Document Fragment View

Matching Fragments

G.S. SINGHVI, J.

1. Leave granted.

2. These appeals are directed against order dated 2.7.2009 by which the Division Bench of the Delhi High Court allowed the writ petition filed by NAZ Foundation – respondent No.1 herein, by way of Public Interest Litigation (PIL) challenging the constitutional validity of Section 377 of the Indian Penal Code, 1860 (IPC) in the following terms:

“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. By 'adult' we mean everyone who is 18 years of age and above. A person below 18 would be presumed not to be able to consent to a sexual act. This clarification will hold till, of course, Parliament chooses to amend the law to effectuate the recommendation of the Law Commission of India in its 172nd Report which we believe removes a great deal of confusion. Secondly, we clarify that our judgment will not result in the re-opening of criminal cases involving Section 377 IPC that have already attained finality.”

3. The Background facts:

(i) Respondent No.1 is a Non-Governmental Organisation (NGO) registered under the Societies Registration Act, 1860 which works in the field of HIV/AIDS intervention and prevention. Its work has focussed on targeting ‘men who have sex with men’ (MSM) or homosexuals or gays in consonance with the integrationist policy. Alleging that its efforts have been severely impaired by the discriminatory attitudes exhibited by State authorities towards sexual minorities, MSM, lesbians and transgender individuals and that unless self respect and dignity is restored to these sexual minorities by doing away with discriminatory laws such as Section 377 IPC it will not be possible to prevent HIV/AIDS, NAZ Foundation filed WP(C) No. 7455/2001 before the Delhi High Court impleading the Government of NCT of Delhi;
17.8 Section 377 is impermissibly vague, delegates policy making powers to the police and results in harassment and abuse of the rights of LGBT persons. The Petitioners rely on State of MP v. Baldeo Prasad, (1961) 1 SCR 970 at 989 which held that, ‘Where a statute empowers the specified authorities to take preventive action against the citizens it is essential that it should expressly make it a part of the duty of the said authorities to satisfy themselves about the existence of what the statute regards as conditions precedent to the exercise of the said authority. If the statute is silent in respect of one of such conditions precedent, it undoubtedly constitutes a serious infirmity which would inevitably take it out of the provisions of Article 19 (5).’ 17.9 Widespread abuse and harassment of LGBT persons u/s 377 has been incontrovertibly established. The appellants rely on paras 21, 22, 50, 74 and 94 of the judgment of the Division Bench of the Delhi High Court in Suresh Kumar Koushal v. Naz Foundation which records evidence of various instances of the use of Section 377 to harass members of the LGBT community. These were based on paras 33 and 35 of the Writ Petition filed by the Naz Foundation challenging the vires of Section 377. It was supported by various documents brought on record, such as Human Rights Watch Report, July 2002 titled, “Epidemic of Abuse: Police Harassment of HIV/AIDS Outreach Workers in India”; Affidavits giving instances of torture and sexual abuse; Jayalakshmi v. State, (2007) 4 MLJ 849 dealing with sexual abuse and torture of a eunuch by police; An Order of a Metropolitan Magistrate alleging an offence u/s 377 against two women even though there is an express requirement of penetration under the Explanation to Section