Log Diary Submission

Submitted by

Bhavyanshi Dariya

B.A. LL.B. Division: D PRN: 17010223080

Of Symbiosis Law School, Noida

Symbiosis International (Deemed University), Pune

In

March, 2019

Under the guidance of

Dr. Kannan Divetia

&

Mr. Ankur Sharma

Assistant Professor

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 Certificate

The project entitled “Log Diary” submitted to the Symbiosis Law School, NOIDA for “Interlinking and
Hyperlinking” part of Internal assessment is based on my original work carried out under the guidance of
“Dr. Kannan Divetia & Mr. Ankur Sharma” from December, 2018 to March 26, 2019. The research work
has not been submitted elsewhere for award of any degree.

The material borrowed from other sources and incorporated in the thesis has been duly acknowledged.

I understand that I myself could be held responsible and accountable for plagiarism, if any, detected later.

Signature of the candidate

Date: 26/03/2019

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 Acknowledgement

I have taken efforts in this project. However, it would not have been possible without the kind support and
help of many individuals and organizations. I would like to extend my sincere thanks to all of them.

I am highly indebted to Dr. Kannan Divetia and Mr Ankur Sharma sir for his guidance and constant
supervision as well as for providing necessary information regarding the project & also for their support in
completing the project.

I would like to express my gratitude towards all staff member of Symbiosis Law School, Noida especially to
library in charge and librarian for their kind co-operation and encouragement which help me in completion of
this project and providing us with all the resources required to make this project.

My thanks and appreciations also go to my friends in developing the project and people who have willingly
helped me out with their abilities.

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 List of Contents:

S. NO. PARTICULARS PAGE

NO.
1. Case Analysis of “Shafian Jahan v. Ashokan”
2. Case Analysis of “Joseph Shine v. Union of India SC (2018)”
3. Case Analysis of “ K.S Puttaswamy v. Union of India”
5. Rules applied
`6. Conclusion

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 SHAFIAN JAHAN v. ASHOKAN SC (2018)

Introduction:
The case pertaining to Hadiya aka Akhila relates to the conflict between Fundamental Right of an individual
to profess the faith of his/her choice, marrying an individual of his/her choice and the parental authority of
parents over the marriage of their child. The law is certain on the point that every individual who is of sound
mind and has obtained the age of marriage as prescribed by law has the right to marry any individual of his/her
choice and profess any religion that the person feels suitable. In the present matter Hadiya, a girl from a Hindu
family firstly left her paternal home and later on married a Muslim man Shafin Jahan on December 19, 2016
according to the Muslim custom and traditions. The same was challenged by Ashokan, the father of Hadiya.
The Kerala High Court nullified and called this wedding a sham and a way export Akhila out of the country.
The decision of the Kerala High Court was subsequently challenged before the Honourable Supreme Court
which allowed the Special Leave Petition.

Relevant Facts:
 Akhila aka Hadiya, a 24-year-old girl was born in a Hindu family residing in Kottayam, Kerala. At the
age of 21 she joined a school in Salem to seek a Bachelor’s degree in Homeopathic Medicine and
Surgery.
 On 6 January, 2016, Akhila left her parental home in Selam, where she was staying with her
companions Faseena and Jaseena. Akhila's parents filed a police complaint and claimed that her
companions Faseena and Jaseena, and their father Aboobacker, had taken Akhila far away from their
custody.
 A charge sheet was subsequently filed against Aboobacker by the police authorities. Be that as it may,
in spite of the police case, Akhila couldn't be traced.
 Following this, Akhila's dad Ashokan filed a writ of habeas corpus before the Kerala High Court.
Akhila placed her under the steady gaze of the court on January 19, and testified the court regarding
the situations under which she had left her home and parents and told the court that she has converted
over to Islam and taken the name Hadiya. She also confessed before the court that she was a practicing
Muslim. She claimed that she had abandoned her home on January 2, 2016, because of her dad's
displeasure towards her following Islam. Thereafter Akhila went straight to Jaseena's and Faseena's
house.
 Akhila married Shafin Jahan on December 19, 2016 according to the Muslim laws and traditions.
However, the Kerala High Court nullified and called this wedding a sham and a way to export Akhila
out of the country. The Court also observed the possibility of involvement of radical organizations
involved in forced conversions and exporting young girls for recruitment in organizations like ISIS.

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  The decision of the Kerala High Court was subsequently challenged by a Special Leave Petition filed
by Shafin after two months of nullification of the marriage between him and Hadiya by the Kerala
High Court on the Habeas Corpus petition by Mr. Ashokan, Hadiya’s father. Supreme Court gave its
decision in the above stated matter on 8th March, 2018.

 Issues:
1. Whether Courts can annul a marriage between two consenting partners on hazy grounds?
2. Whether the writ of habeas corpus be passed under Article 226 when there is no actual illegal
detention?
3. Whether doctrine of Parens Patriae can be applied in the present matter?

Rules Applied:

Article 14 of the Indian Constitution:

Equality before law: The State shall not deny to any person equality before the law or the equal protection of
the laws within the territory of India Prohibition of discrimination on grounds of religion, race, caste, sex or
place of birth.

Article 19 (1) (a), (d) and (e) of the Indian Constitution:

Protection of certain rights regarding freedom of speech etc.

(1) All citizens shall have the right

(a) to freedom of speech and expression;

(d) to move freely throughout the territory of India;

(e) to reside and settle in any part of the territory of India; and

Article 21 of the Indian Constitution:

Protection of life and personal liberty No person shall be deprived of his life or personal liberty except
according to procedure established by law

Muslim personal law pertaining to Marriage.

Arguments of both the parties:

Petitioner- It was contended by the petitioner i.e. Shafin Jahan that:

1. The Kerala High Court has erred while delivering its judgement in the writ petition filed by Ashokan
i.e. the father of Hadiya;
2. Hadiya and Shafin Jahan has married one another under the Muslim personal law;
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 3. Hadiya has acquired the age of majority and is of sound mind for the purpose of consenting for the
marriage;
4. Hadiya was living with Shafin Jahan on her act of volition and therefore no writ of habeas corpus can
be issued in the present matter;
5. Hadiya was never illegally detained by the petitioner;
6. The doctrine of parens patriae is inapplicable in the present matter as Hadiya is competent to take her
decisions under the eyes of law.

Respondent- It was argued by the respondents that:

1. Hadiya was incapable of taking conscious decision on her marriage as she was under the influence of
Islamic ideologues;
2. The marriage between Hadiya and Shafin was a ‘sham’ and was performed only to legitimize the
detention of Hadiya and her imminent conversion to Islam;
3. There was a scheme to export Hadiya to the Islamic State and use her as a suicide bomber;
4. The special leave petition filed by Shafin must be dismissed as he has no locus standi in the present
matter.

Analysis:

Issue 1: Whether Court can annul a marriage between two consenting partners on hazy
grounds?

1.1 What are the essentials of a valid marriage between two individuals under the Muslim Law?

Under the Muslim personal law, nikah i.e. marriage is a contract. Muslim law gives recognition to the right of
an adult to marry on the basis of his volition. The conditions necessary for a valid Muslim marriage are as
follow:

(i) Both the individuals i.e. the intending partners must profess Islam;

(ii) Both the individuals must be competent to marriage i.e. have attained the age of puberty;

(iii) There was an offer and acceptance and two witnesses were present at the time of marriage;

(iv) Dower and Mehar; and

(v) Both of them should not be in prohibited degrees of relationship.

1.2 What can be the grounds for annulment of marriage between two partners under the Muslim law?

Under the Muslim personal law, Faskh means "to annul". Faskh or kholo (annulment) doctrine specifies
certain situations when a sharia court can grant a request and annul the marriage. Grounds for Faskh are: (a)
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irregular marriage (fasid), (b) forbidden marriage (batil), (c) the marriage was contracted by non-Muslim
husband who adopted Islam after marriage, (d) the husband or wife became an apostate after marriage, (e)
husband is unable to consummate the marriage. The marriages which are batil in nature are void ab initio and
cannot be regularised under any given circumstances. The marriages which are fasid in nature i.e. irregular
marriage are not void ab initio and can be regularised at a later point of time.

1.3 Whether Kerala High Court was justified in quashing the marriage between Hadiya and Shafin
Jahan?

The Kerala High Court was unjustified in quashing the marriage between Shafin Jahan and Hadiya as these
are two consenting individuals who have married after following all the rituals and customs that are necessary
for concluding a valid marriage under the Muslim Law. Moreover, it is the right of an individual to marry a
partner of his/her choice and follow a faith that he/she wants to and these rights are enshrined under Article
21 and 25 of the Indian Constitution read with the Equality Principle enshrined under Article 14.

Issue 2: Whether the decision of allowing the writ petition of Habeas Corpus justified?

2.1 What is the writ of Habeas Corpus and what are the essential grounds for allowing a writ of Habeas
Corpus?

Habeas corpus literally meaning "that you may have the body" is a recourse in law through which an individual
or person related to the individual can report an unlawful detention or imprisonment to a court and request
that the court order the custodian of the person, to bring the person to court and determine whether the person
was illegally detained. The writ of Habeas Corpus can be issued by resorting to the Article 32 or Article 226
for the Supreme Court and the High Court respectively.

In Kanu Sanyal v. District Magistrate, Darjeeling and Others1, a Constitution Bench, after going through
the history of admeasurement of the writ of habeas corpus, stated that the writ of habeas corpus is not a
substantive law and only forms the aspect procedural law. The major object of the writ of habeas corpus is
only to secure the release of a person who has been illegally detained under any given circumstances.

The writ of Habeas Corpus can be filed by any person who is aware of illegal detention or in legal language,
the merits of the case, and is aware about the facts and circumstances and has proven its interest in moving
such an application in front of the court can plead before the court under Art. 32 or Art. 226 of the Constitution.
The jurisdiction of the honourable Supreme Court extends to all the authorities i.e. authorities within the
territory of the country or outside it, provided they must be under the control of the Government. The same is
true for the High Courts. However, their jurisdiction under Article 226 applies to the authorities that lie within
the control of the said high court or by virtue of territorial jurisdiction. In Ranjit Singh v State of Punjab2

1
1974 AIR 510
2
1959 AIR 843
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the Supreme Court stated that “the whole object of proceedings for a writ of Habeas Corpus is to make them
expeditious, to keep them as free from technicality as possible and to keep them as simple as possible”.

2.2 What are the grounds for not allowing a writ of Habeas Corpus?

There can be certain instances in which writ of Habeas Corpus can be refuted to, which are as follow:

1. When the detention of the person in question is in nexus with the decision pronounced by the court;
2. When the person or authority i.e. the one who has detained the person does not fall under the territorial
jurisdiction of the court,
3. When the detune has already been released,
4. When the detention has been endorsed by the removal of procedural defects,
5. When the writ is sought when emergency is in operation, and
6. When the petition has been dismissed by a competent court after looking into the merits of the case.

2.3 Whether writ of Habeas Corpus can be allowed in the present matter?

The writ of Habeas Corpus cannot be allowed in the present matter as the basic essential grounds for allowing
a writ of Habeas Corpus is illegal detention without the consent of the individual whose body is demanded.
Consent plays a very essential role in cases relating to private parties who are asked to produce a person. In
the present matter Hadiya who was an adult was residing with her companions and later on with Sainaba on
her volition which she testified in the Honourable Court of Justice and therefore there is no question of
illegality in the present matter as such any. Hence, the writ of Habeas Corpus cannot be allowed in the present
matter.

Issue 3: Whether doctrine of Parens Patriae can be applied in the present matter?

3.1 What is doctrine of Parens Patriae and when can it be applied?

The phrase Parens Patriae literally means “parent of the nation”. In jurisprudence, it generally refers to the
competence of the State to insinuate against an abusive or negligent parent, legal custodian or caretaker, and
to act in a manner as correspond to a parent. The doctrine of Parens Patriae originated in the United Kingdom
in the 13th century. It implies that the King as the guardian of the nation is under a general obligation to look
after the interest of the individuals who are unable to look after themselves. The constitutional courts in India
generally resort to the doctrine of Parens patriae in matters of child custody considering the welfare of the
child as of prime importance. However, the doctrine is applied only in exceptional circumstances.

3.2 Whether doctrine of Parens Patriae be applied in the present matter?

The courts cannot invoke the doctrine of parens patriae in every case that comes before it. The said doctrine
can only be invoked under exceptional circumstances i.e. the events where the person is question before it is
either mentally incompetent or have not come of age and it is proved to the satisfaction of the court that the
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said person has either no legal guardian or have an abusive or negligent parent/legal guardian. Hadiya being
a grown adult and of sound mind as evident from her testimony before the Honourable High Court of Kerala
and the Honourable Supreme Court cannot be subjected to the said doctrine.

Judgement:
The 3-judge bench of Dipak Misra, CJ and AM Khanwilkar and Dr. DY Chandrachud, JJ set aside the Kerala
High Court verdict and held that the High Court of Kerala has erred in its judgement by annulling the wedlock
between Hadiya and Shafin Jahan. The relief sought by Shafin Jahan in his petition was granted. The Court,
however, permitted the National Investigation Agency (NIA) to continue the investigation
in respect of any matter of criminality. However, the validity of the marriage between Shafin Jahan and
Hadiya shall not form the subject matter of the investigation. The Court made it clear that “nothing contained
in the interim order of this Court will be construed as empowering the investigating agency to interfere in the
lives which the young couple seeks to lead as law abiding citizens.”

Critical Analysis:
The honourable Supreme court of India in its judgement on the Hadiya case has clearly demarcated the extent
of a persons right under Article 21 of the Indian Constitution to marry an individual of her choice. The court
has heavily resorted to the ‘non-derogable’ nature of the right to marry of an individual, enumerated in the
Article 21 of the constitution and has rightly upheld the validity of the marriage between Hadiya and Shafin
Jahan. The constitution of India treats certain rights as non-derogable in nature as they cannot be suspended
under any circumstances i.e. even when emergency provisions are in operation. Article 20 and the Article 21
of the Indian Constitution forms the part of these rights. The right to marriage as construed by the honourable
Supreme Court as a right under Article 21 of the Constitution is therefore a non-derogable right guaranteed to
the citizens of India.

The illegal detention of an individual without her/his is the sine qua non for the maintainability of a writ
petition under Article 32 of the Indian Constitution. In the instant case the person alleged to be illegally
detained was living with the individual who she had married by performing nikah under the Muslim personal
law. Moreover, it was an act of volition on the part of Hadiya which she was legitimate in making as she was
competent under the law to decide for herself. The reasoning of the Honourable Supreme Court in this regard
is apt and to the point.

The application of the doctrine of parens patriae as demanded by the respondents has been rightly rejected by
the Honourable Supreme Court as it has no operation when the person in question i.e. the person so effected
is competent to decide for herself. The said doctrine is applied only under exceptional circumstances or under
the circumstances when the party in question cannot freely decide its course of action by virtue of certain in

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incapabilities that are attached with the party. In the case of Hadiya however, the same doctrine could not be
applied as she was capable of deciding for herself by under the law in operation.

Conclusion:
It is concluded that the case of Shafin Jahan v. Ashokan gives an illuminating explanation to the collusion of
Family Law with constitutional law. The Honourable Supreme Court in its ratio struck down the decision of
Kerala High Court in the writ petition of Habeas Corpus filed by Ashokan by virtue of which the marriage
between Hadiya and Shafin Jahan was also annulled. The Court sent back Hadiya to her hostel to pursue her
future course of action on her volition under the tenets of law in India. The decision of the Honourable
Supreme Court to overturn the decision of Kerala High Court is legally sound and backed by logical reasoning.
The application of the doctrine of Parens Patriae by the Kerala High Court was erroneous in nature and the
same very well delineated by the Supreme Court in its detailed judgement. However, it is realised that the
present matter could have been dealt in a better manner by the Honourable Supreme Court as well as it also
deviated from the main subject matter in the initial proceedings of the case which caused unjust mental agony
and harassment to Hadiya.

JOSEPH SHINE vs UNION OF INDIA SC (2018)

NAME OF THE CASE: Joseph Shine vs Union of India 27 September, 2018
NAME OF THE COURT: Supreme Court of India
BENCH: 2 bench judgement case (Dipak Misra and A.M. Khanwilkar)

FACTS
Joseph shine, the hotelier challenged the constitutionality of section 497 of Indian penal Code the core reason
behind this petition was to shield Indian men from being punished for extra- marital relationships by vengeful
women or their husbands. Petitioner’s close friend, in Kerala committed suicide after a women co-worker
made malicious rape charge on him. Further section 497 is an egregious occurrence of sexuality unfairness,
authoritative imperialism and male patriotism. The traditional framework, in which section 497 was drafted,
is no longer applicable in modern society.

RULE:
Section 497 of Indian Penal Code, 1860
Article 14, 19 and 21 of the Constitution

ANALYSIS:
In the instant case, Supreme Court struck down Section 497 IPC. The Court has added its bit to endanger the
institution of marriage. Winds have been cast to dilute the institution upon which the strong foundation of the
Indian Society rests. The deterrence effect has been outrightly blown. This cessation will lead to rapid profiling
in the crimes related to adultery. With absolute rights come absolute consequences. Hence, this verdict can
lead to sexual anarchy. Adultery is no longer a criminal offence now. It is just a civil wrong for which divorce
is the remedy.

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Section 497 deprives a woman of her autonomy, dignity and privacy. It compounds the encroachment on her
right to life and personal liberty by adopting a notion of marriage which subverts true equality. Equality is
subverted by lending the sanctions of the penal code to a gender-based approach to the relationship of a man
and a woman. Sexual autonomy is a value which is an integral part and falls within the ambit of personal
liberty under Article 21 of the Indian Constitution. Along with other things, it is very important to recognise
the expectations one has from a relationship and to acknowledge them. One of these expectations is that each
will provide the same element of companionship and respect of choices. Respect for sexual autonomy is
established only when both the spouses treat each other with equality and dignity.
In this way, it is violative of Article 14. It is based on gender stereotypes and violates the non-discrimination
clause of Article 15. Besides, the emphasis on the element of connivance or consent of the husband tantamount
to the subordination of women. Therefore, it clearly offends Article 21 of the Constitution.
A moral wrong can never be a legal right. The reasons are unconvincing and hence this cannot become Lex
Loci. If Adultery is not a crime or a wrong, then obtaining a divorce on this ground would be an unending
chase.
But, in case of adultery, the law demands the multitudes to remain faithful and maintain fidelity, and make
the adulterer the criminal. This is by law a rule which gets into the essence of isolation; it is a prejudiced power
and a socio-moral issue.
Infidelity, in specific circumstances, may not be a problem of an unfortunate matrimony. It is tough to
conceptualize of such circumstances in absolute terms. The issue that demands to determine, whether the said
act should be made a criminal offence, particularly when on certain moments, it can be the cause and in certain
situations, it can be the result.
India is still a semi-feudal and conservative nation. So adjudication merely on the notions of the western
countries is not possible. Many factors concerning the socio-economic order of the country need to be
considered.

K.S. PUTTASWAMY v. UNION OF INDIA

Name of the Case: K.S. Puttaswamy V Union of India

Bench : A Bhushan, A Khanwilkar, A Sikri, D Misra
Facts of the Case:
The case arose out of a challenge to a constitutional challenge to the Aadhaar project, which
aims to build a database of personal identity and biometric information covering every Indian.
More than a billion Indians have so far been registered in the Aadhaar programme, which sees
citizens issued with a 12-digit number that aligns to specific biometric data such as eye scans
and fingerprints. Registration is now become mandatory for filing tax returns, opening bank
accounts, securing loans, buying and selling property or even making purchases of 50,000
rupees (£610) and above.
In 2012, Justice K.S. Puttaswamy (Retired) filed a petition in the Supreme Court challenging
the constitutionality of Aadhaar on the grounds that it violates the right to privacy.

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The Government argued that there was no constitutional right of privacy in view of a
unanimous decision of eight judges in M.P. Sharma v. Satish Chandra 3 and a decision by a
majority of four judges in Kharak Singh v. State of Uttar Pradesh.4
The case came before a three judge Bench of the Court which, on 11 August 2015, ordered
that the matter should be referred to a larger Bench of the Court. On 18 July 2017, a five judge
Constitution Bench ordered the matter to be heard by a nine judge Bench. While it awaited
clarification on the right to privacy, the bench hearing the constitutional challenge to Aadhaar
passed an interim order restricting compulsory linking of Aadhaar for benefits delivery.
Interlinking Perspective:
The nine judges of the Court gave six separate opinions, producing what must be a contender
for the longest reasoned judgment ever produced by a court. These judgments defy short
summary and only a few key themes can be picked out.
The leading judgment is a tour de force, given on behalf of four judges by Dr D Y Chandrachud
J in 266 pages. It deals, in detail, with the Indian domestic case law on privacy and the nature
of constitutional rights. It also considers Comparative Law on Privacy (from England, the US,
South Africa, Canada, the European Court of Human Rights and the Inter-American Court of
Human Rights). Various criticisms of the privacy doctrine – from Bork, Posner and feminist
critics – are addressed.
The problem for the Petitioners was that the Indian Constitution [pdf] does not contain an
explicit privacy right. Nevertheless, the Indian Constitution is a living instrument. The Courts
have sought to give effect to the “values” which the Constitution it contains by interpreting
express fundamental rights protections as containing a wide range of other rights. The crucial
provision for this purpose is Article 21 which provides that
“No person shall be deprived of his life or personal liberty except according to procedure
established by law”
Chandrachud J points out that this provision has been interpreted as containing, inter alia, the
rights to a speedy trial, legal aid, shelter, a healthy environment, freedom from torture,
reputation and to earn a livelihood (for a list see [150]). Privacy is an incident of fundamental
freedom or liberty.
In an important section of the joint judgment headed “Essential Nature of Privacy”,
Chandrachud J analyses the concept of privacy as being founded on autonomy and as an
essential aspect of dignity :
“Dignity cannot exist without privacy. Both reside within the inalienable values of life, liberty
and freedom which the Constitution has recognised. Privacy is the ultimate expression of the
sanctity of the individual. It is a constitutional value which straddles across the spectrum of
fundamental rights and protects for the individual a zone of choice and self-determination”

3
([1954] SCR 1077)
4
([1964] 1 SCR 332)
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It is held that privacy is a constitutionally protected right which emerges, primarily, from
Article 21 of the Constitution. This is not an absolute right but an interference must meet the
threefold requirement of (ii) Legality; (ii) the need for a legitimate aim and (iii) proportionality
(p.264). It is also noted that, as informational privacy is a facet of the right to privacy the
Government will need to put in place a robust regime for data protection.
Two other important points are dealt with in the joint judgment.
Firstly, it emphasises the fact that sexual orientation is an essential attribute of privacy thus
casting doubt on the case of Suresh Kumar Koushal v. Naz Foundation which upheld section
377 of the Indian Penal Code, which effectively criminalizes same-sex relationships between
consenting adults. A reconsideration of Suresh Koushal is pending before a constitution bench
of the Supreme Court.
Secondly, Chandrachud J overturns the judgment of his father (Chandrachud CJ) in the
notorious case of ADM Jabalpur v Shivakant Shukla which held that fundamental rights could
be suspended during the Emergency .Though the ADM Jabalpur judgment was nullified by
44th constitutional amendment it has now finally been put to rest. In his concurring judgment
Sanjay Kishan Kaul J commented
“the ADM Jabalpur case … was an aberration in the constitutional jurisprudence of our
country and the desirability of burying the majority opinion ten fathom deep, with no chance
of resurrection”
By its order the Court ruled that the right to privacy is protected as part of the right to life and
fundamental liberty under Article 21. The case was referred back to the original bench three
judges for decision on the merits.

NAVTEJ SINGH JOHAR & ORS. v. UNION OF INDIA

NAME OF THE CASE
Navtej Singh Johar & Ors. v. Union of India

NAME OF THE COURT

Supreme Court of India

BENCH
Justice Dipak Mishra
Justice R.M Nariman
Justice A.M Khanwilkar
Justice D.Y Chandrachud
Justice Indu Malhotra

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LAWS/RULES APPLIED
Section 377, Indian Penal Code (IPC)
Article 14, Constitution of India
Article 15, Constitution of India
Article 19, Constitution of India
Article 21, Constitution of India

FACTS OF THE CASE

On 27 April 2016, five people filed a new writ petition in the Supreme Court challenging the
constitutionality of Section 377 of the Indian Penal Code. The petitioners claimed that the
issues which they raised in their petition were varied and diverse from those raised in the
pending curative petition in the 2013 Koushal v. Naz case, in which the Supreme Court had
upheld the constitutionality of Section 377. The Naz had been earlier referred to a five-judge
bench in order to decide whether the curative petition could be accepted for consideration. The
petitioners were dancer Navtej Singh Johar, journalist Sunil Mehra, chef Ritu Dalmia, hoteliers
Aman Nath and Keshav Suri, and businesswoman Ayesha Kaprig. This case was the first
instance wherein the petitioners argued that they had all been directly aggrieved because of
Section 377, alleging it to be a direct violation of fundamental rights.

ANALYSIS
The petitioners submitted that the harassment and discrimination of the gay and transgender
community in India resulting from the continued existence of Section 377 affected the rights
of that community which were guaranteed under the Constitution, including the right to
equality, the right to non-discrimination, the right to privacy, the right to life and liberty, and
the right to health. They argued that the Constitution protects the right to privacy (which is not
expressly mentioned) under the right to life and liberty enshrined in Article 21. Furthermore,
they submitted that the right to non-discrimination on the ground of sex in Article 15 should
not be read restrictively but should include “sexual orientation”. They also contended that the
criminalisation of homosexual activity by Section 377 discriminated on the grounds of sexual
orientation and was therefore contrary to the Constitutional guarantee of non-discrimination
under Article 15. Finally, the petitioners stressed that courts in other jurisdictions have
struck down comparable provisions relating to sexual orientation on the grounds that they
violated the rights to privacy, dignity and equality.

Both the respondents submitted legal opinions in respect to the writ petition. Interestingly,
however, the two ministries came down on opposite sides of the legal argument offering
completely contradictory affidavits. The MHA, on one hand, argued for the retention of
Section 377 on several grounds. First, that it provided for the prosecution of individuals for
the sexual abuse of children. Second, that it filled a gap in the rape laws. Third, that if removed
it would provide for flood gates of delinquent behaviour which would not be in the public
interest. Finally, MHA submitted that Indian society does not morally condone such behaviour
and law should reflect societal values such as these.By contrast, the Ministry of Health and
Family Welfare (in conjunction with the National Aids Control Organisation) presented
evidence in support of the Naz Foundation’s submission – that the continued existence of
Section 377 is counter-productive to the efforts of HIV/AIDS prevention and treatment They
argued for the removal of Section 377 stating that it makes a large number of people in high
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risk categories in relation to HIV/AIDS reluctant to come forward for treatment due to a fear
of law enforcement agencies, and that in driving homosexuality underground it increases risky
behaviour such as unprotected sex.

The Court noted that the Indian Constitution does not contain an explicit provision in relation
to the right to privacy, however the Supreme Court has interpreted such a right on the basis of
Article 19 protecting freedom of expression and movement, and Article 21 protecting the right
to life and liberty. The Court made extensive reference to United States jurisprudence on the
right to privacy as read into the Constitution, including Roe v. Wade and Planned Parenthood
of South-eastern Pa v. Casey. It then went on to consider the development of this right in India
including the case of Kharak Singh v. The State of U.P., which traced the right to privacy in
India to the right to ‘life’ in Article 21 of the Constitution.
The Court inferred that Section 377 denies the dignity of such individuals, criminalises their
identity and violates their right to privacy which is protected within the ambit of Article 21 of
the Constitution.

The Court 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 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 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 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.
This led the Court to conclude that Section 377 discriminated against a particular community
in violation of Article 14 of the Constitution.

Article 15 was described by the Court as a particular application of the general right to equality
under Article 14. The Court considered the petitioner’s argument that the reference to ‘sex’ in
Article 15 should be interpreted as including sexual orientation on the basis that discrimination
on the grounds of the latter is based on stereotypes of conduct on the basis of sex. The Court
itself referred to the Human Rights Committee’s decision in Toonen v. Australia, 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.

The Court declared that Section 377 of the Indian Penal Code, insofar as it criminalises
consensual sexual acts of adults in private, violates Articles 21, 14, 15 and 19 of the
Constitution.

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