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Kenya Law / Blog / Case Summary: Supreme Court of India declares section 377 of the India Penal Code criminalizing homosexual acts as unconstitutional hence legalizing any consensual sexual relationship between two adults in private

Supreme Court of India declares section 377 of the India Penal Code criminalizing homosexual acts as unconstitutional hence legalizing any consensual sexual relationship between two adults in private

Navtej Singh Johar & Ors v Union of India & 2 Others

Writ Petition (Criminal) No. 76 of 2016

consolidated with

Writ Petition (Civil) No. 572 of 2016,

Writ Petition (Criminal) No. 88 of 2018 ,

Writ Petition (Criminal) No. 100 of 2018

Writ Petition (Criminal) No. 101 of 2018 &

Writ Petition (Criminal) No. 121 of 2018

Supreme Court of India

Criminal Original Jurisdiction

D Misra, CJI; A M Khanwilkar, R F Nariman, D Y Chandrachud, Indu Malhotra, JJ

September 6, 2018

Reported by Faith Wanjiku

Download the Decision

Constitutional Law-fundamental rights-rights toequality before the law,non-discrimination and protection of life and personal liberty –sexual orientation-consensual sex between adult same-sex couples in private-whether section 377 of the Indian Penal Code contravened article 14 on equality before the law, article 15 on non-discrimination and article 21 on protection of life and personal liberty of the IPC insofar as it criminalized consensual sex between adult same-sex couples within the confines of their homes or other private places-Constitution of India,1950, articles14, 15 and 21; India Penal Code, section 377

Constitutional Law-fundamental rights- right to life and personal liberty- sexual orientation-what principles underlay sexual orientation of adult same-sex couples as an element of the rights to personal liberty, dignity, privacy and equality?- Constitution of India, 1950, articles 14, 21

Words and phrases- definition of the word carnal- pertaining to the fleshly nature or to bodily appetites; sensual; sexual; pertaining to the flesh or to the body; not spiritual; hence worldly-New International Webster’s Comprehensive Dictionary of the English Language(Deluxe Encyclopedic Edition, 1996)

Brief Facts:

Writ petitions were filed before the Delhi High Court challenging the constitutional validity of section 377 of the India Penal Code, (IPC) insofar as it criminalized consensual sex between adult same-sex couples within the confines of their homes or other private places.A Division Bench of the Delhi High Court finally upheld the plea of the petitioners.

The High Court of Delhi declared that section 377 of the IPC, insofar it criminalised consensual sexual acts of adults (everyone who was 18 years of age and above) in private, was violative of articles 21, 14 and 15 of the Constitution of India. The impetus of that decision was what led to a three-Judge Bench order to refer the correctnessand re-consideration of the case of Suresh Kumar Koushal & Anr v Naz Foundation & Ors which had earlier held section 377 of the IPC constitutional to a larger Bench, the Supreme Court.

Issues:

i. Whether section 377 of the IPC contravened article 14 on equality before the law, article 15 on non-discrimination and article 21 on protection of life and personal liberty of the Constitution insofar as it criminalized consensual sex between adult same-sex couples within the confines of their homes or other private places.

ii. What principles underlay sexual orientation of adult same-sex couples as an element of the rights to personal liberty, dignity, privacy and equality?

iii. What was the correctness of the case of Suresh Kumar Koushal & Anr v Naz Foundation & Ors which had earlier held section 377 of the IPC constitutional?

Relevant Provisions of the Law

The Indian Penal Code, 1860 Act No. 45 of 1860

Section 377-Unnatural offences

Whoever voluntarily has carnal intercourse against the order of nature with any man, woman or animal shall be punished with imprisonment for life, or with imprisonment of either description for a term which may extend to ten years, and shall also be liable to fine.

Held

    1. From an analysis of comparative jurisprudence on sexual orientation from across the world, the following principles emerged:
      1. sexual orientation was an intrinsic element of liberty, dignity, privacy, individual autonomy and equality;
      2. intimacy between consenting adults of the same-sex was beyond the legitimate interests of the state;
      3. sodomy laws violated equality by targeting a segment of the population for their sexual orientation;
      4. such a law perpetrated stereotypes, lent authority of the state to societal stereotypes and had a chilling effect on the exercise of freedom;
      5. the right to love and to a partner, to find fulfillment in a same-sex relationship was essential to a society which believed in freedom under a constitutional order based on rights;
      6. sexual orientation implicated negative and positive obligations on the state. It not only required the state not to discriminate, but also called for the state to recognise rights which brought true fulfillment to same-sex relationships; and
      7. the constitutional principles which had led to decriminalization had to continuously engage in a rights discourse to ensure that same-sex relationships found true fulfillment in every facet of life. The law could not discriminate against same-sex relationships. It had to also take positive steps to achieve equal protection.
    2. LGBTor LGBTIQ: Lesbian, Gay, Bisexual, Transsexual, Intersex and Queer minorities (LGBT) individuals living under the threats of conformity grounded in cultural morality had been denied a basic human existence. They had been stereotyped and prejudiced. Constitutional morality required the Court not to turn a blind eye to their right to an equal participation of citizenship and an equal enjoyment of living. Constitutional morality required that the Court had to act as a counter majoritarian institution which discharged the responsibility of protecting constitutionally entrenched rights, regardless of what the majority believed. Constitutional morality had to turn into a habit of citizens. By respecting the dignity of LGBT individuals, the Court was only fulfilling the foundational promises of the Constitution.
    3. Sexual orientation was integral to the identity of the members of the LGBT communities. It was intrinsic to their dignity, inseparable from their autonomy and at the heart of their privacy. Section 377 of the IPC (section 377) was founded on moral notions which were an anathema to a constitutional order in which liberty had to trump over stereotypes and prevail over the mainstreaming of culture. The Constitution, above all, was an essay in the acceptance of diversity. It was founded on a vision of an inclusive society which accommodated plural ways of life.
    4. The impact of section 377 had travelled far beyond criminalising certain acts. The presence of the provision on the statute book had reinforced stereotypes about sexual orientation. It had lent the authority of the state to the suppression of identities. The fear of persecution had led to the closeting of same sex relationships. A penal provision had reinforced societal disdain. Sexual and gender based minorities could not live in fear, if the Constitution had to have meaning for them on even terms. In its quest for equality and the equal protection of the law, the Constitution guaranteed to them an equal citizenship. In de-criminalising such conduct, the values of the Constitution assured to the LGBT community the ability to lead a life of freedom from fear and to find fulfilment in intimate choices.
    5. The choice of a partner, the desire for personal intimacy and the yearning to find love and fulfilment in human relationships had a universal appeal, straddling age and time. In protecting consensual intimacies, the Constitution adopted a simple principle: the state had no business to intrude into those personal matters. Nor could societal notions of heteronormativity regulate constitutional liberties based on sexual orientation.
    6. The case had had a great deal to say on the dialogue about the transformative power of the Constitution. In addressing LGBT rights, the Constitution spoke – as well – to the rest of society. In recognising the rights of the LGBT community, the Constitution asserted itself as a text for governance which promoted true equality. It did so by questioning prevailing notions about the dominance of sexes and genders. In its transformational role, the Constitution directed the attention to resolving the polarities of sex and binarities of gender. The ability to survive as a free society would depend upon whether constitutional values could prevail over the impulses of the time.
    7. The ability of a society to acknowledge the injustices which it had perpetuated was a mark of its evolution. In the process of remedying wrongs under a regime of constitutional remedies, recrimination gave way to restitution, diatribes paved the way for dialogue and healing replaced the hate of a community. For those who had been oppressed, justice under a regime committed to human freedom, had the power to transform lives. In addressing the causes of oppression and injustice, society transformed itself. The Constitution had within it the ability to produce a social catharsis. The importance of the case lay in telling the Court that reverberations of how it addressed social conflict in the times would travel far beyond the narrow alleys in which they were explored.
    8. The essential ingredient required to constitute an offence under section 377 was carnal intercourse against the order of nature, which was punishable with life imprisonment, or imprisonment of either description up to ten years. Section 377 applied irrespective of gender, age, or consent. The expression carnal intercourse used in section 377 was distinct from sexual intercourse which appeared in sections 375 and 497 of the IPC. The phrase carnal intercourse against the order of nature was not defined by section 377, or in the IPC. The courts had earlier interpreted the term carnal to refer to acts which fell outside penile-vaginal intercourse, and were not for the purposes of procreation.
    9. Whilst a great deal of scientific research had examined possible genetic, hormonal, developmental, psychological, social and cultural influences on sexual orientation, no findings had conclusively linked sexual orientation to any one particular factor or factors. It was believed that one’s sexuality was the result of a complex interplay between nature and nurture. Sexual orientation was an innate attribute of one’s identity, and could not be altered. Sexual orientation was not a matter of choice. It manifested in early adolescence. Homosexuality was a natural variant of human sexuality.
    10. Heterosexual and homosexual behaviors were both normal aspects of human sexuality. Both had been documented in many different human cultures and historical eras, and in a wide variety of animal species. There was no consensus among scientists about the exact reasons why an individual developed a heterosexual, bisexual, or homosexual orientation. According to current scientific and professional understanding, however, the core feelings and attractions that formed the basis for adult sexual orientation typically emerged between middle childhood and early adolescence. Those patterns of sexual attraction generally arose without any prior sexual experience. Most or many gay men and lesbians experienced little or no choice about their sexual orientation.
    11. In general, homosexuality as a sexual orientation referred to an enduring pattern or disposition to experience sexual, affectional, or romantic attractions primarily to people of the same sex. It also referred to an individual’s sense of personal and social identity based on those attractions, behaviours, expressing them, and membership in a community of others who shared them. It was a condition in which one was attracted and drawn to his/her own gender, which was evidenced by the erotic and emotional involvement with members of his/her own sex.
    12. The World Health Organization removed homosexuality from the list of diseases in the International Classification of Diseases in the publication of ICD-10 in 1992. In India, the Indian Psychiatric Society had also opined that sexual orientation was not a psychiatric disorder. It was noted that there was no scientific evidence that sexual orientation could be altered by any treatment and that any such attempts could in fact lead to low self-esteem and stigmatization of the person.
    13. Section 377 operated in a vastly different manner for two classes of persons based on their sexual orientation i.e. the LGBT persons and heterosexual persons. Section 377 penalised all forms of non-penile-vaginal intercourse. In effect, voluntary consensual relationships between LGBT persons were criminalised in totality. It was contended that section 377 discriminated against adults of the same gender, from having a consensual sexual relationship in private, by treating it as a penal offence, and hence was violative of article 14 of the Constitution on equality before the law (article 14). The twin-test of classification under article 14 provided that:
      1. there should be a reasonable classification based on intelligible differentia; and,
      2. the classification should have a rational nexus with the objective sought to be achieved.
        The Court had before granted equal protection of laws to transgender persons. There was therefore no justification to deny the same to LGBT persons.
    14. A person’s sexual orientation was intrinsic to their being. It was connected with their individuality, and identity. A classification which discriminated between persons based on their innate nature, would be violative of their fundamental rights, and could not withstand the test of constitutional morality. The import and effect of section 377 was that while a consensual heterosexual relationship was permissible, a consensual relationship between LGBT persons was considered to be carnal, and against the order of nature.
    15. Section 377 created an artificial dichotomy. The natural or innate sexual orientation of a person could not be a ground for discrimination. Where legislation discriminated on the basis of an intrinsic and core trait of an individual, it could not form a reasonable classification based on an intelligible differentia. In contemporary civilised jurisprudence, with states increasingly recognising the status of same-sex relationships, it would be retrograde to describe such relationships as being perverse, deviant, or unnatural. The proscription of a consensual sexual relationship under section 377 was not founded on any known or rational criteria. Sexual expression and intimacy of a consensual nature, between adults in private, could not be treated as carnal intercourse against the order of nature.
    16. Emphasising on the second part of article 14 which enjoined the state to provide equal protection of laws to all persons, the Court earlier elucidated on the doctrine of manifest arbitrariness as a facet of article 14. Apart from the conventional twin-tests of classification discussed in the preceding paragraphs, a legislation, or part thereof, could also be struck down under article 14 on the ground that it was manifestly arbitrary. Manifest arbitrariness, therefore, had to be something done by the legislature capriciously, irrationally and/or without adequate determining principle. Also, when something was done which was excessive and disproportionate, such legislation would be manifestly arbitrary.
    17. Section 377 insofar as it criminalised consensual sexual acts between adults in private, was not based on any sound or rational principle, since the basis of criminalisation was the sexual orientation of a person, over which one had little or no choice. Further, the phrase carnal intercourse against the order of nature in section 377 as a determining principle in a penal provision was too open-ended, giving way to the scope for misuse against members of the LGBT community. Thus, apart from not satisfying the twin-test under article 14, section 377 was also manifestly arbitrary, and hence violative of article 14 of the Constitution.
    18. The term sex, as it occurred in article 15 on non-discrimination (article 15) had been given an expansive interpretation by the Court to include sexual identity. Both gender and biological attributes constituted distinct components of sex. The biological characteristics, of course, included genitals, chromosomes and secondary sexual features, but gender attributes included one’s self-image, the deep psychological or emotional sense of sexual identity and character. The discrimination on the ground of sex under articles 15 and 16 therefore included discrimination on the ground of gender identity. The expression sex used in articles 15 and 16 was not just limited to biological sex of male and female, but intended to include people who considered themselves neither male nor female. The prohibition against discrimination under article 15 on the ground of sex should therefore encompass instances where such discrimination took place on the basis of one’s sexual orientation.
    19. Discrimination on the basis of the immutable status tended to deny one an autonomous life. Its result was that further choices were constrained not mainly by one’s own choices, but by the choices of others. Because those choices of others were based on the immutable status, people’s own choices could make no difference to them. And discrimination on the ground of fundamental choices could be wrongful by the same token. To lead an autonomous life one needed an adequate range of valuable options throughout that life. There were some particular valuable options that each one should have irrespective of their other choices. Where a particular choice was a choice between valuable options which ought to be available to people whatever else they could choose, it was a fundamental choice.
    20. Where there was discrimination against people based on their fundamental choices it tended to skew those choices by making one or more of the valuable options from which they had to choose more painful or burdensome than others. Race, caste, sex, and place of birth were aspects over which a person had no control, ergo they were immutable. On the other hand, religion was a fundamental choice of a person. Discrimination based on any of those grounds would undermine an individual’s personal autonomy. The LGBT community was a sexual minority which had suffered from unjustified and unwarranted hostile discrimination, and was equally entitled to the protection afforded by article 15.
    21. Article 21 on protection of life and personal liberty (article 21) provided that no person would be deprived of his life or personal liberty except according to the procedure established by law. Such procedure established by law had to be fair, just and reasonable. The right to life and liberty afforded protection to every citizen or non-citizen, irrespective of their identity or orientation, without discrimination.
    22. Article 21 was the most precious human right and formed the ark of all other rights. The right to life could not be restricted to a mere animal existence, and provided for much more than only physical survival. The right to life included the right to live with human dignity and all that went along with it, namely the bare necessaries of life such as adequate nutrition, clothing and shelter and facilities for reading, writing and expressing oneself in diverse forms, freely moving about and mixing and commingling with fellow human beings. It had to in any view of the matter include the right to the basic necessities of life and also the right to carry on such functions and activities as constituted the bare minimum expression of the human-self. Every act which offended against or impaired human dignity would constitute deprivation pro tanto of the right to live and it would have to be in accordance with reasonable, fair and just procedure established by law which stood the test of other fundamental rights.
    23. Although dignity was an amorphous concept which was incapable of being defined, it was a core intrinsic value of every human being. Dignity was considered essential for a meaningful existence. Each person’s self-defined sexual orientation and gender identity was integral to their personality and was one of the most basic aspects of self-determination, dignity and freedom.
    24. Sexual orientation was innate to a human being. It was an important attribute of one’s personality and identity. Homosexuality and bisexuality were natural variants of human sexuality. LGBT persons had little or no choice over their sexual orientation. LGBT persons, like other heterosexual persons, were entitled to their privacy, and the right to lead a dignified existence, without fear of persecution. They were entitled to complete autonomy over the most intimate decisions relating to their personal life, including the choice of their partners. Such choices had to be protected under article 21. The right to life and liberty would encompass the right to sexual autonomy, and freedom of expression.
    25. While recognising the unique worth of each person, the Constitution did not presuppose that a holder of rights was an isolated, lonely and abstract figure possessing a disembodied and socially disconnected self. It acknowledged that people lived in their bodies, their communities, their cultures, their places and their times. The expression of sexuality required a partner, real or imagined. It was not for the state to choose or arrange the choice of partner, but for the partners to choose themselves. Section 377 insofar as it curtailed the personal liberty of LGBT persons to engage in voluntary consensual sexual relationships with a partner of their choice, in a safe and dignified environment, was violative of article 21. It inhibited them from entering and nurturing enduring relationships. As a result, LGBT individuals were forced to either lead a life of solitary existence without a companion, or lead a closeted life as unapprehended felons.
    26. The social ostracism against LGBT persons prevented them from partaking in all activities as full citizens, and in turn impeded them from realising their fullest potential as human beings. On the issue of criminalisation of homosexuality, only the most wilful blindness could obscure the fact that sexual intimacy was a sensitive, key relationship of human existence, central to family life, community welfare, and the development of human personality.
    27. It sufficed to acknowledge that adults could choose to enter upon the relationship in the confines of their homes and their own private lives and still retain their dignity as free persons. When sexuality found overt expression in intimate conduct with another person, the conduct could be but one element in a personal bond that was more enduring. The liberty protected by the Constitution allowed homosexual persons the right to make the choice. Thus, section 377 prevented LGBT persons from leading a dignified life as guaranteed by article 21.
    28. The right to privacy had been recognised to be an intrinsic part of the right to life and personal liberty under article 21. Sexual orientation was an innate part of the identity of LGBT persons. Sexual orientation of a person was an essential attribute of privacy. Its protection lay at the core of fundamental rights guaranteed by articles 14, 15, and 21. The right to privacy was broad-based and pervasive under the Constitutional scheme, and encompassed decisional autonomy, to cover intimate/personal decisions and preserved the sanctity of the private sphere of an individual.
    29. The right to privacy was not simply the right to be let alone, and had travelled far beyond that initial concept. It now incorporated the ideas of spatial privacy, and decisional privacy or privacy of choice. It extended to the right to make fundamental personal choices, including those relating to intimate sexual conduct, without unwarranted state interference. Section 377 affected the private sphere of the lives of LGBT persons. It took away the decisional autonomy of LGBT persons to make choices consistent with their sexual orientation, which would further a dignified existence and a meaningful life as a full person. Section 377 prohibited LGBT persons from expressing their sexual orientation and engaging in sexual conduct in private, a decision which inhered in the most intimate spaces of one’s existence.
    30. Privacy recognised that everyone had a right to a sphere of private intimacy and autonomy which allowed them to establish and nurture human relationships without interference from the outside community. The way in which expression was given to sexuality was at the core of the area of private intimacy. If, in expressing sexuality, everyone acted consensually and without harming one another, invasion of that precinct would be a breach of their privacy. Just like other fundamental rights, the right to privacy was not an absolute right and was subject to reasonable restrictions. Any restriction on the right to privacy had to adhere to the requirements of legality, existence of a legitimate state interest, and proportionality.
    31. The right to health and access to healthcare were also crucial facets of the right to life guaranteed under article 21 of the Constitution. LGBT persons being a sexual minority had been subjected to societal prejudice, discrimination and violence on account of their sexual orientation. Since section 377 criminalised carnal intercourse against the order of nature it compelled LGBT persons to lead closeted lives. As a consequence, LGBT persons were seriously disadvantaged and prejudiced when it came to access to health-care facilities. That resulted in serious health issues, including depression and suicidal tendencies amongst members of the community.
    32. LGBT persons, and more specifically the men who have sex with men (MSM), and transgender persons were at a higher risk of contracting HIV as they lacked safe spaces to engage in safe-sex practices. They were inhibited from seeking medical help for testing, treatment and supportive care on account of the threat of being exposed and the resultant prosecution. Higher rates of prevalence of HIV-AIDS in MSM, who were in turn married to other people of the opposite sex, coupled with the difficulty in detection and treatment, made them highly susceptible to contraction and further transmission of the virus.
    33. It was pertinent to mention that in India the Mental Healthcare Act, 2017 came into force on July 7, 2018. Sections 18(1) and (2) read with 21(1)(a) of the Mental Healthcare Act, 2017 provided for the right to access mental healthcare and equal treatment of people with physical and mental illnesses without discrimination, inter alia, on the basis of sexual orientation. That gave rise to a paradoxical situation since section 377 criminalised LGBT persons, which inhibited them from accessing health-care facilities, while the Mental Healthcare Act, 2017 provided a right to access mental healthcare without discrimination, even on the ground of sexual orientation.
    34. Article 19(1) (a) guaranteed freedom of expression to all citizens. However, reasonable restrictions could be imposed on the exercise of the right on the grounds specified in article 19(2). LGBT persons expressed their sexual orientation in myriad ways. One such way was engagement in intimate sexual acts like those proscribed under section 377. Owing to the fear of harassment from law enforcement agencies and prosecution, LGBT persons tended to stay in the closet. They were forced not to disclose a central aspect of their personal identity i.e. their sexual orientation, both in their personal and professional spheres to avoid persecution in society and the opprobrium attached to homosexuality. Unlike heterosexual persons, they were inhibited from openly forming and nurturing fulfilling relationships, thereby restricting rights of full personhood and a dignified existence. It also had an impact on their mental well-being.
    35. Gender identity was an important aspect of personal identity and was inherent to a person. It was held that transgender persons had the right to express their self-identified gender by way of speech, mannerism, behaviour, presentation and clothing, etc. The Court also noted that like gender identity, sexual orientation was integral to one’s personality, and was a basic aspect of self-determination, dignity and freedom.
    36. Even though the constitutional freedom of speech and expression was not absolute and could be subjected to reasonable restrictions on grounds such as decency and morality among others, stress had to be laid on the need to tolerate unpopular views in the sociocultural space. The framers of the Constitution recognised the importance of safeguarding the right since the free flow of opinions and ideas was essential to sustain the collective life of the citizenry. While an informed citizenry was a precondition for meaningful governance in the political sense, a culture of open dialogue when it came to societal attitudes had to be promoted.
    37. Notions of social morality were inherently subjective and the criminal law could not be used as a means to unduly interfere with the domain of personal autonomy. Morality and criminality were not coextensive. Therefore, section 377 could not be justified as a reasonable restriction under article 19(2) on the basis of public or societal morality, since it was inherently subjective.
    38. The fallacy in Suresh Kumar was that:
      a) The offence of carnal intercourse against the order of nature had not been defined in section 377. It was too wide, and open-ended, and would take within its sweep, and criminalise even sexual acts of consenting adults in private. The requirement that crimes had to be defined with appropriate definiteness was regarded as a fundamental concept in criminal law and had to be regarded as a pervading theme of the Constitution since the decision in Maneka Gandhi. The underlying principle was that every person was entitled to be informed as to what the state commanded or forbade and that the life and liberty of a person could not be put in peril on an ambiguity.
      b) The mere fact that the LGBT persons constituted a miniscule fraction of the country’s population could not be a ground to deprive them of their fundamental rights guaranteed by Part III of the Constitution. Even though the LGBT constituted a sexual minority, members of the LGBT community were citizens of the country who were equally entitled to the enforcement of their fundamental rights guaranteed by articles 14, 15, 19, and 21.
      c) Even though section 377 was facially neutral, it had been misused by subjecting members of the LGBT community to hostile discrimination, making them vulnerable and living in fear of the ever-present threat of prosecution on account of their sexual orientation. There was need to remember that the founding fathers of the Constitution never thought that the Constitution was mirror of perverse social discrimination. On the contrary, it promised the mirror in which equality would be reflected brightly. Thus, all the sexual identities, including sexual minorities, including transgender communities were entitled to be totally protected. The Constitution enabled change of beliefs, greater understanding and was also an equally guaranteed instrument to secure the rights of sexually despised minorities.
      d) The conclusion in Suresh Kumar to await legislative amendments to the provision would not be necessary. Once it was brought to the notice of the Court of any violation of the fundamental rights of a citizen, or a group of citizens the Court would not remain a mute spectator, and wait for a majoritarian government to bring about such a change. Given the role of the Court as the sentinel on the qui vive, it was the Constitutional duty of the Court to review the provisions of the impugned section, and read it down to the extent of its inconsistency with the Constitution.
    39. In the present case, reading down section 377 was necessary to exclude consensual sexual relationships between adults, whether of the same sex or otherwise, in private, so as to remove the vagueness of the provision to the extent it was inconsistent with Part III of the Constitution.
    40. History owed an apology to the members of the LGBT community and their families, for the delay in providing redressal for the ignominy and ostracism that they had suffered through the centuries. The members of the community were compelled to live a life full of fear of reprisal and persecution. That was on account of the ignorance of the majority to recognise that homosexuality was a completely natural condition, part of a range of human sexuality. The mis-application of the provision denied them the fundamental right to equality guaranteed by article 14. It infringed the fundamental right to non-discrimination under article 15, and the fundamental right to live a life of dignity and privacy guaranteed by article 21. The LGBT persons deserved to live a life unshackled from the shadow of being unapprehended felons.
    41. The Union of India would take all measures to ensure that the judgment was given wide publicity through the public media, which included television, radio, print and online media at regular intervals, and initiate programs to reduce and finally eliminate the stigma associated with such persons. Above all, all government officials, including and in particular police officials, and other officers of the Union of India and the states, would be given periodic sensitization and awareness training of the plight of such persons in the light of the observations contained in the judgment.

Writ Petitions allowed.

Orders

  1. It was declared that insofar as section 377 criminalised consensual sexual acts of adults (i.e. persons above the age of 18 years who were competent to consent) in private, was violative of articles 14, 15, 19, and 21 of the Constitution.
  2. It was, however, clarified that such consent had to be free consent, which was completely voluntary in nature, and devoid of any duress or coercion.
  3. The declaration of the aforesaid reading down of section 377 would not, however, lead to the re-opening of any concluded prosecutions, but could certainly be relied upon in all pending matters whether they were at the trial, appellate, or revisional stages.
  4. The provisions of section 377 would continue to govern non-consensual sexual acts against adults, all acts of carnal intercouse against minors, and acts of beastiality.
  5. The judgment in Suresh Kumar Koushal & Anr. v Naz Foundation & Ors. was thereby overruled.

Relevance to the Kenyan Situation

The Constitution of Kenya, 2010 provides for the national values and principles of governance in article 10 (2) (b) to include human dignity, non-discrimination and equality.

Article 27 provides for equality and freedom from discrimination and that every person is equal before the law and has the right to equal protection and equal benefit of the law. Sub-article 4 provides further that the state shall not discriminate directly or indirectly against any person on any ground, including sex. Article 28 provides for human dignity and that every person has inherent dignity and the right to have that dignity respected and protected.

The Penal Code Cap 63 Laws of Kenya providesin section 162 that any person who has carnal knowledge of any person against the order of nature; or permits a male person to have carnal knowledge of him or her against the order of nature, is guilty of a felony and is liable to imprisonment for fourteen years.

Section 165 provides that any male person who, whether in public or private, commits any act of gross indecency with another male person, or procures another male person to commit any act of gross indecency with him, or attempts to procure the commission of any such act by any male person with himself or with another male person, whether in public or private, is guilty of a felony and is liable to imprisonment for five years.

Article 1 of the Universal Declaration of Human Rights, 1948 provides that all human beings are born free and equal in dignity and rights. Article 2 provides that everyone is entitled to all the rights and freedoms set forth in this Declaration, without distinction of any kind which includes sex. Article 7 provides that all persons are equal before the law and are entitled without any discrimination to equal protection of the law.

Kenyan law as can be seen above prohibits sex between adults of the same sex.

There has been case law in Kenya pertaining to issues to do with same sex adult couples. In Eric Gitari v Non- Governmental Organisations Co-ordination Board & 4 others [2015] eKLR, the petitioner sought to register an NGO which had at its core the objective of protection of the human rights of those who belong to the lesbian, gay, bisexual, transgender, intersex and queer (LGBTIQ) community. His application was made to the Non-Governmental Organizations’ Co-ordination which declined it contending that the Penal Code criminalized gay and lesbian liaisons as they went against the order of nature.

The Court however held that the Constitution of Kenya, 2010 in article 36 granted every person the right to form an association of any kind and that an application to form an association could only be refused on reasonable grounds. It went on further to state that the fact that the State did not set out to prosecute people who confessed to be lesbians and homosexuals in the country was a clear manifestation that such sexual orientation was not necessarily criminalized. More importantly, the Penal Code did not criminalize the right of association of people based on their sexual orientation, and did not contain any provision that limited the freedom of association of persons based on their sexual orientation.

By refusing to register the proposed NGO because it objected to the name chosen for it, or because it considered that the group whose interests the proposed NGO sought to advocate was not morally acceptable in Kenyan society, then the Board had arrogated to itself, contrary to the Constitution, the power to determine which person or persons were worthy of constitutional protection, and whose rights were guaranteed under the Constitution.

In Eric Gitari v Attorney General & another [2016] eKLR, the petitioner brought a petition before the High Court seeking inter-alia a declaration of sections 162 and 165 of the Penal Code, Cap 63 to be unconstitutional, and accordingly void and invalid to the extent that they purport to criminalise private consensual sexual conduct between adult persons of the same sex, as mandated by articles 2 (4), and 23 (3) (d) of the Constitution.

The Court held that the matter affected more than the Petitioner. The entire LGBTIQ community would be affected by the decision and considering the discussion on the status of the members of the LGBTIQ community in the Republic, was no small exploit. Therefore, the matters raised in the Petition were weighty and had important consequences. It added that the issues raised substantial questions of law under article 165 (3) (d) of the Constitution that deserved the constitution of a bench of Judges by the Chief Justice for hearing and determination.

The bench is yet to be constituted so that it can be decided whether the two sections of the Penal Code, Cap 63 Laws of Kenya are unconstitutional.

Matters of the LGBTIQ are sensitive emerging issues currently globally and various international jurisdictions are decriminalizing homosexuality with India being the latest. The case will therefore serve as an important precedent should Kenya decide to also decriminalize homosexuality or when there are pending matters to be determined in courts on the rights of the LGBTIQ community.

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