Justice Verma on Naz Foundation Decision

It is a misreading of the Delhi High Court judgment to contend that it approves or legalizes, much less glorify the practice of homosexuality, practiced in privacy. It merely decriminalizes consensual homosexuality or unnatural sex practiced in privacy between consenting adults. This was the limited point at issue and the scope of this decision. To read anything more in it is not justified.

I believe, a judgment need not contain more than what is necessary for its conclusion. May be, some parts of the judgment were not necessary for its conclusion and decision, which are being erroneously projected for widening its scope to seek legal sanction for homosexuality or unnatural sex. It is, therefore, necessary to consider whether the judgment is supportable for its decision on the limited issue without enlarging the scope of the debate on homosexuality for which the court in this case is not the proper forum.

In my view, the decision can be sustained on only a part of the High Court’s reasoning, without addressing the larger issue of homosexuality or unnatural sex, or the right to practice it as a societal norm.

The scourge of the spread of HIV/AIDS is threatening to become pandemic, and India is in its grip. One of the targets for the year 2015 in the Millennium Development Goals is to combat all critical diseases, which includes preventing the spread of, and treatment of HIV/AIDS. The Union Health Ministry and NACO have given statistics to prove that it is necessary to bring out of the closet homosexuals (MSM) infected with the HIV virus to aid the national programme for combating the spread of HIV/AIDS; this infection is many times more in MSMs than in the general public; and it is necessary to decriminalize consensual homosexuality in privacy to bring them out of the closet to treat them, and to arrest the spread of infection through them. This factual reality is significant for the decision of the limited issue before the court.

The directive principle of state policy in Article 47 of the Constitution of India imposes a primary duty on the State, inter alia to improve public health. This primary duty of the State has to be read with the people’s fundamental right to life under Article 21, de hors the right claimed by the homosexuals. Any step taken by the State to improve public health is indeed an action to enforce the general public’s fundamental right under Article 21.

The World Health Organisation (WHO), in its Constitution declares that ‘the enjoyment of the highest attainable standard of health is one of the fundamental tights of every human being’ and ‘health is a state of complete physical, mental and social well being and not merely absence of disease or infirmity’. By virtue of the VISHAKA judgment this requirement has to be read in Articles 21 and 47 to enlarge their scope. To this extent, even the infected homosexuals have an enforceable right for medical treatment.

For the performance of this primary duty of the State, and enforcement of the general public’s fundamental right, it is necessary to act to combat HIV/AIDS, which is also the commitment of the international community and a MDG. This requires decriminalizing consensual homosexuality practiced between adults in privacy under Section 377 IPC.

The right under Articles 14 and 15 would be available to the infected homosexuals only for getting the necessary medical healthcare, because all infected persons form one category in this respect and they cannot be discriminated or separated for the purpose of medical healthcare. However, this is not to be construed as conferring the right to practice homosexuality, or to giving it legal sanction.

There is one more aspect. It is a fact for judicial notice that there has hardly been any prosecution for decades of any act of consensual homosexuality or unnatural sex practiced in privacy between adults. Why have a law, which is a dead letter and incapable of enforcement? To this extent Section 377 IPC being redundant needs to go from the statute book.

In my view, the above reasoning alone is sufficient to support the conclusion and decision of the Delhi High Court decriminalizing consensual homosexuality practiced in privacy between adults.

A reference to depiction of homosexuality or unnatural sex exhibited at Khajuraho etc. is to be seen as a record of such an aberration prevalent even in those times, and not as an accepted part of our ancient culture. What is accepted now in the West is not to be incorporated automatically in our culture and ethos. Let us not ape the west in every thing!

The debate on constitutional morality vis-à-vis public morality is not necessary for this decision. A passing reference to it is being made because of the mention to it. Constitution is a live document to serve for all times, which enacts principles to be interpreted in tune with the times. The perception of public morality at a given time may be a relevant factor to interpret a constitutional principle in tune with the times so that no gap is seen between them. The role of the courts is significant for this purpose. To quote Prof. Jeffrey Jowell, “The Rule of Law is seen as a principle of institutional morality”. Morality is a component of law, to be so interpreted for doing justice. No more discussion of this topic is necessary in this context.

I would, therefore, suggest that the Delhi High Court judgment be read and construed in this manner only. There is no justification to read any thing more in it. It can be sustained on the above limited ground.