Case BriefsForeign Courts

Kenya of High Court, Nairobi: A Full Bench of Roselyne Aburili, E.C. Mwita and John M. Mativo, JJ. dismissed a petition regarding the removal of the ban on same-sex relations.

The petitioner had challenged the constitutionality of Sections 162 and 165 of the Penal Code, 1930 which prohibited unnatural offences in the form of carnal intercourse against the order of nature and indecent practices between males, whether in public or in private. The petitioners contended that the two provisions violated the right to privacy and dignity of the Kenyans guaranteed under the Constitution of Kenya as it made the Lesbians, Gay, Bisexuals, Transgender, Intersex and Queer (LGBTIQ) community in Kenya perpetually exposed to risk of arrest, prosecution, denial of liberty, intimidation and mistreatment. The impugned penal provisions were stated to be violative of Article 27 (equality and freedom from discrimination), Article 28 (human dignity), Article 29 (freedom and security of the person), Article 31 (privacy), Article 32 (freedom of conscience, religion, belief and opinion), Article 43 (highest standard of health) and Article 50 (the right to fair hearing).

The petitioner also argued that the petition neither concerns same-sex marriage, nor does it seek to legalize same-sex marriage; and, if successful, it will not have the effect of mandating or requiring Kenya to recognize same-sex marriage. He maintained that the petition only challenged the criminalization and severe punishment provided under the criminal law for the fundamental and inborn characterization of their sexual orientation.

The counsel for the petitioners argued that Section 162 of the Penal Code did not define the phrases ‘unnatural offences’, ‘against the order of nature’; and it was unclear whether the phrases meant sexual intercourse or include oral, anal, vaginal sex, or whether they include any other contact with the genital organ of another person. Regarding Section 165 of the Code, it was submitted that the phrases ‘indecency with another male person’ and ‘any act of gross indecency with another male person’ were unclear. The counsels placed relied on the cases of US, UK, Ireland, South Africa, and also on Indian cases Naz Foundation v. Govt. (NCT of Delhi), (2016) 15 SCC 619, decided by the Delhi High Court and Navtej Singh Johar v. Union of India, (2018) 1 SCC 791 decided by the Supreme Court of India, where the constitutionality of Section 377 of the Indian Penal Code, 1860 was under challenge. The said Section 377  was similar to the disputed Sections herein and was also a colonial-era law that criminalized homosexual acts as an unnatural offence. The counsel also stated that many other countries around the world had decriminalized homosexuality.

The Court opined that the phrase ‘carnal knowledge’ had been judicially defined in Gaolete v. State to mean “penetration through the anus that makes the intercourse ‘against the order of nature’ and therefore provides the other element of the offence.” It was further observed that ‘unnatural offence’ was defined in Law Dictionary; and ‘indecent act’ was defined under Section 2 of the Sexual Offences Act, 2006. Thus, the Court refused to strike down the impugned provisions as unconstitutional on the basis of ambiguity and vagueness, opining that the impugned phrases had been clearly defined in law dictionaries and in a catena of judicial pronouncements.

While dealing with impugned provisions’ consonance with Constitution, it was opined where there is a legitimate reason, then, the conduct or the law complained of cannot amount to discrimination. It was held that the impugned provisions apply equally to heterosexuals and was not targeted at a particular community (LGBTIQ herein).

The Court further held that petitioners had not produced any tangible evidence to support the alleged violation of the Constitution. It was opined that he who makes an allegation, has the onus to prove every element constituting his or her cause of action, and this includes sufficient facts to justify a finding that his rights have been violated.

The Court opined that the foreign judgments relied on in support of their case by the petitioners, were only of persuasive value and caution must be exercised while placing reliance on foreign jurisprudence in cases alleging infraction of Constitutional rights. The Court observed that decriminalizing homosexuality would pose a threat to the institution of marriage protected under Article 45 of the Constitution of Kenya, which provided that family was a natural and fundamental unit of society and a necessary basis for social order, and shall enjoy the recognition and protection of the State; and, that, “every adult had a right to marry a person of the opposite sex, based on the free consent of the parties.”  Hence, the contention that the petitioners do not seek recognition of same-sex marriages, did not guarantee the authenticity of the institution of marriage as adopted by the Kenyan society.

In view of the above, the Court upheld the constitutionality of the impugned penal provisions.[EG v. Attorney General, Petition No. 150 of 2016, decided on 24-05-2019]

Case BriefsSupreme Court

Supreme Court: The 5-Judge Constitution Bench comprising of CJ Dipak Misra, Rohinton Nariman, A.M Khanwillkar, DY Chandrachud and Indu Malhotra, JJ. continue to unravel the path to justice on Section 377 IPC, 1860 on the third day of the proceedings.

Senior Advocate Shyam Divan resumed with his arguments representing ‘Voices against 377’ and started with the explanation towards the positive dimension of Article 14 of the Constitution of India. By placing reliance on Nariman, J. judgment on Triple Talaq, Shayara Bano v. Union of India; (2017) 9 SCC 1 which states “equality before the law” in Article 14 derived from the UK while “equal protection of the law” is from the 14th amendment of US.

‘Equal protection of the law’ connotes positive content of Article 14 whereas ‘Equality before the law’ is the negative aspect.

Shyam Divan also cited Lawrence v. Texas, 539 U.S. 558 (2003) – “The liberty protected by the Constitution allows homosexual persons the right to choose to enter upon relationships in the confines of their homes and their own private lives and still retain their dignity as free persons”.

He also backed ‘Right to Intimacy’ quoting from South African Constitutional Court that the right to privacy covers right to maintain intimate relations unaffected by the law.

“Supreme Court should not have re-criminalized Section 377 (after Delhi HC struck it down) because of the tremendous adverse impact it has”: Senior Advocate Shyam Divan

Indu Malhotra J. making her stance clear on Section 377 said that ‘Homosexuals face a lot of pressure from parents, society, etc. That is why they turn into bisexuals; it carries huge social ramifications’.

‘It is not just human beings who alone indulge in homosexual acts, many animals also show homosexual behaviour; it is not an aberration but a variation’.

‘This community of LGBT feels inhibited to go for medical aid due to the prejudices against them.’

CJ Dipak Misra observed ‘LGBT themselves feel discriminated because of they are treated differently. They feel stigma because of criminality attached to it.’

Chandrachud, J. ‘We have created a societal environment that creates a discrimination of these individuals. If Section 377 goes let’s hope such societal stigmas change.’

Senior Advocate C U Singh backed his arguments by stating that having faced criminalisation for over 160 years, it is a huge step to strike it down.

‘But whenever there has been historical deep-rooted discrimination, then the State has resorted to affirmative action.’

Further, while concluding his arguments, he stated that “They (LGBT) continue to suffer a disproportionate mental problem because of the stigma attached to it.”

Senior Advocate Ashok Desai began by stating that existence of LGBT community is a part of our culture hence not alien to Indian culture. While talking about the ‘stigma’ he cited an article written by late Leila Seth, J. whose son is a homosexual for whom she said that my son is a criminal as per law after the Delhi HC verdict was reversed by the Supreme Court.

‘Homosexuality is existing in society and civilisation has accepted this.’

‘Same-sex is not selfish. They don’t want to produce children.’

He also argued that the Court needs to recognise the concept of fraternity as the LGBT community is humiliated terribly.

Mr. K. Venugopal submitted that fear of law is used to harass LGBT community. He also states that Section 377 is used as an excuse to impinge on freedom of expression.

Section 377 offers a legal basis to suppress alternate sexuality.”

While submitting his arguments, he also stated that Lord Macaulay while introducing this provision said he does not even want to discuss this provision as according to him it was revolting and odious. On concluding his arguments he cited Lawrence v. Texas, 539 U.S. 558 (2003), the United States Supreme Court judgment which made same-sex marriage in USA legal.

ASG Tushar Mehta appearing for Union of India states that, K.S. Puttaswamy v. Union of India, (2017) 10 SCC 1 cannot be interpreted to mean that Section 377 should exclude bestiality.

Mehta urged the Court to stick to the constitutionality of Section 377.

CJ Dipak Misra: ‘Court does not follow majoritarian morality but constitutional morality.’

“We don’t decide Constitutional issues by referendum”, CJ Dipak Misra to another counsel who tried to make arguments based on “popular opinion”.

“Look at some liberal Constitutions. We will point out some countries on the map where you need to look at”. Chandrachud, J. to a counsel arguing in support of Section 377 IPC.

No senior to hold a brief for my side, maybe because of the issue involved’ said George who was appearing for two Christian associations supporting Section 377. “There was a U-turn by the government which causes serious concerns for the public at large“, stated Manoj George appearing for one of the respondents.

Chandrachud, J. stated that it’s not a U-turn, pointing that the Delhi HC judgment wasn’t challenged.

An advocate submitted that private bill on Section 377 got defeated. Court said it doesn’t matter, Section377 can still be assailed on the parameters of Part III.

The Constitution Bench would continue with the arguments on 17-07-2018. [Navtej Singh Johar v. Union of India, WP (Crl.) No. 76/2016, order dated 12-07-2018]


Case BriefsForeign Courts

Supreme Court of Canada: A nine-Judge Bench sided 7:2 against the Trinity Western University (TWU) and upheld the decision of the Law Societies of British Columbia and Ontario in not granting approval to Trinity Western University for the establishment of law colleges both at British Columbia and Ontario.

TWU was a private Christian University which wanted to establish law colleges where all the students and faculty have to follow a code of conduct, ‘covenant’, that prohibits sexual intimacy except between a married man and a  woman. TWU applied for approval of its proposed law colleges before the Law Societies of British Columbia and Ontario. However, the said Law Societies did not grant such approval. TWU challenged the non-grant of approval terming the Law Societies’ decision as violating freedom of religion and other rights under the Charter of Rights and Freedom. In British Columbia, the Supreme Court ruled for TWU and in Ontario, Courts ruled for the Law Society. Thus, the matter finally reached the Supreme Court.

The majority of judges at the Supreme Court ruled in favour of the Law Societies. The question before the Court was whether the decision of the Law Societies was reasonable? The Court opined that in order to be considered reasonable, the decision must strike balance between religious rights of TWU community and public interest. It was observed that ‘public interest’ included promoting equality by ensuring equal access to the legal profession, supporting diversity within the bar, and preventing harm to LGBTQ law students. Further, the Law Societies were not stopping anyone from following his or her own religious beliefs; they only prevented TWU from enforcing beliefs on other students of the law college community. The Court said that the decisions did not seriously limit anyone’s religious freedom; the benefits of protecting public interest were important and the limitation in religious rights was minor. The Court held that both the decisions reflected a proportionate balance and were therefore reasonable. Beverley McLachlin, CJ. emphasised that approving the proposal of TWU would condone discrimination against LGBTQ people based on sexual orientation. Malcolm Rowe, J. observed that the TWU wanted the Law Societies to approve a law college where students would be forced to follow Evangelical Christian beliefs, whether they shared such beliefs or not; freedom of religion protects the right to believe in whatever one chooses and to follow those beliefs; but,  it does not include right to force such beliefs on others. According to the Hon’ble Supreme Court, TWU’s claim fell outside the scope of freedom of religion as protected by the Charter. Accordingly, the appeal was dismissed upholding the decision of the Law Societies not to grant approval for the law college as proposed by TWU. [Trinity Western University v. Law Society of Upper Canada, 2018 SCC OnLine Can SC 11: 2018 Supreme Court Cases 33, decided on 15-6-2018]