It live-in couples is not violative of the

It is submitted that as general rule of interpretation the presumption is
always in the favour of the constitutionality of the legislation unless proved
otherwiseA.The respondent contends
that Sec 377, IPC and The Surrogacy Act, 2016 which puts a ban on homosexuals
and live-in couples is not violative of the fundamental rights enshrined in
part III of the Constitution of India. It is contended so for the reason that The
Act does not violate the equal protection doctrineof Article 14 B, the test of reasonableness of
Article 19 C, and protects the
right to life under Article 21 D.

A.    
PRESUMPTION IS ALWAYS IN FAVOUR OF CONSTITUTIONALITY OF A STATUTE

We Will Write a Custom Essay Specifically
For You For Only $13.90/page!


order now

It is submitted that the presumption is always in the favour of
constitutionality of an enactment54and it is for the petitioner to show
how his fundamental right has been infringed, failing which, his petition will
be dismissed.55 It must be presumed that the legislature
understands and correctly appreciates the need of its own people, that its laws
are directed to problems made manifest by experience and that its
discriminations are based on adequate grounds.56It is neither in doubt nor in dispute that
Clause 1 of Article 13 of the Constitution of India in no uncertain terms
states that all laws in force in the territory of India immediately before the
commencement of the Constitution, in so far as they are inconsistent with the
provisions of Part III there, shall, to the extent of such inconsistency, be
void. It is submitted that public
disapproval or disgust for a certain class of persons can in no way serve to
uphold the constitutionality of a statute.

The counsel on behalf of the petitioner argued that if the language of
the section was plain, there was no possibility of severing or reading it down.
And so long as the law stands on the statute book, there was a constitutional
presumption in its favour Keeping in view the fact that the Act is a
pre-constitution enactment, the question as regards its constitutionality will,
therefore, have to be judged as being law in force at the commencement of the
Constitution of India.57

A.    
THE ACT DOES NOT VIOLATE THE EQUAL PROTECTION DOCTRINE
ENSHRINED IN THE CONSTITUTION

Sec 377 IPC and The Surrogacy Act, 2016 do not violate the Equal
Protection clause enshrined under Article 14 of the Constitution and as such
the aforementioned have been enacted to protect the interests of sexual
minorities.

Mere discrimination or inequality of treatment does not amount to
discrimination within the ambit of Article 14.58 For an act not to violate Article 14, there
must not be any substantive unreasonableness59 in it, it should not be manifestly arbitrary,60 and it should fulfil the
following two conditions: (a) intelligible
differentia which distinguishes persons or things that are grouped together
from other left out in the group.61 This
is done by examining the purpose and policy of the act, which can be
ascertained from its title, preamble62 and provisions.63 (b) rational64 nexus that connects the object sought
to be achieved by the act with the intelligible differentia ascertained in (a).65 The reasonableness of the
nexus is to be ascertained with reference to the object of the legislation and
not on the basis of any moral considerations.66

1.      
Right to equality allows classification under
certain circumstances

The principle of ‘equality before the law’ does not require absolute
equality or equality among unequals.67 Mere
differentiation or inequality of treatment does not per se amount to discrimination and before considering inequality
of treatment, the object of the legislation has to be considered.68

Just as difference in treatment of persons similarly situate leads to
discrimination, so also discrimination can arise if persons who are unequal,
i.e. differently placed, are treated similarly. In such a case failure on the
part of the legislature to classify the persons who are dissimilar in separate
categories and applying the same law, irrespective of the differences, brings
about the same consequence as in a case where the law makes a distinction
between persons who are similarly placed. A law providing for equal treatment
of unequal objects, transactions or persons would be condemned as
discriminatory if there is absence of rational relation to the object intended
to be achieved by the law.69Article
14 forbids class legislation but does not forbid classification which rests
upon reasonable grounds of distinction.70

By the process of classification, the State has the power of determining
who should be regarded as a class for purposes of legislation and in relation
to a law enacted on a particular subject. This power, no doubt, in some degree
is likely to produce some inequality; but if a law deals with the liberties of
a number of well-defined classes, it is not open to the charge of denial of
equal protection on the ground that it has no application to other persons.71

In the instantaneous matter, the government has made classification only
to treat unequals differently and causes no unreasonable differentiation. 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
and the people falling in the latter category cannot claim that Section 377
suffers from the vice of arbitrariness and irrational classification.72

It is humbly submitted that Section 377 of the IPC does not target the
homosexuals as a class as it applies to both men and women who engage in sexual
acts that are against the order of the nature. It does not criminalise homosexuality and does not target
homosexuals as a group. Section 377 IPC is not discriminatory as it is gender
neutral73. Section 377 IPC
does not criminalize a 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 orientation74. Hence, section 377 cannot be considered as
class legislation.

In the matter at hand, both the
conditions for reasonable classification have been fulfilled.

(a) 
The government through this Act has classified
individuals into those who can reproduce naturally and those who cannotwhich
are allowed as proved aforementioned as long as there is an existing condition
that qualifies for intelligible differentia. This intelligible differentia is
evident since the Act allows surrogacy to those who can reproduce naturally and
bans for those who cannot. The Act puts a ban on homosexuals in furtherance to
its orders in Suresh Kumar Kaushol v. Naz
Foundation75  where  the 
Court  declared  that Section 377 IPC does not suffer from the
vice of unconstitutionality relying on Jagmohan
Singh v. State of U.P.76 where the
Court expressed grave doubts about the expediency of transplanting Western
experience in our country since the social as well as intellectual set up of
the nation is different. Moreover, there can be no reasonable doubt that one of
the functions of the penis is to introduce semen into the vagina. It does this,
and it has been selected in because it does this. Nature has consequently made
this use of the penis rewarding. It is
clear enough that any proto-human males who found unrewarding the insertion of
penis into vagina have left no descendants. In particular, proto-human males
who enjoyed inserting their penises into each other’s anuses have left no
descendants. This is why homosexuality is abnormal, and why its abnormality
counts prudentially against it. Homosexuality is likely to cause unhappiness
because it leaves unfulfilled an innate and innately rewarding77. Furthermore, the Act is not
unreasonable or arbitrary since it allows altruistic surrogacy and bans only
commercial practices in furtherance of the welfare of the society.

 

(b) 
There is thus a rational nexus between the object of the Act, which was to protect
the reproductive health of the surrogate mother as well as the future of the
newborn child.

When a law is challenged as offending equal protection, the question for
determination by the Court is not whether it has resulted in inequality, but
whether there is some difference which bears a just and reasonable relation to
the object of the legislation.78Equal
protection under Article 14 means the right to equal treatment in similar
circumstances,79 and
the question of discrimination, if any, can arise only or between persons who
are similarly, if not identically situated.80

The Supreme Court has held that the legislature as well as the executive
must of necessity have the power of making special laws, to attain a particular
object and to achieve that object, it must also have the power to classification
of persons upon which such laws are to operate81. The principle of equal protection does not
take away from the state the power of classifying persons for the legitimate
purpose82.

The Respondent humbly submits that it is in exercise of this power that the
classification has been made which is reasonable according to the equality
clause of Article 14 and this power cannot be taken away from the legislature.

1.      
Sec 377, IPC and The Surrogacy Act, 2016 are not arbitrary

To declare an act ultra vires under
Article 14, the Court must be satisfied in respect of substantive
unreasonableness in the statute.83 Arbitrariness on the part of the legislature
so as to make the legislation violative of Article 14 of the constitution
should ordinarily be manifest arbitration.86Classification is justified if it is not
arbitrary.87 If an
enactment is challenged as violative of Article 14, it can be struck down only
if it is found that it is violative of the equality clause/equal protection
clause enshrined therein.88 The
legislature, as a body, cannot be accused of having passed a law for an
extraneous purpose.89 No
enactment can be struck down by just saying that it is arbitrary or
unreasonable.90 Transferred
malice is unknown in the field of legislation.91 Every law has to pass through the test of
constitutionality which is nothing but a formal test of rationality,92 and it has been put forth
before this Hon’ble Court that the present enactment makes a classification for
a reasonable purpose.

To attract the operation of Article 14, it is necessary to show that the
selection or differentiation is unreasonable or arbitrary and that it does not
rest on any rational basis having regard to the object with the legislature has
in view.93 To declare an
act ultra vires under Article 14, the
Court must be satisfied in respect of substantive unreasonableness in the
statute.94 Arbitrariness
on the part of the legislature so as to make the legislation violative of
Article 14 of the constitution should ordinarily be manifest arbitration.95 Classification is justified
if it is not arbitrary.96

It is submitted that the object of section 377 is not arbitrary and does
not only target homosexual couples. This section is the only mechanism to
protect the victims of sodomy and other actions against the wishes of the
persons. The rights of victims of sodomy are as much as concern for the State
as the rights of the homosexuals.

Thereby, it is humbly submitted that the impugned Section 377 IPC and The
Act has a reasonable and substantial basis and is neither discriminatory nor
arbitrary and hence, does not violate Article
14.

A.     ARTICLE 19(1)(A) OF THE CONSTITUTION HAS NOT BEEN VIOLATED

The test laid down by this Hon’ble Court in Bennett Coleman & Co. & Ors v. Union Of India & Ors97,
is whether the direct and immediate impact of the impugned action is on the
freedom of speech and expression guaranteed under Article 19(1)(a) of the
Constitution. The respondents submit that the section 377 of the IPC does not
impact upon the freedom under Article 19(1)(a) as what is criminalised is only
a sexual act. People will have the freedom to canvass any opinion of their
choice including the opinion that homosexuality must be decriminalised.

Article 19(2) expressly permits imposition of restrictions in the
interest of decency and morality. Social and sexual mores in foreign countries
cannot justify de-criminalisation of homosexuality in India. In the western
societies the morality standards are not as high as in India. Indian society
considers homosexuality to be repugnant, immoral and contrary to the cultural
norms of the country. In 42ndreport
of the Commission it was observed that Indian society by and large disapproved
of homosexuality, which disapproval was strong enough to justify it being treated
as a criminal offence even where the adults indulge in it in private.98

B.    
ARTICLE 21 OF THE CONSTITUTION HAS NOT BEEN VIOLATED

Article 21 envisages a right to life and personal liberty of a person,
which not merely guarantees the right to continuance of a person’s existence
but a quality of life99,
and therefore, State is casted upon a duty to protect the rights of the citizen
in discharge of its constitutional obligation in the larger public interest,
guaranteed as a fundamental right under Article 21 of the Constitution.100

In the present case, there has been no violation of Article 21 of the
Constitution. To establish the violation of Article 21, the Act should be
subjected to the equality test of Article 14 and test of reasonableness under
Article 19101.

Article 14 ensures fairness102 and
guarantees against arbitrariness.103 It
provides that every action of the government must be informed by reasons and
guided by public interest.104

Article 19 provides that a restriction can be characterized to be reasonable
if it strikes a balance between the fundamental right and restriction imposed
thereon105.

Section 377 of the IPC does not violate Article 21 of the Constitution.
To establish the violation of Article 21, the Act should be subjected to the
equality test of Article 14 and test of reasonableness under Article 19106. As it has been proved
above that the section 377 of IPC does not violate either the test of
Arbitrariness under Article 14 or the test of Reasonableness under Article 19,
hence by the principle laid down, it does not violate Article 21. Similarly,
The Surrogacy Act, 2016 creates an intelligible differentia while
differentiating persons into those who can reproduce naturally and those who
cannot and have to be assisted for the same. This differentia further supports
the object of enactment of the Act and hence, has a reasonable nexus with it.
On the same lines, by not violating Article 14 and Article 19 the Surrogacy
Act, 2016 also does not violate Article 21.

1.       Right
to Privacy is not absolute

It is submitted that the Right to privacy can be curtailed by following
due process of law and the Code of Criminal Procedureprescribes a fair
procedure, which is required to be followed before any personcharged of
committing an offence under Section 377 IPC can be punished.

In Mr. X v. Hospital Z107, this court observed, as one of the basic
Human Rights, the right of privacy is not treated as absolute and is subject to
such action as may be lawfully taken for the prevention of crime or disorder or
protection of health or morals or protection of rights and freedoms of others.

The right, however, is not absolute and may be lawfully restricted for
the prevention of crime, disorder or protection of health or morals or
protection of rights and freedom of others. In Gobind v. State of M.P.108 the
Court observed: “There can be no doubt that privacy-dignity claims deserve to
be examined with care and to be denied only when an important countervailing
interest is shown to be superior. If the
Court does find that a claimed right is entitled  to protection as a fundamental privacy right,
a law infringing it must satisfy the compelling state interest test. Then the
question would be whether a state interest is of such paramount importance as
would justify an infringement of the right. Obviously, if the enforcement of
morality were held to be a compelling as well as a permissible state
interest,  the characterization of
the  claimed rights as a fundamental
privacy right would be of far less significant.

In the instantaneous matter the Right to Privacy of homosexuals is
restricted for protection of state interest which does not suffer from any
vice. Moreover, the freedom and rights of others are of such importance that
mere transgression of the right to privacy of a minority would amount to a
compelling state interest.

The dissenting opinion given by Justice Scalia and Justice Thomas in
Lawrence v. Texas109stated
that promotion of majoritarian sexual morality was a legitimate state interest.
A miniscule fraction of the country’s population constitutes lesbians, gays,
bisexuals or transgender and in last more than 150 years less than 200 persons
have been prosecuted for committing offence under Section 377 IPC and this
cannot be made sound basis for declaring that section ultra vires the provisions of Articles 14, 15 and 21 of the
Constitution.110

The Respondent humbly submits that the Hon’ble Court may take the
aforementioned into consideration.

1.       Section
377 curtails spread of HIV/Aids and furthers public health

It is submitted that spread of AIDS is curtailed by Section 377 IPC and
de-criminalisation of consensual – same – sex acts between adults would cause a
decline in public health across society generally since it would foster the
spread of AIDS. Section 377 IPC prevents HIV by discouraging rampant homosexuality
by putting a brake in the spread of AIDS and if consensual same-sex acts
between adults were to be de-criminalised, it would erode the effect of public
health services by fostering the spread of AIDS. Sexual transmission is only
one of the several factors for the spread of HIV and the disease spreads
through both homosexual as well as heterosexual conduct.111

UNAIDS states in its operational guidelines for MSM that even in
generalized HIV epidemics, men who have sex with men are more affected by HIV
than the general population.112