Supreme Court of India
Navtej Singh Johar vs Union Of India Ministry Of Law And ... on 6 September, 2018
Article 372 of the Constitution of India continues laws in force in the territory of India immediately before the commencement of the Constitution. That the Indian Penal Code is a law in force in the territory of India immediately before the commencement of this Constitution is beyond cavil. Under Article 372(2), the President may, by order, make such adaptations and modifications of an existing law as may be necessary or expedient to bring such law in accord with the provisions of the Constitution. The fact that the President has not made any adaptation or modification as mentioned in Article 372(2) does not take the matter very much further. The presumption of constitutionality of a statute is premised on the fact that Parliament understands the needs of the people, and that, as per the separation of powers doctrine, Parliament is aware of its limitations in enacting laws – it can only enact laws which do not fall within List II of Schedule VII of the Constitution of India, and cannot transgress the fundamental rights of the citizens and other constitutional provisions in doing so. Parliament is therefore deemed to be aware of the aforesaid constitutional limitations. Where, however, a pre-constitution law is made by either a foreign legislature or body, none of these parameters obtain. It is therefore clear that no such presumption attaches to a pre-constitutional statute like the Indian Penal Code.
16.2. RIGHT TO PRIVACY The right to privacy has now been recognised to be an intrinsic part of the right to life and personal liberty under Article 21.41 Sexual orientation is an innate part of the identity of LGBT persons. Sexual orientation of a person is an essential attribute of privacy. Its protection lies at the core of Fundamental Rights guaranteed by Articles 14, 15, and 21.42 The right to privacy is broad-based and pervasive under our Constitutional scheme, and encompasses decisional autonomy, to cover intimate/personal 41 K.S. Puttaswamy & Anr. v. Union of India & Ors., (2017) 10 SCC 1 42 K.S. Puttaswamy & Anr. v. Union of India & Ors., (2017) 10 SCC 1, at paragraphs 144, 145, 479 and 647 decisions and preserves the sanctity of the private sphere of an individual.43 The right to privacy is not simply the “right to be let alone”, and has travelled far beyond that initial concept. It now incorporates the ideas of spatial privacy, and decisional privacy or privacy of choice.44 It extends to the right to make fundamental personal choices, including those relating to intimate sexual conduct, without unwarranted State interference.
Section 377 affects the private sphere of the lives of LGBT persons. It takes 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 prohibits LGBT persons from expressing their sexual orientation and engaging in sexual conduct in private, a decision which inheres in the most intimate spaces of one’s existence.
43 K.S. Puttaswamy & Anr. v. Union of India & Ors., (2017) 10 SCC 1, at paragraph 248, 250, 371 and 403 44 K.S. Puttaswamy & Anr. v. Union of India & Ors., (2017) 10 SCC 1, at paragraphs 248, 249, 371 and 521 The Constitutional Court of South Africa in National Coalition for Gay and Lesbian Equality & Anr. v. Minister of Justice & Ors. (supra) noted as under:
“Privacy recognises that we all have a right to a sphere of private intimacy and autonomy which allows us to establish and nurture human relationships without interference from the outside community. The way in which we give expression to our sexuality is at the core of this area of private intimacy. If, in expressing our sexuality, we act consensually and without harming one another, invasion of that precinct will be a breach of our privacy.” Just like other fundamental rights, the right to privacy is not an absolute right and is subject to reasonable restrictions. Any restriction on the right to privacy must adhere to the requirements of legality, existence of a legitimate state interest, and proportionality.45 A subjective notion of public or societal morality which discriminates against LGBT persons, and subjects them to criminal sanction, simply on the basis of an innate characteristic runs counter to the concept of Constitutional morality, and cannot form the basis of a legitimate State interest.
45 K.S. Puttaswamy & Anr. v. Union of India & Ors., (2017) 10 SCC 1, at paragraphs 325, 638 and 645 The theme of inclusiveness permeates through Part III of the Constitution. Apart from the equality code of the Constitution comprised in Articles 14, 15(1), 16, and other provisions in the form of Article 17 (Abolition of Untouchability), Article 21A (Right to Education), Article 25 (Freedom of Conscience and Free Profession, Practice and Propagation of Religion), Article 26 (Freedom to Manage Religious Affairs), Article 29 (Protection of Interest of Minorities), Article 30 (Right of Minorities to Establish and Administer Educational Institutions) are aimed at creating an inclusive society where rights are guaranteed to all, regardless of their status as a minority.
RIGHT TO HEALTH The right to health, and access to healthcare are also crucial facets of the right to life guaranteed under Article 21 of the Constitution.46 LGBT persons being a sexual minority have been subjected to societal prejudice, discrimination and 46 Common Cause (A Registered Society) v. Union of India & Anr., (2018) 5 SCC 1, at paragraph 304; C.E.S.C. Limited & Ors. v. Subhash Chandra Bose & Ors., (1992) 1 SCC 441, at paragraph 32; Union of India v. Mool Chand Khairati Ram Trust, (2018) SCC OnLine SC 675, at paragraph 66; and, Centre for Public Interest Litigation v. Union of India & Ors., (2013) 16 SCC 279, at paragraph 25 violence on account of their sexual orientation. Since Section 377 criminalises “carnal intercourse against the order of nature” it compels LGBT persons to lead closeted lives. As a consequence, LGBT persons are seriously disadvantaged and prejudiced when it comes to access to health-care facilities. This results in serious health issues, including depression and suicidal tendencies amongst members of this community.47 LGBT persons, and more specifically the MSM, and transgender persons are at a higher risk of contracting HIV as they lack safe spaces to engage in safe-sex practices. They are inhibited from seeking medical help for testing, treatment and supportive care on account of the threat of being ‘exposed’ and the resultant prosecution.
18. SURESH KUMAR KOUSHAL OVERRULED The two-Judge bench of this Court in Suresh Kumar Koushal & Anr. v. Naz Foundation & Ors. (supra) over-ruled the decision of the Delhi High Court in Naz Foundation v.
Government of NCT of Delhi & Ors.55 which had declared Section 377 insofar as it criminalised consensual sexual acts of adults in private to be violative of Articles 14, 15 and 21 of the Constitution.
The grounds on which the two-judge bench of this Court over-ruled the judgment in Naz Foundation v. Government of NCT of Delhi & Ors. (supra) were that:
i. Section 377 does not criminalise particular people or identity or orientation. It merely identifies certain acts which if committed would constitute an offence. Such a prohibition regulates sexual conduct, regardless of gender identity and orientation.
Those who indulge in carnal intercourse in the ordinary course, and those who indulge in carnal intercourse against the order of nature, constitute different classes. Persons falling in the latter category cannot claim that Section 377 suffers from the vice of arbitrariness and irrational 55 (2009) 111 DRJ 1 (DB) classification. Section 377 merely defines a particular offence, and prescribes a punishment for the same.
ii. LGBT persons constitute a “miniscule fraction” of the country’s population, and there have been very few prosecutions under this Section. Hence, it could not have been made a sound basis for declaring Section 377 to be ultra-vires Articles 14, 15, and iii. It was held that merely because Section 377, IPC has been used to perpetrate harassment, blackmail and torture to persons belonging to the LGBT community, cannot be a ground for challenging the vires of the Section.
iv. After noting that Section 377 was intra vires, this Court observed that the legislature was free to repeal or amend Section 377.
19. The fallacy in the Judgment of Suresh Kumar Koushal & Anr. v. Naz Foundation & Ors. (supra) is that:
i. The offence of “carnal intercourse against the order of nature” has not been defined in Section
377. It is too wide, and open-ended, and would take within its sweep, and criminalise even sexual acts of consenting adults in private.
In this context, it would be instructive to refer to the decision of a Constitution Bench of this Court in A.K. Roy v. Union of India56 wherein it was held that:
“ 62. The requirement that crimes must be defined with appropriate definiteness is regarded as a fundamental concept in criminal law and must now be regarded as a pervading theme of our Constitution since the decision in Maneka Gandhi. The underlying principle is that every person is entitled to be informed as to what the State commands or forbids and that the life and liberty of a person cannot be put in peril on an ambiguity. However, even in the domain of criminal law, the processes of which can result in the taking away of life itself, no more than a reasonable degree of certainty has to be accepted as a fact. Neither the criminal law nor the Constitution requires the application of impossible standards and therefore, what is expected is that the language of the law must contain an adequate warning of the conduct which may fall within the proscribed area, when measured by common understanding….” (emphasis supplied) 56 (1982) 1 SCC 271 The Judgment does not advert to the distinction between consenting adults engaging in sexual intercourse, and sexual acts which are without the will, or consent of the other party. A distinction has to be made between consensual relationships of adults in private, whether they are heterosexual or homosexual in nature.
Furthermore, consensual relationships between adults cannot be classified along with offences of bestiality, sodomy and non-
Sexual orientation is immutable, since it is an innate feature of one’s identity, and cannot be changed at will. The choice of LGBT persons to enter into intimate sexual relations with persons of the same sex is an exercise of their personal choice, and an expression of their autonomy and self-determination.
Section 377 insofar as it criminalises
voluntary sexual relations between LGBT
persons of the same sex in private,
discriminates against them on the basis of their “sexual orientation” which is violative of their fundamental rights guaranteed by Articles 14, 19, and 21 of the Constitution.
ii. The mere fact that the LGBT persons constitute a “miniscule fraction” of the country’s population cannot be a ground to deprive them of their Fundamental Rights guaranteed by Part III of the Constitution. Even though the LGBT constitute a sexual minority, members of the LGBT community are citizens of this country who are equally entitled to the enforcement of their Fundamental Rights guaranteed by Articles 14, 15, 19, and 21.
Fundamental Rights are guaranteed to all citizens alike, irrespective of whether they are a numerical minority. Modern democracies are based on the twin principles of majority rule, and protection of fundamental rights guaranteed under Part III of the Constitution. Under the Constitutional scheme, while the majority is entitled to govern; the minorities like all other citizens are protected by the solemn guarantees of rights and freedoms under Part III.
The J.S. Verma Committee, in this regard, in paragraph 77 of its Report (supra) states that: “77. We need to remember that the founding fathers of our Constitution never thought that the Constitution is ‘mirror of perverse social discrimination’. On the contrary, it promised the mirror in which equality will be reflected brightly. Thus, all the sexual identities, including sexual minorities, including transgender communities are entitled to be totally protected. The Constitution enables change of beliefs, greater understanding and is also an equally guaranteed instrument to secure the rights of sexually despised minorities. ” (emphasis supplied) iii. Even though Section 377 is facially neutral, it has 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.
The criminalisation of “carnal intercourse against the order of nature” has the effect of criminalising the entire class of LGBT persons since any kind of sexual intercourse in the case of such persons would be considered to be against the “order of nature”, as per the existing interpretation.
iv. The conclusion in case of Suresh Kumar Koushal & Anr. v. Naz Foundation & Ors. (supra) to await legislative amendments to this provision may not be necessary. Once it is brought to the notice of the Court of any violation of the Fundamental Rights of a citizen, or a group of citizens the Court will not remain a mute spectator, and wait for a majoritarian government to bring about such a change.
Given the role of this Court as the sentinel on the qui vive, it is the Constitutional duty of this Court to review the provisions of the impugned Section, and read it down to the extent of its inconsistency with the Constitution. In the present case, reading down Section 377 is 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 is inconsistent with Part III of the Constitution.
20. History owes an apology to the members of this community and their families, for the delay in providing redressal for the ignominy and ostracism that they have suffered through the centuries. The members of this community were compelled to live a life full of fear of reprisal and persecution. This was on account of the ignorance of the majority to recognise that homosexuality is a completely natural condition, part of a range of human sexuality. The mis-application of this 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 deserve to live a life unshackled from the shadow of being ‘unapprehended felons’.
21. CONCLUSION i. In view of the aforesaid findings, it is declared that insofar as Section 377 criminalises consensual sexual acts of adults (i.e. persons above the age of 18 years who are competent to consent) in private, is violative of Articles 14, 15, 19, and 21 of the Constitution.
It is, however, clarified that such consent must be free consent, which is completely voluntary in nature, and devoid of any duress or coercion. ii. The declaration of the aforesaid reading down of Section 377 shall not, however, lead to the re- opening of any concluded prosecutions, but can certainly be relied upon in all pending matters whether they are at the trial, appellate, or revisional stages.
iii. The provisions of Section 377 will continue to
govern non-consensual sexual acts against
adults, all acts of carnal intercouse against minors, and acts of beastiality.
iv. The judgment in Suresh Kumar Koushal & Anr.
v. Naz Foundation & Ors.57 is hereby overruled for the reasons stated in paragraph 19.
Madras High Court
G.K.Mani vs New Generation Media Corporation ... on 15 March, 2019
In Tata Sons Limited v. Greenpeace International & Another, reported in 2011 SCC online Del 466, a learned Single Judge of the Delhi High Court had considered the scope of the power of the Court regarding grant of injunction in matters relating to libel. That was a case where the http://www.judis.nic.in plaintiff, namely Tata Sons Limited sought for injunction restraining Greenpeace International & Another, from putting on social media a online game titled “Turtle v. TATA”. Greenpeace International was carrying out a campaign against establishment of a Commercial Port namely, the Dhamra Port in Orissa on the ground that the construction of a Port would irretrievably damage the nesting grounds for Olive Ridley Sea Turtle in the area. In order to strengthen its campaign Greenpeace International launched a game called “Turtle v. TATA”, wherein TATA was depicted as a demon the game also used the trademark symbol 'T' of TATA Sons Limited and the demon was named “Ratty”, presumably after the then Chairman of the TATA group Mr.Ratan Tata. The complaint of the plaintiff in the said proceedings was that the Greenpeace International has launched the said game only with a view to defame Tata Sons Limited and its Chairman. In order to support the prayer of injunction, it was also claimed that the Damra Port Project has been cleared by all the agencies including the environmental agencies. It is seen from the report that the parties thereto had placed reliance on various judgments including the judgment in kartar Singh’s case, referred to supra, as well as the judgment in Kushwant vs. Menaka Gandhi, reported in AIR 2002 Del 58.
35. The learned Single Judge of the Delhi High Court had followed the http://www.judis.nic.in rule enunciated in Bonnard v. Perryman reported in 1891 (2) CH 269, which was again followed in Fraser v. Evans and others, reported in 1969 (1) QB 349, and concluded that interlocutory injunction cannot be granted in a libel action where the damages could be adequate relief. A Division Bench of this Court in R.Rajagopal @ R.R.Gopal @ Nakkheeran Gopal and others v. J.Jayalitha and another reported in 2006 (2) LW 377, had also followed the principles of law set out in Bonnard v. Perryman and Fraser v. Evans.
36. The sum and substance of the scope of the power of the Court to grant an order of injunction in matters relating to defamation have been set out by the Hon’ble Supreme Court in R.Rajagopal @ R.R.Gopal and another v. State of Tamil Nadu and Others reported in 1994 (6) SCC 632, the broad principles have been summarised as follows:
" (1) The right to privacy is implicit in the right to life and liberty guaranteed to the citizens of this country by Article
21. It is a “right to be let alone”. A citizen has a right to safeguard the privacy of his own, his family, marriage, procreation, motherhood, childbearing and education among other matters. None can publish anything concerning the above matters without his consent _ whether truthful or otherwise and whether laudatory or critical. If he does so, he would be violating the right to privacy of the person concerned http://www.judis.nic.in and would be liable in an action for damages. Position may, however, be different, if a person voluntarily thrusts himself into controversy or voluntarily invites or raises a controversy. (2) The rule aforesaid is subject to the exception, that any publication concerning the aforesaid aspects becomes unobjectionable if such publication is based upon public records including court records. This is for the reason that once a matter becomes a matter of public record, the right to privacy no longer subsists and it becomes a legitimate subject for comment by press and media among others. We are, however, of the opinion that in the interests of decency [Article 19(2)] an exception must be carved out to this rule, viz., a female who is the victim of a sexual assault, kidnap, abduction or a like offence should not further be subjected to the indignity of her name and the incident being publicised in press/media.
(3) There is yet another exception to the rule in (1) above _ indeed, this is not an exception but an independent rule. In the case of public officials, it is obvious, right to privacy, or for that matter, the remedy of action for damages is simply not available with respect to their acts and conduct relevant to the discharge of their official duties. This is so even where the publication is based upon facts and statements which are not true, unless the official establishes that the publication was made (by the defendant) with reckless disregard for truth. In such a case, it would be enough for the defendant ( member of the press or media) to prove that he acted after a reasonable verification of the facts; it is not necessary for him http://www.judis.nic.in to prove that what he has written is true. Of course, where the publication is proved to be false and actuated by malice or personal animosity, the defendant would have no defence and would be liable for damages. It is equally obvious that in matters not relevant to the discharge of his duties, the public official enjoys the same protection as any other citizen, as explained in (1) and (2) above. It needs no reiteration that judiciary, which is protected by the power to punish for contempt of court and Parliament and legislatures protected as their privileges are by Articles 105 and 104 respectively of the Constitution of India, represent exceptions to this rule. (4) So far as the Government, local authority and other organs and institutions exercising governmental power are concerned, they cannot maintain a suit for damages for defaming them.
(5) Rules 3 and 4 do not, however, mean that Official Secrets Act, 1923, or any similar enactment or provision having the force of law does not bind the press or media.
(6) There is no law empowering the State or its officials to prohibit, or to impose a prior restraint upon the press/media.
37. The law laid down in Bonnard v. Perryman, relating to interim injunctions in actions for liberal is as follows:
“The right of free speech is one which it is for public interest that individuals should possess and, until it is clear that an alleged libel is untrue, it is not clear that any right at all has been infringed, and the importance of leaving free speech unfettered is a strong reason in cases of libel for dealing most http://www.judis.nic.in cautiously and warily with the granting of interim injunctions..” Subsequently in Fraser v. Evans and others, Lord Denning MR stated the law as follows:
“The Court will not restrain the publication of an article, even though it is defamatory when the defendant says he intends to justify it or to make fair comment on a matter of public interest”.
“That has been established for many years ever since Bonnard v.
Perryman. The Reasons sometimes given that defences of justification and fair comment are for the jury which is the Constitutional Tribunal and not for a judge. For the better reason, it is important in the public interest that the truth should be out. There is no wrong done, if it is true or if it (alleged libel) is fair comment on a matter of public interest. The Court will not prejudice the issue by granting an injunction in advance of publication.” These principles laid down more than a century ago have been followed by the Division Bench of this Court in R.Rajagopal @ R.R.Gopal @ Nakkheeran Gopal and others v. J.Jayalalitha and another reported in 2006 (2) LW
38. While following the law laid down in Bonnard’s case, referred supra, the Division Bench had pointed out that even assuming that the http://www.judis.nic.in articles published by the appellants amount to character assassination of the respondents, there is no justification for granting a blanket injunction restraining the appellants from publishing any articles, in future. It would not be appropriate for us to examine the article at this stage on the touchstone of defamation, but what we do observe is that they are not of such a nature warranting a restraint order especially when the appellants are willing to face the consequences in a trial, in case the same are held to be defamatory and the plea of the appellants of truth is yet to be analysed by the Court.
The Division Bench went on to add “29….At times public figures have to ignore vulgar critisims and abuses hurled against them and they must restrain themselves from giving importance to the same by prosecuting the person responsible for the same.”
39. The Division Bench also hastened to add that a citizen has a right to safeguard the privacy of his own, his family, marriage, procreation, motherhood, child bearing and education among other matters and none can publish anything in reference to the above matters without his/her consent whether laudatory or critical. After observing so, the Division Bench had granted a limited injunction with a right to the respondents to respond to the queries of the appellants on the suggested articles and with a direction to the appellants who were the publishers to publish the response of the respondents also if the responses were received within the time stipulated. I had in fact followed the observations of the Division Bench made in R.Rajagopal @ R.R.Gopal @ Nakkheeran Gopal and others v. J.Jayalitha and another in Ms.Kanimozhi Karunanidhi v. P.Varadarajan and others. Taking note of the law laid down by the Hon’ble Supreme Court in Justice K.S.Puttaswamy and Ors v. Union of India and Ors., I had granted a limited injunction restraining the respondents therein from publishing any article regarding the private life of the applicant therein her family, her marriage, procreation, motherhood, child-bearing and education without her consent. It was also made clear that whenever the respondents proposed to publish any article relating to the private life of the applicant, claiming that it is in public interest, the respondents were directed to forward their queries or the full article to the applicant to her email ID and await for her response. If any response is received within 48 hours, the response shall also be published with the same prominence of the articles. If no response is received within the 48 hours, the respondents will be at liberty to go ahead and publish the article. It was also made clear that the restrictions imposed will not apply to any article relating to the functions of the applicant as a Member of the Parliament or as a Leader of the Political Party. Therefore, what is protected in the form of privacy is really the personal life of an individual be it a political leader or a spiritual leader or an ordinary citizen.
Delhi High Court
Deepti Kapur vs Kunal Julka on 30 June, 2020
Although in Puttaswamy (supra) the 9-Judge Constitution Bench of the Supreme Court has not dealt with the law and principles of evidence in the context of the right to privacy, the observations of the Supreme Court in that case that are relevant for purposes of the present discussion are the following :
On the right to privacy being a fundamental right :
"644. The right to privacy is a fundamental right. It is a right which protects the inner sphere of the individual from interference from both State and non-State actors and allows the individuals to make autonomous life choices."
On right to privacy not being an absolute right:
"325. Like other rights which form part of the fundamental freedoms protected by Part III, including the right to life and personal liberty under Article 21, privacy is not an absolute right. A law which encroaches upon privacy will have to withstand the touchstone of permissible restrictions on fundamental rights. In the context of Article 21 an invasion of privacy must be justified on the basis of a law which stipulates a procedure which is fair, just and reasonable. The law must also be valid with reference to the encroachment on life and personal liberty under Article 21. An invasion of life or personal liberty must meet the threefold requirement of (i) legality, which postulates the existence of law; (ii) need, defined in terms of a legitimate State aim; and (iii) proportionality which ensures a rational nexus between the objects and the means adopted to achieve them."