative reading can prevent a legal provision from being rendered unconstitutional, such a reading must be preferred over declaring the provision unconstitutional.

One might want to argue, rather weakly in the specific context of Section 377, that theoretically one can’t ‘consent’ to a crime and that consent by itself cannot make a criminal act any less of a crime. The argument, which otherwise might carry substantial force, does not hold water in cases where the ‘crime’ in question is a victimless and injury-less crime grounded primarily in popular morality, which is the case with Section 377 as applicable to consensual ‘Unnatural Sex’. A similarly positioned offense is the crime of ‘adultery’ under Section 497 of the IPC, and the criminalizing provision itself makes the culpability subject to the absence of ‘consent’ of the victim. The consent of the victim, therefore, renders the ‘crime’ victimless and injury-less thereby neutralizing the culpability under the provision, ‘adultery’ being a moral crime principally. Section 377, unlike Section 497, does not make the culpability subject to ‘consent’ perhaps because the range and expanse of Section 377 is much larger and covers several acts apart from consensual ‘Unnatural Sex’, which is just one of the many acts the provision seeks to criminalize. So, the idea of consent of the affected party diluting or eliminating culpability in a criminal offence is not alien to criminal jurisprudence. Furthermore, Right to Privacy, in the scheme of things under discussion, does not hit the substantive law per se but blocks enforcement at the evidentiary level by preventing the admission of all such evidence that touches upon the private life of an individual by virtue of the constitutional bar stemming from Right to Privacy. The legal dictum according to which what cannot be done directly cannot be done indirectly (quando aliquid prohibetur ex directo, prohibetur et per obliquum) is also adequately answered because the presence of consent can substantively neutralize culpability in a ‘crime’, as shown in the foregoing discussion, and for that reason making ‘consent’ a key element together with Right to Privacy so as to effectively block prosecution in cases involving consensual ‘Unnatural Sex’ would not amount to the violation of the legal dictum in question, for what is proposed to be done indirectly can indeed be done directly in law but only by way of legislative remodeling of Section 377.

At the risk of repetition, it might be added that the August 2009 article referred to above makes the mistake of assuming that the Fundamental Right of Privacy acts as an automatic limitation on the enforcement of Section 377 in cases involving consensual ‘Unnatural Sex’. Apparently, such a reading of Right to Privacy vis-a-vis Section 377 is yet to receive judicial endorsement by the constitutional courts.

CONSTITUTIONALITY OF SECTION 377
The constitutional challenge to Section 377 in Naz Foundation v Government of NCT, WP (C) No.7455/2001, was based on the alleged violation of Right to Personal Liberty guaranteed under Article 21 and Right to Equality under Article 14 of the Constitution. The Delhi High Court read down Section 377 and declared thus: “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.” The ruling might sound like a very desirable outcome pretty much in step with our post-modern, liberal times, but the legal and constitutional position that not only should the right and just end be achieved, but it must also be achieved by the right means remains unchanged. Just because one’s death sentence has attained legal finality, one cannot be allowed to be slain by one’s cellmates or victim’s family members instead of the public executioner appointed for the purpose though the end result would be the same in both the cases, and, to at least some, the illegal might seem more just. So, it’s not just about what is to be done, but also how and by whom.

Presumption of Constitutionality
It is settled position of constitutional jurisprudence that all laws are presumed to be constitutional and the onus is on the challenger to dislodge the presumption of constitutionality. In Naz Foundation, the Delhi High Court addressed the presumption of constitutionality by holding that there is “no presumption of constitutionality of a colonial legislation” and referred to Anuj Garg v. Hotel Association of India, (2008) 3 SCC 1, in support of the assertion. The Supreme Court did not quite declare such a position in the Anuj Garg case, and the Delhi High Court inferred it thus:

“At the outset, the Court observed that the Act in question is a preconstitutional legislation and although it is saved in terms of Article 372 of the Constitution, challenge to its validity on the touchstone of Articles 14, 15 and 19 of the Constitution of India, is permissible in law. There is thus no presumption of constitutionality of a colonial legislation.”
The Supreme Court, in Anuj Garg stipulated as follows:

“The Act is a pre-constitutional legislation. Although it is saved in terms of Article 372 of the Constitution, challenge to its validity on the touchstone of Articles 14, 15 and 19 of the Constitution of India, is permissible in law. While embarking on the questions raised, it may be pertinent to know that a statute although could have been held to be a valid piece of legislation keeping in view the societal condition of those times, but with the changes occurring therein both in the domestic as also international arena, such a law can also be declared invalid.”

Quite clearly, the Supreme Court did not touch upon the Doctrine of Presumption of Constitutionality as applicable to pre-constitutional legislations, much less place them on a different footing than other legislations. Changing times may render an old law unconstitutional and it is just as much a ground to declare a law unconstitutional as, say, arbitrariness. Even a post-constitutional law might be found unconstitutional by reason of societal change.

Furthermore, Delhi High Court chose to lightly brush aside and completely ignore Article 372, which, inter alia, stipulates that “for the purpose of bringing the provisions of any law in force in the territory of India into accord with the provisions of this Constitution, the President may by order make such adaptations and modifications of such law, whether by way of repeal or amendment, as may be necessary or expedient,” and then declares that “nothing in clause ( 2 ) shall be deemed… to empower the President to make any adaptation or modification of any law after the expiration of three years from the commencement of this Constitution.”

Article 372 allows three years to the State to bring the laws in force in consonance with the Constitution, after which period all laws are deemed to be constitutional. This is nothing but presumption of constitutionality. In fact, Article 372 brings pre-constitutional laws on exactly the same footing as the post-constitutional laws in terms of presumed constitutionality. In placing pre-constitutional laws on a different footing, the Delhi High Court clearly contravened the letter and spirit of Article 372.

With presumption of constitutionality in place, one has to make a compelling case to have a constitutional court strike down a law, but a far stronger case has to be made for a ‘reading down’ because while striking down is a regular exercise of judicial review, reading down is essentially a substitution of legislative intent with judicial wisdom, which can be resorted to only in exceptional cases. The High Court cites “widespread abuse of Section 377 IPC for brutalising MSM and gay community persons,” changing times, international trends and foreign precedents as grounds for remodeling the application of the provision. None of the grounds cited, including the abuse of a legal provision, is a valid ground for striking down a provision. To invalidate a provision, constitutional inconsistency has to be necessarily demonstrated. In a constitutional democracy, it is for the democratically elected Legislature to decide when it is time for a change in public policy expressed through morally loaded legislative provisions such as Section 377.

Article 14 and Article 15
Section 377, insofar as it criminalizes “carnal inter­course against the order of nature with any man, woman or animal,” makes no distinction between heterosexual and homosexual couples, and, contrary to the view taken by the Delhi High Court, does not discriminate against “a section of people solely on the ground of their sexual orientation” because the provision criminalizes acts of a certain description and not the ‘sexual orientation’ of people. Constitutional invalidation is no remedy for implementational anomalies, and for that reason such recourse is legally impermissible.

After declaring it unsubstantiated, the High Court says that if Section 377 is not “being enforced against homosexuals engaged in consensual acts within privacy, it only implies that this provision is not deemed essential for the protection of morals or public health vis-a-vis said section of society. The provision, from this perspective, should fail the ‘reasonableness’ test.” This is an odd position to take because if the provision is not being so enforced, the very ground for the constitutional challenge fails. How can a constitutional challenge stand without a violation?

Section 377 views consensual ‘Unnatural Sex’ as immoral and criminalizes it on moral grounds, which is constitutionally permissible, as reasonable restrictions can be imposed on ground of morality alone, and morality-based public policy is the sovereign preserve of the Legislature. Being culturally informed, the moral domain is where the international trends and foreign precedents have the most limited persuasive force. The courts refrain, as they must, from pronouncing on what is morally preferable for a society, for that is essentially a policy decision.

Section 377 puts people having ordinary sexual intercourse and those involved in “carnal inter­course against the order of nature” in two separate categories for the purpose of criminalizing the acts of latter description on moral grounds. The differentia is intelligible and has nexus with the object. The requirements of Article 14 in terms of non-arbitrariness and reasonableness are thus met.

Even if ‘sex’ as used in Article 15 is expanded to include ‘sexual orientation’ as the High Court stipulated, Section 377 stays in the clear because it does not criminalize or distinguish on the basis of ‘sexual orientation’ at all.

Article 21
No doubt Right to Personal Liberty encompasses a wide range of rights including sexual autonomy, but one cannot assert ‘personal liberty’ as guaranteed by Article 21 of the Constitution in committing an act that is designated as crime, for the rights under Article 21 are subject to the laws in force. Even if Right to Personal Liberty is coupled with Right to Privacy, it cannot stretch to assert that one has the right to commit a ‘crime’ in private because being an aspect of Right to Life and Personal Liberty, Right to Privacy is subject to the inherent limitations of Article 21. Section 377 is, therefore, not hit by Article 21.

Right to Privacy Ruling
By virtue of Right to Privacy one has the right to be left alone and also has the right to not have the events of his ‘private life’ disclosed to anybody against his or her wishes. For a meaningful enforcement of the right, the courts can go so far as to block such disclosure and thus foreclose the prosecution for consensual ‘Unnatural Sex’ under Section 377. But that is as far as it can go because Right to Privacy by itself does not render Section 377 unconstitutional and technically the provision does not offend Article 14, 15 or 21 as discussed above. With presumption of constitutionality on its side, Section 377 stands on a far firmer constitutional footing than Delhi High Court gave it credit for.

The Puttaswamy judgement appears to disapprove of the Supreme Court’s frowning on Delhi High Court’s seemingly excessive reliance on foreign precedents. The courts are certainly not barred from relying upon foreign precedents for guidance, but how far can imported principles of morality guide the Indian constitutional courts in determining the constitutionality of a legal provision rooted in morality is still an open question with no easy answers.

The Supreme Court in Puttaswamy does seem to partly endorse the view taken by the Delhi High Court insofar as the apex court says that “the right to privacy and the protection of sexual orientation lie at the core of the fundamental rights guaranteed by Articles 14, 15 and 21 of the Constitution,” but even that view and construct, on its own, falls short of striking Section 377 because the provision in question does not substantively criminalize sexual orientation or breach Right to Privacy. And, as shown above, the enforcement of Section 377 can easily be subjected to Right to Privacy, if it is not already the position by virtue of the hierarchy of rights. Section 377, therefore, need not be declared unconstitutional.

Quite clearly, the constitutionality of Section 377 needs to be considered afresh by the Supreme Court and the Right to Privacy ruling does not quite tilt the scales this way or that.

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