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 BriefsForeign Courts

“Criminalising consensual same sex in private, between adults is not in the public interest. Such criminalization….disproportionally impacts on the lives and dignity of LGBT persons. It perpetuates stigma and shame against homosexuals and renders them recluse and outcasts…. Such penal provisions exceed the proper ambit and function of criminal law in that they penalise consensual same sex, between adults, in private, where there is no conceivable victim and complainant.”

Botswana High Court: In a landmark ruling which came as a big victory for LGBTQ rights in Africa, a Full Bench of M. Leburu, A.B. Tafa, J. Dube, JJ. decriminalized homosexuality and struck down provisions prohibiting consensual sexual intercourse between homosexuals, holding the same to be discriminatory and ultra-virus.

Applicant herein, was a university student and a homosexual, who questioned Sections 164(a), 164(c) and 165 of the Penal Code, 1964 as being discriminatory and ultra-virus as these sections prohibited him from enjoying and engaging in sexual intercourse with a man. Botswana’s Penal Code, 1964, drawn up under British rule, outlawed “carnal knowledge of any person against the order of nature”(Section 164), with those convicted facing up to seven years in prison; as well as “indecent practices between persons” in public or private (Section 167), punishable with up to two years in prison.

Applicant’s case was that the impugned provisions were unconstitutional and vague as they were not made for the peace, order and good governance and lacked clarity on the exact type of conduct that was being criminalized. He also contended that the impugned provisions violated his right and freedom to liberty, as they prohibited him from using his body from expressing sexual affection by the only means which was available to him as a homosexual. Applicant submitted that the impugned provisions perpetuated negative stigma against homosexuals and urged that the impugned sections should be struck down as unconstitutional and vague, particularly with respect to the meaning of “carnal knowledge” and “against the order of nature”.

Whereas the respondent’s case was that Sections 164 (a) and 164(c) of the Penal Code were not discriminatory as they were of equal application to all sexual preferences, and sexual orientation or being homosexual was not criminalized, rather it was certain sexual acts that were deemed against the order of nature were criminalized. The Attorney General’s contention was that the words used were clear and not vague and that they simply mean “anal penetration”, as was defined by the Court of Appeal in the case of Kanane v. State, [2003] (2) BLR 67 (CA). He submitted that applicant was free to engage in sexual activity as long as it was not sexual intercourse per anus; and this was a valid restriction as Section 15 of the Constitution of Botswana provided limitations on the enjoyment of fundamental rights.

Botswana High Court noted that same-sex activity was deemed morally unacceptable by the British and was hence, prohibited. Macaulay’s draft of Indian Penal Code, 1860 and particularly Section 377 IPC was copied in a large number of British territories, including Botswana. It was only after recommendations of the Wolfenden Committee Report, that the United Kingdom decriminalized same-sex sexual intercourse.

The Court observed that privacy is a cherished fundamental human right, and an important element of personal autonomy as it gave person space of being himself or herself without any judgment and allowed him to think freely without hindrance. It relied on Articles 1, 2 and 3 of the United Nations Declaration of Human Rights 1948 which protect the right to human dignity. It also referred Article 17 of the International Covenant on Civil and Political Rights 1966, which provide that- “No one shall be subjected to arbitrary or unlawful interference with his privacy, family, home or correspondence, nor to unlawful attacks on his honour and reputation.”

The Court opined that while public opinion is relevant in matters of constitutional adjudication, but it is not dispositive; as such public opinion is trumped by the colossal human rights “triangle of constitutionalism”, namely liberty, equality and dignity. It observed that this triumvirate formed the core values of fundamental rights, as entrenched in Section 3 of the Constitution. Court also observed that it had been already settled principle that there must remain a realm of private morality and immorality which should not be the province of the law, where there was no victim or complainant and when such conduct was consensual.

Court relied on various judgments of the United Kingdom, the United States of America, Canada and also relied on the decision of Supreme Court of India in Navtej Singh Johar v. Union of India, (2018) 10 SCC 791, in which Section 377 of the Indian Penal Code 1860, dealing with unnatural sex laws was read down and homosexuality was decriminalised. It was held in this case that sexual orientation of a person is an essential attribute of privacy and its protection lies at the core of fundamental rights guaranteed by Articles 14, 15 and 21 of Constitution of India.

Court also observed that the choice of a partner, the desire for personal intimacy, and the yearning to find love and fulfillment had universal appeal, and the State has no business to intrude into these personal matters and held that respondent gave no justification as to why a person’s right to privacy and autonomy was ought to be curtailed in relation to consensual acts done in private: and accordingly ordered that the word “private” must be severed and excised from Section 167 of the Penal Code.

Reliance was also placed on the UK’s Wolfenden Committee Report, on the basis of which it was opined that consensual adult sexual intercourse, between homosexuals, lesbians, transgenders, etc. do not trigger any erosion of public morality for such acts are done in private. It was observed that the realm of private morality and immorality should not be the province of the law, particularly where there is no victim or complainant and when such conduct is consensual.

In view of the aforesaid, Sections 164(a), 164(c) and 165 of the Penal Code were declared as ultra-virus to the Constitution, for being violative of Section 3 (liberty, privacy, and dignity), Section 9 (privacy) and Section 15 (discrimination) of the Constitution. The Court opined that the impugned provisions did not satisfy the proportionality test, and struck down those provisions. [Letsweletse Motshidiemang v. Attorney General Lesbians, Gays and Bisexuals of Botswana (LEGABIBO), 2019 SCC OnLine BWHC 1, decided on 11-06-2019]

Case BriefsHigh Courts

Uttarakhand High Court: Ravindra Maithani, J. has asked the State of Uttarakhand whether an Investigating Officer, by conducting DNA tests, has the right to determine the gender or sex of a transgender person who underwent a gender reassignment surgery.

The petitioner, in this case, had filed an FIR alleging she was raped, but the FIR was registered by the police under Section 377 (unnatural offences) of the Penal Code, 1860. She had identified herself as a female and also claimed that she had undergone gender reassignment surgery and had obtained a certificate declaring that she may be addressed as a “she”. She approached the High Court, contending that she had been harassed by the investigating officers by lodging the FIR as an unnatural offence instead of rape and addressing her as a male.

The Court took into consideration the matter being one of social importance and hence it needs to be observed strictly as it is not only touching the petitioner alone but many others who have faced such an issue. The Court reiterated what has been laid down in the landmark case National Legal Services Authority v. Union of India, (2014) 5 SCC 438, wherein the petitioner’s “right to self-identification of gender” was denied and the Supreme Court rejected the age-old principle laid down in Corbett v. Corbett, (1970) 2 All ER 33 that an individual’s sexual constitution is fixed at birth and cannot be changed. The Hon’ble Supreme Court went on to prefer the “psychological test” instead of “biological test”. It stated “When we examine the rights of transsexual persons, who have undergone SRS, the test to be applied is not the “biological test”, but the “psychological test”, because psychological factor and thinking of transsexual has to be given primacy than binary notion of gender of that person. Seldom people realize the discomfort, distress and psychological trauma, they undergo and many of them undergo “gender dysphoria” which may lead to mental disorder. Discrimination faced by this group in our society, is rather unimaginable and their rights have to be protected, irrespective of chromosomal sex, genitals, assigned birth sex, or implied gender role.”

The Court questioned the acts of Investigating officers and the public servants and stated they have not taken into consideration the Supreme Court judgment. It asked the Home Secretary of the State of Uttarakhand to file an affidavit answering various questions as to how the Investigating Officer had the right to determine the sex or gender of the petitioner how could the Investigating Officer apply the “biological test” instead of the “psychological test” in light of the Supreme Court judgment.[Shilpi Lawrence Elenjikal v. State of Uttarakhand, Writ Petition (Criminal) No. 28 of 2019, decided on 29-04-2019]

Case BriefsHigh Courts

Bombay High Court: The Bench of Mridula Bhatkar, J. quashed and set aside the order passed by Additional Sessions Judge,  refusing to discharge the petitioner/accused from offence punishable under Section 377 of Penal Code, 1860.

The present petition was filed in respect of challenging the order passed by the Metropolitan Magistrate, Girgaon, Mumbai rejecting the discharge of petitioner under Section 377 IPC.

Petitioner in the present case is a co-accused prosecuted under Sections 498-A, 377, 323, 504  r/w Section 34 of IPC. The facts of the case are that the complainant is married with a son of 6 to 7 years old. Complainant states that after 4-5 years of marriage she realised that her husband was gay, and on realising that she refused the parallel relationship of her husband. She also stated that she was ill-treated by her husband due to which she had left for her father’s house but later agreed to come back to her husband’s place when she again witnessed no change and continuation of the gay relationship of her husband with different males.

On realising the fact that her husband was not ready to stop his relationship with the petitioner/accused and being ill-treated a number of times, she finally lodged an FIR. Later, the Additional Sessions Judge partly allowed the revision application but maintained the charge under Section 377 IPC against the accused. Aggrieved by the same, the present petition was filed.

High Court while placing reliance on the Apex Court’s judgment in Navtej Singh Johar v. Union of India, (2018) 10 SCC 1, held that though the ground for divorce could be the extramarital consensual sexual relationship as cruelty to the complainant, but it does not constitute an offence under Section 377 IPC, because both are adults and had a consensual sexual relationship.

Thus, in the present case, no victim exists and the order of the Additional Sessions Judge is quashed. [Daniel Crasto v. State of Maharashtra, 2019 SCC OnLine Bom 188, dated 30-01-2019]


Note: The 5-Judge Constitution Bench comprising of CJ Dipak Misra and R.F. Nariman, A.M. Khanwilkar, Dr D.Y. Chandrachud and Indu Malhotra, JJ. in their landmark judgment held Section 377 IPC unconstitutional insofar it criminalised gay sex between consenting adults. [2018 SCC OnLine SC 1350]

Case BriefsSupreme Court

  What nature gives is natural. That is called the nature within.

                                                                       C.J. Dipak Misra and A.M. Khanwilkar, J.

Supreme Court: The 5-Judge Constitution Bench comprising of CJ Dipak Misra and R.F. Nariman, A.M. Khanwilkar, Dr D.Y. Chandrachud and Indu Malhotra, JJ. in their landmark judgment held Section 377 IPC unconstitutional insofar it criminalised gay sex between consenting adults. The Bench which delivered three opinions along with the leading judgment, reversed the 2-Judge Bench decision in Suresh Kumar Koushal v. Naz Foundation,(2014) 1 SCC 1  which in turn had reversed the judgment of a Division Bench of Delhi High Court in Naz Foundation v. State (NCT of Delhi), 2009 SCC OnLine Del 1762. The Delhi High Court in Naz Foundation had declared Section 377 violative of Articles 14, 15 and 21 of the Constitution insofar as it criminalised consensual sexual acts of adults in private.

 I am what I am, so take me as I am.

                                                          –Johann Wolfgang von Goethe

The present judgment can be said to be a watershed moment in India’s journey to gender equality and social justice. The judgment not only emancipates the LGBTQ community from the shackles of gender inequality; it not only gives them the freedom of individuality, Right to privacy, life and liberty, freedom of choice; but also the Right to freedom of self-expression. The decision can fairly be looked upon as a classic example of how the Indian Judiciary time and again rises to the injustice suffered by the discriminated strata of the society. The judgment more than anything gives identity.

The Court considered the validity of the section by analysing it in juxtaposition to Section 375 which defines rape. Drawing an analogy, the Court held that if consensual carnal intercourse between a heterosexual couple does not amount to rape, it definitely should not be designated as an unnatural offence under Section 377 IPC. The expression against the order of nature has nowhere been defined. The non-consensual acts which have been criminalised by the section, have already been designated as penal offences under Section 375 and POCSO Act. If the section remains on the statute book in its present form, it will allow harassment and exploitation of LGBT community to prevail. It abridges both human dignity and fundamental right of privacy and choice of the citizenry, however small. Right to privacy takes within its sweep the right to every individual including that of the LGBT to express their choices in terms of sexual inclination. The section does not survive the trinity test of Articles 14, 19 and 21. Freedom of choice cannot be scuttled or abridged on the threat of criminal prosecution and made paraplegic on mercurial stance of majoritarian perception. To understand the scope of the judicial pronouncement by the sentinel of the qui vive – as our Judiciary has stood always — it is pertinent to delineate the observations made by the Hon’ble Judges in their opinions.

CJ Dipak Misra (for himself and A.M. Khanwilkar, JJ.)

                                                   One defines oneself. That is the glorious form of individuality

  •  It is only where each individual is liberated from the shackles of bondage of social exclusion, identity, seclusion and isolation from the mainstream, that we can call ourselves a truly free society.
  • Through its dynamic purposive interpretive approach, the judiciary must strive to breathe life into the Constitution and not render the document of collection of mere dead letters.
  • Ours is a transformative Constitution. It will become a dead testament without dynamic; vibrant and pragmatic interpretation.
  • Constitutional morality embraces within itself virtues of ushering a pluralistic and inclusive society.
  • Expression of choice is a facet of human dignity and is essential component of liberty.
  • To compel a person having a certain sexual expression to proselytize to another is like asking a body part to perform a function it was never meant to perform.

R.F. Nariman, J.

  • The present definition of mental illness in Mental Healthcare Act, 2017 makes it clear that homosexuality is not considered a mental illness.
  • Viewed in light of the principles contained in Yogyakarta Principles on the Application of International Human Rights Law in relation to Sexual Orientation and Gender of Identity, Section 377 will have to be declared unconstitutional.
  • When it is found that privacy interests came in and the State has no compelling reason to continue an existing law which penalises same-sex couples who cause no harm to others, it is transgression of Articles 14, 15, 19 and 21.
  • LGBTQ are entitled to protection of equal laws and we are entitled to be treated in the society as human beings.

Dr D.Y. Chandrachud, J.

It is difficult to right the wrongs of history. But we can certainly set the course for the Future.

  • The case involves much more than mere decriminalising certain conduct. The case is about aspiration to realise constitutional rights.
  • Section 377 is unconstitutional in so far as it penalises a consensual relationship between adults of the same gender. Constitutional values of dignity and liberty can accept nothing less.
  • LGBT have a constitutional right to citizenship in all its manifestations.
  • It is difficult to locate any intelligible differentia between indeterminate terms such as natural and unnatural. It is even more problematic to say that the classification between individuals who engage in natural intercourse and those engaging in carnal intercourse against the order of nature can be legally valid.
  • Constitution protects fluidities of sexual experience and leaves it to the consenting adults to find fulfilment in their relationships, in a diversity of cultures, among plural ways of life and infinite ways of love and longing.
  • By application of Section 377, MSM and transgender persons are excluded from access to health care due to social stigma attached to their sexual identity. Being particularly vulnerable to contraction of HIV, this deprivation can only be described as cruel and debilitating. The indignity suffered by sexual minority cannot stand the test of constitutional validity.

Indu Malhotra, J.

  • Homosexuality is not an aberration but a variation of sexuality.
  • Sexual orientation is not a choice. It manifests in early adolescence.
  • Sexual expression and intimacy of consensual nature, between adults in private, cannot be treated as carnal intercourse against the order of nature.
  • LGBT is a sexual minority and is equally entitled to protection afforded by Article 15.
  • LGBT are entitled to complete autonomy over the most intimate decisions relating to their personal life, including the choice of their partners. Such choices must be protected under Article 21.
  • Section 377 compels LGBT persons to live in a closet. They are seriously disadvantaged and prejudiced when it comes to access to healthcare facilities.
  • The Section cannot be justified as reasonable restriction under Article 19(2) on basis of public or societal morality as it is inherently subjective.

The Judgment that was delivered, joins the plethora of authorities – including, inter alia, National Legal Services Authority v. Union of India, (2014) 5 SCC 438; K.S Puttaswamy v. Union of India, (2017) 10 SCC 1; Indra Sarma v. V.K.V. Sarma, (2013) 15 SCC 755; etc.- that were referred to be the Bench in the case herein. The petitions were disposed of observing and holding all that is mentioned hereinabove. [Navtej Singh Johar v. Union of India, 2018 10 SCC 1, decided on 06-09-2018]    

Hot Off The PressNews

Supreme Court: The 5-Judge Constitution Bench comprising of CJ Dipak Misra and R.F Nariman, A.M. Khanwilkar, Dr D.Y. Chandrachud and Indu Malhotra, JJ., likely to pronounce the judgment concerning the constitutionality of Section 377 Indian Penal Code, 1860 today, i.e. 06-09-2018.

The judgment was reserved by the Constitution Bench on 17-07-2018, after a 4-day hearing covering the different standpoints on Section 377 and further Nariman J., on the last day of hearing stating that “If we are convinced that it is unconstitutional, it is our duty to strike it down’.

Background:

Several pleas were filed challenging the re-criminalization of sex between consenting adults of the same sex by holding it as “illegal”. Therefore, the Supreme Court stated that the Naz Foundation v. State (NCT of Delhi)2009 SCC OnLine Del 1762 case requires re-consideration not only on the ground of Constitutional morality but also social morality as social morality also changes from age to age.

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. addressed the petitions challenging Section 377 of IPC, 1860, which criminalises unnatural sex between two consenting adults while revisiting its December 2013 verdict in Suresh Kumar Koushal v. Naz Foundation, (2014) 1 SCC 1 which upheld the criminalisation of gay sex.

“As the protector of fundamental rights, the Supreme Court has the duty to protect the LGBTQ community.”

Supreme Court began the hearing with two issues open which were: Sex against the order of nature whether retrograde and can sexual rights to persons be denied just because they are the minuscule minority?

Appearing for one of the petitioners, Mukul Rohatgi contended that the rights of the gay community are protected under Article 21 and “Being gay or lesbian is not a matter of choiceIt is innate, inborn and actually has to do something with the genes.” He stated that a gay man or gay woman shouldn’t be identified as something else.
As stated by learned advocate Mukul Rohatgi on stressing the criminalisation of Section 377 IPC, he quotes that “This is a case of Constitutional morality v. Others” also Section 377 is based on Victorian morality.”Ancient India was different.”

He referred to the following cases in support of his contentions which were:

Senior Advocate Datar began with his arguments by stating that Section 377 IPC is pre-constitutional, not in conformity with the Constitution. Further argued, that one of the Law Commission Reports had also recommended repealing the said section. He also stated that if a person has a different type of sexual orientation to which he has expressed, then it can’t be treated as a crime, to which he also stated that Article 21 of the Constitution includes my choice of sexual orientation and DY Chandrachud, J. accepted the said proposition.

Datar contended that there is no such thing as “Order of nature” and concluded his arguments by seeking a declaration to protect the rights of LGBT community through striking down Section 377 IPC.

The proceedings concluded for the day, Constitution Bench to resume the hearing from tomorrow i.e. July 11, 2018, in Navtej Singh Johar v. Union of India, WP(Crl.) No. 76 of 2016, order dated 10-07-2018.

[Source: The Hindu]

OP. ED.

 “If we just hold privacy is a fundamental right, Naz judgment may become vulnerable”, Dr. D.Y. Chandrachud, J while hearing the issue of ‘right to privacy’.

On 18.07.2017, the 5-judge bench of J.S. Khehar, CJ and J Chelameswar, SA Bobde, DY Chandrachud & Abdul Nazeer, JJ referred the issue involving violation of right to privacy due to Aadhaar-PAN linkage to a 9-judge Constitution bench as the 8-judge and 6-judge benches in M.P. Sharma v. Satish Chandra and Kharak Singh v. State of U.P., have earlier held that Right to Privacy is not a fundamental right.

Chandrachud, J was a part of this 9-judge bench when he said that holding that ‘right to privacy’ is a fundamental might right will mean that the 2013 ruling in Suresh Kumar Koushal v. Naz Foundation, (2014) 1 SCC 1, where it was held that Section 377 IPC does not violate a person’s right to privacy, will no more be a good law.

This one remark by Chandrachud, J on the first day of hearing is a silver lining for the LGBT community. If ‘right to privacy’ is declared to be a fundamental right, the decision will be binding on the bench hearing the curative petition in the Naz Foundation case.