Indian High Court overrules homosexuality ban on privacy grounds

02/07/2009

The High Court in Delhi has ruled in favour of a challenge of the constitutional validity of Section 377 of the Indian Penal Code, 1860 (IPC), which criminally penalizes what is described as "unnatural offences", to the extent the said provision criminalises consensual sexual acts between adults in private.

Based on old English law, section 377 criminalised sex other than heterosexual penile-vaginal.

The decision relied heavily ont he right to privacy, articulated under Article 21 of the Indian Constitution that protects the fundamental right to life and liberty. That is, it was argued that sexual relations figure prominently within an individual's personality and lie easily at the core of the 'private space'. The petitioner argued that "that the prohibition of certain private, consensual sexual relations (homosexual) provided by Section 377 IPC unreasonably abridges the right of privacy and dignity within the ambit of right to life and liberty under Article 21."

The opposing party, the Additional Solicitor General, proposed that:

"In our country, homosexuality is abhorrent and can be criminalised by imposing proportional limits on the citizens' right to privacy and equality. Learned ASG submits that right to privacy is not absolute and can be restricted for compelling state interest. Article 19(2) expressly permits imposition of restrictions in the interest of decency and morality. Social and sexual mores in foreign countries cannot justify de-criminalisation of homosexuality in India."

The court decision goes on to refer to the Indian jurisprudence on Privacy, emerging since the 1960s (from articles 19 (freedom of expression and freedom of movement) and 21); and covers the jurisprudence of other courts and international conventions. This was summarised in the opinion as "a private space in which man may become and remain himself." The decision goes on to conclude that

"In the Indian Constitution, the right to live with dignity and the right of privacy both are recognised as dimensions of Article 21. Section 377 IPC denies a person's dignity and criminalises his or her core identity solely on account of his or her sexuality and thus violates Article 21 of the Constitution. As it stands, Section 377 IPC denies a gay person a right to full personhood which is implicit in notion of life under Article 21 of the Constitution."

The court continues to say that

"it is not within the constitutional competence of the State to invade the privacy of citizens lives or regulate conduct to which the citizen alone is concerned solely on the basis of public morals. The criminalisation of private sexual relations between consenting adults absent any evidence of serious harm deems the provision's objective both arbitrary and unreasonable. The state interest “must be legitimate and relevant” for the legislation to be non-arbitrary and must be proportionate towards achieving the state interest. If the objective is irrational, unjust and unfair, necessarily classification will have to be held as unreasonable. The nature of the provision of Section 377 IPC and its purpose is to criminalise private conduct of consenting adults which causes no harm to anyone else. It has no other purpose than to criminalise conduct which fails to conform with the moral or religious views of a section of society. The discrimination severely affects the rights and interests of homosexuals and deeply impairs their dignity."

The case name is Nas Foundation vs. Government of NCT of Delhi, WP(C) No.7455/2001, Decided July 2, 2009 in the High Court of New Delhi.

Related:
PHR2006 - Republic of India
PHR2004 - The Republic of India
Supreme Court of India FOI Decision (.PDF)