ISSUE the final order of the High Court; while

ISSUE 1.
Whether or not the present Special Leave
Petition filed before this Hon’ble Supreme Court maintainable?

It
is humbly submitted that the Special Leave Petition against the judgment of
Hon’ble High Court is maintainable under Article 136 of the Constitution of
India. Article 136 empowers the Supreme Court to grant in discretion Special
leave to Appeal from any judgement, decree, determination, sentence or order in
any cause or matter passed or made by any court or tribunal in the territory of
India.1 It
is humbly submitted that powers under Article 136 can be exercised against any
kind of judgement or order which is causing injustice to any party, and to
serve the need, the power under Article 136 is unfettered.2

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Under
Article 132 to 134 appeal lies against the final order of the High Court; while
under Article 136, the Supreme Court can grant Special Leave for appeal from
“any court or tribunal”, viz., from any subordinate court below the High Court,
even without following the usual procedure of filing appeal in the high court
or even where the law applicable to the dispute does not make provisions for
such an appeal. Under Article 132 to 134 an appeal can lie in the Supreme Court
only against any judgement, decree, determination, sentence or order of any
court or tribunal; but under Article 136 an appeal may lie against “any case or
matter”. 3  

 

1.1. LOCUS STANDI OF THE
PETITIONER.

It
is the humble submission of the petitioner that the petitioner has the locus
standi to file petition under Article 136 of the Indian Constitution.

The
Supreme Court has discretionary power under Article 136 of the Indian
Constitution to admit an appeal. The power of the Supreme Court under Article
136 of the Indian Constitution is not fettered with any of the limitations contained
in Article 132 to 135. Under Article 132 to 135 appeal can entertained by the
Supreme Court only against the ‘final order’, but under Article 136, the word
‘order’ is not qualified by the adjective ‘final’ and hence the court can grant
Special Leave to Appeal even from interlocutory order. It is pertinent to note
that the scope of Article 133 providing appeals to the SC in civil matters is
limited whereas Article 136 is very broad-based & confers discretion on the
court to hear “in any cause or matter”.4

 

1.2  INVOCATION OF ARTICLE 136- WHEN A
QUESTION OF LAW OF GENERAL PUBLIC IMPORTANCE ARISES.

A duty is enjoined upon the SC to exercise
its power by setting right the illegality in the judgments is well-settled that
illegality must not be allowed to be perpetrated and failure by the SC to
interfere with the same would amount to allowing the illegality to be
perpetuated­­­­­­­. It has been held in plethora of cases that when the
question of law of general public importance arises, the jurisdiction of SC can
be invoked by filing special leave petition. In the present case, the issue
involves matter of

a.     
General Public
Importance, and

b.     
Substantial question of
law.

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

ISSUE 2. Whether or not Section
377 of the Indian Penal Code Constitutionally valid?

The
Counsel for the Petitioner humbly submits before this Hon’ble Apex Court that
Section 377 of the Indian Penal Code is unconstitutional, for the simple reason
that this Section is in violation of the provisions of the Article 13, 14, 15,
19 and 21 of the Indian Constitution. Hence, it shall be declared as
unconstitutional by this Hon’ble Court.

Indian
Penal Code was drafted by Lord Macaulay and introduced in 1861 in British
India. Section 377 IPC is contained in Chapter XVI of the IPC titled
“Of Offences Affecting the Human Body”. Within this Chapter Section 377 IPC is
categorised under the sub-chapter titled “Of Unnatural Offences” and reads as
follows:

Section
377 of the Indian Penal Code- 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.

Explanation.—Penetration
is sufficient to constitute the carnal intercourse necessary to the offence
described in this section.

Section 377 of the Indian Penal Code, introduced during British rule of India, criminalizes “carnal intercourse against the order of
nature”. This phrase was interpreted to mean all forms of sexual activity
other than heterosexual penile-vaginal intercourse. It
is important to note that this law was formulated nearly 150 years ago, in
1860, during the British rule and importantly the same law was abolished in
England in 1967 by the Sexual Offenders Act, 1967.

There
is no moral ground on which to support the tradition of marriage as an
institution, heterosexual in nature. For example: Sati Pratha once existed as a
part of our Culture but is now criminalised. Similarly, is the case with the
Dowry System, Child Marriage and Slavery. This shows that as the time changed
the mentality of the people also changed which brought about an important
social change in the society. And today is the right time to de-criminalise the
impugned section in question.                                                                                                                                                                                                                  

The argument that homosexual marriages are the
outcome of today’s complex individualized postmodern industrial utilitarian
society is also not valid as the instances of homosexuality can be seen even in
modern medieval and ancient India. And hence, it cannot be said to be the
development of the postmodern society. The homosexuality is not a new
phenomenon. Instances of homosexuality are available in Hindu Mythology.5
The literature drawn from Hindu, Buddhist, Muslim, and modern fiction also
testifies the presence of same-sex love in various forms. Ancient texts such as
the Manu Smriti, Arthashastra, Kamasutra, Upanishads and Puranas refer to
homosexuality.6 Also there are reports
that same-sex activities are common among sannyasins, who cannot marry. Thus
instances of homosexuality are available in historical and mythological texts over
and India is not an exception to this.

The
Cultural residues of homosexuality can be seen even today in a small village
Angaar in Gujarat where amongst the Kutchi community a ritualistic transgender
marriage is performed during the time of Holi festival. This wedding which is
being celebrated every year, for the past 150 years is unusual because Ishaak,
the bridegroom and Ishakali the bride are both men.7

Respondents
may contend that Section 377 IPC is based upon traditional Judeo-Christian
moral and ethical standards, which conceive of sex in purely functional terms,
i.e., for the purpose of procreation only. Any non-procreative sexual activity
is thus viewed as being “against the order of nature”. The submission on behalf
of the petitioner is that the legislation criminalising consensual oral and
anal sex is outdated and has no place in modern society. In fact, studies of
Section 377 IPC jurisprudence reveal that lately it has generally been employed
in cases of child sexual assault and abuse. By criminalising private,
consensual same-sex conduct, Section 377 IPC serves as the weapon for police
abuse; detaining and questioning, extortion, harassment, forced sex, payment of
hush money; and perpetuates negative and discriminatory beliefs towards
same-sex relations and sexuality minorities; which consequently drive the activities
of gay men and MSM, as well as sexuality minorities underground thereby
crippling HIV/AIDS prevention efforts. Section 377 IPC thus creates a class of
vulnerable people that is continually victimised and directly affected by the
provision. It has been submitted that the fields of psychiatry and psychology
no longer treat homosexuality as a disease and regard sexual orientation to be
a deeply held, core part of the identities of individuals.

2.1 Section 377-
Violative of Article 21 of the Indian Constitution, 1950.

It
is averred that no aspect of one’s life may be said to be more private or
intimate than that of sexual relations, and since private, consensual, sexual
relations or sexual preferences figure prominently within an individual’s
personality and lie easily at the core of the “private space”, they are an
inalienable component of the right of life. Based on this line of reasoning, a
case has been made to the effect 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. Also based on the fundamental
right to life under Article 21 it is further submitted that Section 377 IPC has
a damaging impact upon the lives of homosexuals inasmuch as it not only
perpetuates social stigma and police/public abuse but also drives homosexual
activity underground thereby jeopardizing HIV/AIDS prevention efforts and,
thus, rendering gay men and MSM increasingly vulnerable to contracting HIV/AIDS.8 

The
Supreme Court in the case of Kharak Singh v.
State of Uttar Pradesh9
held that right to life is most fundamental of all. The word life in the
article 21 does not confine itself mere animal existence, but the word life
includes wider meaning than mere an animal existence in the society. The
inhabitation against its deprivation extended to all those limbs and faculties
by life is enjoyed. The provision also equally prohibits the mutilation of the
body by amputating off any part of the body, or any other organ through which
the soul communicates with outer world. And sexual orientation not being outer
part of the body but if a person deprived of being having sexual orientation
this also amount to mutilation of the body.

Moreover,
Article 21 of the Indian Constitution also violates the Right to Privacy which
is impliedly embodied in the Indian Constitution. The privacy is that “area of a man’s life which in any given
circumstances a reasonable man with an understanding of the legitimate needs of
the community would think it wrong to invade”
Although Indian constitution like America does not guarantee right to
privacy explicitly, yet we may say that right to privacy is implicit in Article
21 of the Constitution. A question arose for the first time in Kharak Singh v. State of U.P.10
Whether right to privacy is included in the right to personal liberty. Justice
Subba Rao, speaking for minority, held that right to privacy though not
expressly declared in our constitution, is an essential ingredient of the
personal liberty.
In the case of R. Rajagopalan v.
State of Tamil Nadu,11
the Supreme Court held that it is right to be let alone and a citizen has the
right to safeguard the privacy of his own, his family, marriage, protection,
motherhood, child-bearing and education among other matter. No one can punish
anything concerning the above matter without his consent whether truthful or
otherwise and whether laudatory or critical.
As far as this matter is concerned, the impugned section clearly violates the
right to privacy guaranteed by the Constitution as it peeps into the houses of
people without their consent and still punishes them for their private matters.

 

2.2
Section 377- Violative of Article 14 of
the Indian Constitution, 1950.

Moreover,
the Petitioner also submits that Section
377 IPC’s legislative objective of penalizing “unnatural sexual acts” has no
rational nexus to the classification created between procreative and
non-procreative sexual acts, and is thus violative of Article 14 of the
Constitution of India. Infringement of, the right to equal protection before
law requires the determination of whether there is a rational and objective
basis to the classification introduced. There should be a just and reasonable
nexus between the classification and the object sought to be achieved by the
legislation.

The Court has reiterated the test set by Article 14
that any distinction or classification be based on an intelligible differentia
which has a rational relation to the objective sought and is not unfair or
unjust. Section 377, the Court has said, does not distinguish between public
and private acts, or between consensual and non-consensual acts thus does not
take into account relevant factors such as age, consent and the nature of the
act or absence of harm. The Court has also stated that such criminalisation in
the absence of evidence of harm seemed arbitrary and unreasonable. In
considering the legal principles imposed by Article 14 of the Constitution the
Court also took into account the Declaration
of Principles of Equality “as current international understanding of Principles
on Equality”. Drawing on Principles 1 (right to equality), 2 (equal
treatment) and 5 (definition of discrimination) the Court emphasised the need
to include sexual orientation among protected grounds of discrimination and
build indirect discrimination and harassment into any consideration of the
right to equality. 
Thus, dealing with the argument that Section 377 was neutral, he Court has stated
that although the provision on its face is neutral and targets acts rather than
persons, in its operation it unfairly
targets a particular community, having the result that all gay men are
considered criminal. This led the Court to conclude that Section
377 discriminated against a particular community in violation of Article 14 of
the Constitution.12

 

2.3
Section 377- Violative of Article 15 of
the Indian Constitution, 1950.

It
is hereby pertinent to note Article 15 of the Indian Constitution which reads:

Prohibition
of discrimination on grounds of religion, race, caste, sex or place of birth

(1) The State shall not
discriminate against any citizen on grounds only of religion, race, caste, sex,
place of birth or any of them

(2) No citizen shall,
on grounds only of religion, race, caste, sex, place of birth or any of them,
be subject to any disability, liability, restriction or condition with regard
to

(a) access to shops,
public restaurants, hotels and palaces of public entertainment; or

(b) the use of wells,
tanks, bathing ghats, roads and places of public resort maintained wholly or
partly out of State funds or dedicated to the use of the general public

(3) Nothing in this
article shall prevent the State from making any special provision for women and
children

(4) Nothing in this
article or in clause (2) of Article 29 shall prevent the State from making any
special provision for the advancement of any socially and educationally
backward classes of citizens or for the Scheduled Castes and the Scheduled
Tribes.

Further it is humbly submitted before this
Hon’ble Apex Court that the Sec. 377 of the penal code of the country violates
the fundamental rights of the petitioner guaranteed under article 15 of the
Constitution.

It is contended before the Apex Court that
Article 15 of the Constitution provides for protection against discrimination
on the grounds of one’s sex. The expression
“sex” is fluid and is not a static concept. It cannot be restricted to only the
biological male and female sex. It is not an essential condition that the law
expressly makes the prohibited ground for the basis of classification. As held
by the Supreme Court, “The Courts are always have to interpret any law by the
way of ‘schematic and teleological’
method of interpretation. All it means is that the judges do not go by the
literal meaning of the words or by the grammatical structure of the sentence.
They go by the design of purpose which lies behind it.”13

Hence,
in present scenario the term “Sex” has a wider meaning and it includes sexual
orientation as well, which includes homosexual people. The prohibition of
discrimination on the ground of sex is intended to prohibit the attachment of
standard behavioural pattern to gender. The purpose underlying the fundamental
right against sex discrimination is to prevent behaviour that treats people
differently for reason of not being in conformity with generalizations
concerning “normal” gender roles.
In the present case, section 377 criminalizes the acts of homosexual people.
Though facially neutral, the primary object and the direct and inevitable
effect is the prohibition of sexual acts between homosexual based on their
sexual orientation. It is an established position of law that if the effect of
a State action is to infringe a fundamental right and that effect is brought
about by a distinction based on a prohibited ground (e.g. sex, race, etc), it
would constitute discrimination on the prohibited ground, however laudable the
object of the State action may be.14

In
the present case, the effect of section 377 is that it disproportionately
impacts homosexuals on the basis of their sexual orientation. This was clearly
foreseen and intended by the Legislature to so impact. Therefore, section 377
constitutes discrimination on the ground of sexual orientation and therefore on
the ground of sex under Article 15, despite being couched in facially neutral
language. Hence, the said section needs to be held ultra vires as it violates
article 15 of the Constitution of India.

Moreover, the Human Rights Committee’s decision
in Toonen v. Australia,15
in which the Tasmanian Criminal Code which criminalised sexual acts between
men, was considered a violation of Article 2 of the International Covenant on
Civil and Political Rights, where a reference to ‘sex’ was taken as including
sexual orientation. 

 

Thus, Sec. 377 violates the Basic Features of the
Constitution of India.

Section 377 of IPC denies the objectives enshrined
in the preamble namely: Justice, Liberty and Equality to homosexual people.
These objectives constitute the Basic Feature of the Constitution.16
Further, it denies equality and equal protection and makes inequality and hence
it is clear violation of Basic Feature of the Constitution and hence liable to
be interfered with by the court.17

If
the reference is made to the 42nd report of the Law Commission, it
was observed that Indian society by and large disapproved homosexuality,
disapproval of which was strong enough to justify it being treated as a
criminal offence even where the adults indulge in it in private. It is
undoubtedly clear that law cannot run separately from the society since it only
reflects the perception of the society. But
it is also important to note that the society has changed its perception with
regard to the same.

 

 

1 Art.
136, Constitution of India, 1950.

2
Durga Shankar Mehta v. Thakur Raghuraj Singh and Ors. AIR
1954 SC 520; Associated Cement
Companies Ltd v. P.N. Sharma (1965)
2 SCR 366; Jose Da Costa and Anr. v. Bascora Sadasiva Sinai Narcornim and Ors. (1976)
2 SCC 917; Arunachalam v. P.S.R. Sadhanantham and Anr. (1979)
(2) SCC 297; P.S.R. Sadhanantham v. Arunachalam and Anr. (1980) 3 SCC
141; Union Carbide Corporation and
Ors. v. Union of India and Ors.
(1991) 4 SCC 584.

3 Rajgarh Jute Mill vs. Eastern Railways, AIR 1958 SC 225; Durga
Shankar vs. Raghuraj Singh AIR 1954 SC 520;              D.C. Mills Ltd. Vs. Commissioner
of Income Tax, West Bengal, AIR 1955 SC 65

4 Pritam Singh v. State, AIR 1950 SC 169.

 

5
http://www.hsph.harvard.edu/Organizations/healthnet/SAsia/suchana/0909/rh374.html

6 Sandeep
Roy Chowdhury, ‘The best of both worlds? South Asian bisexuals speak out,’
India Currents, February issue, 1996.

7 Arvind
Kala, Invisible Minority: the unknown world of the Indian homosexual (Dynamic
Books, New Delhi, 1994)

8 NAZ Foundation vs.
Govt. of NCT of Delhi, 2010 Cr.L.J 94 Delhi (DB)

9 AIR 1963 SC 1295

10 AIR
1963 SC 1295

11 (1994) 6 SCC 632

12
http://www.indialawjournal.org/archives/volume3/issue_4/article_by_amit.html

13 Fuzlunbi v. K. Khader
Vali, AIR 1980 SC 1730

14 State of Bombay v.
Bombay Education Society, 1955 SCR 568.

15  (No.488/1992 CCPR/C/
50/D/488/1992, March 31, 1994)

16 Durga
Das Basu, Shorter Constitution of India, Wadhwa And Co. (2006); pp. 1651

17 Durga Das Basu, Shorter
Constitution of India, Wadhwa And Co. (2006); pp. 1650

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