* lN THE HlGH COURT OF DELHl AT NEW DELHl

+ WP(C) No.7455/2001
% Date of decson : 2
nd
|uy, 2009
Naz Foundaton .... Pettoner
Through: Mr.Anand Grover, Sr.Advocate wth
Mr.Trdeep Pas, Ms.Shvang Ra and
Ms.Mehak Soth and Ms.Trpt
Tandon, Advocates
versus
Government of NCT of Deh
and Others .... Respondents
Through : Mr.P.P. Mahotra, ASG wth
Mr.Chetan Chawa, Advocate for
UOI.
Ms.Mukta Gupta, Standng Counse
(Cr.) wth Mr.Gaurav Sharma and
Mr.Shankar Chhabra, Advocates for
GNCT of Deh.
Mr.Rav Shankar Kumar wth
Mr.Ashutosh Dubey, Advocates for
respondent No.6/|ont Acton Counc
Kannur.
Mr.H.P.Sharma, Advocate for
respondent No.7/Mr.B.P. Sngha.
Mr.S.Dvan, Sr. Advocate wth
Mr.V.Khandewa, Mr.Arvnd Naran,
Ms.S. Nandn, Mr.Mayur Suresh,
Ms.Vrnda Grover and Mr.|awahar
Ra|a, Advocates for respondent
No.8-Voces aganst 377.
CORAM:
HON'BLE THE CHlEF ]USTlCE
HON'BLE DR. ]USTlCE S.MURALlDHAR
1.Whether reporters of the oca news papers
be aowed to see the |udgment? Y
2.To be referred to the Reporter or not ? Y
3. Whether the |udgment shoud be reported n the Dgest?Y
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A]lT PRAKASH SHAH, CHlEF ]USTlCE:
1. Ths wrt petton has been preferred by Naz Foundaton, a
Non Governmenta Organsaton (NGO) as a Pubc Interest
Ltgaton to chaenge the consttutona vadty of Secton
377 of the Indan Pena Code, 1860 (IPC), whch crmnay
penazes what s descrbed as "unnatura offences", to the
extent the sad provson crmnases consensua sexua
acts between aduts n prvate. The chaenge s founded on
the pea that Secton 377 IPC, on account of t coverng
sexua acts between consentng aduts n prvate nfrnges
the fundamenta rghts guaranteed under Artces 14, 15, 19
& 21 of the Consttuton of Inda. Lmtng ther pea, the
pettoners submt that Secton 377 IPC shoud appy ony to
non-consensua pene non-vagna sex and pene non-
vagna sex nvovng mnors. The Unon of Inda s
mpeaded as respondent No.5 through Mnstry of Home
Affars and Mnstry of Heath & Famy Wefare. Respondent
No.4 s the Natona Ads Contro Organsaton (herenafter
referred to as "NACO") a body formed under the aegs of
Mnstry of Heath & Famy Wefare, Government of Inda.
NACO s charged wth formuatng and mpementng
poces for the preventon of HIV/AIDS n Inda. Respondent
No.3 s the Deh State Ads Contro Socety. Respondent
No.2 s the Commssoner of Poce, Deh. Respondents No.6
to 8 are ndvduas and NGOs, who were permtted to
ntervene on ther request. The wrt petton was dsmssed
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by ths Court n 2004 on the ground that there s no cause of
acton n favour of the pettoner and that such a petton
cannot be entertaned to examne the academc chaenge
to the consttutonaty of the egsaton. The Supreme
Court vde order dated 03.02.2006 n Cv Appea
No.952/2006 set asde the sad order of ths Court observng
that the matter does requre consderaton and s not of a
nature whch coud have been dsmssed on the aforesad
ground. The matter was remtted to ths Court for fresh
decson.
Hl5TORY OF THE LECl5LATlON
2. At the core of the controversy nvoved here s the pena
provson Secton 377 IPC whch crmnazes sex other than
heterosexua pene-vagna. The egsatve hstory of the
sub|ect ndcates that the frst records of sodomy as a crme
at Common Law n Engand were chronced n the Feta,
1290, and ater n the Brtton, 1300. Both texts prescrbed
that sodomtes shoud be burnt ave. Acts of sodomy ater
became penazed by hangng under the Buggery Act of
1533 whch was re-enacted n 1563 by Oueen Ezabeth I,
after whch t became the charter for the subsequent
crmnasaton of sodomy n the Brtsh Coones. Ora-
genta sexua acts were ater removed from the defnton
of buggery n 1817. And n 1861, the death penaty for
buggery was formay aboshed n Engand and Waes.
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However, sodomy or buggery remaned as a crme "not to
be mentoned by Chrstans."
3. Indan Pena Code was drafted by Lord Macauay and
ntroduced n 1861 n Brtsh Inda. Secton 377 IPC s
contaned n Chapter XVI of the IPC tted "Of Offences
Affectng the Human Body". Wthn ths Chapter Secton
377 IPC s categorsed under the sub-chapter tted "Of
Unnatura Offences" and reads as foows:
"377. Unnatura Offences - Whoever vountary has
carna ntercourse aganst the order of nature wth
any man, woman or anma, sha be punshed wth
mprsonment for fe, or wth mprsonment of ether
descrpton for a term whch may extend to ten
years, and sha aso be abe to fne.
Expanaton - Penetraton s suffcent to consttute
the carna ntercourse necessary to the offence
descrbed n ths secton."
jUDlClAL lNTERPRETATlON
4. The margna note refers to the acts proscrbed as
"unnatura offences". Ths expresson, however, s not used
n the text of Secton 377 IPC. The expresson "carna
ntercourse" s used n Secton 377 IPC as dstnct from the
expresson "sexua ntercourse", whch appears n Sectons
375 and 497 IPC. Accordng to the Concse Oxford
Dctonary (nnth edton, 1995), the term "carna" means
"of the body or fesh; wordy" and "sensua, sexua".
Consent s no defence to an offence under Secton 377 IPC
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and no dstncton regardng age s made n the secton. In
Khanu v. Emperor, AIR 1925 Snd 286, Kennedy A.|.C. hed
that "secton 377 IPC punshes certan persons who have
carna ntercourse aganst the order of nature wth inter alia
human bengs.... |f the ora sex commtted n ths case s
carna ntercourse|, t s ceary aganst the order of nature,
because the natura ob|ect of carna ntercourse s that
there shoud be the possbty of concepton of human
bengs, whch n the case of coitus per os s
mpossbe."|page 286| It appears that the courts had
earer hed n R. V. jacobs (1817) Russ & Ry 331 C.C.R.,
and Govindarajula ln re., (1886) 1 Wer 382, that nsertng
the pens n the mouth woud not amount to an offence
under Secton 377 IPC. Later, Secton 377 IPC has been
nterpreted to cover ora sex, ana sex and penetraton of
other orfces. In Lohana Vasantlal Devchand v. State,
AIR 1968 Gu| 252, the ssue was whether ora sex amounted
to an offence under Secton 377 IPC. It was hed that the
"orfce of the mouth s not, accordng to nature, meant for
sexua or carna ntercourse." In Calvin Francis v. Orissa,
1992 (2) Crmes 455, reyng on Lohana, t was hed that
ora sex fe wthn the ambt of Secton 377 IPC. The Court
used the references to the Corpus |urs Secundum reatng
to sexua perversty and abnorma sexua satsfacton as the
gudng crtera. In Fazal Rab Choudhary v. State of
Bihar, AIR 1983 SC 323, t was observed that Secton 377
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IPC mped "sexua perversty". It s evdent that the tests
for attractng the pena provsons have changed from the
non-procreatve to mtatve to sexua perversty.
5. The Engsh aw was reformed n Brtan by the Sexua
Offences Act, 1967, whch de-crmnased homosexuaty
and acts of sodomy between consentng aduts (above age
of 21) pursuant to the report of Wofenden Commttee. The
Commttee advsng the Parament had recommended n
1957 repea of aws punshng homosexua conduct.
THE CHALLENCE
6. The pettoner NGO has been workng n the fed of HIV/AIDS
Interventon and preventon. Ths necessary nvoves
nteracton wth such sectons of socety as are vunerabe to
contractng HIV/AIDS and whch ncude gay communty or
ndvduas descrbed as "men who have sex wth men"
(MSM). For sake of convenent reference, they woud
herenafter be referred to as "homosexuas" or "gay"
persons or gay communty. Homosexuas, accordng to the
pettoner, represent a popuaton segment that s extremey
vunerabe to HIV/AIDS nfecton. The pettoner cams to
have been mpeed to brng ths tgaton n pubc nterest
on the ground that HIV/AIDS preventon efforts were found
to be severey mpared by dscrmnatory atttudes
exhbted by state agences towards gay communty, MSM
or trans-gendered ndvduas, under the cover of
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enforcement of Secton 377 IPC, as a resut of whch basc
fundamenta human rghts of such ndvduas/groups (n
mnorty) stood dened and they were sub|ected to abuse,
harassment, assaut from pubc and pubc authortes.
7. Accordng to the pettoner, Secton 377 IPC s based upon
tradtona |udeo-Chrstan mora and ethca standards,
whch conceve of sex n purey functona terms, .e., for the
purpose of procreaton ony. Any non-procreatve sexua
actvty s thus vewed as beng "aganst the order of
nature". The submsson s that the egsaton crmnasng
consensua ora and ana sex s outdated and has no pace n
modern socety. In fact, studes of Secton 377 IPC
|ursprudence revea that atey t has generay been
empoyed n cases of chd sexua assaut and abuse. By
crmnasng prvate, consensua same-sex conduct, Secton
377 IPC serves as the weapon for poce abuse; detanng
and questonng, extorton, harassment, forced sex,
payment of hush money; and perpetuates negatve and
dscrmnatory beefs towards same-sex reatons and
sexuaty mnortes; whch consequenty drve the actvtes
of gay men and MSM, as we as sexuaty mnortes
underground thereby crppng HIV/AIDS preventon efforts.
Secton 377 IPC thus creates a cass of vunerabe peope
that s contnuay vctmsed and drecty affected by the
provson. It has been submtted that the feds of
psychatry and psychoogy no onger treat homosexuaty as
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a dsease and regard sexua orentaton to be a deepy hed,
core part of the denttes of ndvduas.
8. The pettoner submts that whe rght to prvacy s mpct
n the rght to fe and berty and guaranteed to the ctzens,
n order to be meanngfu, the pursut of happness
encompassed wthn the concepts of prvacy, human dgnty,
ndvdua autonomy and the human need for an ntmate
persona sphere requre that prvacy - dgnty cam
concernng prvate, consensua, sexua reatons are aso
afforded protecton wthn the ambt of the sad fundamenta
rght to fe and berty gven under Artce 21. It s averred
that no aspect of ones fe may be sad to be more prvate
or ntmate than that of sexua reatons, and snce prvate,
consensua, sexua reatons or sexua preferences fgure
promnenty wthn an ndvduas personaty and e easy
at the core of the "prvate space", they are an naenabe
component of the rght of fe. Based on ths ne of
reasonng, a case has been made to the effect that the
prohbton of certan prvate, consensua sexua reatons
(homosexua) provded by Secton 377 IPC unreasonaby
abrdges the rght of prvacy and dgnty wthn the ambt of
rght to fe and berty under Artce 21. The pettoner
argues that fundamenta rght to prvacy under Artce 21
can be abrdged ony for a compeng state nterest whch,
n ts submsson, s amss here. Aso based on the
fundamenta rght to fe under Artce 21 s the further
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submsson that Secton 377 IPC has a damagng mpact
upon the ves of homosexuas nasmuch as t not ony
perpetuates soca stgma and poce/pubc abuse but aso
drves homosexua actvty underground thereby
|eopardzng HIV/AIDS preventon efforts and, thus,
renderng gay men and MSM ncreasngy vunerabe to
contractng HIV/AIDS.
9. Further, t has been submtted on behaf of the pettoner
that Secton 377 IPC's egsatve ob|ectve of penazng
"unnatura sexua acts" has no ratona nexus to the
cassfcaton created between procreatve and non-
procreatve sexua acts, and s thus voatve of Artce 14 of
the Consttuton of Inda. Secton 377's egsatve ob|ectve
s based upon stereotypes and msunderstandng that are
outmoded and en|oys no hstorca or ogca ratonae whch
render t arbtrary and unreasonabe. It s further the case
of the pettoner that the expresson "sex" as used n Artce
15 cannot be read restrctve to "gender" but ncudes
"sexua orentaton" and, thus read, equaty on the bass of
sexua orentaton s mped n the sad fundamenta rght
aganst dscrmnaton. The pettoner argues that
crmnazaton of predomnanty homosexua actvty
through Secton 377 IPC s dscrmnatory on the bass of
sexua orentaton and, therefore, voatve of Artce 15. It
s further the case of the pettoner that the prohbton
aganst homosexuaty n Secton 377 IPC curtas or
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nfrnges the basc freedoms guaranteed under Artce 19 (1)
(a) (b) (c) & (d); n that, an ndvduas abty to make
persona statement about ones sexua preferences, rght of
assocaton/assemby and rght to move freey so as to
engage n homosexua conduct are restrcted and curtaed.
10. Broady on the above reasonng, t has been submtted that
there s a case for consensua sexua ntercourse (of the knd
mentoned above; .e. homosexua) between two wng
aduts n prvacy to be saved and excepted from the pena
provson contaned n Secton 377 IPC.
REPLY 8Y UNlON OF lNDlA - CONTRADlCTORY 5TAND5 OF
MlNl5TRY OF HOME AFFAlR5 AND MlNl5TRY OF HEALTH &
FAMlLY WELFARE
11. A rather pecuar feature of ths case s that competey
contradctory affdavts have been fed by two wngs of
Unon of Inda. The Mnstry of Home Affars (MHA) sought to
|ustfy the retenton of Secton 377 IPC, whereas the Mnstry
of Heath & Famy Wefare nssted that contnuance of
Secton 377 IPC has hampered the HIV/AIDS preventon
efforts. We sha frst dea wth the affdavt of the Mnstry
of Home Affars. The Drector (|udca) n the Mnstry of
Home Affars, Government of Inda, n hs affdavt, seeks to
|ustfy the retenton of Secton 377 IPC on the statute book
broady on the reason that t has been generay nvoked n
cases of aegaton of chd sexua abuse and for
compementng acunae n the rape aws and not mere
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homosexuaty. Ths pena cause has been used partcuary
n cases of assaut where body harm s ntended and/or
caused. It has been submtted that the mpugned provson
s necessary snce the deeton thereof woud we open
food gates of denquent behavour and can possby be
msconstrued as provdng unfettered cence for
homosexuaty. Proceedng on the assumpton that
homosexuaty s unawfu, t has been submtted n the
affdavt that such acts cannot be rendered egtmate ony
because the person to whose detrment they are commtted
has gven consent to t. Concedng ground n favour of rght
to respect for prvate and famy fe, n the submsson of
Unon of Inda, nterference by pubc authortes n the
nterest of pubc safety and protecton of heath as we as
moras s equay permssbe.
12. Termng the ssues rased n the petton at hand as a
sub|ect reatng to pocy of aw rather than that of ts
egaty, Unon of Inda rees upon the reports of Law
Commsson of Inda partcuary on the ssue whether to
retan or not to retan Secton 377 IPC. Reference has been
made to 42
nd
report of the Commsson wheren t was
observed that Indan socety by and arge dsapproved of
homosexuaty, whch dsapprova was strong enough to
|ustfy t beng treated as a crmna offence even where the
aduts nduge n t n prvate. Unon of Inda submts that
aw cannot run separatey from the socety snce t ony
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refects the percepton of the socety. It cams that at the
tme of nta enactment, Secton 377 IPC was respondng to
the vaues and moras of the tme n the Indan socety. It
has been submtted that n fact n any paramentary secuar
democracy, the ega concepton of crme depends upon
potca as we as mora consderatons notwthstandng
consderabe overap exstng between ega and safety
concepton of crme .e. mora factors.
13. Acknowedgng that there have been ega reforms n a arge
number of countres so as to de-crmnase homosexua
conduct, Unon of Inda seeks to attrbute ths trend of
change to ncreased toerance shown by such socetes to
new sexua behavour or sexua preference. Argung that
pubc toerance of dfferent actvtes undergoes change
wth the tmes n turn nfuencng changes n aws, t s
sought to be ponted out that even the reforms n the nature
of Sexua Offences Act, 1967 (whereby buggery between
two consentng aduts n prvate ceased to be an offence n
the Unted Kngdom) had ts own share of crtcsm on the
ground that the egsaton had negatved the rght of the
state to suppress 'soca vces'. Unon of Inda argues that
Indan socety s yet to demonstrate readness or wngness
to show greater toerance to practces of homosexuaty.
Makng out a case n favour of retenton of Secton 377 IPC
n the shape t stands at present, Unon of Inda rees on the
arguments of pubc moraty, pubc heath and heathy
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envronment camng that Secton 377 IPC serves the
purpose.
14. From the above summary of submssons of the Unon of
Inda through the MHA t s cear that the thrust of the
resstance to the cam n the petton s founded on the
argument of pubc moraty. Though the MHA has referred
to the ssue of pubc heath and heathy envronment, the
affdavt has not set out eaboratey the sad defence.
AFFlDAVlT OF NACO / MlNl5TRY OF HEALTH & FAMlLY WELFARE
15. Natona Ads Contro Organsaton (NACO) has submtted ts
response n the shape of an affdavt affrmed by the Under
Secretary of Mnstry of Heath and Famy Wefare, whch
thus aso represents the vews of the sad Mnstry of the
Government of Inda. The submssons of NACO ony
confrm the case set out by the pettoner that homosexua
communty (MSM etc.) s partcuary susceptbe to
attractng HIV/AIDS n whch vew a number of ntatves
have been taken by NACO to ensure that proper HIV
nterventon and preventon efforts are made avaabe to
the sad secton of the socety by, amongst other thngs,
protectng and promotng ther rghts. In the repy affdavt,
NACO states that the groups dentfed to be at greater rsk
of acqurng and transmttng HIV nfecton due to a hgh
eve of rsky behavour and nsuffcent capacty or power
for decson makng to protect themseves from nfecton,
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generay descrbed as 'Hgh Rsk Groups' (HRG), broady
ncude men who have sex wth men (MSM) and femae sex
workers and n|ectng drug users.
16. NACO has adopted a strategy for preventng and further
transmsson of nfecton, whch ncude the foowng efforts:
(a) The strategy for preventng and the further
transmsson of nfecton ncudes:
. Makng the Genera Popuaton and Hgh Rsk
Groups aware through strategc IEC
(Informaton Educaton Communcaton) & BCC
(Behavour Change Communcaton) provdng
them wth the necessary toos and nformaton
for protectng themseves from HIV nfecton.
. Motvatng safer sexua practces by reducng
sexua partners, beng fathfu to a snge
partner abstanng from casua sex and the
correct and consstent use of condoms.
. Controng Sexuay Transmtted Infectons
(STIs) among Hgh Rsk Groups aong wth
promotng use of condoms as preventve
measure.
v. Peer educaton and Communty partcpaton
(beng the essenta component of Prmary
Heath Care).
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v. Ensurng avaabty of safe bood and bood
products; and
v. Renforcng the tradtona Indan mora vaues
of abstnence, deayed sexua debut t
marrage and fdety among youth and other
mpressonabe groups of popuaton.
(b) To create an enabng soco-economc
envronment so that a sectons of popuaton can
have access to proper nformaton, heath care &
counseng servces to protect themseves from the
nfecton and at the same tme empower fames and
communtes to provde better care & support to
peope vng wth HIV/AIDS.
(c) Improvng servces for the care of peope vng
wth AIDS both n hospta and at homes through
communty care.
17. In the repy affdavt fed on behaf of NACO, t has been
submtted that the report of the Expert Group on Sze
Estmaton of Popuaton wth Hgh Rsk Behavour for NACP-
III Pannng, |anuary 2006 estmated that there are about 25
akh MSM (Men havng sex wth men). The Natona Sentne
Surveance Data 2005 shows that more than 8% of the
popuaton of MSM s nfected by HIV whe the HIV
prevaence among the genera popuaton s estmated to be
esser than 1%. Gven the hgh vunerabty of MSM to HIV
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nfecton, NACO has deveoped programmes for undertakng
targeted nterventons among them. These pro|ects are
mpemented by NGOs wth fnanca support from NACO.
Presenty 1,46,397 MSM (6%) are beng covered through 30
targeted nterventons. Under the targeted nterventon
pro|ects, the ob|ectves are to:
a. reduce number of partners and by brngng
about a change n ther behavour;
b. reduce ther eve of rsk by nformng them
about and provdng access to condoms;
c. provdng access to STD servces.
18. Accordng to the submssons of NACO, those n the Hgh Rsk
Group are mosty reuctant to revea same sex behavour
due to the fear of aw enforcement agences, keepng a arge
secton nvsbe and unreachabe and thereby pushng the
cases of nfecton underground makng t very dffcut for the
pubc heath workers to even access them. It ustrates ths
pont by referrng to the data refected n the Natona
Basene Behavour Surveance Survey (NBBSS of 2002)
whch ndcates that whe 68.6% MSM popuaton s aware
about the methods of preventng nfecton, ony 36% of them
actuay use condoms. NACO has further submtted that
enforcement of Secton 377 IPC aganst homosexua groups
renders rsky sexua practces to go unnotced and
unaddressed nasmuch as the fear of harassment by aw
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enforcement agences eads to sex beng hurred,
partcuary because these groups ack 'safe pace', utse
pubc paces for ther ndugence and do not have the opton
to consder or negotate safer sex practces. It s stated that
the very hdden nature of such groups constanty
nhbts/mpedes nterventons under the Natona AIDS
Contro Programme amed at preventon. Thus NACO
renforces the pea rased by the pettoner for the need to
have an enabng envronment where the peope nvoved n
rsky behavour are encouraged not to concea nformaton
so that they can be provded tota access to the servces of
such preventve efforts.
RE5PON5E5 OF OTHER RE5PONDENT5
19. 'Voces aganst Secton 377 IPC' (herenafter referred to as
"respondent No.8") s a coaton of 12 organsatons that
represent chd rghts, women's rghts, human rghts, heath
concerns as we as the rghts of same sex desrng peope
ncudng those who dentfy as Lesban, Gay, Bsexua,
Transgenders, Hijra and lothi persons (whch are referred to
n the affdavt as "LGBT"). It has been submtted on ts
behaf that organsatons that consttute respondent No.8 are
nvoved n dverse areas of pubc and soca mportance and
that n the course of ther work they have repeatedy come
across gross voaton of basc human rghts of "LGBT"
persons, both as a drect and ndrect consequence of the
enforcement of Secton 377 IPC. It rees upon ts report
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tted 'Rghts for A : Endng Dscrmnaton under Secton
377' pubshed n 2004 to create awareness about negatve
mpact of ths aw on socety n genera and Lesban, Gay,
Bsexua and Transgenders peope n partcuar.
20. Respondent No.8 supports the cause espoused by the
pettoner n ths PIL and avers that Secton 377 IPC, whch
crmnases 'carna ntercourse aganst the order of the
nature', s an unconsttutona and arbtrary aw based on
archac mora and regous notons of sex ony for
procreaton. It asserts that crmnasaton of adut
consensua sex under Secton 377 IPC does not serve any
benefca pubc purpose or egtmate state nterest. On the
contrary, accordng to respondent No.8, Secton 377 IPC by
crmnasng the aforementoned knds of sexua acts has
created an assocaton of crmnaty towards peope wth
same sex desres. It peads that the contnued exstence of
ths provson on the statute book creates and fosters a
cmate of fundamenta rghts voatons of the gay
communty, to the extent of bosterng ther extreme soca
ostracsm.
21. To ustrate the magntude and range of expotaton and
harsh and crue treatment experenced as a drect
consequence of Secton 377 IPC, respondent No.8 has paced
on record matera n the form of affdavts, FIRs, |udgments
and orders wth ob|ectvey documented nstances of
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expotaton, voence, rape and torture suffered by LGBT
persons. The partcuars of the ncdents are drawn from
dfferent parts of the country. In an nstance referred to as
"Lucknow ncdent - 2002" n the report tted 'Epdemc of
Abuse : Poce Harassment of HIV/AIDS Outreach Workers n
Inda' pubshed by Human Rghts Watch, the poce durng
nvestgaton of a compant under Secton 377 IPC pcked up
some nformaton about a oca NGO (Bharosa Trust) workng
n the area of HIV/AIDS preventon and sexua heath
amongst MSMs raded ts offce, sezed safe sex advocacy
and nformaton matera and arrested four heath care
workers. Even n absence of any prma face proof nkng
them to the reported crme under Secton 377 IPC, a
prosecuton was aunched aganst the sad heath care
workers on charges that ncuded Secton 292 IPC treatng
the educatona terature as obscene matera. The heath
workers remaned n custody for 47 days ony because
Secton 377 IPC s a non-baabe offence.
22. Then there s a reference to 'Bangaore ncdent, 2004'
brngng out nstances of custoda torture of LGBT persons.
The vctm of the torture was a hijra (eunuch) from
Bangaore, who was at a pubc pace dressed n femae
cothng. The person was sub|ected to gang rape, forced to
have ora and ana sex by a group of hoogans. He was ater
taken to poce staton where he was strpped naked,
handcuffed to the wndow, grossy abused and tortured
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merey because of hs sexua dentty. Reference was made
to a |udgment of the Hgh Court of Madras reported as
jayalakshmi v. The State of Tamil Nadu, (2007) 4 ML|
849, n whch an eunuch had commtted sucde due to the
harassment and torture at the hands of the poce offcers
after he had been pcked up on the aegaton of nvovement
n a case of theft. There was evdence ndcatng that durng
poce custody he was sub|ected to torture by a wooden stck
beng nserted nto hs anus and some poce personne
forcng hm to have ora sex. The person n queston
mmoated hmsef nsde the poce staton on 12.6.2006 and
ater succumbed to burn n|ures on 29.6.2006. The
compensaton of Rs.5,00,000/- was awarded to the famy of
the vctm. Another nstance cted s of a case where the
Magstrate n hs order observed that the case nvoved a
hdden aegaton of an offence under Secton 377 IPC as
we, thereby stretchng the reach of Secton 377 IPC to two
esban adut women who were nvoved n a romantc
reatonshp wth each other whe the nta accusaton was
ony under Secton 366 IPC. An affdavt of a gay person s
aso fed on record. The person was pcked up from a bus
stand at about 10 p.m. by the poce, who accused hm of
beng a homosexua. He was physcay assauted wth
wooden stcks, taken to poce post where he was sub|ected
to sexua and degradng abusve anguage. Durng the
ncarceraton n the poce post over the nght, four poce
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men actuay raped and sexuay abused hm ncudng
forcng hm to have ora and ana sex. The respondent No.8
has reed upon severa other nstances of fundamenta
rghts voaton of homosexuas and gay persons. The
matera on record, accordng to the respondent No.8, ceary
estabshes that the contnuance of Secton 377 IPC on the
statute book operate to brutase a vunerabe, mnorty
segment of the ctzenry for no faut on ts part. The
respondent No.8 contends that a secton of socety has been
thus crmnased and stgmatzed to a pont where
ndvduas are forced to deny the core of ther dentty and
vta dmensons of ther personaty.
23. Respondents No.1 (Govt. of NCT of Deh), No.2
(Commssoner of Poce, Deh) and No.3 (Deh State Ads
Contro Socety) dd not fe any counter affdavt/peadngs.
Respondent No.6 (|ont Acton Counc Kannur) and
respondent No.7 (Mr. B.K.Sngha), who were mpeaded as
ntervenors, fed counter affdavts many adoptng the
vews / stand of the Mnstry of Home Affars, Unon of Inda
on the ssue.
ARCUMENT5
24. Learned counse appearng for the partes have addressed
the Court at ength. Durng the course of submssons,
extensve references were made to voumnous matera
whch ncuded varous reports, pubcatons, artces, Indan
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and foregn |udgments ncudng those of US Supreme Court,
European Commsson of Human Rghts, Human Rghts
Commttee etc. Counse aso provded comprehensve
wrtten submssons supported by authortes but as we
understand t, the prme arguments can be generay
summarsed n ths way:-
() The submsson of Mr. Anand Grover, Sr. Advocate,
appearng for the pettoner, and Mr. Shyam Dvan, Sr.
Advocate, appearng for respondent No.8, s that Secton 377
IPC voates the consttutona protectons emboded n
Artces 14, 19 and 21. It suffers from the vce of
unreasonabe cassfcaton and s arbtrary n the way t
unfary targets the homosexuas or gay communty. It aso
unreasonaby and un|usty nfrnges upon the rght of
prvacy, both zona and decsona. It aso conveys the
message that homosexuas are of ess vaue than other
peope, demeans them and unconsttutonay nfrnges upon
ther rght to ve wth dgnty. Secton 377 IPC aso creates
structura mpedments to the exercse of freedom of speech
and expresson and other freedoms under Artce 19 by
homosexuas or gays and s not protected by any of the
restrctons contaned theren. Furthermore, moraty by
tsef cannot be a vad ground for restrctng the rght under
Artces 14 and 21. Pubc dsapprova or dsgust for a
certan cass of persons can n no way serve to uphod the
consttutonaty of a statute. In any event, abundant
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matera has been paced on record whch shows that the
Indan socety s vbrant, dverse and democratc and
homosexuas have sgnfcant support n the popuaton. It s
submtted that courts n other |ursdctons have struck down
smar aws that crmnase same-sex sexua conduct on the
grounds of voaton of rght to prvacy or dgnty or equaty
or a of them. Keepng n mnd that Secton 377 IPC s the
ony aw that punshes chd sexua abuse and fs a acuna
n rape aw, t s prayed that Secton 377 IPC may be
decared as consttutonay nvad nsofar as t affects
prvate sexua acts between consentng aduts or n the
aternatve to read down Secton 377 IPC to excude
consentng same-sex sexua acts between aduts.
() In repy, earned ASG submts that there s no
fundamenta rght to engage n the same sex actvtes. In
our country, homosexuaty s abhorrent and can be
crmnased by mposng proportona mts on the ctzens'
rght to prvacy and equaty. Learned ASG submts that
rght to prvacy s not absoute and can be restrcted for
compeng state nterest. Artce 19(2) expressy permts
mposton of restrctons n the nterest of decency and
moraty. Soca and sexua mores n foregn countres cannot
|ustfy de-crmnasaton of homosexuaty n Inda.
Accordng to hm, n the western socetes the moraty
standards are not as hgh as n Inda. Learned ASG further
submts that Secton 377 IPC s not dscrmnatory as t s
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gender neutra. If Secton 377 IPC s struck down there w
be no way the State can prosecute any crme of non-
consensua carna ntercourse aganst the order of nature or
gross mae ndecency. He hastens to add that Secton 377
IPC s not enforced aganst homosexuas and there s no
need to "read down" the provsons of Secton 377 IPC.
Learned ASG further contends that spread of AIDS s
curtaed by Secton 377 IPC and de-crmnasaton of
consensua - same - sex acts between aduts woud cause a
decne n pubc heath across socety generay snce t
woud foster the spread of AIDS. He submts that Secton
377 IPC does not mpact upon the freedom under Artce
19(1) as what s crmnased s ony a sexua act. Peope w
have the freedom to canvass any opnon of ther choce
ncudng the opnon that homosexuaty must be de-
crmnased. He, therefore, submts that the Secton 377 IPC
s consttutonay vad.
() Mr.Rav Shankar Kumar, appearng for respondent
No.6, and Mr.H.P. Sharma, appearng for respondent No.7,
submtted that the pettoner's arguments wth respect to
the spread of HIV and AIDS are founded on propaganda and
are not factuay correct. Secton 377 IPC prevents HIV by
dscouragng rampant homosexuaty. Accordng to them,
Indan socety consders homosexuaty to be repugnant,
mmora and contrary to the cutura norms of the country.
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ARTlCLE 2J, THE RlCHT TO LlFE AND PROTECTlON OF A PER5ON'5
DlCNlTY, AUTONOMY AND PRlVACY
25. Unt the decson of the Supreme Court n Maneka Gandhi
v. Union of lndia, (1978) 1 SCC 248, a rather narrow and
constrcted meanng was gven to the guarantee emboded
n Artce 21. But n Maneka Gandhi, a seven-|udge Bench
decson, P.N. Bhagwat, |. (as hs Lordshp then was) hed
that the expresson "persona berty" n Artce 21 s of the
wdest amptude and t covers a varety of rghts whch go to
consttute the persona berty of man and some of them
have been rased to the status of dstnct fundamenta rghts
and gve addtona protecton under Artce 19. Any aw
nterferng wth persona berty of a person must satsfy a
trpe test: () t must prescrbe a procedure; () the
procedure must wthstand a test of one or more of the
fundamenta rghts conferred under Artce 19 whch may be
appcabe n a gven stuaton; and () t must aso be abe
to be tested wth reference to Artce 14. As the test
propounded by Artce 14 pervades Artce 21 as we, the
aw and procedure authorsng nterference wth the persona
berty must aso be rght and |ust and far and not arbtrary,
fancfu or oppressve. If the procedure prescrbed does not
satsfy the requrement of Artce 14, t woud be no
procedure at a wthn the meanng of Artce 21. The Court
thus expanded the scope and ambt of the rght to fe and
persona berty enshrned n Artce 21 and sowed the seed
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for future deveopment of the aw enargng ths most
fundamenta of the fundamenta rghts. Ths decson n
Maneka Gandhi became the startng pont for a very
sgnfcant evouton of the aw cumnatng n the decsons
n M.H. Hoskot v. State of Maharashtra, (1978) 3 SCC
544, Hussainara Khatoon and Ors. v. Home Secretary
State of Bihar, (1980) 1 SCC 81, Sunil Batra v. Delhi
Admn., (1978) 4 SCC 494, Prem Shankar Shukla v. Delhi
Admn., (1980) 3 SCC 526, Francis Coralie Mullin v.
Administrator, Union Territory of Delhi and others,
(1981) 1 SCC 608.
DlCNlTY
26. Dgnty as observed by L'Heureux-Dube, | s a dffcut
concept to capture n precse terms |Egan v. Canada,
(1995) 29 CRR (2
nd
) 79 at 106|. At ts east, t s cear that
the consttutona protecton of dgnty requres us to
acknowedge the vaue and worth of a ndvduas as
members of our socety. It recognses a person as a free
beng who deveops hs or her body and mnd as he or she
sees ft. At the root of the dgnty s the autonomy of the
prvate w and a person's freedom of choce and of acton .
Human dgnty rests on recognton of the physca and
sprtua ntegrty of the human beng, hs or her humanty,
and hs vaue as a person, rrespectve of the utty he can
provde to others. The expresson "dgnty of the ndvdua"
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fnds specfc menton n the Preambe to the Consttuton of
Inda. V.R. Krshna Iyer, |. observed that the guarantee of
human dgnty forms part of our consttutona cuture |Prem
Shankar Shukla v. Delhi Admn. (supra),page 529 of SCC|.
27. In Francis Coralie Mullin v. Administrator, Union
Territory of Delhi and others (supra), |ustce P.N.
Bhagwat expaned the concept of rght to dgnty n the
foowng terms:
+,,, We thnk that the rght to fe ncudes the rght to ve
wth human dgnty and a that goes aong wth t,
namey, the bare necessares of fe such as adequate
nutrton, cothng and sheter and factes for readng,
wrtng and expressng onesef n dverse forms, freey
movng about and mxng and commngng wth feow
human bengs. ......... Every act whch offends aganst or
mpars human dgnty woud consttute deprvaton pro
tanto of ths rght to ve and t woud have to be n
accordance wth reasonabe, far and |ust procedure
estabshed by aw whch stands the test of other
fundamenta rghts." |para 8 of SCC|
28. The Canadan Supreme Court n Law v. Canada (Ministry
of Employment and lmmigration), |1999 1 S.C.R. 497|
attempts to capture the concept of dgnty n these words :
"Human dgnty means that an ndvdua or group fees
sef-respect and sef-worth. It s concerned wth
physca and psychoogca ntegrty and empowerment.
Human dgnty s harmed by unfar treatment premsed
upon persona trats or crcumstances whch do not
reate to ndvdua needs, capactes, or merts. It s
enhanced by aws whch are senstve to the needs,
capactes, and merts of dfferent ndvduas, takng
nto account the context underyng ther dfferences.
Human dgnty s harmed when ndvduas and groups
are margnazed, gnored, or devaued, and s enhanced
when aws recognse the fu pace of a ndvduas and
groups wthn Canadan socety."|at para 53|
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PRlVACY
29. Artce 12 of the Unversa Decaraton of Human Rghts
(1948) refers to prvacy and t states:
"No one sha be sub|ected to arbtrary nterference wth
hs prvacy, famy, home or correspondence nor to
attacks upon hs honour and reputaton. Everyone has
the rght to the protecton of the aw aganst such
nterference or attacks."
Artce 17 of the Internatona Covenant of Cv and Potca
Rghts (to whch Inda s a party), refers to prvacy and states
that:
"No one sha be sub|ected to arbtrary or unawfu
nterference wth hs prvacy, famy, home and
correspondence, nor to unawfu attacks on hs honour
and reputaton."
30. The European Conventon on Human Rghts aso states that:
"1. Everyone has the rght to respect for hs prvate and
famy fe, hs home and hs correspondence.
2. There sha be no nterference by a pubc authorty
except such as s n accordance wth aw and s
necessary n a democratc socety n the nterests of
natona securty, pubc safety or the economc we-
beng of the country, for the protecton of heath or
moras or for the protecton of the rghts and freedoms
of others."
31. In Inda, our Consttuton does not contan a specfc
provson as to prvacy but the rght to prvacy has, as we
sha presenty show, been spet out by our Supreme Court
from the provsons of Artce 19(1)(a) deang wth freedom
of speech and expresson, Artce 19(1)(d) deang wth rght
to freedom of movement and from Artce 21, whch deas
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wth rght to fe and berty. We sha frst refer to the case-
aw n US reatng to the deveopment of the rght to prvacy
as these cases have been adverted to n the decsons of our
Supreme Court. Olmstead v. United States, 277 US 438
(1928), was a case of wre-tappng or eectronc surveance
and where there was no actua physca nvason, the
ma|orty hed that the acton was not sub|ect to Fourth
Amendment restrctons. But, n hs dssent, |ustce
Brandes, stated that the amendment protected the rght to
prvacy whch meant "the rght to be et aone", and ts
purpose was "to secure condtons favourabe to the pursut
of happness", whe recognsng "the sgnfcance of man's
sprtua nature, of hs feengs and nteect: the rght sought
"to protect Amercans n ther beefs, ther thoughts, ther
emotons and ther sensatons" (page 478). The dssent
came to be accepted as the aw after another four decades.
32. ln Griswold v. State of Connecticut, 381 US 479 (1965),
the Court nvadated a state aw prohbtng the use of drugs
or devces of contracepton and counseng or adng and
abettng the use of contraceptves. The Court descrbed the
protected nterest as a rght to prvacy and paced emphass
on the marrage reaton and the protected space of the
marta bedroom.
33. After Griswold t was estabshed that the rght to make
certan decsons regardng sexua conduct extends beyond
|WP(C)7455/2001| Page $* of !"#
the marta reatonshp. In Eisenstadt v. Baired, 405 US
438 (1972), the Court nvadated a aw prohbtng the
dstrbuton of contraceptves to unmarred persons. The
case was decded under the Equa Protecton Cause; but
wth respect to unmarred persons, the Court went on to
state the fundamenta proposton that the aw mpared the
exercse of ther persona rghts. It quoted from the
statement of the Court of Appeas fndng the aw to be n
confct wth fundamenta human rghts, and t observed:
"It s true that n Grswod the rght of prvacy n
queston nhered n the marta reatonshp..... If the
rght of prvacy means anythng, t s the rght of the
ndvdua marred or snge, to be free from
unwarranted governmenta ntruson nto matters so
fundamentay affectng a person as the decson
whether to bear or beget a chd." |para 453|
34. jane Roe v. Wade, 410 US 113 (1973), was a case n whch
an unmarred pregnant woman, who wshed to termnate her
pregnancy by aborton nsttuted acton n the Unted States
Dstrct Court for the Northern Dstrct of Texas, seekng a
decaratory |udgment that the Texas Crmna Aborton
Statutes, whch prohbted abortons except wth respect to
those procured or attempted by medca advce for the
purpose of savng the fe of the mother, were
unconsttutona. The Court sad that athough the
Consttuton of the USA does not expcty menton any rght
of prvacy, the Unted States Supreme Court recognsed that
a rght of persona prvacy or a guarantee of certan areas or
|WP(C)7455/2001| Page %" of !"#
zones of prvacy, does exst under the Consttuton, and that
the roots of that rght may be found n the Frst Amendment,
n the Fourth and Ffth Amendments, n the penumbras of
the B of Rghts n the Nnth Amendment and n the concept
of berty guaranteed by the frst secton of the Fourteenth
Amendment. In Planned Parenthood of Southeastern
Pa v. Casey, 505 US 833 (1992), the Court agan confrmed
the consttutona protecton to persona decsons reatng to
marrage, procreaton, contracepton, famy reatonshps,
chd rearng and educaton. In expanng the respect the
Consttuton demands for the autonomy of the person n
makng these choces, the Court stated as foows:
"These matters, nvovng the most ntmate and
persona choces a person may make n a fetme,
choces centra to persona dgnty and autonomy,
are centra to the berty protected by the
Fourteenth Amendment. At the heart of berty s
the rght to defne one's own concept of exstence,
of meanng, of the unverse, and of the mystery of
human fe. Beefs about these matters coud not
defne the attrbutes of personhood were they
formed under compuson of the State." |page
851|
DEVELOPMENT OF LAW OF PRlVACY lN lNDlA
35. In Kharak Singh v. The State of U.P., (1964) 1 SCR 332,
the U.P. Reguatons regardng domcary vsts were n
queston and the ma|orty referred to Munn v. lllinois, 94
US 113 (1877), and hed that though our Consttuton dd not
refer to the rght to prvacy expressy, st t can be traced
from the rght to "fe" n Artce 21. Accordng to the
|WP(C)7455/2001| Page %! of !"#
ma|orty, cause 236 of the reevant Reguatons n U.P., was
bad n aw; t offended Artce 21 nasmuch as there was no
aw permttng nterference by such vsts. The ma|orty dd
not go nto the queston whether these vsts voated the
"rght to prvacy". But, Subba Rao, |. whe concurrng that
the fundamenta rght to prvacy was part of the rght to
berty n Artce 21, part of the rght to freedom of speech
and expresson n Artce 19(1)(a), and aso of the rght of
movement n Artce 19(1)(d), hed that the Reguatons
permttng surveance voated the fundamenta rght to
prvacy. In effect, a the seven earned |udges hed that the
"rght to prvacy" was part of the rght to "fe" n Artce 21.
36. We now come to the ceebrated |udgment n Gobind v.
State of M.P., (1975) 2 SCC 148, n whch Mathew, |.
deveoped the aw as to prvacy from where t was eft n
Kharak Singh. The earned |udge referred to Griswold v.
Connecticut and jane Roe v. Henry Wade and observed:
"There can be no doubt that the makers of our
Consttuton wanted to ensure condtons favourabe to
the pursut of happness. They certany reazed as
Brandes, |. sad n hs dssent n Olmstead v. United
5tates, 277 U5 438, 47J

the sgnfcance of mans
sprtua nature, of hs feengs and of hs nteect and
that ony a part of the pan, peasure, satsfacton of fe
can be found n matera thngs and therefore they must
be deemed to have conferred upon the ndvdua as
aganst the Government a sphere where he shoud be
et aone." |para 20 of SCC|
37. Mathew, |. hed that prvacy - dgnty cams deserve to be
examned wth care and to be dened ony when an
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mportant countervang nterest s shown to be superor, or
where a compeng state nterest was shown. If the court
then fnds that a camed rght s entted to protecton as a
fundamenta prvacy rght, a aw nfrngng t must satsfy the
compeng state nterest test. Then the queston woud be
whether the state nterest s of such paramount mportance
as woud |ustfy an nfrngement of the rght. The earned
|udge observed that the rght to prvacy w have to go
through a process of case-by-case deveopment. The
earned |udge further observed that the rght s not absoute.
The ssue whether enforcement of moraty s a State
nterest suffcent to |ustfy nfrngement of fundamenta
"prvacy rght" was hed not necessary to be consdered for
purposes of the case. The Court refused "to enter nto the
controversa thcket whether enforcement of moraty s a
functon of the State."
38. A two-|udge Bench n R. Rajagopal v. State of T.N., (1994)
6 SCC 632, hed the rght to prvacy to be mpct n the rght
to fe and berty guaranteed to the ctzens of Inda by
Artce 21. "It s the rght to be eft aone". A ctzen has a
rght to safeguard the prvacy of hs own, hs famy,
marrage, procreaton, motherhood, chd bearng and
educaton among many other matters.
39. In District Registrar and Collector, Hyderabad and
another v. Canara Bank and another, (2005) 1 SCC 496,
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another two-|udge Bench hed that the rght to prvacy deat
wth persons and not paces. The rght to prvacy has been
accepted as mped n our Consttuton, n other cases,
namey, People's Union for Civil Liberties v. Union of
lndia, (1997) 1 SCC 301 and Sharda v. Dharampal, (2003)
4 SCC 493.
5ECTlON 377 lPC A5 AN lNFRlNCEMENT OF THE RlCHT5 TO
DlCNlTY AND PRlVACY
40. The rght to prvacy thus has been hed to protect a "prvate
space n whch man may become and reman hmsef". The
abty to do so s exercsed n accordance wth ndvdua
autonomy. Mathew |. n Gobind v. State of M.P. (supra)
referrng to the famous Artce, "The Rght to Prvacy" by
Chares Warren and Lous D. Brandes, (4 HLR 193), stressed
that prvacy - the rght to be et aone - was an nterest that
man shoud be abe to assert drecty and not dervatvey
from hs efforts to protect other nterests. Backmun, |. n hs
dssent n Bowers, Attorney General of Georgia v.
Hardwick et al, 478 US 186 (1986), made t cear that the
much - quoted "rght to be et aone" shoud be seen not
smpy as a negatve rght to occupy a prvate space free
from government ntruson, but as a rght to get on wth your
fe, your personaty and make fundamenta decsons about
your ntmate reatons wthout penasaton. The prvacy
recognses that we a have a rght to a sphere of prvate
ntmacy and autonomy whch aows us to estabsh and
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nurture human reatonshps wthout nterference from the
outsde communty. The way n whch one gves expresson
to one's sexuaty s at the core of ths area of prvate
ntmacy. If, n expressng one's sexuaty, one acts
consensuay and wthout harmng the other, nvason of that
precnct w be a breach of prvacy. (Ackermann |. n The
National Coalition for Gay and Lesbian Equality v. The
Minister of justice, decded by Consttutona Court of
South Afrca on 9
th
October, 1998).
41. In Bowers v. Hardwick (supra) Backmun, |. cted the
foowng passage from Paris Adult Theatre l v. Slaton,
|413 US 49 (1973), page 63| :
"Ony the most wfu bndness coud obscure the fact
that sexua ntmacy s a senstve, key reatonshp of
human exstence, centra to famy fe, communty
wefare, and the deveopment of human personaty.
The way n whch we gve expresson to our sexuaty s
at the core of ths area of prvate ntmacy. If, n
expressng our sexuaty, we act consensuay and
wthout harmng one another, nvason of that precnct
w be a breach of our prvacy."
5EXUALlTY AND lDENTlTY
42. There s a growng |ursprudence and other aw reated
practce that dentfes a sgnfcant appcaton of human
rghts aw wth regard to peope of dverse sexua
orentatons and gender denttes. Ths deveopment can be
seen at the nternatona eve, prncpay n the form of
practce reated to the Unted Natons - sponsored human
rghts treates, as we as under the European Conventon on
|WP(C)7455/2001| Page %# of !"#
Human Rghts. The sexua orentaton and gender dentty -
reated human rghts ega doctrne can be categorsed as
foows: (a)non-dscrmnaton; (b) protecton of prvate
rghts; and (c) the ensurng of speca genera human rghts
protecton to a, regardess of sexua orentaton or gender
dentty.
43. On 26
th
March, 2007, a group of human rghts experts
aunched the Yogyakarta Prncpes on the Appcaton of
Human Rghts Law n Reaton to Sexua Orentaton and
Gender Identty (Yogyakarta Prncpes). The prncpes are
ntended as a coherent and comprehensve dentfcaton of
the obgaton of States to respect, protect and fuf the
human rghts of a persons regardess of ther sexua
orentaton or gender dentty. The experts came from 25
countres representatve of a geographca regons. They
ncuded one former UN Hgh Commssoner for Human
Rghts, 13 current or former UN Human Rghts Speca
Mechansm Offce Hoders or Treaty Body Members, two
servng |udges on domestc courts and a number of
academcs and actvsts. Athough reatvey short perod of
tme has eapsed snce the aunch of the Prncpes, a
number of member and observer States have aready cted
them n Counc proceedngs. Wthn days of the Geneva
aunch, more than 30 States made postve nterventons on
sexua orentaton and gender dentty ssues, wth seven
States specfcay referrng to the Yogyakarta Prncpes.
|WP(C)7455/2001| Page %' of !"#
|Mchae O'Faherty and |ohn Fsher, "Sexua Orentaton,
Gender Identty and Internatona Human Rghts Law:
Contextuasng the Yogyakarta Prncpes" - Human Rghts
Law Revew 8:2 (2008), 207-248|.
44. The Yogyakarta Prncpes defne the expresson "sexua
orentaton" and "gender dentty" as foows:
"5exual Orientation" s understood to refer to each
persons capacty for profound emotona, affectona
and sexua attracton to, and ntmate and sexua
reatons wth, ndvduas of a dfferent gender or the
same gender or more than one gender;"
"Cender ldentity" s understood to refer to each
persons deepy fet nterna and ndvdua experence
of gender, whch may or may not correspond wth the
sex assgned at brth, ncudng the persona sense of
the body (whch may nvove, f freey chosen,
modfcaton of body appearance or functon by
medca, surgca or other means) and other expressons
of gender, ncudng dress, speech and mannersms."
The Prncpes recognse:
! Human bengs of a sexua orentaton and gender
denttes are entted to the fu en|oyment of a
human rghts;
! A persons are entted to en|oy the rght to
prvacy, regardess of sexua orentaton or gender
dentty;
! Every ctzen has a rght to take part n the
conduct of pubc affars ncudng the rght to
stand for eected offce, to partcpate n the
formuaton of poces affectng ther wefare, and
to have equa access to a eves of pubc servce
and empoyment n pubc functons, wthout
dscrmnaton on the bass of sexua orentaton or
gender dentty.
|WP(C)7455/2001| Page %( of !"#
45. Prof Edwn Cameron n hs Artce "Sexua Orentaton and
the Consttuton : A Test Case for Human Rghts", (1993) 110
SAL| 450 defnes sexua orentaton:
".... sexua orentaton s defned by reference to erotc
attracton: n the case of heterosexuas, to members of
the opposte sex; n the case of gays and esbans, to
members of the same sex. Potentay a homosexua or
gay or esban person can therefore be anyone who s
erotcay attracted to members of hs or her own sex."
46. In Bernstein and Others v. Bester and Others NNO,
1996 (4) BCLR 449 (CC), Ackermann |. ponted out that the
scope of prvacy had been cosey reated to the concept of
dentty and that "rghts, ke the rght to prvacy, are not
based on a noton of the unencumbered sef, but on the
noton of what s necessary to have ones autonomous
dentty ..... In the context of prvacy ths means that t s .....
the nner sanctum of the person such as hs/her famy fe,
sexua preference and home envronment whch s sheded
from eroson by confctng rghts of the communty." |para
117|
47. The Supreme Court has acknowedged that the sphere of
prvacy deas wth persons and not paces. Expanng ths
concept n District Registrar & Collector, Hyderabad v.
Canara Bank (Supra) Lahot, C|. referred to observatons of
Stevens, |. n Thornburgh v. American College of O and
G, 476 US 747 (1986), that "the concept of prvacy
embodes the mora fact that a person beongs to hmsef
and not to others nor to socety as a whoe". Lahot, C|. aso
|WP(C)7455/2001| Page %) of !"#
referred to an observaton of a commentator n (1976) 64
Ca. L. Rev 1447, that prvacy centers round vaues of
repose, sanctuary and ntmate decson. Repose refers to
freedom from unwanted stmu; sanctuary to protecton
aganst ntrusve observaton; and ntmate decson, to
autonomy wth respect to the most persona of fe choces.
For every ndvdua, whether homosexua or not, the sense
of gender and sexua orentaton of the person are so
embedded n the ndvdua that the ndvdua carres ths
aspect of hs or her dentty wherever he or she goes. A
person cannot eave behnd hs sense of gender or sexua
orentaton at home. Whe recognsng the unque worth of
each person, the Consttuton does not presuppose that a
hoder of rghts s as an soated, oney and abstract fgure
possessng a dsemboded and socay dsconnected sef. It
acknowedges that peope ve n ther bodes, ther
communtes, ther cutures, ther paces and ther tmes.
The expresson of sexuaty requres a partner, rea or
magned. It s not for the state to choose or to arrange the
choce of partner, but for the partners to choose themseves.
|Sachs, |. n The National Coalition for Gay and Lesbian
Equality v. The Minister of justice (supra)|.
48. The sphere of prvacy aows persons to deveop human
reatons wthout nterference from the outsde communty or
from the State. The exercse of autonomy enabes an
ndvdua to attan fufment, grow n sef-esteem, bud
|WP(C)7455/2001| Page %* of !"#
reatonshps of hs or her choce and fuf a egtmate
goas that he or she may set. In the Indan Consttuton, the
rght to ve wth dgnty and the rght of prvacy both are
recognsed as dmensons of Artce 21. Secton 377 IPC
denes a person's dgnty and crmnases hs or her core
dentty soey on account of hs or her sexuaty and thus
voates Artce 21 of the Consttuton. As t stands, Secton
377 IPC denes a gay person a rght to fu personhood whch
s mpct n noton of fe under Artce 21 of the
Consttuton.
lMPACT OF CRlMlNALl5ATlON ON HOMO5EXUAL5
49. Prof. Ryan Goodman of the Harvard Law Schoo, n hs we
researched study of the mpact of the sodomy aws on
homosexuas n South Afrca argues that condemnaton
expressed through the aw shapes an ndvdua's dentty
and sef-esteem. Indvduas utmatey do not try to conform
to the aw's drectve, but the dsapprova communcated
through t, nevertheess, substantvey affects ther sense of
sef-esteem, persona dentty and ther reatonshp to the
wder socety. Based on fed research, he argues that
sodomy aws produce regmes of surveance that operate n
a dspersed manner, and that such aws serve to embed
egaty wthn the dentty of homosexuas. He categorses
how sodomy aws renforce pubc abhorrence of esbans
and gays resutng n an eroson of sef-esteem and sef-
worth n numerous ways, ncudng (a) sef-refecton, (b)
|WP(C)7455/2001| Page &" of !"#
refecton of sef through famy, (c) verba assessment and
dsputes, (d) resdenta zones and mgratons, (e) restrcted
pubc paces, (f) restrcted movement and gestures, (g)
"safe paces" and (h) confcts wth aw enforcement
agences. (Beyond the Enforcement Prncpe: Sodomy Laws,
Soca Norms and Soca Panoptcs", 89 Ca. L. Rev. 643).
50. The studes conducted n dfferent parts of word ncudng
Inda show that the crmnasaton of same-sex conduct has
a negatve mpact on the ves of these peope. Even when
the pena provsons are not enforced, they reduce gay men
or women to what one author has referred to as
"unapprehended feons", thus entrenchng stgma and
encouragng dscrmnaton n dfferent spheres of fe. Apart
from msery and fear, a few of the more obvous
consequences are harassment, backma, extorton and
dscrmnaton. There s extensve matera paced on the
record n the form of affdavts, authortatve reports by we
known agences and |udgments that testfy to a wdespread
use of Secton 377 IPC to brutase MSM and gay communty.
Some of the ncdents ustratng the mpact of
crmnasaton on homosexuaty are earer noted by us.
We may quote another garng exampe. Durng Coona
perod n Inda, eunuchs (hijras) were crmnased by vrtue
of ther dentty. The Crmna Trbes Act, 1871 was enacted
by the Brtsh n an effort to poce those trbes and
communtes who 'were addcted to the systematc
|WP(C)7455/2001| Page &! of !"#
commsson of non-baabe offences.' These communtes
and trbes were deemed crmna by ther dentty, and mere
beongng to one of those communtes rendered the
ndvdua crmna. In 1897, ths Act was amended to
ncude eunuchs. Accordng to the amendment the oca
government was requred to keep a regster of the names
and resdences of a eunuchs who are "reasonaby
suspected of kdnappng or castratng chdren or of
commttng offences under Secton 377 IPC. Commentng
on the Crmna Trbes Act n a speech made n 1936, Pt.
|awahara Nehru sad:
"I am aware of the monstrous provsons of the Crmna
Trbes Act whch consttute a negaton of cv berty...
an attempt shoud be made to have the Act removed
from the statute book. No trbe can be cassed as
crmna as such and the whoe prncpe as such s out
of consonance wth cvzed prncpes of crmna |ustce
and treatment of offenders..." |Dap D'Souza, Branded
by aw: Lookng at Inda's Denotfed Trbes, Pengun,
New Deh, 2001: page 57|
Whe ths Act has been repeaed, the attachment of
crmnaty to the hijra communty st contnues.
51. In 2006, the State of Tam Nadu vde G.O. (Ms) No.199
dated 21.12.2006 recognsng that "aravans (hijras) are
dscrmnated by the socety and reman soated" ssued
drectons thus:
"I. counseng be gven to chdren who may fee
dfferent from other ndvduas n terms of ther gender
dentty.
II. Famy counseng by the teachers wth the hep of
NGOs senstzed n that area shoud be made mandatory
|WP(C)7455/2001| Page &$ of !"#
so that such chdren are not dsowned by ther fames.
The C.E.O.s, D.E.O.s, Dstrct Soca Wefare Offcers and
Offcers of Soca Defence are requested to arrange
compusory counseng wth the hep of teachers and
NGOs n the Dstrcts wherever t s requred.
III. Admsson n Schoo and Coeges shoud not be
dened based on ther sex dentty. If any report s
receved of denyng admsson of aravan's sutabe
dscpnary acton shoud be taken by the authortes
concerned."
52. The crmnasaton of homosexuaty condemns n perpetuty
a szabe secton of socety and forces them to ve ther ves
n the shadow of harassment, expotaton, humaton, crue
and degradng treatment at the hands of the aw
enforcement machnery. The Government of Inda estmates
the MSM number at around 25 acs. The number of esbans
and transgenders s sad to be severa acs as we. Ths vast
ma|orty (borrowng the anguage of the South Afrcan
Consttutona Court) s dened "mora fu ctzenshp".
Secton 377 IPC grossy voates ther rght to prvacy and
berty emboded n Artce 21 nsofar as t crmnases
consensua sexua acts between aduts n prvate. These
fundamenta rghts had ther roots deep n the strugge for
ndependence and, as ponted out by Granve Austn n
"The Indan Consttuton - Cornerstone of A Naton", "they
were ncuded n the Consttuton n the hope and
expectaton that one day the tree of true berty woud
boom n Inda". In the words of |ustce V.R. Krshna Iyer
these rghts are cardna to a decent human order and
|WP(C)7455/2001| Page &% of !"#
protected by consttutona armour. The sprt of Man s at
the root of Artce 21, absent berty, other freedoms are
frozen. |Maneka Gandhi (supra) at para 76 SCC|
CLO8AL TREND5 lN PROTECTlON OF PRlVACY DlCNlTY RlCHT5 OF
HOMO5EXUAL5
53. The frst successfu nternatona human rghts cases
concernng the prvacy on same-sex reatons were taken
under the ECHR. In Dudgeon v. The United Kingdom, 45
Eur. Ct. H.R. (ser. A) (1981), and Norris v. Republic of
lreland, 142 Eur. Ct. H.R. (ser. A) (1988), the crmnasaton
of such practces was deemed a voaton of the prvacy
protecton n Artce 8 of the ECHR. In Dudgeon v. The
United Kingdom, the European Court of Human Rghts hed
that "mantenance n force of the mpugned egsaton
consttutes a contnung nterference wth the appcant's
rght to respect for hs prvate fe (whch ncudes hs sexua
fe) wthn the meanng of Artce 8 para 1 (art.8-1). In the
persona crcumstances of the appcant, the very exstence
of ths egsaton contnuousy and drecty affect hs prvate
fe. In Norris v. Republic of lreland, the European Court
of Human Rghts rued that Ireand's banket prohbton on
gay sex breached the ECHR. The Court quoted wth approva
the fndng of an Irsh |udge that:
"|o|ne of the effects of crmna sanctons aganst
homosexua acts s to renforce the msapprehenson
and genera pre|udce of the pubc and ncrease the
anxety and gut feengs of homosexuas eadng, on
|WP(C)7455/2001| Page && of !"#
occason, to depresson and the serous consequences
whch can foow ..." |para 21|
54. In Modinos v. Cyprus, 259 Eur. Ct. H.R. (ser. A) (1993), the
European Court of Human Rghts agan hed that such a aw
voated the rght to prvacy, and mantaned that even a
"consstent pocy" of not brngng prosecutons under the
aw was no substtute for fu repea.
55. In Toonen v. Australia, (No.488/1992 CCPR/C/ 50/D/488
/1992, March 31, 1994), the Human Rghts Commttee hed
that the contnuous exstence of Tasmanan sodomy aws
voates Artce 17 of Internatona Covenant of Cv and
Potca Rghts. The Commttee observed:
"The Commttee consders that sectons 122(a) and (c)
and 123 of the Tasmanan Crmna Code "nterfere"
wth the author's prvacy, even f these provsons have
not been enforced for a decade. In ths context, t notes
that the pocy of the Department of Pubc Prosecutons
not to ntate crmna proceedngs n respect of prvate
homosexua conduct does not amount to a guarantee
that no actons w be brought aganst homosexuas n
the future, partcuary n the ght of undsputed
statements of the Drector of Pubc Prosecutons of
Tasmana n 1988 and those of members of the
Tasmanan Parament. The contnued exstence of the
chaenged provsons therefore contnuousy and
drecty "nterferes" wth the author's prvacy."|para 8.2|
56. In The National Coalition for Gay and Lesbian Equality
v. The Minister of justice (supra), the Consttutona Court
of South Afrca struck down the sodomy aws on the ground
of voaton of rghts to prvacy, dgnty and equaty.
Ackermann |. narrated the papabe nvason of ther rghts:
"The common-aw prohbton on sodomy crmnases a
sexua ntercourse per anum between men: regardess
|WP(C)7455/2001| Page &# of !"#
of the reatonshp of the coupe who engage theren, of
the age of such coupe, of the pace where t occurs, or
ndeed of any other crcumstances whatsoever. In so
dong, t punshes a form of sexua conduct whch s
dentfed by our broader socety wth homosexuas. Its
symboc effect s to state that n the eyes of our ega
system a gay men are crmnas. The stgma thus
attached to a sgnfcant proporton of our popuaton s
manfest. But the harm mposed by the crmna aw s
far more than symboc. As a resut of the crmna
offence, gay men are at rsk of arrest, prosecuton and
convcton of the offence of sodomy smpy because
they seek to engage n sexua conduct whch s part of
ther experence of beng human. |ust as aparthed
egsaton rendered the ves of coupes of dfferent
raca groups perpetuay at rsk, the sodomy offence
buds nsecurty and vunerabty nto the day ves of
gay men. There can be no doubt that the exstence of a
aw whch punshes a form of sexua expresson for gay
men degrades and devaues gay men n our broader
socety. As such t s a papabe nvason of ther dgnty
and a breach of secton 10 of the Consttuton." |para
28|
57. In Lawrence v. Texas, 539 US 558 (2003), hodng the
Texas sodomy aws as unconsttutona, the US Supreme
Court reversed ts earer decson n Bowers v. Hardwick
(supra). Kennedy, |., who devered the opnon of the Court,
sad:
".... It suffces for us to acknowedge that aduts may
choose to enter upon ths reatonshp n the confnes of
ther homes and ther own prvate ves and st retan
ther dgnty as free persons. When sexuaty fnds overt
expresson n ntmate conduct wth another person, the
conduct can be but one eement n a persona bond that
s more endurng. The berty protected by the
Consttuton aows homosexua persons the rght to
make ths choce. ...... |page 567|
......The ssue s whether the ma|orty may use the
power of the State to enforce these vews on the whoe
socety through operaton of the crmna aw. "Our
obgaton s to defne the berty of a, not to mandate
our own mora code." |page 571|
|WP(C)7455/2001| Page &' of !"#
.....When homosexua conduct s made crmna by the
aw of the State, that decaraton n and of tsef s an
nvtaton to sub|ect homosexua persons to
dscrmnaton both n the pubc and n the prvate
spheres. ..." |page 575|
58. Snce 1967 the process of change has nformed ega
atttude towards sexua orentaton. Ths process has
cumnated n the de-crmnasaton of sodomy n prvate
between consentng aduts, n severa |ursdctons. The
superor courts n some of these |ursdctons have struck
down ant-sodomy aws, where such aws reman on the
statute book. In 1967 n Engand and Waes and n 1980 n
Scotand sodomy between consentng adut maes n prvate
was de-crmnased. However, n Northern Ireand the
crmna aw reatng to sodomy remaned unchanged. In
1982, n pursuance of the decson of the ECHR n Dudgeon
v. United Kingdom (supra), sodomy between adut
consentng maes n prvate was de-crmnased n Northern
Ireand. The same concuson was reached n 1988 n Norrs
v. Ireand (supra) and Ireand repeaed sodomy aws n 1993.
Laws prohbtng homosexua actvty between consentng
aduts n prvate havng eradcated wthn 23 member-states
that had |oned the Counc of Europe n 1989 and of the 10
European countres that had |oned snce (as at 10
th
February, 1995), nne had de-crmnased sodomy aws
ether before or shorty after ther membershp appcatons
were granted. In Austraa, a the States wth the excepton
|WP(C)7455/2001| Page &( of !"#
of Tasmana, had by 1982 de-crmnased sexua acts n
prvate between consentng aduts and had aso passed ant-
dscrmnaton aws whch prohbted dscrmnaton on the
ground, amongst others, of sexua orentaton. Tasmana
repeaed offendng sectons n ts Crmna Code n 1997 n
vew of the decson of Unted Natons Human Rghts
Commttee n Toonen v. Australia. Consensua sexua
reatons between adut maes have been de-crmnased n
New Zeaand. In Canada, consensua adut sodomy
("Buggery") and so-caed "gross ndecency" were de-
crmnased by statute n 1989 n respect of such acts
commtted n prvate between 21 years and oder whch was
subsequenty brought down to age of 18 years or more. In
Unted States of Amerca though the chaenge to sodomy
aws was turned down n Bowers v. Hardwick (supra), but
subsequenty n Lawrence v.Texas, the sodomy aws
nsofar as between consentng aduts n prvate were struck
down. A number of open democratc socetes have turned
ther backs to crmnasaton of sodomy aws n prvate
between consentng aduts despte the fact that sexua
orentaton s not expressy protected n the equaty
provsons of ther consttutons. Homosexuaty has been
de-crmnased n severa countres of Asa, Afrca and South
Amerca. The Hgh Court of Hongkong n ts |udgments n
Leung T.C.William Roy v. Secy for justice, dated 24
th
August, 2005 and 20
th
September, 2006 struck down smar
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sodomy aws. To the same effect s the |udgment of the
Hgh Court of F| n Dhirendra Nandan & Another v.
State, Crmna Appea Case No. HAA 85 & 86 of 2005,
decded on 26
th
August, 2005. Nepaese Supreme Court has
aso struck down the aws crmnasng homosexuaty n
2008 |Supreme Court of Nepa, Dvson Bench, Inta Note of
the Decson 21.12.2007|.
59. On 18
th
"December, 2008, n New York, the UN Genera
Assemby was presented wth a statement endorsed by 66
States from around the word cang for an end to
dscrmnaton based on sexua orentaton and gender
dentty. The statement, read out by the UN Representatve
for Argentna |orge Arguea, condemns voence,
harassment, dscrmnaton, excuson, stgmatsaton, and
pre|udce based on sexua orentaton and gender dentty. It
aso condemns kngs and executons, torture, arbtrary
arrest, and deprvaton of economc, soca, and cutura
rghts on those grounds. The statement read at the Genera
Assemby reaffrms exstng protectons for human rghts n
nternatona aw. It buds on a prevous |ont statement
supported by 54 countres, whch Norway devered at the
UN Human Rghts Counc n 2006. UN Hgh Commssoner
for Human Rghts, who addressed the Genera Assemby va
a vdeo taped message stated:
"Ironcay many of these aws, ke Aparthed aws that
crmnased sexua reatons between consentng aduts
|WP(C)7455/2001| Page &* of !"#
of dfferent races, are recs of the coona and are
ncreasngy recognsed as anachronstc and as
nconsstent both wth nternatona aw and wth
tradtona vaues of dgnty, ncuson and respect for
a."
COMPELLlNC 5TATE lNTERE5T
60. The Unon Mnstry of Home Affars has opposed the petton
camng, nter aa, that Secton 377 IPC s a |ustfed
nterference by "pubc authortes n the nterest of pubc
safety and protecton of heath and moras." On the other
hand, Unon Mnstry of Heath and Famy Wefare has
supported the petton and admtted that Secton 377 IPC, by
crmnasng consensua sex between aduts of the same
sex, hampers HIV nterventon efforts amed at sexua
mnortes. Indeed t s the pea of the pettoner that Secton
377 IPC nfrnges rght to heath as emboded n Artce 21 of
the Consttuton of Inda. We sha take up the ssue of pubc
safety and heath frst.
5ECTlON 377 lPC A5 AN lMPEDlMENT TO PU8LlC HEALTH
61. Artce 12 of the Internatona Covenant on Economc, Soca
and Cutura Rghts makes t obgatory on the "State to fuf
everyone's rght to the hghest attanabe standard of
heath." The Supreme Court of Inda nterpretng Artce 21
of the Indan Consttuton n the ght of Artce 12 of the
Covenant hed that the rght to heath nhered n the
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fundamenta rght to fe under Artce 21. |Paschim Banga
Khet Mazdoor Samity v. State of W.B., (1996) 4 SCC 37|.
62. It s submtted by NACO that Secton 377 acts as a serous
mpedment to successfu pubc heath nterventons.
Accordng to NACO, those n the Hgh Rsk Group are mosty
reuctant to revea same-sex behavour due to fear of aw
enforcement agences, keepng a arge secton nvsbe and
unreachabe and thereby pushng the cases of nfecton
underground makng t very dffcut for the pubc heath
workers to even access them. The stuaton s aggravated
by the strong tendences created wthn the communty who
deny MSM behavour tsef. Snce many MSM are marred or
have sex wth women, ther femae sexua partners are
consequenty aso at rsk for HIV/nfecton. The NACO vews
t mperatve that the MSM and gay communty have the
abty to be safey vsbe through whch HIV/AIDS preventon
may be successfuy conducted. Ceary, the man
mpedment s that the sexua practces of the MSM and gay
communty are hdden because they are sub|ect to crmna
sancton.
63. Genera Comment No.14 (2000) |E/C.12/2000/4; 11 August
2000| on Artce 12 of the Internatona Covenant on
Economc, Soca and Cutura Rghts states that rght to
heath s not to be understood as a rght to be heathy. The
rght to heath contans both freedoms and enttements.
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The freedoms ncude the rght to contro one's heath and
body, ncudng sexua reproductve freedom, and the rght
to be free from nterference, such as the rght to be free
from torture, non-consensua medca treatment and
expermentaton. By contrast, the enttements ncude the
rght to a system of heath, protecton whch provdes
equaty of opportunty for peope to en|oy the hghest
attanabe eve of heath. It further states:
"Non-dscrmnaton and equa treatment
By vrtue of artce 2.2 and artce 3, the Covenant
proscrbes any dscrmnaton n access to heath care
and underyng determnants of heath, as we as to
means and enttements for ther procurement, on the
grounds of race, coour, sex, anguage, regon, potca
or other opnon, natona or soca orgn, property,
brth, physca or menta dsabty, heath status
(ncudng HIV/AIDS), sexua orentaton and cv,
potca, soca or other status, whch has the ntenton
or effect of nufyng or mparng the equa en|oyment
or exercse of the rght to heath. The Commttee
stresses that many measures, such as most strateges
and programmes desgned to emnate heath-reated
dscrmnaton, can be pursued wth mnmum resource
mpcatons through the adopton, modfcaton or
abrogaton of egsaton or the dssemnaton of
nformaton..." |para 18|
64. The 2001 UN Genera Assemby Speca Sesson (UNGASS)
Decaraton of Commtment on HIV/AIDS, hed on 25-27
|une, 2001, adopted by a UN Member States emphassed
the mportance of "addressng the needs of those at the
greatest rsk of, and most vunerabe to, new nfecton as
ndcated by such factors as ... sexua practces." In 2005, 22
governments from dfferent regons aong wth
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representatves of non-governmenta organsatons and
peope vng wth HIV as members of the UNAIDS governng
board, caed for the deveopment of programmes targeted
at key affected groups and popuatons, ncudng men who
have sex wth men, descrbng ths as "one of the essenta
pocy actons for HIV preventon". |UNAIDS (2005)
Intensfyng HIV Preventon, Geneva, |ont Unted Natons
Programme on HIV/AIDS|. Snce then, country and regona
consutatons have confrmed that the stgma, dscrmnaton
and crmnasaton faced by men who have sex wth men are
ma|or barrers to the movement for unversa access to HIV
preventon, treatment, care and support. |Unted Natons
A/60/737 Assessment by UNAIDS to the Genera Assemby on
Scang up HIV Preventon, Treatment, Care and Support,
March 24, 2006|. At the 2006 Hgh Leve Meetng on AIDS,
the Member States and cv socety members reterated the
commtment undernng the need for "fu and actve
partcpaton of vunerabe groups ... and to emnate a
forms of dscrmnaton aganst them .... whe respectng
ther prvacy and confdentaty". |Paragraph 64 of 2001
Decaraton of Commtment on HIV/AIDS and Paragraphs 20
and 29 of the 2006 Potca Decaraton on HIV/AIDS|. In ths
context UNAIDS, nter aa, recommended the foowng:
"Respect, protect and fuf the rghts of men who have
sex wth men and address stgma and dscrmnaton n
socety and n the workpace by amendng aws
prohbtng sexua acts between consentng aduts n
prvate; enforcng ant-dscrmnaton; provdng ega
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ad servces, and promotng campagns that address
homophoba." |HIV and Sex between Men : UNAIDS|
65. A report of the Natona Conference on Human Rghts and
HIV/AIDS, hed on 24-25 November, 2000 n New Deh and
organsed by the Natona Human Rghts Commsson, n
coaboraton wth other organsatons, concudes:
"Therefore, to more successfuy prevent and manage
HIV/AIDS among these margnazed popuatons,
(ntravenous drug users and MSA), a revson of the
exstng aws and processes s strongy
recommended........ In terms of preventng HIV/AIDS
among men who have sex wth men, t woud be most
usefu to make secton 377 IPC obsoete, and nstead
revew the egsaton and endeavour to defne more
ceary the age of sexua consent.

.... .... .... .... ....
In a nutshe, the protecton of Human Rghts and the
empowerment of margnazed popuatons woud, n the
context of HIV/AIDS preventon, create an envronment
that woud enabe Inda to reach the most vunerabe
wth HIV/AIDS messages and supportng mechansms."
|Report of the Natona Conference on Human Rghts
and HIV/AIDS : http://nhrc.nc.n/Pubcatons/report_hv-
ads.htm|
66. The "Deh Decaraton of Coaboraton, 2006" ssued
pursuant to Internatona Consutaton on Mae Sexua Heath
and HIV, co-hosted by the Government of Inda, UNAIDS and
Cv Socety Organsatons, recognsed that: "... the stgma,
dscrmnaton and crmnasaton faced by men who have
sex wth men, gay men and transgender peope are ma|or
barrers to unversa access to HIV preventon and
treatment" |Deh Decaraton of Coaboraton : 26
th
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September, 2006|. On |une 30, 2008, the Prme Mnster
Mr.Manmohan Sngh n a speech devered at the reease of
the Report of the Commsson on AIDS n Asa stated "the
fact that many of the vunerabe soca groups, be they sex
workers or homosexuas or drug users, face great soca
pre|udce has made the task of dentfyng AIDS vctms and
treatng them very dffcut" |Prme Mnster's address on the
reease of the Report of the Commsson on AIDS n Asa:
|une 30, 2006|. On August 08, 2008, the Unon Mnster of
Heath and Famy Wefare, Dr. Ambuman Ramadoss
speakng at the 17
th
Internatona Conference on Ads n
Mexco Cty s reported to have stated "....structura
dscrmnaton aganst those who are vunerabe to HIV such
as sex workers and MSM must be removed f our preventon,
care and treatment programmes are to succeed". He sad,
"Secton 377 of the Indan Pena Code, whch crmnases
men who have sex wth men, must go" |Reported n Indan
Express: August 9,2006 http://www.ndanexpress.com/story/
346649.htm|. Unon Mnster of Heath s aso reported to
have stated at the Internatona HIV/AIDS Conference n
Toronto, 2006 that Secton 377 IPC was to be amended as
part of the government's measures to prevent HIV/AIDS.|The
Hndu: August 16,2006|
67. There s amost unanmous medca and psychatrc opnon
that homosexuaty s not a dsease or a dsorder and s |ust
another expresson of human sexuaty. Homosexuaty was
|WP(C)7455/2001| Page ## of !"#
removed from the Dagnostc and Statstca Manua of
Menta Dsorders (DSM) n 1973 after revewng evdence
that homosexuaty s not a menta dsorder. In 1987, ego-
dystonc homosexuaty was not ncuded n the revsed thrd
edton of the DSM after a smar revew. In 1992, the Word
Heath Organsaton removed homosexuaty from ts st of
menta nesses n the Internatona Cassfcaton of
Dseases (ICD 10). Gudenes of the ICD 10 reads:
"dsorders of sexua preference are ceary dfferentated
from dsorders of gender dentty and homosexuaty n tsef
s no onger ncuded as a category."
68. Accordng to the Amcus bref fed n 2002 by the Amercan
Psychatrc Assocaton before the Unted States Supreme
Court n the case of Lawrence v. Texas:
"Accordng to current scentfc and professona
understandng, however, the core feengs and
attractons that form the bass for adut sexua
orentaton typcay emerge between mdde chdhood
and eary adoescence. Moreover, these patterns of
sexua attracton generay arse wthout any pror
sexua experence." |page 7 of Amcus bref|
Thus, homosexuaty s not a dsease or menta ness that
needs to be, or can be, 'cured' or 'atered', t s |ust another
expresson of human sexuaty.
69. Learned Addtona Soctor Genera made an attempt at
canvassng the nterest of pubc heath to |ustfy retenton of
Secton 377 IPC on the statute book. He referred to the UN
Report on Goba AIDS Epdemc, 2008, partcuary the
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secton deang wth Asa to hghght that HIV /AIDS s
transmtted through the route of sex and specfcay that of
sex by men-wth-men. Reance was paced on the fndngs
ndcated at pages 47-50 of the Report to the effect that n
Asa an estmated 5.0 mon peope were vng wth HIV n
2007 out of whch 3,80,000 peope were those who had been
newy nfected n that year aone. The UN Report attrbutes
ths aarmng ncrease n the HIV nfecton, amongst others,
to "unprotected sex" n whch unprotected ana sex between
men s stated to be a potenta sgnfcant factor. Learned
ASG paced reance on a number of artces, papers and
reports, ncudng pubcatons of Centre for Dsease Contro
and Preventon (CDC). The ob|ectve of ASG, n reyng upon
ths matera, s to show that HIV/AIDS s spread through sex
and that men-to-men sex carres hgher rsk of exposure as
compared to femae-to-mae or mae-to-femae. In hs
submsson, de-crmnasaton of Secton 377 IPC cannot be
the cure as homosexuas nstead need medca treatment
and further that AIDS can be prevented by approprate
educaton, use of condoms and advocacy of other safe sex
practces.
70. We are unabe to accede to the submssons of earned ASG.
The understandng of homosexuaty, as pro|ected by hm, s
at odds wth the current scentfc and professona
understandng. As aready notced wth reference to
Dagnostc and Statstca Manua of Menta Dsorders (DSM),
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as revsed n 1987 (3
rd
edton), "homosexuaty" s no onger
treated as a dsease or dsorder and now near unanmous
medca and psychatrc expert opnon treats t as |ust
another expresson of human sexuaty.
71. The submsson of ASG that Secton 377 IPC does not n any
manner come n the way of MSM accessng HIV/AIDS
preventon matera or heath care nterventon s n contrast
to that of NACO, a specazed agency of the government
entrusted wth the duty to formuate and mpement poces
for preventon of spread of HIV/AIDS. As mentoned earer,
NACO confrms the case of the pettoner that enforcement
of Secton 377 IPC contrbutes adversey; n that, t eads to
constanty nhbtng nterventons through the Natona AIDS
Contro Programme undertaken by the sad agency. It needs
to be noted here that Government of Inda s a party to the
decared commtment to address the needs of those at
greater rsk of HIV ncudng amongst Hgh Rsk Groups, such
as MSM |See United Nations Ceneral Assembly Declaration
of Commitment on HlV/AlD5, 200J, at para 64; NACO,
MoHFW, National AlD5 Control Programme Phase lll (2007-
20J2) 5trategy and lmplementation Plan, November 2006, at
pages 18-32|. Thus, the submssons made oray on behaf
of the Unon of Inda are not borne out by the records. On
one hand, the affdavt of NACO categorcay states that
Secton 377 IPC pushes gays and MSM underground, eaves
them vunerabe to poce harassment and renders them
|WP(C)7455/2001| Page #) of !"#
unabe to access HIV/AIDS preventon matera and
treatment. On the other, the extensvey documented
nstances of NGOs workng n the fed of HIV/AIDS
preventon and heath care beng targeted and ther staff
arrested under Secton 377 IPC ampy demonstrate the
mpact of crmnazaton of homosexua conduct.
72. The submsson of ASG that Secton 377 IPC heps n puttng
a brake n the spread of AIDS and f consensua same-sex
acts between aduts were to be de-crmnased, t woud
erode the effect of pubc heath servces by fosterng the
spread of AIDS s competey unfounded snce t s based on
ncorrect and wrong notons. Sexua transmsson s ony
one of the severa factors for the spread of HIV and the
dsease spreads through both homosexua as we as
heterosexua conduct. There s no scentfc study or
research work by any recognsed scentfc or medca body,
or for that matter any other matera, to show any causa
connecton exstng between decrmnasaton of
homosexuaty and the spread of HIV/AIDS. The argument, n
fact, runs counter to the pocy foowed by the Mnstry of
Heath and Famy Wefare n combatng the spread of ths
dsease.
73. A smar ne of argument advanced n the case of Toonen
v. State of Australia (supra) before Human Rghts
Commttee was re|ected wth the foowng observatons:
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"As far as the pubc heath argument of the
Tasmanan authortes s concerned, the
Commttee notes that the crmnazaton of
homosexua practces cannot be consdered a
reasonabe means or proportonate measure to
acheve the am of preventng the spread of
AIDS/HIV. The Government of Austraa observes
that statutes crmnazng homosexua actvty
tend to mpede pubc heath programmes "by
drvng underground many of the peope at the
rsk of nfecton". Crmnazaton of homosexua
actvty thus woud appear to run counter to the
mpementaton of effectve educaton
programmes n respect of the HIV/AIDS
preventon. Secondy, the Commttee notes that
no nk has been shown between the contnued
crmnazaton of homosexua actvty and the
effectve contro of the spread of the HIV/AIDS
vrus."|para 8.5|
74. Learned ASG was at pans to argue that Secton 377 IPC s
not prone to msuse as t s not enforced aganst
homosexuas but generay used n cases nvovng chd
abuse or sexua abuse. Agan, the submsson s aganst the
facts. A number of documents, affdavts and authortatve
reports of ndependent agences and even |udgments of
varous courts have been brought on record to demonstrate
the wdespread abuse of Secton 377 IPC for brutasng MSM
and gay communty persons, some of them of very recent
vntage. If the pena cause s not beng enforced aganst
homosexuas engaged n consensua acts wthn prvacy, t
ony mpes that ths provson s not deemed essenta for
the protecton of moras or pubc heath vs-a-vs sad
secton of socety. The provson, from ths perspectve,
shoud fa the "reasonabeness" test.
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MORALlTY A5 A CROUND OF A RE5TRlCTlON TO
FUNDAMENTAL RlCHT5
75. As hed n Gobind (supra), f the court does fnd that a
camed rght s entted to protecton as a fundamenta
prvacy rght, the aw nfrngng t must satsfy the
compeng state nterest test. Whe t coud be "a
compeng state nterest" to reguate by aw, the area for
the protecton of chdren and others ncapabe of gvng a
vad consent or the area of non-consensua sex,
enforcement of pubc moraty does not amount to a
"compeng state nterest" to |ustfy nvason of the zone of
prvacy of adut homosexuas engaged n consensua sex n
prvate wthout ntendng to cause harm to each other or
others. In Lawrence v. Texas (supra), the Court hed that
mora dsapprova s not by tsef a egtmate state nterest
to |ustfy a statute that bans homosexua sodomy. |ustce
Kennedy observed:
"The present case does not nvove mnors. It
does not nvove persons who mght be n|ured or
coerced or who are stuated n reatonshps
where consent mght not easy be refused. It
does not nvove pubc conduct or prosttuton. It
does not nvove whether the government must
gve forma recognton to any reatonshp that
homosexua persons seek to enter. The case does
nvove two aduts who, wth fu and mutua
consent from each other, engaged n sexua
practces common to a homosexua festye. The
pettoners are entted to respect for ther prvate
ves. The State cannot demean ther exstence or
contro ther destny by makng ther prvate
sexua conduct a crme. Ther rght to berty
under the Due Process Cause gves them the fu
rght to engage n ther conduct wthout
nterventon of the government. "It s a promse of
|WP(C)7455/2001| Page '! of !"#
the Consttuton that there s a ream of persona
berty whch the government may not enter." ....
The Texas statute furthers no egtmate state
nterest whch can |ustfy ts ntruson nto the
persona and prvate fe of the ndvdua."|page
578|
76. Further, |ustce O'Connor whe concurrng n the ma|orty
|udgment added that:
"Indeed, we have never hed that mora
dsapprova, wthout any other asserted state
nterest, s a suffcent ratonae under the Equa
Protecton Cause to |ustfy a aw that
dscrmnates among groups of persons."|page
582|
77. In Dudgeon v. United Kingdom (supra), the UK
Government urged that there s feeng n Northern Ireand
aganst the proposed change, as t woud be serousy
damagng to the mora fabrc of Northern Irsh socety. The
ssue before the Court was to what extent, f at a, the
mantenance n force of the egsaton s "necessary n a
democratc socety" for these ams. The Court after referrng
to Wofenden report observed that overa functon served by
the crmna aw n ths fed s to preserve pubc order and
decency and to protect the ctzen from what s offensve or
n|urous. Furthermore, the necessty for some degree of
contro may even extend to consensua acts commtted n
prvate, where there s ca to provde soca safeguards
aganst expotaton and corrupton of others, partcuary
those who are specay vunerabe because they are young,
weak n body or mnd, nexperenced, or n a state of speca
|WP(C)7455/2001| Page '$ of !"#
physca, offca, or economc dependence. The Court
concuded as foows:
"As compared wth the era when that egsaton
was enacted, there s now a better understandng,
and n consequence an ncreased toerance, of
homosexua behavour to the extent that n the
great ma|orty of the member States of the
Counc of Europe t s no onger consdered to be
necessary or approprate to treat homosexua
practces of the knd now n queston as n
themseves a matter to whch the sanctons of the
crmna aw shoud be apped; the Court cannot
overook the marked changes whch have
occurred n ths regard n the domestc aw of the
member States ..... In Northern Ireand tsef, the
authortes have refraned n recent years from
enforcng the aw n respect of prvate
homosexua acts between consentng maes over
the age of 21 years capabe of vad consent. No
evdence has been adduced to show that ths has
been n|urous to mora standards n Northern
Ireand or that there has been any pubc demand
for strcter enforcement of the aw.
It cannot be mantaned n these crcumstances
that there s a "pressng soca need" to make
such acts crmna offences, there beng no
suffcent |ustfcaton provded by the rsk of harm
to vunerabe sectons of socety requrng
protecton or by the effects on the pubc..." |para
60|
78. In Norris v. Republic of lreland (supra), the Court drew a
comparson wth the Dudgeon case and reed on the
reasonng n the atter case to hod that:
"It cannot be mantaned that there s a "pressng
soca need" to make such acts crmna offences.
On the specfc ssue of Proportonaty, the Court
s of the opnon that "such |ustfcatons as there
are for retanng the aw n force unamended are
outweghed by the detrmenta effects whch the
very exstence of the egsatve provsons n
queston can have on the fe of a person of
homosexua orentaton ke the appcant.
Athough members of the pubc who regard
homosexuaty as mmora may be shocked,
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offended or dsturbed by the commsson by
others of prvate homosexua acts, ths cannot on
ts own warrant the appcaton of pena sanctons
when t s consentng aduts aone who are
nvoved." |para 46|
79. Thus popuar moraty or pubc dsapprova of certan acts s
not a vad |ustfcaton for restrcton of the fundamenta
rghts under Artce 21. Popuar moraty, as dstnct from a
consttutona moraty derved from consttutona vaues, s
based on shftng and sub|ectng notons of rght and wrong.
If there s any type of "moraty" that can pass the test of
compeng state nterest, t must be "consttutona"
moraty and not pubc moraty. Ths aspect of
consttutona moraty was strongy nssted upon by Dr.
Ambedkar n the Consttuent Assemby. Whe movng the
Draft Consttuton n the Assemby |Consttutona Assemby
Debates : Offca Reports Vo.VII: November 4, 1948, page
38|, Dr. Ambedkar quoted Grote, the hstoran of Greece,
who had sad:
"The dffuson of consttutona moraty, not
merey among the ma|orty of any communty but
throughout the whoe, s an ndspensabe
condton of government at once free and
peaceabe; snce even any powerfu and obstnate
mnorty may render the workng of a free
nsttuton mpractcabe wthout beng strong
enough to conquer the ascendancy for
themseves."
After quotng Grote, Dr. Ambedkar added:
"Whe everybody recognsed the necessty of
dffuson of consttutona moraty for the
peacefu workng of the democratc consttuton,
there are two thngs nterconnected wth t whch
|WP(C)7455/2001| Page '& of !"#
are not, unfortunatey, generay recognsed. One
s that the form of admnstraton must be
approprate to and n the same sense as the form
of the Consttuton. The other s that t s perfecty
possbe to pervert the Consttuton, wthout
changng ts form by merey changng ts form of
admnstraton and to make t nconsstent and
opposed to the sprt of the Consttuton. ......The
queston s, can we presume such a dffuson of
consttutona moraty? Consttutona moraty s
not a natura sentment. It has to be cutvated.
We must rease that our peope have yet to earn
t. Democracy n Inda s ony a top dressng on
an Indan so whch s essentay undemocratc."
80. Granve Austn n hs treatse "The Indan Consttuton -
Cornerstone of A Naton" had sad that the Indan
Consttuton s frst and foremost a soca document. The
ma|orty of ts provsons are ether drecty amed at
furtherng the goas of the soca revouton or attempt to
foster ths revouton by estabshng the condtons
necessary for ts achevement. The core of the
commtments to the soca revouton es n Parts III and IV,
n the Fundamenta Rghts and n the Drectve Prncpes of
State Pocy. These are the conscence of the Consttuton.
The Fundamenta Rghts, therefore, were to foster the soca
revouton by creatng a socety egataran to the extent that
a ctzens were to be equay free from coercon or
restrcton by the state, or by socety prvatey; berty was
no onger to be the prvege of the few. The Consttuton of
Inda recognses, protects and ceebrates dversty. To
stgmatse or to crmnase homosexuas ony on account of
ther sexua orentaton woud be aganst the consttutona
moraty.
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81. The queston of the State n fact beng a protector of
consttutona moraty was aso canvassed by the
Consttutona Court of South Afrca n The National
Coalition for Gay and Lesbian Equality v. The Minister
of justice (supra):
"A state that recognses dfference does not mean
a state wthout moraty or one wthout a pont of
vew. It does not bansh concepts of rght and
wrong, nor envsage a word wthout good and
ev..... The Consttuton certany does not debar
the state from enforcng moraty. Indeed, the B
of Rghts s nothng f not a document founded on
deep potca moraty. What s centra to the
character and functonng of the State, however,
s that the dctates of the moraty whch t
enforces, and the mts to whch t may go, are to
be found n the text and sprt of the Consttuton
tsef." |para 136|
82. The Wofenden Commttee n consderng whether
homosexua acts between consentng aduts n prvate
shoud cease to be crmna offences examned a smar
argument of moraty n favour of retanng them as such. It
was urged that conduct of ths knd s a cause of the
demorasaton and decay of cvsatons, and that, therefore,
uness the Commttee wshed to see the naton degenerate
and decay, such conduct must be stopped, by every possbe
means. Re|ectng ths argument, the Commttee observed:
"We have found no evdence to support ths vew, and we
cannot fee t rght to frame the aws whch shoud govern
ths country n the present age by reference to hypothetca
expanatons of the hstory of other peopes n ages dstant n
tme and dfferent n crcumstances from our own. In so far
|WP(C)7455/2001| Page '' of !"#
as the bass of ths argument can be precsey formuated, t
s often no more than the expresson of revuson aganst
what s regarded as unnatura, snfu or dsgustng. Many
peope fee ths revuson, for one or more of these reasons.
But mora convcton or nstnctve feeng, however strong, s
not a vad bass for overrdng the ndvdua's prvacy and
for brngng wthn the ambt of the crmna aw prvate
sexua behavour of ths knd." |para 54| The Commttee
regarded the functon of the crmna aw n ths fed as:
"to preserve pubc order and decency, to
protect the ctzen from what s offensve or
n|urous, and to provde suffcent
safeguards aganst expotaton and
corrupton of others, partcuary those who
are specay vunerabe because they are
young, weak n body or mnd, nexperenced,
or n a state of speca physca, offca, or
economc dependence, but not to ntervene
n the prvate ves of ctzens, or to seek to
enforce any partcuar pattern of behavour,
further than s necessary to carry out the
purposes we have outned." |para 13 and
14|
83. In the 172
nd
report, the Law Commsson has recommended
deeton of Secton 377 IPC, though n ts earer reports t
had recommended the retenton of the provson. In the
172
nd
report, the Law Commsson of Inda, focused on the
need to revew the sexua offences aws n the ght of
ncreased ncdents of custoda rape and crme of sexua
abuse aganst youngsters, and nter aa, recommended
deetng the secton 377 IPC by effectng the recommended
amendments n Sectons 375 to 376E of IPC. The
|WP(C)7455/2001| Page '( of !"#
Commsson dscussed varous provsons reated to sexua
offences and was of consdered opnon to amend provsons
n the Indan Pena Code, 1860; the Code of Crmna
Procedure, 1973; and Indan Evdence Act, 1872. In the
Indan pena Code, recastng of 375 IPC has been
recommended by redefnng t under the head of Sexua
Assaut encompassng a ranges of non consensua sexua
offences/assauts, whch n partcuar penaze not ony the
sexua ntercourse wth a woman as n accordance wth the
current Rape Laws; but any non-consensua or non-wng
penetraton wth body part or ob|ect manpuated by the
another person except carred out for proper hygenc or
medcna purposes.
The recommended provson to substtute the exstng
secton 375 IPC reads thus:
"375.Sexua Assaut: Sexua assaut means -
(a) penetratng the vagna (whch term sha ncude
the aba ma|ora),
the anus or urethra of any person wth -
) any part of the body of another person or
) an ob|ect manpuated by another person
except where such penetraton s carred out for
proper hygenc or medca purposes;
(b) manpuatng any part of the body of another
person so as to cause penetraton of the vagna
(whch term sha ncude the aba ma|ora), the
anus or the urethra of the offender by any part of
the other person's body;
|WP(C)7455/2001| Page ') of !"#
(c) ntroducng any part of the pens of a person nto
the mouth of another person;
(d) engagng n cunnngus or feato; or
(e) contnung sexua assaut as defned n causes
(a) to (d) above
n crcumstances fang under any of the sx
foowng descrptons:
Frst- Aganst the other person's w.
Secondy- Wthout the other person's consent.
Thrdy- Wth the other person's consent when
such consent has been obtaned by puttng such
other person or any person n whom such other
person s nterested, n fear of death or hurt.
Fourthy- Where the other person s a femae, wth
her consent, when the man knows that he s not the
husband of such other person and that her consent
s gven because she beeves that the offender s
another man to whom she s or beeves hersef to
be awfuy marred.
Ffthy- Wth the consent of the other person,
when, at the tme of gvng such consent, by reason
of unsoundness of mnd or ntoxcaton or the
admnstraton by the offender personay or through
another of any stupefyng or unwhoesome
substance, the other person s unabe to understand
the nature and consequences of that to whch such
other person gves consent.
Sxthy- Wth or wthout the other person's consent,
when such other person s under sxteen years of
age.
Expanaton: Penetraton to any extent s
penetraton for the purposes of ths secton.
Excepton: Sexua ntercourse by a man wth hs
own wfe, the wfe not beng under sxteen years of
age, s not sexua assaut."
Pertnenty, the ma|or thrust of the recommendaton s on
the word Person whch makes the sexua offences gender
|WP(C)7455/2001| Page '* of !"#
neutra unke gender specfc as under the Rape Laws
whch s the current poston n statute book. Amendments n
secton 376 A, 376B, 376C, 376D have been recommended
on the same nes wth enhanced punshments. An added
expanaton defnng sexua ntercourse s sought to be
ntroduced governng secton 376B, 376C, 376D. Inserton of
new secton 376 E has been recommended to penaze non
consensua, drect or ndrect, ntentona unawfu sexua
contact wth part of body or wth an ob|ect, any part of body
of another person. Ths secton specfcay penazes the
person commttng unawfu sexua contact who s n a
poston of trust or authorty towards a young person (beow
the age of sxteen years), thereby protectng chdren.
Concusvey the Secton 377 IPC n the opnon of the
Commsson, deserves to be deeted n the ght of
recommended amendments. However persons, havng
carna ntercourse wth any anma, were to be eft to ther
|ust deserts. Though the Law Commsson report woud not
expressy say so, t s mpct n the suggested amendments
that eements of "w" and "consent" w become reevant to
determne f the sexua contact (homosexua for the purpose
at hand) consttute an offence or not.
84. Our attenton was aso drawn to a statement of the Soctor
Genera of Inda appearng on behaf of Inda at the Perodc
Revew before the Unted Natons Human Rghts Counc that
Indan socety was acceptng of sexua dfferences. In
|WP(C)7455/2001| Page (" of !"#
response to a queston from the deegate from Sweden on
the state of homosexua rghts n Inda, he stated:
"Around the eary 19
th
Century, you probaby
know that n Engand they frowned on
homosexuaty, and therefore there are hstorca
reports that varous peope came to Inda to take
advantage of ts more bera atmosphere wth
regard to dfferent knds of sexua conduct. ... As
a resut, n 1860 when we got the Indan Pena
Code, whch was drafted by Lord Macauay, they
nserted s.377 n the Indan Pena Code, whch
brought n the concept of "sexua offences
aganst the order of nature". Now n Inda we
ddn't have ths concept of somethng beng
"aganst the order of nature". It was essentay a
Western concept whch has remaned over the
years. Now homosexuaty as such s not defned
n the Indan Pena Code, and t w be a matter of
great argument whether t's "aganst the order of
nature".
|The address of the Soctor Genera of Inda before Unted
Natons Human Rghts Counc: rtsp://webcast.un.org/ondemand/
conferences/unhrc/upr/1
st
/hrc080410pm-ng.rm?start=02:18:32&
end=02:37:42 at tme ndex 16.30|
85. |ustce Mchae Krby, a dstngushed former |udge of
Austraan Hgh Court, expressng n smar ven sad that
crmnasaton of prvate, consensua homosexua acts s a
egacy of one of three very smar crmna codes (of
Macauay, Stephen and Grfth), mposed on coona peope
by the mpera rues of the Brtsh Crown. Such aws are
wrong:
" Wrong n ega prncpe because they
exceed the proper ambt and functon of the
crmna aw n a modern socety;
" Wrong because they oppress a mnorty n
the communty and target them for an
attrbute of ther nature that they do not
choose and cannot change. In ths respect
|WP(C)7455/2001| Page (! of !"#
they are ke other aws of coona tmes
that dsadvantages peope on the ground of
ther race or sex;
" Wrong because they fy n the face of
modern scentfc knowedge about the
ncdence and varety of human sexuaty;
and
" Wrong because they put a cohort of ctzens
nto a poston of stgma and shame that
makes t hard to reach them wth vta
messages about safe sexua conduct,
essenta n the age of HIV/AIDS.
|Homosexua Law Reform : An Ongong Bnd Spot
of the Commonweath of Natons by the Hon'be
Mchae Krby AC CMG, 16
th
Natona
Commonweath Law Conference, Hong Kong, 8
th
Apr, 2009|.
86. The argument of the earned ASG that pubc moraty of
homosexua conduct mght open foodgates of denquent
behavour s not founded upon any substantve matera,
even from such |ursdctons where sodomy aws have been
aboshed. Insofar as bass of ths argument s concerned, as
ponted out by Wofenden Commttee, t s often no more
than the expresson of revuson aganst what s regarded as
unnatura, snfu or dsgustng. Mora ndgnaton, howsoever
strong, s not a vad bass for overrdng ndvduas's
fundamenta rghts of dgnty and prvacy.In our scheme of
thngs, consttutona moraty must outwegh the argument
of pubc moraty, even f t be the ma|ortaran vew. In
Indan context, the atest report (172
nd
) of Law Commsson
on the sub|ect nstead shows heghtened reasaton about
urgent need to foow goba trends on the ssue of sexua
|WP(C)7455/2001| Page ($ of !"#
offences. In fact, the admtted case of Unon of Inda that
Secton 377 IPC has generay been used n cases of sexua
abuse or chd abuse, and conversey that t has hardy ever
been used n cases of consentng aduts, shows that
crmnasaton of adut same- sex conduct does not serve
any pubc nterest. The compeng state nterest rather
demands that pubc heath measures are strengthened by
de-crmnasaton of such actvty, so that they can be
dentfed and better focused upon.
87. For the above reasons we are unabe to accept the stand of
the Unon of Inda that there s a need for retenton of
Secton 377 IPC to cover consensua sexua acts between
aduts n prvate on the ground of pubc moraty.
WHETHER 5ECTlON 377 lPC VlOLATE5 CON5TlTUTlONAL
CUARANTEE OF EOUALlTY UNDER ARTlCLE J4 OF THE
CON5TlTUTlON
88. The scope, content and meanng of Artce 14 of the
Consttuton has been the sub|ect matter of ntensve
examnaton by the Supreme Court n a catena of decsons.
The decsons ay down that though Artce 14 forbds cass
egsaton, t does not forbd reasonabe cassfcaton for the
purpose of egsaton. In order, however, to pass the test of
permssbe cassfcaton, two condtons must be fufed,
namey, () that the cassfcaton must be founded on an
ntegbe dfferenta whch dstngushes persons or thngs
that are grouped together from those that are eft out of the
|WP(C)7455/2001| Page (% of !"#
group; and () that the dfferenta must have a ratona
reaton to the ob|ectve sought to be acheved by the
statute n queston. The cassfcaton may be founded on
dfferenta bass accordng to ob|ects sought to be acheved
but what s mpct n t s that there ought to be a nexus,
.e., causa connecton between the bass of cassfcaton
and ob|ect of the statute under consderaton. |Budhan
Choudhry v. State of Bihar, AIR 1955 SC 191|. In
consderng reasonabeness from the pont of vew of Artce
14, the Court has aso to consder the ob|ectve for such
cassfcaton. If the ob|ectve be ogca, unfar and un|ust,
necessary the cassfcaton w have to be hed as
unreasonabe. |Deepak Sibal v. Punjab University,
(1989) 2 SCC 145|
89. The other mportant facet of Artce 14 whch was stressed n
Maneka Gandhi s that t eschews arbtrarness n any form.
The Court reterated what was ponted out by the ma|orty n
E.P. Royappa v. State of Tamil Nadu, (1974) 4 SCC 3
that "from a postvstc pont of vew, equaty s antthetc to
arbtrarness".
90. Affrmng and expanng ths vew, the Consttuton Bench n
Ajay Hasia v. Khalid Mujib Sehravardi, (1981) 1 SCC 722
hed that t must, therefore, now be taken to be we setted
that what Artce 14 strkes at s arbtrarness because any
acton that s arbtrary must necessary nvove negaton of
|WP(C)7455/2001| Page (& of !"#
equaty. The Court made t expct that where an Act s
arbtrary, t s mpct n t that t s unequa both accordng
to potca ogc and consttutona aw and s, therefore,
voatve of Artce 14.
THE CLA55lFlCATlON 8EAR5 NO RATlONAL NEXU5 TO THE
O8jECTlVE 5OUCHT TO 8E ACHlEVED
91. The pettoner's case s that pubc moraty s not the
provnce of crmna aw and Secton 377 IPC does not have
any egtmate purpose. Secton 377 IPC makes no dstncton
between acts engaged n the pubc sphere and acts
engaged n the prvate sphere. It aso makes no dstncton
between the consensua and non-consensua acts between
aduts. Consensua sex between aduts n prvate does not
cause any harm to anybody. Thus t s evdent that the
dsparate groupng n Secton 377 IPC does not take nto
account reevant factors such as consent, age and the
nature of the act or the absence of harm caused to anybody.
Pubc anmus and dsgust towards a partcuar soca group
or vunerabe mnorty s not a vad ground for cassfcaton
under Artce 14. Secton 377 IPC targets the homosexua
communty as a cass and s motvated by an anmus
towards ths vunerabe cass of peope.
92. Accordng to Unon of Inda, the stated ob|ect of Secton 377
IPC s to protect women and chdren, prevent the spread of
HIV/AIDS and enforce soceta moraty aganst
homosexuaty. It s cear that Secton 377 IPC, whatever ts
|WP(C)7455/2001| Page (# of !"#
present pragmatc appcaton, was not enacted keepng n
mnd nstances of chd sexua abuse or to f the acuna n a
rape aw. It was based on a concepton of sexua moraty
specfc to Vctoran era drawng on notons of carnaty and
snfuness. In any way, the egsatve ob|ect of protectng
women and chdren has no bearng n regard to consensua
sexua acts between aduts n prvate. The second
egsatve purpose eucdated s that Secton 377 IPC serves
the cause of pubc heath by crmnasng the homosexua
behavour. As aready hed, ths purported egsatve
purpose s n compete contrast to the averments n NACO's
affdavt. NACO has specfcay stated that enforcement of
Secton 377 IPC adversey contrbutes to pushng the
nfcton underground, make rsky sexua practces go
unnotced and unaddressed. Secton 377 IPC thus hampers
HIV/AIDS preventon efforts. Lasty, as hed earer, t s not
wthn the consttutona competence of the State to nvade
the prvacy of ctzens ves or reguate conduct to whch the
ctzen aone s concerned soey on the bass of pubc
moras. The crmnasaton of prvate sexua reatons
between consentng aduts absent any evdence of serous
harm deems the provson's ob|ectve both arbtrary and
unreasonabe. The state nterest "must be egtmate and
reevant" for the egsaton to be non-arbtrary and must be
proportonate towards achevng the state nterest. If the
ob|ectve s rratona, un|ust and unfar, necessary
|WP(C)7455/2001| Page (' of !"#
cassfcaton w have to be hed as unreasonabe. The
nature of the provson of Secton 377 IPC and ts purpose s
to crmnase prvate conduct of consentng aduts whch
causes no harm to anyone ese. It has no other purpose
than to crmnase conduct whch fas to conform wth the
mora or regous vews of a secton of socety. The
dscrmnaton severey affects the rghts and nterests of
homosexuas and deepy mpars ther dgnty.
93. We may aso refer to Decaraton of Prncpes of Equaty
ssued by the Equa Rghts Trust n Apr, 2008, whch can be
descrbed as current nternatona understandng of
Prncpes on Equaty. Ths decaraton was agreed upon by
a group of experts at a conference entted "Prncpes on
Equaty and the Deveopment of Lega Standard on
Equaty" hed on 3-5 Apr, 2008 n London. Partcpants of
dfferent backgrounds, ncudng academcs, ega
practtoners, human rghts actvsts from a regons of the
word took part n the Conference. The Decaraton of
Prncpes on Equaty refects a mora and professona
consensus among human rghts and equaty experts. The
decaraton defnes the terms 'equaty' and 'equa
treatment' as foows:
"THE RIGHT TO EOUALITY
The rght to equaty s the rght of a human bengs to
be equa n dgnty, to be treated wth respect and
consderaton and to partcpate on an equa bass wth
others n any area of economc, soca, potca, cutura
or cv fe. A human bengs are equa before the aw
|WP(C)7455/2001| Page (( of !"#
and have the rght to equa protecton and beneft of
the aw.
EOUAL TREATMENT
Equa treatment, as an aspect of equaty, s not
equvaent to dentca treatment. To rease fu and
effectve equaty, t s necessary to treat peope
dfferenty accordng to ther dfferent crcumstances, to
assert ther equa worth and to enhance ther
capabtes to partcpate n socety as equas."
Part-II of the Decaraton ays down the rght to non-
dscrmnaton. The rght to non-dscrmnaton s stated to
be a free-standng fundamenta rght, subsumed n the rght
to equaty. Dscrmnaton s defned as foows:
"Dscrmnaton must be prohbted where t s on
grounds of race, coour, ethncty, descent, sex,
pregnancy, maternty, cv, famy or carer status,
anguage, regon or beef, potca or other opnon,
brth, natona or soca orgn, natonaty, economc
status, assocaton wth a natona mnorty, sexua
orentaton, gender dentty, age, dsabty, heath
status, genetc or other predsposton toward ness or
a combnaton of any of these grounds, or on the bass
of characterstcs assocated wth any of these grounds.
(emphasis supplied)
Dscrmnaton based on any other ground must be
prohbted where such dscrmnaton () causes or
perpetuates systemc dsadvantage; () undermnes
human dgnty; or () adversey affects the equa
en|oyment of a persons rghts and freedoms n a
serous manner that s comparabe to dscrmnaton on
the prohbted grounds stated above.
Dscrmnaton must aso be prohbted when t s on the
ground of the assocaton of a person wth other
persons to whom a prohbted ground apped or the
percepton, whether accurate or otherwse, of a person
|WP(C)7455/2001| Page () of !"#
as havng a characterstc assocated wth a prohbted
ground.
Dscrmnaton may be drect or ndrect.
Drect dscrmnaton occurs when for a reason reated
to one or more prohbted grounds a person or group of
persons s treated ess favouraby than another person
or another group of persons s, has been, or woud be
treated n a comparabe stuaton; or when for a reason
reated to one or more prohbted grounds a person or
group of persons s sub|ected to a detrment. Drect
dscrmnaton may be permtted ony very
exceptonay, when t can be |ustfed aganst strcty
defned crtera.
Indrect dscrmnaton occurs when a provson,
crteron or practce woud put persons havng a status
or a characterstc assocated wth one or more
prohbted grounds at a partcuar dsadvantage
compared wth other persons, uness that provson,
crteron or practce s ob|ectvey |ustfed by a
egtmate am, and the means of achevng that am
are approprate and necessary.
Harassment consttutes dscrmnaton when unwanted
conduct reated to any prohbted ground takes pace
wth the purpose or effect of voatng the dgnty of a
person or of creatng an ntmdatng, hoste,
degradng, humatng or offensve envronment.
(emphasis supplied)
|Decaraton of Prncpes on Equaty 2008 - The Equa
Rghts Trust|
5ECTlON 377 lPC TARCET5 HOMO5EXUAL5 A5 A CLA55
94. Secton 377 IPC s facay neutra and t apparenty targets
not denttes but acts, but n ts operaton t does end up
unfary targetng a partcuar communty. The fact s that
|WP(C)7455/2001| Page (* of !"#
these sexua acts whch are crmnased are assocated more
cosey wth one cass of persons, namey, the homosexuas
as a cass. Secton 377 IPC has the effect of vewng a gay
men as crmnas. When everythng assocated wth
homosexuaty s treated as bent, queer, repugnant, the
whoe gay and esban communty s marked wth devance
and perversty. They are sub|ect to extensve pre|udce
because what they are or what they are perceved to be, not
because of what they do. The resut s that a sgnfcant
group of the popuaton s, because of ts sexua non-
conformty, persecuted, margnased and turned n on tsef.
|Sachs, |. n The National Coalition for Gay and Lesbian
Equality v. The Minister of justice, para 108|.
95. As |ustce O'Connor succncty stated n her concurrng
opnon n Lawrence v. Texas (supra):
"Whe t s true that the aw appes ony to
conduct, the conduct targeted by ths aw s
conduct that s cosey correated wth beng
homosexua. Under such crcumstances, Texas's
sodomy aw s targeted at more than conduct. It
s nstead drected towards gay persons as a
cass." |page 583|
96. In Romer v. Evans, 517 U.S. 620 (1996), the chaenge was
to an amendment to Coorado's Consttuton whch named as
a sotary cass persons who were homosexuas, esbans, or
bsexua ether by "orentaton, conduct, practces or
reatonshps" and deprved them of protecton under the
state ant-dscrmnaton aws. The US Supreme Court
|WP(C)7455/2001| Page )" of !"#
concuded that the provson was "born of anmosty towards
the cass of persons affected" and further that t had no
ratona reaton to a egtmate governmenta purpose.
|ustce Kennedy speakng for the ma|orty observed:
"It s not wthn our consttutona tradton to
enact aws of ths sort. Centra both to the dea of
the rue of aw and to our own Consttutons
guarantee of equa protecton s the prncpe that
government and each of ts parts reman open on
mparta terms to a who seek ts assstance.
"Equa protecton of the aws s not acheved
through ndscrmnate mposton of nequates".
5weatt v. Painter, 339 U.S. 629, 635 (1950)
(quotng 5helley v. lraemer, 334, U.S. 1, 22
(1948). Respect for ths prncpe expans why
aws sngng out a certan cass of ctzens for
dsfavoured ega status or genera hardshps are
rare. A aw decarng that n genera t sha be
more dffcut for one group of ctzens than for a
others to seek ad from the government s tsef a
dena of equa protecton of the aws n the most
tera sense. "The guaranty of equa protecton of
the aws s a pedge of the protecton of equa
aws...." |Page 633|
+A second and reated pont s that aws of the
knd now before us rase the nevtabe nference
that the dsadvantage mposed s born of
anmosty towards the cass of persons affected.
"|I|f the consttutona concepton of equa
protecton of the aws means anythng, t must
at the very east mean that a bare.....desre to
harm a potcay unpopuar group cannot
consttute a egtmate governmenta nterest...."
|Page 634|.
97. The Supreme Court of Canada n Vriend v. Alberta, (1998)
1 S.C.R. 493, hed:
"Perhaps most mportant s the psychoogca
harm whch may ensue from ths state of affars.
Fear of dscrmnaton w ogcay ead to
conceament of true dentty and ths must be
|WP(C)7455/2001| Page )! of !"#
harmfu to persona confdence and sef-esteem.
Compoundng that effect s the mpct message
conveyed by the excuson, that gays and
esbans, unke other ndvduas, are not worthy
of protecton. Ths s ceary an exampe of a
dstncton whch demeans the ndvdua and
strengthens and perpetrates |sc| the vew that
gays and esbans are ess worthy of protecton as
ndvduas n Canadas socety. The potenta
harm to the dgnty and perceved worth of gay
and esban ndvduas consttutes a partcuary
crue form of dscrmnaton."|para 102|
These observatons were made n the context of
dscrmnaton on grounds of sexua orentaton n the
empoyment fed and woud appy wth even greater force to
the crmnasaton of consensua sex n prvate between
adut maes.
98. The nevtabe concuson s that the dscrmnaton caused to
MSM and gay communty s unfar and unreasonabe and,
therefore, n breach of Artce 14 of the Consttuton of Inda.
lNFRlNCEMENT OF ARTlCLE J5 - WHETHER '5EXUAL
ORlENTATlON' l5 A CROUND ANALOCOU5 TO '5EX'
99. Artce 15 s an nstance and partcuar appcaton of the
rght of equaty whch s generay stated n Artce 14.
Artce 14 s genus whe Artce 15 aong wth Artce 16 are
speces athough a of them occupy same fed and the
doctrne of "equaty" emboded n these Artces has many
facets. Artce 15 prohbts dscrmnaton on severa
enumerated grounds, whch ncude 'sex'. The argument of
the pettoner s that 'sex' n Artce 15(1) must be read
expansvey to ncude a prohbton of dscrmnaton on the
|WP(C)7455/2001| Page )$ of !"#
ground of sexua orentaton as the prohbted ground of sex-
dscrmnaton cannot be read as appyng to gender
simpliciter. The purpose underyng the fundamenta rght
aganst sex dscrmnaton s to prevent behavour that treats
peope dfferenty for reason of not beng n conformty wth
generazaton concernng "norma" or "natura" gender
roes. Dscrmnaton on the bass of sexua orentaton s
tsef grounded n stereotypca |udgments and
generazaton about the conduct of ether sex. Ths s stated
to be the ega poston n Internatona Law and comparatve
|ursprudence. Reance was paced on |udgments of Human
Rghts Commttee and aso on the |udgments of Canadan
and South Afrcan courts.
100. Internatona Covenant on Cv and Potca Rghts (ICCPR)
recognses the rght to equaty and states that, "the aw
sha prohbt any dscrmnaton on any ground such as race,
coour, sex, anguage, regon, potca or other opnon,
natona or soca regon, property, brth or other status". In
Toonen v. Australia (supra), the Human Rghts Commttee,
whe hodng that certan provsons of the Tasmanan
Crmna Code whch crmnase varous forms of sexua
conduct between men voated the ICCPR, observed that the
reference to 'sex' n Artce 2, paragraphs 1 and 26 (of the
ICCPR) s to be taken as ncudng 'sexua orentaton'.
|WP(C)7455/2001| Page )% of !"#
101. Despte the fact that Secton 15(1) of the Canadan Charter
does not expressy ncude sexua orentaton as a prohbted
ground of dscrmnaton, the Canadan Supreme Court has
hed that sexua orentaton s a ground anaogous to those
sted n Secton 15(1):
"In Egan, t was hed, on the bass of "hstorca,
soca, potca and economc dsadvantage
suffered by homosexuas" and the emergng
consensus among egsatures (at para 176), as
we as prevous |udca decsons (at para 177),
that sexua orentaton s a ground anaogous to
those sted n s.15(1). |Vrend v. Aberta (supra)
per Cory |. para 90|.
102. Smary, n Corbiere v. Canada, |1999| 2 S.C.R. 203, the
Canadan Supreme Court dentfed the thread runnng
through these anaogous grounds - "what these grounds
have n common s the fact that they often serve as the
bass for stereotypca decsons made not on the bass of
mert but on the bass of a persona characterstc that s
mmutabe or changeabe ony at unacceptabe cost to
persona dentty." |para 13|.
103. The South Afrcan Consttutona Court recognsed n
Prinsloo v. Van Der Linde, 1997 (3) SA 1012 (CC) that
dscrmnaton on unspecfed grounds s usuay 'based on
attrbutes and characterstcs' attachng to peope, thereby
mparng ther 'fundamenta dgnty as human bengs'". In
Harksen v. Lane, 1998 (1) SA 300 (CC), the Court further
deveoped the dea to say that there w be dscrmnaton
on an unspecfed ground f t s based on attrbutes or
|WP(C)7455/2001| Page )& of !"#
characterstcs whch have the potenta to mpar the
fundamenta dgnty of persons as human bengs, or to affect
them adversey n a comparaby serous manner.
Eaboratng on what t means by potenta mparment of
dgnty, the Court ressted the temptaton of ayng down any
such 'test' for dscernng 'unspecfed' grounds, but has ths
to say by way of gudenes, "In some cases they reate to
mmutabe boogca attrbutes or characterstcs, n some to
the assocatona fe of humans, n some to the nteectua,
expressve and regous dmensons of humanty and n
some cases to a combnaton of one or more of these
features". It needs to be noted that on account of the
prevaent wder knowedge of the dscrmnaton on account
of sexua orentaton, the South Afrcan consttuton, when t
was drafted, specfcay ncuded that as a ground.
104. We hod that sexua orentaton s a ground anaogous to sex
and that dscrmnaton on the bass of sexua orentaton s
not permtted by Artce 15. Further, Artce 15(2)
ncorporates the noton of horzonta appcaton of rghts. In
other words, t even prohbts dscrmnaton of one ctzen by
another n matters of access to pubc spaces. In our vew,
dscrmnaton on the ground of sexua orentaton s
mpermssbe even on the horzonta appcaton of the rght
enshrned under Artce 15.
|WP(C)7455/2001| Page )# of !"#
5TRlCT 5CRUTlNY" AND PROPORTlONALlTY REVlEW" -
ANALY5l5 OF ANUj CARC V. HOTEL A55OClATlON OF lNDlA,
(2008) 3 5CC J
105. We may now examne n some deta the recent decson of
the Supreme Court n Anuj Garg v. Hotel Association of
lndia, (2008) 3 SCC 1, whch has mportant bearng on the
present case. In Anuj Garg, consttutona vadty of
Secton 30 of the Pun|ab Excse Act, 1914 prohbtng
empoyment of "any man under the age of 25 years" or "any
woman" n any part of such premses n whch quor or
ntoxcatng drug s consumed by the pubc was chaenged
before the Hgh Court of Deh. The Hgh Court decared
Secton 30 of the Act as utra vres Artces 19(1)(g), 14 and
15 of the Consttuton of Inda to the extent t prohbts
empoyment of any woman n any part of such premses, n
whch quor or ntoxcatng drugs are consumed by the
pubc. Natona Capta Terrtory of Deh accepted the sad
|udgment but an appea was fed by few ctzens of Deh.
The appea was utmatey dsmssed by the Supreme Court,
but the prncpes ad down by the Court reatng to the
scope of the rght to equaty enuncated n Artces 14 and
15 are matera for the purpose of the present case. At the
outset, the Court observed that the Act n queston s a pre-
consttutona egsaton and athough t s saved n terms of
Artce 372 of the Consttuton, chaenge to ts vadty on
the touchstone of Artces 14, 15 and 19 of the Consttuton
of Inda, s permssbe n aw. There s thus no presumpton
|WP(C)7455/2001| Page )' of !"#
of consttutonaty of a coona egsaton. Therefore,
though the statute coud have been hed to be a vad pece
of egsaton keepng n vew the soceta condton of those
tmes, but wth the changes occurrng theren both n the
domestc as aso nternatona arena, such a aw can aso be
decared nvad. In ths connecton, the Court referred to the
foowng observatons made n john Vallamattom v.
Union of lndia, (2003) 6 SCC 611:
"The consttutonaty of a provson, t s trte, w
have to be |udged keepng n vew the
nterpretatve changes of the statute affected by
passage of tme.......the aw athough may be
consttutona when enacted but wth passage of
tme the same may be hed to be unconsttutona
n vew of the changed stuaton." |paras 28 & 33
of SCC|
106. The Court further hed that when the vadty of a egsaton
s tested on the anv of equaty causes contaned n Artces
14 and 15, the burden therefor woud be on the State.
"When the orgna Act was enacted, the concept
of equaty between two sexes was unknown. The
makers of the Consttuton ntended to appy
equaty amongst men and women n a spheres
of fe. In framng Artces 14 and 15 of the
Consttuton, the consttutona goa n that behaf
was sought to be acheved. Athough the same
woud not mean that under no crcumstance,
cassfcaton, nter aa, on the ground of sex
woud be whoy mpermssbe but t s trte that
when the vadty of a egsaton s tested on the
anv of equaty causes contaned n Artces 14
and 15, the burden therefor woud be on the
State. Whe consderng vadty of a egsaton of
ths nature, the court was to take notce of the
other provsons of the Consttuton ncudng
those contaned n Part IV- A of the Consttuton."
|para 21of SCC|.
|WP(C)7455/2001| Page )( of !"#
107. The Court dscussed two dstnct concepts - "strct scrutny"
borrowed from the US |ursprudence, and "proportonaty
revew" whch has ts orgn n the |ursprudence of Canadan
and European courts. The Court hed that the nterference
prescrbed by the State for pursung the ends of protecton
shoud be proportonate to the egtmate ams. The standard
for |udgng the proportonaty shoud be a standard capabe
of beng caed reasonabe n a modern democratc socety.
The Court further hed that egsatons wth pronounced
"protectve dscrmnaton" ams, such as Secton 30,
potentay serve as doube edged swords. Strct scrutny
shoud be empoyed whe assessng the mpcatons of ths
varety of egsatons. Legsaton shoud not be ony
assessed on ts proposed ams but rather on the mpcatons
and the effects. The Court then went on to state the
prncpe of persona autonomy wth a speca |udca roe
when deang wth aws refectng oppressve cutura norms
that especay target mnortes and vunerabe groups.
".....the ssue of biological difference between
sexes gathers an overtone of soceta condtons so
much so that the rea dfferences are pronounced
by the oppressve cutura norms of the tme. Ths
combnaton of boogca and soca determnants
may fnd expresson n popuar egsatve
mandate. Such egsatons defntey deserve
deeper |udca scrutny. It s for the court to
revew that the ma|ortaran mpuses rooted n
morastc tradton do not mpnge upon ndvdua
autonomy. Ths s the backdrop of deeper |udca
scrutny of such egsatons word over." |para 41
of SCC|
|WP(C)7455/2001| Page )) of !"#
108. The Court hed that Artce 15's prohbton of sex
dscrmnaton mpes the rght to autonomy and sef-
determnaton, whch paces emphass on ndvdua choce.
Therefore, a measure that dsadvantages a vunerabe group
defned on the bass of a characterstc that reates to
persona autonomy must be sub|ect to strct scrutny.
"46. ....The mpugned egsaton suffers from
ncurabe fxatons of stereotype moraty and
concepton of sexua roe. The perspectve thus
arrved at s outmoded n content and stfng n
means.
47. No aw n ts utmate effect shoud end up
perpetuatng the oppresson of women. Persona
freedom s a fundamenta tenet whch cannot be
compromsed n the name of expedency unt and
uness there s a compelling state purpose.
Heghtened eve of scrutny s the normatve
threshod for |udca revew n such cases.
......
......
......
50. The test to revew such a Protectve
Dscrmnaton statute woud enta a two-pronged
scrutny:
(a) the egsatve nterference (nduced by sex
dscrmnatory egsaton n the nstant case)
shoud be |ustfed n prncpe,
(b) the same shoud be proportonate n measure.
51. The Courts task s to determne whether the
measures furthered by the State n form of
egsatve mandate, to augment the egtmate
am of protectng the nterests of women are
proportonate to the other buk of we-setted
gender norms such as autonomy, equaty of
opportunty, rght to prvacy et a. The bottom ne
n ths behaf woud be a functonng modern
democratc socety whch ensures freedom to
pursue vared opportuntes and optons wthout
dscrmnatng on the bass of sex, race, caste or
|WP(C)7455/2001| Page )* of !"#
any other ke bass. In fne, there shoud be a
reasonabe reatonshp of proportonaty
between the means used and the am pursued."
(emphasis supplied)

109. In Anuj Garg, the Court, however, carfed that the
heghtened revew standard does not make sex a proscrbed
cassfcaton, "...sex classifications" may be used to
compensate women "for partcuar economc dsabtes
(they have) suffered", "to promote equa empoyment
opportunty", to advance fu deveopment of the taent and
capactes of our naton's peope. Such cassfcatons may
not be used, as they once were, to create or perpetuate the
ega, soca, and economc nferorty of women."
110. In Ashok Kumar Thakur v. Union of lndia, (2008) 6 SCC
1, the Supreme Court refused to appy strct scrutny to an
affrmatve acton measure. The Court hed that the
prncpes ad down by the Unted States Supreme Court
such as 'suspect egsaton', 'strct scrutny' and 'compeng
state necessty' are not appcabe for chaengng the
vadty of reservatons or other affrmatve acton
contempated under Artce 15(5) of the Consttuton. |per
Baakrshnan, C.|., Summary pont 9 : page 526 of SCC|
111. On a harmonous constructon of the two |udgments, the
Supreme Court must be nterpreted to have ad down that
the prncpe of 'strct scrutny' woud not appy to affrmatve
acton under Artce 15(5) but a measure that dsadvantages
|WP(C)7455/2001| Page *" of !"#
a vunerabe group defned on the bass of a characterstc
that reates to persona autonomy must be sub|ect to strct
scrutny.
112. Thus persona autonomy s nherent n the grounds
mentoned n Artce 15. The grounds that are not specfed
n Artce 15 but are anaogous to those specfed theren, w
be those whch have the potenta to mpar the persona
autonomy of an ndvdua. Ths vew was earer ndcated n
lndra Sawhney v. Union of lndia, (1992) Supp. 3 SCC
217. In Anuj Garg, S.B. Snha, |. emphassed ths aspect
wth great carty:
".....The bottom ne n ths behaf woud be a
functonng modern democratc socety whch
ensures freedom to pursue vared opportuntes
and optons wthout dscrmnatng on the bass of
sex, race, caste or any other ke bass...."
(emphass supped) |para 51 of SCC|
113. As hed n Anuj Garg, f a aw dscrmnates on any of the
prohbted grounds, t needs to be tested not merey aganst
"reasonabeness" under Artce 14 but be sub|ect to "strct
scrutny". The mpugned provson n Secton 377 IPC
crmnases the acts of sexua mnortes partcuary men
who have sex wth men and gay men. It dsproportonatey
mpacts them soey on the bass of ther sexua orentaton.
The provson runs counter to the consttutona vaues and
the noton of human dgnty whch s consdered to be the
cornerstone of our Consttuton. Secton 377 IPC n ts
appcaton to sexua acts of consentng aduts n prvacy
|WP(C)7455/2001| Page *! of !"#
dscrmnates a secton of peope soey on the ground of
ther sexua orentaton whch s anaogous to prohbted
ground of sex. A provson of aw brandng one secton of
peope as crmna based whoy on the States mora
dsapprova of that cass goes counter to the equaty
guaranteed under Artces 14 and 15 under any standard of
revew.
114. A consttutona provson must be construed, not n a narrow
and constrcted sense, but n a wde and bera manner so
as to antcpate and take account of changng condtons and
purposes so that the consttutona provson does not get
atrophed or fosszed but remans fexbe enough to meet
the newy emergng probems. |Francis Coralie Mullin v.
Union Territory of Delhi (supra), para 6 of SCC|. In M.
Nagraj v. Union of lndia, (2006) 8 SCC 212,the
Consttuton Bench noted that:
"Consttuton s not an ephemera ega document
embodyng a set of ega rues for the passng
hour. It sets out prncpes for an expandng
future and s ntended to endure for ages to come
and consequenty to be adapted to the varous
crss of human affars. Therefore, a purposve
rather than a strct tera approach to the
nterpretaton shoud be adopted. A Consttutona
provson must be construed not n a narrow and
constrcted sense but n a wde and bera
manner so as to antcpate and take account of
changng condtons and purposes so that
consttutona provson does not get fosszed but
remans fexbe enough to meet the newy
emergng probems and chaenges".|para 19 of
SCC|
|WP(C)7455/2001| Page *$ of !"#
115. Smar s the sentment expressed by Kennedy, |. n
Lawrence v. Texas (supra):
"Had those who drew and ratfed the Due Process
Causes of the Ffth Amendment or the Fourteenth
Amendment known the components of berty n
ts manfod possbtes, they mght have been
more specfc. They dd not presume to have ths
nsght. They know tmes can bnd us to certan
truths and ater generatons can see that aws
once thought necessary and proper n fact serve
ony to oppress. As the Consttuton endures,
persons n every generaton can nvoke ts
prncpes n ther own search for greater
freedom". |at page 563|
5COPE OF THE COURT'5 POWER TO DECLARE A
5TATUTORY PROVl5lON lNVALlD
116. Learned ASG strenuousy contended that the |udges must
mantan |udca sef-restrant whe exercsng the power of
|udca revew of egsaton. There s a broad separaton of
powers under the Consttuton, and the three organs of the
State - the egsature, the executve and the |udcary, must
respect each other and must not ordnary encroach nto
each others' doman. The egsature s a democratcay
eected body whch expresses the w of the peope, and n a
democracy, ths w s not to be ghty frustrated or
obstructed. The Court shoud, therefore, ordnary defer to
the decson of the egsature as t s the best |udge of what
s good for the communty. He paced reance on a recent
|udgment of the Supreme Court n the case of Government
of Andhra Pradesh v. P. Laxmi Devi, (2008) 4 SCC 720,
where the Court after referrng to the cassc essay of
|WP(C)7455/2001| Page *% of !"#
Professor |ames Bradey Thayer entted "The Orgn and
Scope of the Amercan Doctrne of Consttutona Law" and
certan observatons of |ustce Fex Frankfurter, hed as
foows:
"46. In our opnon, there s one and ony one
ground for decarng an Act of the egsature (or a
provson n the Act) to be nvad, and that s f t
ceary voates some provson of the Consttuton
n so evdent a manner as to eave no manner of
doubt. Ths voaton can, of course, be n
dfferent ways, e.g. f a State egsature makes a
aw whch ony the Paramnet can make under
Lst I to the Seventh Schedue, n whch case t w
voate Artce 246(1) of the Consttuton, or the
aw voates some specfc provson of the
Consttuton (other than the drectve prncpes).
But before decarng the statute to be
unconsttutona, the Court must be absoutey
sure that there can be no manner of doubt that t
voates a provson of the Consttuton. If two
vews are possbe, one makng the statute
consttutona and the other makng t
unconsttutona, the former vew must aways be
preferred. Aso, the Court must make every effort
to uphod the consttutona vadty of a statute,
even f that requres gvng a straned
constructon or narrowng down ts scope vde
Mark Netto v. State of Keraa and Ors. (1979) 1
SCC 23, para 6 of SCC. Aso, t s none of the
concern of the Court whether the egsaton n ts
opnon s wse or unwse.
.......
.......
50. In our opnon |udges must mantan |udca
sef-restrant whe exercsng the power of |udca
revew of egsaton....
51. In our opnon the egsature must be gven
freedom to do expermentatons n exercsng ts
powers, provded of course t does not ceary and
fagranty voate ts consttutona mts.
.......
.......
|WP(C)7455/2001| Page *& of !"#
57. In our opnon, the court shoud, therefore,
ordnary defer to the wsdom of the egsature
uness t enacts a aw about whch there can be
no manner of doubt about ts unconsttutonaty."
117. The earned ASG aso referred to the ocus casscus
|udgment of the Supreme Court n State of Madras v.
V.G. Row, AIR 1952 SC 196, wheren para 15 deang wth
test of reasonabeness reads as foows:
"J5. . It s mportant n ths context to bear n
mnd that the test of reasonabeness, wherever
prescrbed, shoud be apped to each ndvdua
statute mpugned, and no abstract standard, or
genera pattern of reasonabeness can be ad
down as appcabe to a cases. The nature of the
rght aeged to have been nfrnged, the
underyng purpose of the restrctons mposed, the
extent and urgency of the ev sought to be
remeded thereby, the dsproporton of the
mposton, the prevang condtons at the tme,
shoud a enter nto the |udca verdct. In
evauatng such eusve factors and formng ther
own concepton of what s reasonabe, n a the
crcumstances of a gven case, t s nevtabe that
the soca phosophy and the scae of vaues of the
|udges partcpatng n the decson shoud pay an
mportant part, and the mt to ther nterference
wth egsatve |udgment n such cases can ony be
dctated by ther sense of responsbty and sef-
restrant and the soberng refecton that the
Consttuton s meant not ony for peope of ther
way of thnkng but for a, and that the ma|orty of
the eected representatves of the peope have, n
authorsng the mposton of the restrctons,
consdered them to be reasonabe."
118. It s true that the courts shoud ordnary defer to the
wsdom of the egsature whe exercsng the power of
|udca revew of egsaton. But t s equay we setted
that the degree of deference to be gven to the egsature s
dependent on the sub|ect matter under consderaton.
|WP(C)7455/2001| Page *# of !"#
When matters of "hgh consttutona mportance" such as
consttutonay entranched human rghts - are under
consderaton, the courts are obged n dschargng ther
own soveregn |ursdcton, to gve consderaby ess
deference to the egsature than woud otherwse be the
case. In State of Madras v. V.G.Row (supra), whe
mpedy expcatng the scope of power under Artce 13 t
was hed that f the egsaton n queston voated a
fundamenta rght, t woud have to be struck down "n
dscharge of a duty pany ad upon the courts by the
Consttuton" |para 13 of AIR|.
119. In R. (Alconbury Ltd.) v. Environment Secretary, |2001|
2 WLR 1389, Lord Hoffmann spoke of the approach n such
cases:
"There s no confct between human rghts and
the democratc prncpe. Respect for human
rghts requres that certan basc rghts of
ndvduas shoud not be capabe n any
crcumstances of beng overrdden by the
ma|orty, even f they thnk that the pubc
nterest so requres. Other rghts shoud be
capabe of beng overrdden ony n very
restrcted crcumstances. These are rghts whch
beong to ndvduas smpy by vrtue of ther
humanty, ndependenty of any uttaran
cacuaton. The protecton of these basc rghts
from ma|orty decson requres that ndependent
and mparta trbunas shoud have the power to
decde whether egsaton nfrnges them and
ether (as n the Unted States) to decare such
egsaton nvad or (as n the Unted Kngdom) to
decare that t s ncompatbe wth the governng
human rghts nstrument. But outsde these basc
rghts, there are many decsons whch have to be
made every day (for exampe, about the
aocaton of resources) n whch the ony far
|WP(C)7455/2001| Page *' of !"#
method of decson s by some person or body
accountabe to the eectorate. |R. (Alconbury Ltd.)
v. Environment 5ecretary |2001| 2 WLR 1389, at
1411|"
120. In ths regard, the roe of the |udcary can be descrbed as
one of protectng the counter ma|ortaran safeguards
enumerated n the Consttuton. It s apt to refer to the
observatons of |ustce Robert |ackson n West Virginia
State Board of Education v. Barnette, 319 US 624
(1943):
"The very purpose of the b of rghts was to
wthdraw certan sub|ects from the vcsstudes of
potca controversy, to pace them beyond the
reach of ma|ortes and offcas and to estabsh
them as ega prncpes to be apped by the
Courts. One's rght to fe, berty, and property, to
free speech, a free press, freedom of worshp and
assemby, and other fundamenta rghts may not
be submtted to vote: they depend on the outcome
of no eectons." |page 638|
121. We may aso refer to the two recent decsons of the
Supreme Court nvovng the power of the courts to revew
Parament's egsatve and non-egsatve functons - .e.
the |udgments n l.R. Coelho (Dead) by LRs v. State of
Tamil Nadu & Ors., (2007) 2 SCC 1 and Raja Ram Pal v.
Hon'ble Speaker, Lok Sabha & Ors., (2007) 3 SCC 184.
In Coelho, the Supreme Court hed that t coud strke down
any aw nserted nto the Nnth Schedue f t were contrary
to Consttutona provsons. It was observed:
"....the |ursprudence and deveopment around
fundamenta rghts has made t cear that they are
not mted, narrow rghts but provde a broad
check aganst the voatons or excesses by the
State authortes. The fundamenta rghts have n
|WP(C)7455/2001| Page *( of !"#
fact proved to be the most sgnfcant
consttutona contro on the Government,
partcuary egsatve power......It cannot be sad
that the same Consttuton that provdes for a
check on egsatve power, w decde whether
such a check s necessary or not. It woud be a
negaton of the Consttuton." |paras 56 & 102|
122. In Raja Ram Pal case, the Court dsposed of the arguments
regardng the unconsttutonaty of the expuson of
Members of Parament whe smutaneousy uphodng the
prncpes of |udca revew. The Court began by statng
that the Consttuton was the "supreme lex n ths country"
and went on to say that:
"Parament ndeed s a coordnate organ and ts
vews do deserve deference even whe ts acts
are amenabe to |udca scrutny.....mere
coordnate consttutona status....does not
dsentte ths Court from exercsng ts |ursdcton
of |udca revew...." |paras 391 and 431 of SCC|
123. In the present case, the two consttutona rghts reed upon
.e. 'rght to persona berty' and 'rght to equaty' are
fundamenta human rghts whch beong to ndvduas
smpy by vrtue of ther humanty, ndependent of any
uttaran consderaton. A B of Rghts does not 'confer'
fundamenta human rghts. It confrms ther exstence and
accords them protecton.
124. In Peerless General Finance lnvestment Co. Ltd. v.
Reserve Bank of lndia, (1992) 2 SCC 343, the Court
hghghted the roe of the |udcary as protector of
fundamenta rghts n foowng words:
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"Wherever a statute s chaenged as voatve of
the fundamenta rghts, ts rea effect or
operaton on the fundamenta rghts s of prmary
mportance. It s the duty of the court to be
watchfu to protect the consttutona rghts of a
ctzen as aganst any encroachment graduay or
steathy thereon. When a aw has mposed
restrctons on the fundamenta rghts, what the
court has to examne s the substance of the
egsaton wthout beng begued by the mere
appearance of the egsaton. The Legsature
cannot dsobey the consttutona mandate by
empoyng an ndrect method. The court must
consder not merey the purpose of the aw but
aso the means how t s sought to be secured or
how t s to be admnstered. The ob|ect of the
egsaton s not concusve as to the vadty of
the egsaton...... The court must ft the ve of
the form and appearance to dscover the true
character and the nature of the egsaton, and
every endeavour shoud be made to have the
effcacy of fundamenta rght mantaned and the
egsature s not nvested wth unbounded
power. The court has, therefore, aways to guard
aganst the gradua encroachments and strke
down a restrcton as soon as t reaches that
magntude of tota annhaton of the rght."
|para 48 of SCC|
125. After the concuson of ora hearng, earned ASG fed hs
wrtten submssons n whch he camed that the courts
have ony to nterpret the aw as t s and have no power to
decare the aw nvad. Accordng to hm, therefore, f we
were to agree wth the pettoner, we coud ony make
recommendaton to Parament and t s for Parament to
amend the aw. We are constraned to observe that the
submsson of earned ASG refects rather poory on hs
understandng of the consttutona scheme. It s a
fundamenta prncpe of our consttutona scheme that
every organ of the State, every authorty under the
Consttuton derves ts power or authorty under the
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Consttuton and has to act wthn the mts of powers. The
|udcary s consttuted as the utmate nterpreter of the
Consttuton and to t s assgned the decate task of
determnng what s the extent and scope of the power
conferred on each branch of government, what are the
mts on the exercse of such power under the Consttuton
and whether any acton of any branch transgresses such
mts. The roe of the |udcary s to protect the fundamenta
rghts. A modern democracy whe based on the prncpe of
ma|orty rue mpcty recognzes the need to protect the
fundamenta rghts of those who may dssent or devate
from the ma|ortaran vew. It s the |ob of the |udcary to
baance the prncpes ensurng that the government on the
bass of number does not overrde fundamenta rghts. After
the enuncaton of the basc structure doctrne, fu |udca
revew s an ntegra part of the consttutona scheme. To
quote the words of Krshna Iyer, |. "... The compuson of
consttutona humansm and the assumpton of fu fath n
fe and berty cannot be so fute or fragmentary that any
transent egsatve ma|orty n tantrums aganst any
mnorty by three quck readngs of a B wth the requste
quorum, can prescrbe any unreasonabe modaty and
thereby sterse the grandoquent mandate." |Maneka
Gandhi v. Union of lndia (supra), para 81 of SCC|.
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lNFRlNCEMENT OF ARTClLE J9(J)(a) to (d)
126. In the ght of our fndngs on the nfrngement of Artces 21,
14 and 15, we fee t unnecessary to dea wth the ssue of
voaton of Artce 19(1)(a) to (d). Ths ssue s eft open.
DOCTRlNE OF 5EVERA8lLlTY
127. The prayer of the pettoner s to decare Secton 377 IPC as
unconsttutona to the extent the sad provson affects
prvate sexua acts between consentng aduts n prvate.
The reef has been sought n ths manner to ensure the
contnuance of appcabty of Secton 377 IPC to cases
nvovng non-consensua sex. Our attenton was drawn to a
passage from Consttutona Law of Inda (Fourth Edton,
Vo. 1) by H.M. Seerva, wheren the earned author has
expaned the Doctrne of Severabty n the foowng words:
"3.7 Severabty we have seen that where two
nterpretatons are possbe, a Court w accept
that nterpretaton whch w uphod the vadty
of aw. If, however, ths s not possbe, t
becomes necessary to decde whether the aw s
bad as a whoe, or whether the bad part can be
severed from the good part. The queston of
constructon, and the queston of severabty are
thus two dstnct questons"
....
3.9 There are two knds of severabty : a
statutory provson may contan dstnct and
separate words deang wth dstnct and separate
topcs, as for exampe, one sub-secton may appy
t retrospectvey. The frst sub-secton may be
vad and the second vod. In such a case, the
Court may deete the second sub-secton by
treatng t as severabe.
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3.10 There s however another knd of
severabty namey severabty n appcaton, or
severabty n enforcement. The queston of ths
other knd of severabty arses when an
mpugned provson s one ndvsbe whoe, as for
nstance, the defnton of a word. Here
severabty cannot be apped by deetng an
offendng provson and eavng the rest standng.
It becomes necessary therefore to enqure
whether the mpugned defnton embraces
dstnct casses and categores of sub|ect matter
n respect to some of whch the Legsature has no
power to egsate or s otherwse sub|ect to a
Consttutona mt. If t s found that the
defnton does cover dstnct and separate casses
and categores, the Court w restran the
enforcement of the aw n respect of that cass of
sub|ects n respect of whch the aw s nvad.
Ths mght be done by grantng perpetua
n|uncton restranng the enforcement of aw on
the forbdden fed, as hed n
Chamarbaughwalla's Case (1957) S.C.R. 930.
3.11 The prncpe of severabty n appcaton
was frst adopted by our Sup. Ct. when deang
wth the contenton that a tax aw must be
decared whoy vod f t was bad n part as
transgressng Consttutona mtatons. Sastr
C.|., deverng the ma|orty |udgment, observed:
"It s a sound rue to extend severabty to
ncude separabty n enforcement....and we are
of the opnon that the prncpe shoud be apped
n deang wth taxng statutes.....". He referred to
the decson n 8owman v. Continental Oil Co.,
(1920) 256 US 642. In Chamarbaughwaa's case,
t was argued that ths rue was exceptona and
apped ony to taxng statutes. But Venkatarama
Ayar |. re|ected ths contenton."
128. In R.M.D. Chamarbaugwalla v. Union of lndia, AIR 1957
SC 628, the Consttuton Bench ad down:
"When a egsature whose authorty, s sub|ect to
mtatons aforesad enacts a aw whch s whoy
n excess of ts powers, t s entrey vod and
must be competey gnored. But where the
egsaton fas n part wthn the area aotted to
t and n part outsde t, t s undoubtedy vod as
to the atter; but does t on that account become
necessary vod n ts entrety? The answer to ths
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queston must depend on whether what s vad
coud be separated from what s nvad, and that
s a queston whch has to be decded by the
Court on a consderaton of the provsons of the
Act. Ths s a prncpe we estabshed n
Amercan |ursprudence, Vde Cooey's
Consttutona Lmtatons, Vo. I, Chap. VII,
Crawford on Statutory Constructon, Chap. 16 and
Sutherand on Statutory Constructon, 3rd Edn.,
Vo. 2, Chap. 24." |para 12 of AIR|
In that case, the Court accepted the contenton of the
respondent that the prncpe of severabty s appcabe
when a statute s partay vod for whatever reason that
mght be, and that the mpugned provsons are severabe
and, therefore, enforceabe as aganst compettons whch
are of a gambng character. The rato n
Chamarbaugwalla was foowed n Kedar Nath v. State
of Bihar, AIR 1962 SC 955, Bhim Singhji v. Union of
lndia, (1981) 1 SCC 166 and State of Andhra Pradesh v.
National Thermal Power Corporation, (2002) 5 SCC 203.
CONCLU5lON
129. The noton of equaty n the Indan Consttuton fows from
the Ob|ectve Resouton moved by Pandt |awahara Nehru
on December 13, 1946. Nehru, n hs speech, movng ths
Resouton wshed that the House shoud consder the
Resouton not n a sprt of narrow ega wordng, but rather
ook at the sprt behnd that Resouton. He sad, "Words are
magc thngs often enough, but even the magc of words
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sometmes cannot convey the magc of the human sprt and
of a Natons passon.... (The Resouton) seeks very
feeby to te the word of what we have thought or dreamt
of so ong, and what we now hope to acheve n the near
future." |Consttuent Assemby Debates: Lok Sabha
Secretarat, New Deh: 1999, Vo. I, pages 57-65|.
130. If there s one consttutona tenet that can be sad to be
underyng theme of the Indan Consttuton, t s that of
'ncusveness'. Ths Court beeves that Indan Consttuton
refects ths vaue deepy ngraned n Indan socety,
nurtured over severa generatons. The ncusveness that
Indan socety tradtonay dspayed, teray n every
aspect of fe, s manfest n recognsng a roe n socety for
everyone. Those perceved by the ma|orty as "devants' or
'dfferent' are not on that score excuded or ostracsed.
131. Where socety can dspay ncusveness and understandng,
such persons can be assured of a fe of dgnty and non-
dscrmnaton. Ths was the 'sprt behnd the Resouton' of
whch Nehru spoke so passonatey. In our vew, Indan
Consttutona aw does not permt the statutory crmna aw
to be hed captve by the popuar msconceptons of who the
LGBTs are. It cannot be forgotten that dscrmnaton s ant-
thess of equaty and that t s the recognton of equaty
whch w foster the dgnty of every ndvdua.
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132. We decare that Secton 377 IPC, nsofar t crmnases
consensua sexua acts of aduts n prvate, s voatve of
Artces 21, 14 and 15 of the Consttuton. The provsons of
Secton 377 IPC w contnue to govern non-consensua
pene non-vagna sex and pene non-vagna sex nvovng
mnors. By 'adut' we mean everyone who s 18 years of age
and above. A person beow 18 woud be presumed not to be
abe to consent to a sexua act. Ths carfcaton w hod t,
of course, Parament chooses to amend the aw to
effectuate the recommendaton of the Law Commsson of
Inda n ts 172
nd
Report whch we beeve removes a great
dea of confuson. Secondy, we carfy that our |udgment
w not resut n the re-openng of crmna cases nvovng
Secton 377 IPC that have aready attaned fnaty.
We aow the wrt petton n the above terms.
CHIEF |USTICE
|ULY 2, 2009 S.MURALIDHAR, |
"nm/v/pk"
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