An article titled India: End to Unnatural Exclusion[1], had been published in The Hindustan

Times on July 2nd, 2009. In this article, the author had written about the Delhi High CourtJudgment
that decriminalized non-heterosexual sex between consenting adults. It said that in an eloquently
argued judgment of 150 pages, the bench had struck down Section 377 of the Indian Penal Code
(IPC), a colonial legislation drafted by Lord Macaulay in 1860, that criminalized carnal intercourse
against the order of nature punishable by imprisonment extending up to ten years. India was one
of the few countries left in the world that criminalized and discriminated on the basis of sexual
orientation. The author opined that by overturning Section 377, the Delhi High Court has fore
grounded the importance of sexual rights, lent dignity to people of different sexualities and upheld
the Constitutional
values
of
democracy
and
equality.
This is a view that seems to be shared by a multitude of the intelligentsia in the country. Judging
from the response that the DelhiHigh Courts ruling has received, it is becoming quite apparent
that the once traditional and culture-centric nation is opening its doors to possibilities of the ethos
evolving in a direction that was previously seen as appalling. The new wave of judicial activism that
has been set forth in the past few decades, is pulling under its radar the plight of a particular
section of the population that was previously criminalized, but is now being recognized as very
much a part of the Indian people, which has rights and an identity of its own.
According to Faucault, an imminent jurist belonging to the Marxist School, the acquisition of
subjectivity implies both being a subject - an individual who is empowered to act, and being
subjected - an individual whose actions are defined for him or her by the terms of discourse from
which the individuals status as subject is derived. In accepting a new subject position, such as the
LGBTs, we are provided with a culturally meaningful way of experiencing ourselves and our
interactions
within
society.
For Faucault, resistance is the irreducible opposite of power and it comprises isolated acts of
rebellion as well as organized political movements. Resistance may entail the use of one discourse
against another to contest its exclusionary outcomes, thereby forcing to redraw its boundaries to
permit inclusion. This inclusion is what the various agencies, NGOs and Conventions across the
world, have been trying to achieve through the resistance they have doggedly shown at every
instance where a LGBT person has been persecuted. [2] In the last two decades, LGBT activism
played a major role in creating awareness on the issue. In 2006 writer Vikram Seth released a
public letter demanding that the cruel law be struck down. The letter was supported by a large
number of signatories including Captain Lakshmi Sehgal, Aruna Roy, Soli Sorabjee, Shyam Benegal,
Shubha Mudgal, Arundhati Roy, Aparna Sen, Mrinalini Sarabhai and demanded the scrapping of the
brutal law that punitively criminalizes romantic love and private, consensual sexual acts
between adults of the same sex while being used to systematically persecute, blackmail, arrest
and terrorize sexual minorities. Amartya Sen also asked for an abolition of the colonial era
monstrosity that ran contrary to the enhancement of human freedom and Indias commitment
to
democracy
and
human
rights
The message all these attempts try to convey is that by not shoehorning all partnerships into
existing categories, we may be able to systematically observe and understand the true nature of
intimate partnerships. Nurtured over many years, inclusiveness recognizes a role in society for
everyone where those perceived by the majority as deviants or different are not excluded or
ostracized. It argues that Constitutional law does not permit the statutory criminal law to be held
captive by the popular misconceptions of who the Lesbian, Gay, Bisexual and Transgender (LGBT)
are. It cannot be forgotten that discrimination is the antithesis of equality and that it is the
recognition
of
equality
which
will
foster
the
dignity
of
every
individual.
History
Of
Section
377
Of
IPC
Section 377 was introduced by Lord Macaulay in 1860 as a part of the Indian Penal Code. A plain
reading of the section makes clear that it punishes 'carnal intercourse against the order of nature'
with either imprisonment of 10 years or life and fine. The provision reads, Unnatural Offences:
Whoever voluntarily has carnal intercourse against the order of nature with any man, woman or
animal, shall be punished with imprisonment for life, or with imprisonment of either description for
a term which may extend to ten years, and shall also be liable to fine.

The question which the judiciary has struggled with since 1860 is to determine what exactly 'carnal
intercourse against the order of nature' means. The meaning of Section 377 in 1884 was restricted
to anal sex, by 1935 it was broadened to include oral sex and the judgments in contemporary India
have broadened it to also include thigh sex. Section 377 is not merely a law about anal sex alone,
but applies to homosexuality in general. The lack of a consent-based distinction in the offence has
made homosexual sex synonymous to rape and equated homosexuality with sexual perversity.[3]
If we are to search for a principle which holds together these various sex acts prohibited by Section
377, it was laid down as early as 1935. The Court in Khanu vs Emperor laid down that, the natural
object of sexual intercourse is that there should be the possibility of conception of human beings,
which in the case of coitus per os (oral intercourse) is impossible. It then went on to define sexual
intercourse as the temporary visitation of one organism by a member of the other organism, for
certain
clearly
defined
and
limited
objects.
The primary objective of the visiting organization is to obtain euphoria by means of a detent of the
nerves consequent on the sexual crisis. But there is no intercourse unless the visiting member is
enveloped at least partially by the visited organism, for intercourse connotes reciprocity. Looking at
the question in this way it would seem that the sin of Gomorrah is no less carnal intercourse than
the
sin
of
Sodom.[4]
This idea of sex without the possibility of conception has been used by the judiciary over the last
140 years to characterize homosexuality as a 'perversion', 'despicable specimen of humanity',
'abhorrent crime', 'result of a perverse mind' and 'abhorred by civilized society'. What judicial
interpretation did was to include both acts of consensual sex as well as acts of sexual assault under
its catch all category of 'carnal intercourse against the order of nature'. It is also important to note
that technically speaking, Section 377 does not prohibit homosexuality or criminalize homosexuals
as a class but targets instead sexual acts. However the fact that these sexual acts are commonly
(mistakenly) associated with only homosexuals has made homosexuals far more vulnerable to
prosecution
under
the
law
than
heterosexuals.
The judicial understanding of Section 377 only legitimizes and reinforces state power to persecute
and harass those of an alternative sexual orientation or gender identity. This enormous power in
the hands of the state to enforce its vision of morality finds frightening expression in the form of
arbitrary
and
brutal
state
action.
The real danger of Section 377 lies in the fact that it permeates different social settings including
the medical establishment, media, family, and the state. Thus it becomes a part of ordinary
conversations and ultimately a part of the very social fabric in workplaces, families, hospitals and
the
popular
press.
This helps to create an environment where violence against queer people gains a semblance of
legal acceptability. Section 377 expresses deep societal repugnance towards queer people and
provides the fig leaf of legitimacy for the harassment of queer people by families, friends, the
medical
establishment
and
other
official
institutions.[5]
To take just two examples, 'Sodomy is illegal in India,' was a statement made by a doctor that
shows how a law such as Section 377 has to be evaluated not merely in terms of the actual
prosecutions but in terms of its impact in constructing mindsets. The effect on actions by
authorities right from the medical profession to the National Human Rights Commission should be
seriously studied to grasp how Section 377 has functioned as cultural signifier for the
'unacceptability'
of
homosexuality.
Similarly the social intolerance fostered by the legal regime of Section 377, results in the situation
wherein lesbian couple after lesbian couple feel they have no option but to commit suicide when
faced with the dire reality of the Indian norm of compulsory marriage. Deepa from Sahayatrika, a
voluntary organisation, has documented the cases of 23 couples in the tiny state of Kerala who
have committed suicide rather than be forced into marriage. Of course this form of extreme

intolerance is also being combated by the emergence of queer activism, but for many women from
small towns without any access to the queer community it remains a lonely struggle to keep alive
the revolt against compulsory heterosexuality. Section 377 is a visible symbol of all that is wrong
with compulsory heterosexuality and it is within this context that a queer critique has to be framed.
Essentials
of
The
Offence
Unnatural offences are dealt with under Section 377 of the Indian Penal Code, 1860. The section
reads
as
follows

Whoever voluntarily has carnal intercourse against the order of nature with any man, woman or
animal shall be punished with imprisonment for life, or with imprisonment of either description for
a term which may extend to ten years, and shall also be liable to fine.
EXPLANATION: Penetration is sufficient to constitute the carnal intercourse necessary to the
offence
described
in
this
section.
The first word that comes to prominence is voluntarily, which is defined in Sec.39 of the IPC as
intending to cause it, or by means which, at the time of employing those means, the person knew
or had reason to believe to be likely to cause. Applying this definition we deduce that the act of
committing an unnatural offence must be accompanied by intention. The words has carnal
intercourse suggest that this offence is punishable only if the act is committed, that is an actus
reaus followed by the mens rea must be present. Carnal intercourse leaves outside of its ambit
sexual intercourse in the normal sense between humans of opposite sex i.e. any sexual act which is
not of the usual penile-vaginal penetration of male-female sexual intercourse. Also, carnal
intercourse may not be done with a man, woman or animal. There are four different forms of
intercourse
which
are
strictly
prohibited
by
Sec.
377:
Penile-anal
Finger-anal
Finger-vaginal
Object-vaginal
This
establishes

the

rule

criminalizing

penetration
penetration
penetration
penetration.[6]
in
India.

sodomy

The explanation to the Section clarifies that penetration in any orifice is enough to constitute the
offence, and so the full act of intercourse or even the point of reaching climax is not required to
constitute the offence. The true meaning that emerges is that penetration per anum is only
punishable, but coitus per os, or the act of inserting the penis into anothers buccal cavity (mouth)
has also been read into this as an unnatural offence in cases like Khanu v. Emperor[7] which was
later reaffirmed in Lohana Vasantlal Devchand v. The State[8]. In the case of Calvin Francis v. State
of Orissa[9], the High Court of Orissa was of the opinion that the act of placing the male organ
inside anothers mouth would amount to an unnatural offence because it would amount to an
initiative act of sexual intercourse for the purpose of his satisfying the sexual appetite.
One important omission in Section 377 is of any respite for an unnatural offence committed with
the consent of the other. This is establishes that consent is immaterial in the commission of an
unnatural offence in India.[10] That is to say, that even consensual sodomy is illegal, as given in
the
case
of
Jagjir
Singh
v.
State[11].
Furthermore, the offence is cognisable, non-bailable, non-compoundable and triable by a
magistrate of first class. Mere intention to commit the crime is not enough to convict the accused.
[12] In a trial of an accused under this Section, the prosecution must prove that the:
accused
had
carnal
such
intercourse
the
act
was
penetration had occurred.

intercourse
with
a
was
against
done
voluntarily

man,
the
by

woman
order
the

or

an
of
accused;

animal;
nature;
and

Section 377 also recognises bestiality which is sexual intercourse either by man or woman with an
animal. Another definition is Sexual activity between a human and an animal. Some authorities
restrict the term to copulation between a human and an animal of the opposite sex. Interestingly,
the definition of sodomy also includes bestiality hence sodomy is not only sexual intercourse
between two humans of the same sex, but also a human and an animal of opposite gender.[13]
The reason for including bestiality within the definition of unnatural offences as contained in
Section 377 is not clear. It may be inferred from the title of the Section that the drafters of the Code
intended to enalize all unnatural offences, whether carnal intercourse was committed against a
man,
woman
or
an
animal.
History
Of
The
Persecution
The criminalization of homosexuality, by condemning into perpetuity an entire class of people,
forces them to live their lives in the shadow of harassment, exploitation, humiliation, and cruel and
degrading treatment at the hands of the law enforcement machinery; further it denies them moral
full citizenship.[14] Proof of such harassment and exploitation is seen from the various incidents
that keep getting reported in the newspapers on a regular basis, but that never really make it to
the
headlines.
Let
us
consider some of
these incidents
as
case
studies
In August 2004, the newspapers in Delhi were full of details of the double murder at Anand Lok,
which involved the murder of two gay men in the posh South Delhi house of one of the victims. The
media was quick to pounce upon the unsafe lifestyle of the victims, and instead of mourning the
death of two people, began detailed reports of the dark underbelly of Delhis nightlife. Screaming
headlines such as Gay Murders Tip of Sordid Sleazeberg[15] became daily fare; newspaper
reports talked endlessly of the promiscuous and unsafe lifestyles of gay people in the city, and how
Pushkin Chandra, one of the murder victims, was part of a homosexual syndicate.[16]
Like all laws, Section 377 was used both inside and outside the courtroom. In 2006, the Lucknow
police entrapped five gay men by tracking them over the internet and then arresting them under
Section 377. For years, police have used Section 377 to extort, threaten, intimidate and harass
LGBT people. Commenting on how law-enforcers can misuse such penalisable offences, Amartya
Sen observed that the harm done by such an an unjust law can, therefore, be far larger than
would
be
indicated
by
cases
of
actual
prosecution.[17]
On 20th October 2008, five hijras were caught by the police and taken to the Girinagar police
station. In the station, the hijras were beaten up by the police, including the Assistant
Commissioner of Police (ACP), H. T. Ramesh. False charges under section 341 (wrongful restraint)
and 384 (extortion) of the IPC (Indian Penal Code) were brought upon them. They were produced
before the magistrate at 7:30 pm and were sent into judicial custody. All through the hijras were
handled by men police and no medical treatment was given to the injured hijras in police or judicial
custody. They were released on bail on 22nd October, 2008. Upon receiving a call from one of the
arrested hijras, five crisis team members of Sangama rushed to the Girinagar police station.
Sangama is a human rights organization that has been working among hijras and other sexual
minorities on issues of their rights and health for the past ten years. Sangama's crisis intervention
is recognized as an effective practice by the Indian Government through its National AIDS Control
Plan III, 2006-2011 to be emulated by organizations working with sexual minorities and sexworkers
across India. The crisis team members tried to enquire of the police about the arrested hijras. To
the surprise of the members, they were roundly abused by the police, and subjected to physical
and verbal assault. All had their organizational ID cards with them, but this did not prevent them
from being illegally assaulted and detained by the police at the Banashankari police station, and
later at the Girinagar police station. All of them were accused of offences punishable under Section
143 (unlawful assembly), 145 (joining unlawful assembly ordered to be dispersed), 147 (rioting)
and 353 (obstructing government officials in performing their duty) of the IPC. They were produced
before the magistrate at 8.45 PM and were sent into judicial custody. These 5 crisis team members
were released on bail on 22nd October, 2008. Around 150 human rights activists and lawyers from
various organizations gathered outside the Banashankari police station by the evening of October
20. They tried unsuccessfully to negotiate with the ACP and the Police Inspector to release the
Sangama
crisis
team
members.[18]

There was a reported beheading of a young Indian man by a male co-worker who apparently told
police he was ashamed after the two had sex. [19] Halol police on Monday arrested the youth,
Naushad Pathan, allegedly involved in the murder of his associate, Dilshad, on the outskirts of Halol
town
on
22
January
2005.
The other disturbing trend increasingly apparent is that, in ever-greater numbers, police pretend to
arrest homosexual men from cruising areas--only to take them either to police vans or to the police
station to force them to provide the police with "sexual favors". Male sex workers (MSW) are
especially vulnerable to this, since usually the beat constables know who they are. This sexual
exploitation often turns violent and sometimes turns to gang rape should the person arrested
refuse. Alsowhile most homosexuals, including sex workers, in cruising areas are now aware of
HIV/AIDS and increasingly use condoms-- the police insist on having unsafe sex. The pattern of
brutal rape and gang rape is intensified if the victim resists unsafe sex. This has resulted in terrible
trauma for the victims, and increased fear of contracting HIV and STDs. It also leads to depression
and other psychological/emotional complications, not to mention physical trauma and hemorrhage
from
the
torture
and
abuse.[20]
Social
Bias:
The fact that Naushad had to murder the man he had sex with shows the level of shame and
indignity that has been attached with the concept of homosexuality in India. Who is the
homosexual in India today? In law, a criminal committing unnatural sexual offences; in religion, a
sinner who violates Gods laws; and in medicine, a mentally ill person who needs treatment. These
three systems of knowledge law, religion and medicine deeply impact our understanding of
homosexuality
in
India.[21]
Swami Ramdev has even said that homosexuals are mentally ill and need hospitals, not legal
vindication. Similarly, the Vishwa Hindu Parishad, the Catholic Church and Muslim theological
bodies have all ordained homosexuality as being against the order of nature. While some of them
have adopted a conciliatory approach towards decriminalisation of homosexuality, they
vehemently oppose its legalisation. The beliefs about unstable and distressing homosexual
relationships first constructed by western psychiatrists, in the early twentieth century find voice in
Indian society as well. Multiple partners, cruising for sexual contact, short-term relationships,
rejection and depression, are all mentioned in passing as problems that homosexual people have to
face without exception. There is little or no questioning of the social pressure behind the cause for
many of these so-called unstable components of homosexual relationships. Additionally
conservative notions of relationships (both from religious roots or otherwise) as being
monogamous, single-partner, marital and procreative only, permeates unconsciously through these
assumptions.
The one fact assumed at the start by these mental health practitioners is that heterosexuality is
the objective of all sexual development. That being a heterosexual is the natural thing. And that
people are homosexual because of unhealthy fixations, same-sex experimentation, same-sex
sexual
abuse
and
peer
pressure.
Effect
On
Anti-Aids
Campaigns
With the anti-sodomy law in place, the Queer movement was restricted to talking about disease
prevention and the repealing of Section 377. Since homosexuals are among the high-risk
communities in the spread of HIV-AIDS, many non-governmental organisations (NGOs) argued
against Section 377, pointing out that by criminalising homosexuality the state was pushing more
people underground and thereby accelerating the HIV risk factor. NGOs working in this area have
thus helped in strengthening the queer movement. The hidden nature of homosexuality groups is
impending intervention under the National AIDS Control Programme. An enabling environment is to
be created where the people involved in risky behaviour can be provided total access to the
services
of
such
preventive
efforts.
Cases
Under
Section
377
The courts have dealt with a variety of case law in which they have applied the Section and its
ingredients
and
set
out
its
scope.
The
cases
of

Khanu
v.
Emperor
Lohana
Vasantlal
Devchand
v.
The
State
Calvin
Francis
v.
State
of
Orissa
Jagjir
Singh
v.
State
have been discussed in the preceding chapters. The ratios of certain other important cases are as
follows:
Nowshiriwan
Irani
V.
Emperor[22]
The Court held that the offence was not committed and that no attempt to commit the offence
could
be
interpreted
since
there
had
been
no
penetration.
Lohana
Vasantlal
Devchand
V.
The
State[23]
This dealt with whether the act of placing ones organ inside the mouth of the victim and
ejaculating could be termed as carnal intercourse. The facts included that such act had occurred
after a boy could not bear penetration into the anus by the accused. After analysing the definition
of sodomy in English law and comparing it to Section 377, the Court reached the decision that the
accused were liable for committing unnatural offence. This case substantially recognised oral
intercourse
as
a
form
of
carnal
intercourse
punishable
under
Section
377.
State
Govt.
Of
Nct
Of
Delhi
V.
Sunil[24]
In this case two men took away a four year old girl from her house and committed rape and
sodomy on her, which eventually led to her death. Medical evidence showed that the two accused
had indulged in anal intercourse with the girl, hence they were also convicted of the offence under
Section
377.
The
Igniting
Incident
On 7 July2001, police raided a park in Lucknow that was frequented by the MSM (men who have
sex with men) community. The raid was based on an FIR (First Information Report, filed at a police
station in the event of a crime) filed by a person who alleged that he had been sexually assaulted.
The raid led to the arrest of an outreach worker of the Bharosa Trust, a NGO working with the MSM
community in the area of HIV/AIDS prevention. The police raided the offices of Bharosa and Naz
Foundation and seized materials from there, arresting nine people in all. The media sensationalised
the
arrests,
describing
the
police
action
as
the
busting
of
a
sex
racket.
The arrested persons were remanded to judicial custody on 8 July 2001; they were allegedly beaten
up and their offices sealed. They were charged under Sections 377 (unnatural offences), 292 (sale
of obscene books, etc.), 120b (criminal conspiracy) and 109 (abetment) of the IPC; under Section
60 of the Copyright Act; and Section 3 and 4 of the Indecent Representation of Women Act. Their
bail applications were rejected twice, first by the chief judicial magistrate (CJM) and then by the
district judge, Lucknow. The CJM denied bail, stating that the work of the accused is like a curse on
society. The sessions judge upheld the arguments of the prosecution, which alleged that the
accused are a group of persons indulging in these activities and are polluting the entire society by
encouraging young persons and abetting them for committing the offence of sodomy; that the
investigation is still under progress; that the offences are being committed in an organized
manner. The appeal for bail was moved again on 8 August in the Lucknow High Court by Indira
Jaising and Anand Grover of the group Lawyers Collective. It was only on 16-17 August that all four
accused were granted bail, and that too only after the public prosecutor had stated that no link
between the NGOs and the incident of 7 July could be established. A medical examination was done
of all the four accused but no evidence to charge them under Section 377 was found.
This incident alarmed and disturbed the queer community in India, and made it clear that the
threat of Section 377 being used as a means of discrimination was a concern that needed to be
urgently addressed. The petition filed in the Delhi High Court by the Naz Foundation in 2001 asked,
therefore, for the reading down of this law. It asked that private consensual sex between adults be
decriminalised. The thrust of the petition was to challenge the law as a violation of the right to
privacy; to question the legislative intent as being arbitrary and outdated; to challenge the effect of
the
law
as
being
discriminatory
on
the
grounds
of
sexual
orientation.

Chronology
Of
Protests
2001: An NGO fighting for gay rights, Naz Foundation files PIL seeking legalisation of gay sex
among
consenting
adults.
Sept 2, 2004 : Delhi High Court dismisses the PIL seeking decriminalisation of gay sex.
Sept,
2004:
The
gay
right
activists
file
review
petition.
Nov
3,
2004:
The
HC
dismisses
the
review
plea.
Dec, 2004: Gay rights activists approach the apex court against the order of the High Court.
Apr 3, 2006: The apex court directs the HC to reconsider the matter on merit and remands the case
back
to High
Court.
Oct 4, 2006: The HC allows senior BJP leader B P Singhal's plea, opposing decriminalising gay sex,
to
be
impleaded
in
the
case.
Sept 18, 2008: Centre seeks more time to take stand on the issue after the contradictory stand
between the Home and Health ministries over decriminalisation of homosexuality. The Court
refuses
the
plea
and
final
argument
in
the
case
begins.[25]
Sep 25, 2008: The gay rights activists contend that the government cannot infringe upon their
fundamental right to equality by decriminalizing homosexual acts on the ground of morality.
Sep 26, 2008: The Court pulls up the Centre for speaking in two voices on the homosexuality law in
view
of
contradictory
affidavits
filed
by
Health
and
Home
ministries.
Sep 26, 2008: Centre says that gay sex is immoral and a reflection of a perverse mind and its
decriminalisation
would
lead
to
moral
degradation
of
society.
Oct 15, 2008: The High Court pulls up the Centre for relying on religious texts to justify ban on gay
sex
and
asks
it
to
come
up
with
scientific
reports
to
justify
it.
Nov, 2008: Government in its written submission before the High Court says judiciary should refrain
from
interfering
in
the
issue
as
it
is
basically
for
Parliament
to
decide.
Nov 7, 2008: High Court reserves its verdict on petitions filed by gay rights activists seeking
decriminalisation
of
homosexual
acts.
July 2, 2009: High Court allows plea of gay rights activists and legalises gay sex among consenting
adults.
NACO (National Aids Control Organization) had also demanded the scrapping of Section 377 as it
was
obstructing
effective
health
interventions.
The 172nd report of the Law Commission of India and the recommendations of the National
Planning Commission for the 11th Five Year Plan also demanded decriminalization of homosexuality
Naz
Foundation
V.
Government
Of
NCT
In February 2006, the Supreme Court had ordered the High Court to reconsider the constitutional
validity of Section 377. The Naz Foundation petition was supported by Voices Against 377,
comprising 12 organizations across the country while it was being opposed by the government of
Delhi and others. The position of the government (represented by the Ministries of Health and Law)
has been conflicted while many of its affiliates demanded decriminalization. This visionary
judgement is the culmination of a ten-year legal battle. In 2001 Naz Foundation (an NGO related to
HIV/Aids issues) filed a petition in the Delhi High Court asking for Section 377 to be read down by
decriminalizing consensual sex among adults. In September 2003, the Government insisted on
retaining Section 377 on the grounds that Indian societys disapproval of homosexuality was
strong enough to justify it being treated as a criminal offence even where adults indulge in it in
private.[26]
The writ petition has been preferred by Naz Foundation, a Non Governmental Organization (NGO)
as a Public Interest Litigation to challenge the constitutional validity of Section 377 of the Indian
Penal Code, 1860 (IPC), which criminally penalizes what is described as unnatural offences, to the
extent the said provision criminalizes consensual sexual acts between adults in private. The
challenge is founded on the plea that Section 377 IPC, on account of it covering sexual acts
between consenting adults in private infringes the fundamental rights guaranteed under Articles
14[27], 15[28], 19[29] & 21[30] of the Constitution of India. Limiting their plea, the petitioners

submit that Section 377 IPC should apply only to non-consensual penile non-vaginal sex and penile
nonvaginal
sex
involving
minors.
The writ petition was dismissed by this Court in 2004 on the ground that there is no cause of action
in favour of the petitioner and that such a petition cannot be entertained to examine the academic
challenge to the constitutionality of the legislation. The Supreme Court vide order dated
03.02.2006 in Civil Appeal No. 952/2006 set aside the said order of this Court observing that the
matter does require consideration and is not of a nature which could have been dismissed on the
aforesaid ground. The matter was remitted to the Delhi High Court for fresh decision.
ISSUES:
I.
Whether
Section
377
is
violative
of Article 14
It has was submitted that Section 377s legislative objective of penalizing unnatural sexual acts
has no rational nexus to the classification created between procreative and non- procreative sexual
acts, and is thus violative of Article 14 of the Constitutionof India. Section 377s legislative
objective is based upon stereotypes and misunderstanding that is outmoded and enjoys no
historical or logical rationale which renders it arbitrary and unreasonable. The Court made it
explicit that where an Act is arbitrary, it is implicit in it that it is unequal both according to political
logic
and
constitutional
law
and
is,
therefore,
violative
of Article 14.
According to Union of India, the stated object of Section 377 IPC is to protect women and children,
prevent the spread of HIV/AIDS and enforce societal morality against homosexuality. It is clear that
Section 377 IPC, whatever its present pragmatic application, was not enacted keeping in mind
instances of child sexual abuse or to fill the lacuna in a rape law. It was based on a conception of
sexual morality specific to Victorian era drawing on notions of carnality and sinfulness. In any way,
the legislative object of protecting women and children has no bearing in regard to consensual
sexual
acts
between
adults
in
private.
The second legislative purpose elucidated is that Section 377 IPC serves the cause of public health
by criminalising the homosexual behaviour. As already held, this purported legislative purpose is in
complete contrast to the averments in NACOs affidavit. NACO has specifically stated that
enforcement of Section 377 IPC adversely contributes to pushing the infliction underground, make
risky sexual practices go unnoticed and unaddressed. Section 377 IPC thus hampers HIV/AIDS
prevention
efforts.
Lastly, as held earlier, it is not within the constitutional competence of the State to invade the
privacy of citizens lives or regulate conduct to which the citizen alone is concerned solely on the
basis of public morals. The criminalisation of private sexual relations between consenting adults
absent any evidence of serious harm deems the provisions objective both arbitrary and
unreasonable. The state interest must be legitimate and relevant for the legislation to be nonarbitrary and must be proportionate towards achieving the state interest. If the objective is
irrational, unjust and unfair, necessarily classification will have to be held as unreasonable. The
nature of the provision of Section 377 IPC and its purpose is to criminalise private conduct of
consenting adults which causes no harm to anyone else. It has no other purpose than to criminalise
conduct which fails to conform with the moral or religious views of a section of society. The
discrimination severely affects the rights and interests of homosexuals and deeply impairs their
dignity.
II.
Whether
Section
377
is
in
violation
of Article 15?
International Covenant on Civil and Political Rights (ICCPR) recognises the right to equality and
states that, the law shall prohibit any discrimination on any ground such as race, colour, sex,
language, religion, political or other opinion, national or social region, property, birth or other
status. In Toonen v. Australia, The Human Rights Committee, while holding that certain provisions
of the Tasmanian Criminal Code which criminalise various forms of sexual conduct between men
violated the ICCPR, observed that the reference to sex is to be taken as including sexual
orientation.
Similarly, in Corbiere v. Canada, the Canadian Supreme Court identified the thread running through

these analogous grounds what these grounds have in common is the fact that they often serve
as the basis for stereotypical decisions made not on the basis of merit but on the basis of a
personal characteristic that is immutable or changeable only at unacceptable cost to personal
identity.
Therefore, sexual orientation is a ground analogous to sex and that discrimination on the basis of
sexual orientation is not permitted by Article 15. Further, Article 15(2) incorporates the notion of
horizontal application of rights. In other words, it even prohibits discrimination of one citizen by
another in matters of access to public spaces. Therefore, discrimination on the ground of sexual
orientation is impermissible even on the horizontal application of the right enshrined
under Article 15.
III.
Whether
it
violates Article 21
Blackmun, J. in his dissent in Bowers, Attorney General of Georgia v. Hardwick[31], made it clear
that the much - quoted right to be let alone should be seen not simply as a negative right to
occupy a private space free from government intrusion, but as a right to get on with your life, your
personality and make fundamental decisions about your intimate relations without penalisation.
The privacy recognises that we all have a right to a sphere of private intimacy and autonomy which
allows us to establish and nurture human relationships without interference from the outside
community. The way in which one gives expression to ones sexuality is at the core of this area of
private intimacy. If, in expressing ones sexuality, one acts consensually and without harming the
other,
invasion
of
that
precinct
will
be
a
breach
of
privacy.[32]
The sphere of privacy allows persons to develop human relations without interference from the
outside community or from the State. The exercise of autonomy enables an individual to attain
fulfilment, grow in self-esteem, build relationships of his or her choice and fulfill all legitimate goals
that he or she may set. In the Indian Constitution, the right to live with dignity and the right of
privacy both are recognised as dimensions of Article 21. Section 377 IPC denies a persons dignity
and criminalises his or her core identity solely on account of his or her sexuality and thus
violates Article 21 of the Constitution. As it stands, Section 377 IPC denies a gay person a right to
full personhood which is implicit in notion of life under Article 21 of the Constitution.
Ratio:
Section 377 however, by criminalising consensual sexual acts between adults in private[33]
basically penalises the minority group and has targeted the homosexuals in particular since the
majority considers it to be against the order of nature. Therefore, it is arbitrary and unreasonable
under Article 14.
The expression sex as used in the Article 15 cannot be read restrictive to gender but includes
sexual orientation[34] and, thus read, equality on the basis of sexual orientation is implied in the
said
fundamental
right
against
discrimination.
Repercussions
Of
Judgment
When the Delhi High Court struck down the provision of Section 377 of the Indian Penal Code (IPC)
that criminalises even consensual sex between same sex individuals, it also effectively opened up
public space long inaccessible for the queer movement in India. The decision not only permits
the queer community to carry out a much more democratic struggle against the oppression of its
sexuality but also gives it an opportunity to complicate the language of the movement vis-a-vis
class
and
gender
issues
in
the
country.
Ponni Arasu, a member of the Alternative Law Forum and a queer activist, said, The decision has
given the queer community basic access to law. You could not be identified as a homosexual as it
was criminal to be so. So, even when there is a case of civil rights abuse or other forms of
oppression, you could never go to a police station. You had to hide your identity. The movement,
in a way, starts now as it is out of the courtroom. Gautam Bhan, a member of Voices Against 377,
said, No battle is won in the courtroom. It is from here we start to complicate our language of
sexuality and engage it with other forms of oppression and discrimination in society.

The decision was long due, considering that the law was framed as a colonial tool by the British to
enter the family space and dictate private matters. Earlier, the subcontinents monarchs had not
intervened in the realm of sexuality, keeping the state away from disturbing the inherent status
quo.
In a way, the queer movement in India, which took a stand against the Victorian law drafted in
1860, can also be seen as contributing to the womens movement in the country. Not only does the
queer movement challenge the defining patriarchal nature of public and private spaces, the queer
debate also forms an integral part of ongoing class struggles as it deals with the politics of
marginalisation.
Bhan said, A Dalit woman who is a lesbian will have existential issues to deal with other than her
sexuality. But her sexuality, too, is an integral part of her life. How can we, then, separate issues of
sexuality from other democratic struggles of India? Similarly, working class people who could be
queer have their economic issues to deal with. We need to use the language of sexuality to check
any discrimination of queer people in employment, educational institutes, hospitals, and so on.
Such discriminatory practices are a norm but we can take up these issues.[35]
Activists identify several benefits from the recent decision to decriminalize homosexuality.
Significantly, opportunities for entrapment and blackmail of LGBT people, which take advantage of
their fear of being prosecuted for their sexual orientation and gender identity, can now be
challenged more publicly and hopefully decrease. However, it must be noted that regardless of
Section 377, sex workers are still entrapped, detained and penalized using other laws. The positive
court decision also will enable LGBT and HIV/AIDS groups and activists to continue or expand their
work without persecution by the authorities. Individuals can participate in Pride marches and other
related demonstrations with less fear of being prosecuted under Section 377.
At the same time, there is some worry of negative repercussions since a favorable judgment will
not end homophobia and its devastating effects on the lives of LGBT people in India. One concern
is the possibility of organized and social backlash against LGBT people as their issues and identities
are made more public and prominent in mainstream media and could potentially increase family
and community surveillance and violence. Some activists say there is an even greater urgency now
for safe houses, particularly for young lesbians, bisexual women, and non-gender conforming men
and women. There is also some criticism that the disappearance of Section 377 will not make a
significant difference in the daily lives of vernacular (non-English speaking) youth, economically
disempowered people, or non-heteronormative women facing forced marriages, forced
confinement by the family, and forced separation from same sex partners because these issues are
grounded in denial of autonomy and dignity for non-conforming sexuality, gender identity or
expression. Despite these concerns, the overwhelming feeling among most activists is that the
positive verdict in Delhi has tremendous symbolic value and could lead to more public debate,
more challenges to other repressive morality laws, and increased support for social change in India.
[36]
The legal battle has been partly won. Over the years, the movement has seen a shift in the social
reaction from fierce homophobia to more openness. What is now crucial to the movement is,
perhaps, its ability to make people question the conventional norms of the social structure and to
highlight its own aim as one that seeks not to annihilate the accepted social fabric but to ensure
that the social ethos reflects the nuances of human life and is not bound only by tradition
Conclusion
The historical Naz Foundation judgment derives its inspiration from a Nehruvian vision of Equality.
While moving the Objective Resolution on December 13, 1946, Jawaharlal Nehru said, and the
Judgement quotes: Words are magic things often enough, but even the magic of words sometimes
cannot convey the magic of the human spirit and of a Nations passion. The Resolution seeks very
feebly to tell the world of what we have thought or dreamt of so long, and what we now hope to
achieve in the near future. These words no doubt echo the feelings and aspirations of all LGBT
people
and
their
friends
and
family.

The struggle against Section 377 will not only have to factor in the state but also take on board
civil society voices such as that of the Hindu Right as well as AIDS deniers. Added to the civil
society voice one can also note that there is also a growing judicial recognition of the
unacceptability of this law in a modern democratic society. However judges are constrained by the
existence
of
the
law.
Yet another criticisism of Section 377 and an urge for its repeal comes from noted writer Vikram
Seth who was supported by scientists, authors, teachers, academics and businessmen. As Seth put
it, the problem with Section 377 is that 'By presumptively treating as criminals those who love
people of the same sex, Section 377 violates fundamental human rights, particularly the rights to
equality and privacy.' Noted economist and Nobel laureate, Prof. Amartya Sen, in a letter
supporting Vikram Seth, eloquently notes - 'It is surprising that independent India has not yet been
able to rescind the colonial era monstrosity in the shape of Section 377, dating from 1861. That, as
it happens, was the year in which the American Civil War began, which would ultimately abolish the
unfreedom of slavery in America. Today, 145 years later, we surely have urgent reason to abolish in
India, with our commitment to democracy and human rights, the unfreedom of arbitrary and unjust
criminalization.'
It is indeed unacceptable that in 21st century India we still have a law which denies basic
constitutional rights to a section of the Indian population. As Justice Albie Sachs of South Africa put
it while striking down South Africa's anti-sodomy law, 'it is only in the most technical sense that this
law is about who can penetrate whom and where. At a practical and symbolic level it is about the
status, moral citizenship and sense of self worth of a significant section of the community.
Section 377 is the biggest affront to the dignity and humanity of a substantial minority of Indian
citizens.. So if we believe that like all heterosexual married couples, homosexuals too should have
the freedom to engage in intimate sexual acts without being subject to state harassment, then this
law needs to go. The simple logic being that the Constitution cannot know or tolerate classes and
there cannot be a law which is based on pure animus towards one section of the community.[37]
The decriminalisation of sodomy will contribute directly to restoring the dignity of homosexuals and
allow
the
gay
movement
to
emerge
from
the
shadows.
I have spoken against the injustice of apartheid, racism, where people were penalized for
something about which they could do nothing, their ethnicity I therefore could not keep quiet, it
was impossible, when people were hounded for something they did not choose, their sexual
orientation.Archbishop
Desmond
Tutu
*************************
[1] Shohini Ghosh, India: End to Unnatural Exclusion, Hindustan Times, New Delhi, July 2nd, 2009.
[2] Vivienne Elizabeth, Cohabitation, Marriage, and the Unruly Consequences of Difference, Vol.
14, No.1, Special issue: Emergent and Reconfigured Forms of Family Life (Feb. 2006), Gender and
Society.
[3] Alok.Gupta, Economic and Political Weekly, November 18, 2006, pp. 4815-4823.
[4] The hated Section 377 of the Indian Penal Code, 4 February, 2008, International Humanist
and
Ethical
Union,
http://www.iheu.org
[5] Bhan et. al., Because I have a voice, Yoda Press, New Delhi, 2005, p. 8
[6] K.D. Gaur, Commentary On The Indian Penal Code, 1st Edition, 2006, p.1207.
[7]
Khanu
v.
Emperor
,
AIR
1925
Sind
286
[8]
Lohana
Vasantlal
Devchand
v.
The
State,
1968
Cr
LJ
1277
[9]
Calvin
Francis
v.
State
of
Orissa
1992
(2)
Crimes
455
(Ori).
[10] SK Sarvaria (Ed.) Indian Penal Code, R.A. Nelson, Volume 3, 9th Edition, 2003, p.3738.
[11]
Jagjir
Singh
v.
State,
1969
PLR
34
(SN).
[12] Y.V. Chandrachud (Rev.), The Indian Penal Code, Ratanlal & Dhirajlal, 29th Edition, 2nd
Reprint,
2004,
p.1818.
[13] Black's Law Dictionary (8th ed. 2004), bestiality, available on: www.westlaw.com.
[14] Kalpana Kannabiran, India: From Perversion to Right to Life with Dignity, The Hindu, July
6th,
2009.
[15] Gay Murders Tip of Sordid Sleazeberg,The Hindustan Times, 17 August, 2004.

[16] Siddharth Narrain, The Queer Case of Section 377, Sarai Reader, 2005, p.466.
[17] Shohini Ghosh, India: End to Unnatural Exclusion, Hindustan Times, New Delhi, July 2nd,
2009.
[18] Letter written by the Registrar of Karnataka Human Rights Commission to the Police
Commissioner, dated 26.10.2008, available on the blogsite of Campaign for Sexworkers and Sexual
Minorities
Rights.
http://sangamablog.blogspot.com/
[19] India: IGLHRC Responds to Reports of Gay Man Beheaded After Sex, press release, IGLHRC
International Gay and Lesbian Human Rights Commission Website on 31/01/2005
[20] Mr. Aditya Bondyopadhyay, State-Supported Oppression and Persecution of Sexual
Minorities, NGO Briefing, United Nations Commission on Human Rights April 8, 2002.
[21] Arvind Narrain and Vinay Chandran Its not my job to tell you its okay to be gay Medicalisation of homosexuality: a queer critique,http://www.altlawforum.org/gender-andsexuality/publications/medicalizationfinal.rtf/
[22]Nowshiriwan
Irani
V.
Emperor
AIR
1934
Sind:
37
CrLJ
728.
[23]
Lohana
Vasantlal
Devchand
V.
The
State
AIR
1968
Guj.
352
[24]
State
Govt.
Of
Nct
Of
Delhi
V.
Sunil
2001
Cri.L.J
504.
[26] Shohini Ghosh, India: End to Unnatural Exclusion, Hindustan Times, New Delhi, July 2nd,
2009.
[27] Equality before law- The State shall not deny to any person equality before the law or the
equal
protection
of
the
laws
within
the
territory
of
India.
[28] Prohibition of discrimination on grounds of religious, race, caste, sex or place of birth.
[29]
Protection
of
certain
rights
regarding
freedom
of
speech,
etc.
[30]
Protection
of
life
and
personal
liberty.
[31]
478
US
186
(1986).
[32] Ackermann J. in The National Coalition for Gay and Lesbian Equality v. The Minister of Justice,
decided
by Constitutional
Court
of
South
Africa
on
9th
October,
1998.
[33]
Acts
which
does
not
harm
anybody
or
the
public.
[34] An individual has a right to choose his/her sexual orientation, he can decide what sexual
orientation
he
prefers
to
be.
[35] Ajoy Ashirwad Mahaprashasta, Queer Politics, Gender Issues, Volume 26 - Issue 15 :: Jul. 1831,
2009,
Frontline.
[36] India: Section 377 and Naz Foundation (India) Trust v. Government of NCT Delhi , Global
Monitor, IGLHRC International Gay and Lesbian Human Rights Commission Website on 02/07/2009
[37] The hated Section 377 of the Indian Penal Code, 4 February, 2008, International Humanist
and Ethical Union,http://www.iheu.org