We shall now consider the question whether the High Court was justified in entertaining challenge to

Section 377 IPC despite the fact that respondent No.1 had not laid factual foundation to support its
challenge. This issue deserves to be prefaced by consideration of some precedents. In Southern
Petrochemical Industries v. Electricity Inspector (2007) 5 SCC 447, this Court considered challenge to
the T.N. Tax Consumption or Sale of Electricity Act, 2003. While dealing with the question whether the
2003 Act was violative of the equality clause enshrined in Article 14 of the Constitution, this Court made
the following observations: In absence of necessary pleadings and grounds taken before the High
Court, we are not in a position to agree with the learned counsel appearing on behalf of the
appellants that only becauseSection 13 of the repealed Act is inconsistent with Section 14 of the 2003
Act, the same would be arbitrary by reason of being discriminatory in nature and ultra vires
Article 14 of the Constitution of India on the premise that charging section provides for levy of tax on
sale and consumption of electrical energy, while the exemption provision purports to give power to
exempt tax on electricity sold for consumption and makes no corresponding provision for exemption
of tax on electrical energy self-generated and consumed. In Seema Silk and Sarees v. Directorate of
Enforcement (2008) 5 SCC 580, this Court considered challenge to Sections 18(2) and (3) of the Foreign
Exchange Regulation Act, 1973, referred to paragraphs 69, 70 and 74 of the Southern Petrochemical
Industries v. Electricity Inspector (supra) and observed: In absence of such factual foundation having
been pleaded, we are of the opinion that no case has been made out for declaring the said provision
ultra vires the Constitution of India. The writ petition filed by respondent No.1 was singularly laconic in
as much as except giving brief detail of the work being done by it for HIV prevention targeting MSM
community, it miserably failed to furnish the particulars of the incidents of discriminatory attitude
exhibited by the State agencies towards sexual minorities and consequential denial of basic human
rights to them. Respondent No.1 has also not furnished the particulars of the cases involving harassment
and assault from public and public authorities to sexual minorities. Only in the affidavit filed before
this Court on behalf of the Ministry of Health and Family Welfare, Department of AIDS Control it has been
averred that estimated HIV prevalence among FSW (female sex workers) is 4.60% to 4.94%, among MSM
(men who have sex with men) is 6.54% to 7.23% and IDU (injecting drug users) is 9.42% to 10.30%. The
total population of MSM as in 2006 was estimated to be 25,00,000 and 10% of them are at risk of HIV.
The State-wise break up of estimated size of high risk men who have sex with men has been given in
paragraphs 13 and 14 of the affidavit. In paragraph 19, the State-wise details of total adult population,
estimated adult HIV prevalence and estimated number of HIV infections as in 2009 has been given.
These details are wholly insufficient for recording a finding that homosexuals, gays, etc., are being
subjected to discriminatory treatment either by State or its agencies or the society. The question
whether a particular classification is unconstitutional was considered in Re: Special Courts Bill, 1978
(1979) 1 SCC 380. Speaking for majority of the Constitution Bench, Chandrachud, CJ, referred to large
number of precedents relating to the scope of Article 14 and concluded several propositions including the
following: 1. The first part of Article 14, which was adopted from the Irish Constitution, is a declaration
of equality of the civil rights of all persons within the territories of India. It enshrines a basic principle of
republicanism. The second part, which is a corollary of the first and is based on the last clause of the first
section of the Fourteenth Amendment of the American Constitution, enjoins that equal protection
shall be secured to all such persons in the enjoyment of their rights and liberties without discrimination
of favourtism. It is a pledge of the protection of equal laws, that is, laws that operate alike on all persons
under like circumstances. 2. The State, in the exercise of its governmental power, has of necessity to
make laws operating differently on different groups or classes of persons within its territory to attain
particular ends in giving effect to its policies, and it must possess for that purpose large powers of
distinguishing and classifying persons or things to be subjected to such laws. 3. The Constitutional
command to the State to afford equal protection of its laws sets a goal not attainable by the
invention and application of a precise formula. Therefore, classification need not be constituted by an
exact or scientific exclusion or inclusion of persons or things. The Courts should not insist on delusive
exactness or apply doctrinaire tests for determining the validity of classification in any given case.
Classification is justified if it is not palpably arbitrary. 4. The principle underlying the guarantee of Article
14 is not that the same rules of law should be applicable to all persons within the Indian Territory or
that the same remedies should be made available to them irrespective of differences of
circumstances. It only means that all persons similarly circumstanced shall be treated alike both in
privileges conferred and liabilities imposed. Equal laws would have to be applied to all in the same
situation, and there should be no discrimination between one person and another if as regards the
subject-matter of the legislation their position is substantially the same. 5. By the process of
classification, the State has the power of determining who should be regarded as a class for purposes
of legislation and in relation to a law enacted on a particular subject. This power, no doubt, in some
degree is likely to produce some inequality; but if a law deals with the liberties of a number of well
defined classes, it is not open to the charge of denial of equal protection on the ground that it has no
application to other persons. Classification thus means segregation in classes which have a
systematic relation, usually found in common properties and characteristics. It postulates a rational
basis and does not mean herding together of certain persons and classes arbitrarily. 6. The law can
make and set apart the classes according to the needs and exigencies of the society and as
suggested by experience. It can recognise even degree of evil, but the classification should never
be arbitrary, artificial or evasive. 7. The classification must not be arbitrary but must be rational, that is
to say, it must not only be based on some qualities or characteristics which are to be found in all
the persons grouped together and not in others who are left out but those qualities or characteristics
must have a reasonable relation to the object of the legislation. In order to pass the test, two
conditions must be fulfilled, namely, (1) that the classification must be founded on an intelligible
differentia which distinguishes those that are grouped together from others and (2) that differentia must
have a rational relation to the object sought to be achieved by the Act. 8. The differentia which is the
basis of the classification and the object of the Act are distinct things and what is necessary is that there
must be a nexus between them. In short, while Article 14 forbids class discrimination by conferring
privileges or imposing liabilities upon persons arbitrarily selected out of a large number of other persons
similarly situated in relation to the privileges sought to be conferred or the liabilities proposed to be
imposed, it does not forbid classification for the purpose of legislation, provided such classification is
not arbitrary in the sense above mentioned. 9. If the legislative policy is clear and definite and as an
effective method of carrying out that policy a discretion is vested by the statute upon a body of
administrators or officers to make selective application of the law to certain classes or groups of persons,
the statute itself cannot be condemned as a piece of discriminatory legislation. In such cases, the
power given to the executive body would import a duty on it to classify the subject-matter of
legislation in accordance with the objective indicated in the statute. If the administrative body proceeds
to classify persons or things on a basis which has no rational relation to the objective of the
legislature, its action can be annulled as offending against the equal protection clause. On the other
hand, if the statute itself does not disclose a definite policy or objective and it confers authority on
another to make selection at its pleasure, the statute would be held on the face of it to be discriminatory,
irrespective of the way in which it is applied. 10. Whether a law conferring discretionary powers on
an administrative authority is constitutionally valid or not should not be determined on the assumption
that such authority will act in an arbitrary manner in exercising the discretion committed to it.
Abuse of power given by law does occur; but the validity of the law cannot be contested because of
such an apprehension. Discretionary power is not necessarily a discriminatory power. 11. Classification
necessarily implies the making of a distinction or discrimination between persons classified and those
who are not members of that class. It is the essence of a classification that upon the class are cast duties
and burdens different from those resting upon the general public. Indeed, the very idea of classification is
that of inequality, so that it goes without saying that the mere fact of inequality in no manner
determines the matter of constitutionality. 12. Whether an enactment providing for special procedure
for the trial of certain offences is or is not discriminatory and violative of Article 14 must be determined
in each case as it arises, for no general rule applicable to all cases can safely be laid down. A
practical assessment of the peration of the law in the particular circumstances is necessary. 13. A rule of
procedure laid down by law comes as much within the purview of Article 14 as any rule of substantive
law and it is necessary that all litigants, who are similarly situated, are able to avail themselves of the
same procedural rights for relief and for defence with like protection and without discrimination. Those
who indulge in carnal intercourse in the ordinary course and those who indulge in carnal intercourse
against the order of nature constitute different classes and the people falling in the later category
cannot claim that Section 377 suffers from the vice of arbitrariness and irrational classification. What
Section 377 does is merely to define the particular offence and prescribe punishment for the same which
can be awarded if in the trial conducted in accordance with the provisions of the Code of Criminal
Procedure and other statutes of the same family the person is found guilty. Therefore, the High Court
was not right in declaring Section 377 IPC ultra vires Articles 14 and 15 of the Constitution. While
reading down Section 377 IPC, the Division Bench of the High Court overlooked that a miniscule fraction
of the countrys population constitute lesbians, gays, bisexuals or transgenders and in last more than
150 years less than 200 persons have been prosecuted (as per the reported orders) for committing
offence under Section 377 IPC and this cannot be made sound basis for declaring that section ultra vires
the provisions of Articles 14, 15 and 21 of the Constitution. The vagueness and arbitrariness go to the
root of a provision and may render it unconstitutional, making its implementation a matter of
unfettered discretion. This is especially so in case of penal statues. However while analyzing a provision
the vagaries of language must be borne in mind and prior application of the law must be considered. In
A.K. Roy and Ors. v. Union of India and Ors. (1982) 1 SCC 271, a Constitution Bench observed as follows:
The requirement that crimes must be defined with appropriate definiteness is regarded as a fundamental
concept in criminal law and must now be regarded as a pervading theme of our Constitution since the
decision in Maneka Gandhi [1978] 2 SCR 621 . The underlying principle is that every person is entitled
to be informed as to what the State commands or forbids and that the life and liberty of a person
cannot be put in peril on an ambiguity. However, even in the domain of criminal law, the processes of
which can result in the taking away of life itself, no more than a reasonable degree of certainty has to be
accepted as a fact. Neither the criminal law nor the Constitution requires the application of
impossible standards and therefore, what is expected is that the language of the law must contain an
adequate warning of the conduct which may fall within the prescribed area, when measured by
common understanding. In criminal law, the legislature frequently uses vague expressions like bring
into hatred or contempt, maintenance of harmony between different religious groups or likely to
cause disharmony or hatred or ill-will, or annoyance to the public, (see Sections 124A, 153A(1)(b),
153B(1)(c), and 268 of the Penal Code). These expressions, though they are difficult to define, do not
elude a just application to practical situations. The use of language carries with it the inconvenience of
the imperfections of language. In K.A. Abbas v. The Union of India (UOI) and Anr. (1970) 2 SCC 780 the
Court observed: These observations which are clearly obiter are apt to be too generally applied and
need to be explained. While it is true that the principles evolved by the Supreme Court of the United
States of America in the application of the Fourteenth Amendment were eschewed in our Constitution
and instead the limits of restrictions on each fundamental right were indicated in the clauses that follow
the first clause of the nineteenth Article, it cannot be said as an absolute principle that no law will be
considered bad for sheer vagueness. There is ample authority for the proposition that a law affecting
fundamental rights may be so considered. A very pertinent example is to be found in State of Madhya
Pradesh and Anr. v. Baldeo Prasad where the Central Provinces and Berar Goondas Act 1946 was
declared void for uncertainty. The condition for the application of Sections 4 and 4A was that the
person sought to be proceeded against must be a goonda but the definition of goonda in the Act
indicated no tests for deciding which person fell within the definition. The provisions were therefore held
to be uncertain and vague. The real rule is that if a law is vague or appears to be so, the court must try
to construe it, as far as may be, and language permitting, the construction sought to be placed on
it, must be in accordance with the intention of the legislature. Thus if the law is open to diverse
construction, that construction which accords best with the intention of the legislature and advances the
purpose of legislation, is to be preferred. Where however the law admits of no such construction and the
persons applying it are in a boundless sea of uncertainty and the law prima facie takes away a
guaranteed freedom, the law must be held to offend the Constitution as was done in the case of the
Goonda Act. This is not application of the doctrine of due process. The invalidity arises from the
probability of the misuse of the law to the detriment of the individual. If possible, the Court instead of
striking down the law may itself draw the line of demarcation where possible but this effort should be
sparingly made and only in the clearest of cases. We may now deal with the issue of violation of
Article 21 of the Constitution. The requirement of substantive due process has been read into the
Indian Constitution through a combined reading of Articles 14, 21 and 19 and it has been held as a test
which is required to be satisfied while judging the constitutionality of a provision which purports to
restrict or limit the right to life and liberty, including the rights of privacy, dignity and autonomy, as
envisaged under Article. In order to fulfill this test, the law must not only be competently legislated but it
must also be just, fair and reasonable. Arising from this are the notions of legitimate state interest and
the principle of proportionality. In Maneka Gandhi v. Union of India (supra), this Court laid down
the due process requirement in the following words: 13. Articles dealing with different fundamental
rights contained in Part III of the Constitution do not represent entirely separatestreams of rights
which do not mingle at many points. They are all parts of an integrated scheme in the Constitution. Their
waters must mix to constitute that grand flow of unimpeded and impartial Justice (social, economic and
political), Freedom (not only of thought, expression, belief, faith and worship, but also of
association, movement, vocation or occupation as well as of acquisition and possession of reasonable
property), of Equality (of status and of opportunity, which imply absence of unreasonable or unfair
discrimination between individuals, groups and classes), and of Fraternity (assuring dignity of the
individual and the unity of the nation), which our Constitution visualises. Isolation of various aspects
of human freedom, for purposes of their protection, is neither realistic nor beneficial but would
defeat the very objects of such protection. But the mere prescription of some kind of procedure
cannot ever meet the mandate of Article 21. The procedure prescribed by law has to be fair, just and
reasonable, not fanciful, oppressive or arbitrary. The question whether the procedure prescribed by a
law which curtails or takes away the personal liberty guaranteed by Article 21 is reasonable or not
has to be considered not in the abstract or on hypothetical considerations like the provision for a full-
dressed hearing as in a Courtroom trial, but in the context, primarily, of the purpose which the Act is
intended to achieve and of urgent situations which those who are charged with the duty of administering
the Act may be called upon to deal with. Secondly, even the fullest compliance with the requirements of
Article 21 is not the journeys end because, a law which prescribes fair and reasonable procedure
for curtailing or taking away the personal liberty guaranteed by Article 21 has still to meet a
possible challenge under other provisions of the Constitution like, for example, Articles 14 and 19.
The right to privacy has been guaranteed by Article 12 of the Universal Declaration of Human Rights
(1948), Article 17 of the International Covenant of Civil and Political Rights and European Convention on
Human Rights. It has been read into Article 21 through an expansive reading of the right to life and
liberty. The scope of the right as also the permissible limits upon its exercise have been laid down in the
cases of Kharak Singh v. State of UP & Ors. (1964) 1 SCR 332 and Gobind v. State of MP (1975) 2 SCC
148 which have been followed in a number of other cases. In Kharak Singh v. The State of U.P. and Ors.
(supra) the majority said that personal liberty in Article 21 is comprehensive to include all varieties of
rights which make up personal liberty of a man other than those dealt with in Article 19(1) (d).
According to the Court, while Article 19(1) (d) deals with the particular types of personal freedom,
Article 21 takes in and deals with the residue. The Court said: We have already extracted a passage
from the judgment of Field J.in Munn v. Illinois (1877) 94 U.S. 113, where the learned Judge pointed out
that life in the 5th and 14th Amendments of the U.S.Constitution corresponding to Article 21 means not
merely the right to the continuance of a persons animal existence, but a right to the possession of each
of his organs-his arms and legs etc. We do not entertain any doubt that the word life in Article 21 bears
the same signification. Is then the word personal liberty to be construed as excluding from its purview
an invasion on the part of the police of the sanctity of a mans home and an intrusion into his personal
security and his right to sleep which is the normal comfort and a dire necessity for human existence even
as an animal ? It might not be in appropriate to refer here to the words of the preamble to the
Constitution that it is designed to assure the dignity of the individual and therefore of those
cherished human value as the means of ensuring his full development and evolution. We are
referring to these objectives of the framers merely to draw attention to the concepts underlying the
Constitution which would point to such vital words as personal liberty having to be construed in a
reasonable manner and to be attributed that sense which would promote and achieve those objectives
and by no means to stretch the meaning of the phrase to square with any preconceived notions or
doctrinaire Constitutional theories. In Gobind v. State of M.P. (supra) the Court observed: There can be
no doubt that privacy-dignity claims deserve to be examined with care and to be denied only when an
important countervailing interest is shown to be superior. If the Court does find that a claimed right is
entitled to protection as a fundamental privacy right, a law infringing it must satisfy the compelling state
interest test. Then the question would be whether a state interest is of such paramount importance as
would justify an infringement of the right. Obviously, if the enforcement of morality were held to be a
compelling as well as a permissible state interest, the characterization of ft claimed rights as a
fundamental privacy right would be of far less significance. The question whether enforcement of
morality is a state interest sufficient to justify the infringement of a fundamental privacy right need not
be considered for the purpose of this case and therefore we refuse to enter the controversial
thicket whether enforcement of morality is a function of state. Individual autonomy, perhaps the central
concern of any system of limited government, is protected in part under our Constitution by explicit
Constitutional guarantees. In the application of the Constitution our contemplation cannot only be of
what has been but what may be. Time works changes and brings into existence new conditions. Subtler
and far reaching means of invadings privacy will make it possible to be heard in the street what is
whispered in the closet. Yet, too broad a definition of privacy raises serious questions about the
propriety of judicial reliance on a right that is not explicit in the Constitution. Of course, privacy
primarily concerns the individuals. It therefore relates to and overlaps with the concept of liberty. The
most serious advocate of privacy must confess that there are serious problems of defining the essence
and scope of the right. Privacy interest in autonomy must also be placed in the context of other rights
and values. Any right to privacy must encompass and protect the personal intimacies of the home,
the family marriage, motherhood, procreation and child rearing. This catalogue approach to the
question is obviously not as instructive as it does not give analytical picture of that distinctive
characteristics of the right of privacy. Perhaps, the only suggestion that can be offered as
unifying principle underlying the concept has been the assertion that a claimed right must be a
fundamental right implicit in the concept of ordered liberty. Rights and freedoms of citizens are set forth
in the Constitution in order to guarantee that the individual, his personality and those things stamped
with his personality shall be free from official interference except where a reasonable basis for
intrusion exists. Liberty against government a phrase coined by Professor Corwin express this idea
forcefully. In this sense, many of the fundamental rights of citizens can be described as contributing to
the right to privacy. As Ely says: There is nothing to prevent one from using the word privacy to
mean the freedom to live ones life without governmental interference. But the Court obviously does
not so use the term. Nor could it, for such a right is at stake in every case see The Wages of Crying
Wolf: A Comment on Roe v. Wade, 82 Yale L.J. 920. There are two possible theories for protecting privacy
of home. The first is that activities in the home harm others only to the extent that they cause offence
resulting from the mere thought that individuals might he engaging in such activities and that such
harm is not Constitutionally protective by the state. The second is that individuals need a place of
sanctuary where they can be free from societal control. The importance of such a sanctuary is that
individuals can drop the mask, desist for a while from projecting on the world the image they want to be
accepted as themselves, an image that may reflect the values of their peers rather than the
realities of their natures see 26 Standford Law Rev. 1161 at 1187. The right to privacy in any event will
necessarily have to go through a process of case-by-case development. Therefore, even assuming
that the right to personal liberty, the right to move freely throughout the territory of India and the
freedom of speech create an independent right of privacy as an emanation from them which one can
characterize as a fundamental right, we do not think that the right is absolute. The issues of bodily
integrity and the right to sexual choices have been dealt with by this Court in Suchita Srivastava
and Anr. v. Chandigarh Administration (2009) 9 SCC 1, in context of Section 3 of the Medical
Termination of Pregnancy Act, 1971, observed: A plain reading of the above-quoted provision makes it
clear that Indian law allows for abortion only if the specified conditions are met. When the MTP Act was
first enacted in 1971 it was largely modelled on the Abortion Act of 1967 which had been passed in the
United Kingdom. The legislative intent was to provide a qualified right to abortion and the termination
of pregnancy has never been recognised as a normal recourse for expecting mothers. There is no doubt
that a womans right to make reproductive choices is also a dimension of personal liberty as understood
under Article 21 of the Constitution of India. It is important to recognise that reproductive choices can be
exercised to procreate as well as to abstain from procreating. The crucial consideration is that a
womans right to privacy, dignity and bodily integrity should be respected. This means that there
should be no restriction whatsoever on the exercise of reproductive choices such as a womans right
to refuse participation in sexual activity or alternatively the insistence on use of contraceptive
methods. Furthermore, women are also free to choose birth-control methods such as undergoing
sterilisation procedures. Taken to their logical conclusion, reproductive rights include a womans
entitlement to carry a pregnancy to its full term, to give birth and to subsequently raise children.
However, in the case of pregnant women there is also a compelling state interest in protecting the
life of the prospective child. Therefore, the termination of a pregnancy is only permitted when the
conditions specified in the applicable statute have been fulfilled. Hence, the provisions of the MTP Act,
1971 can also be viewed as reasonable restrictions that have been placed on the exercise of
reproductive choices. In Mr. X v. Hospital Z (1998) 8 SCC 296, this court observed: As one of the basic
Human Rights, the right of privacy is not treated as absolute and is subject to such action as may be
lawfully taken for the prevention of crime or disorder or protection of health or morals or protection of
rights and freedoms of others. Right of Privacy may, apart from contract, also arise out of a particular
specific relationship which may be commercial, matrimonial, or even political. As already discussed
above, Doctor patient relationship, though basically commercial, is, professionally, a matter of
confidence and, therefore. Doctors are morally and ethically bound to maintain confidentiality. In
such a situation, public disclosure of even true private facts may amount to an invasion of the
Right of Privacy which may sometimes lead to the clash of persons right to be let alone with another
persons right to be informed. Disclosure of even true private facts has the tendency to disturb a
persons tranquility. It may generate many complexes in him and may even lead to psychological
problems. He may, thereafter, have a disturbed life all through. In the face of these potentialities, and as
already held by this Court in its various decisions referred to above, the Right of Privacy is an
essential component of right to life envisaged by Article 21. The right, however, is not absolute and
may be lawfully restricted for the prevention of crime, disorder or protection of health or morals or
protection of rights and freedom of others. Having regard to the fact that the appellant was found to be
HIV(+), its disclosure would not be violative of either the rule of confidentiality or the appellants Right of
Privacy as Ms. Akali with whom the appellant was likely to be married was saved in time by such
disclosure, or else, she too would have been infected with the dreadful disease if marriage had taken
place and consummated. The right to live with dignity has been recognized as a part of Article 21 and
the matter has been dealt with in Francis Coralie Mullin v. Administrator, Union Territory of Delhi and Ors.
(1981) 1 SCC 608 wherein the Court observed: But the question which arises is whether the right to
life is limited only to protection of limb or faculty or does it go further and embrace something more. We
think that the right to life includes the right to live with human dignity and all that goes along with it,
namely, the bare necessaries of life such as adequate nutrition, clothing and shelter and facilities
for reading, writing and expressing one-self in diverse forms, freely moving about and mixing and
commingling with fellow human beings. Of course, the magnitude and content of the components of
this right would depend upon the extent of the economic development of the country, but it must,
in any view of the matter, include the right to the basic necessities of life and also the right to carry on
such functions and activities as constitute the bare minimum expression of the human-self. Every act
which offends against or impairs human dignity would constitute deprivation pro tanto of this right to
live and it would have to be in accordance with reasonable, fair and just procedure established by law
which stands the test of other fundamental rights. Now obviously, any form of torture or cruel,
inhuman or degrading treatment would be offensive to human dignity and constitute an inroad into
this right to live and it would, on this view, be prohibited by Article 21 unless it is in accordance with
procedure prescribed by law, but no law which authorises and no procedure which leads to such
torture or cruel, inhuman or degrading treatment can ever stand the test of reasonableness and non-
arbitrariness: it would plainly be unconstitutional and void as being violative of Articles 14 and 21.
Respondent No.1 attacked Section 377 IPC on the ground that the same has been used to perpetrate
harassment, blackmail and torture on certain persons, especially those belonging to the LGBT
community. In our opinion, this treatment is neither mandated by the section nor condoned by it and the
mere fact that the section is misused by police authorities and others is not a reflection of the vires of
the section. It might be a relevant factor for the Legislature to consider while judging the desirability of
amending Section 377 IPC. The law in this regard has been discussed and clarified succinctly in Sushil
Kumar Sharma v. Union of India and Ors. (2005) 6 SCC 281 as follows: 11. It is well settled that mere
possibility of abuse of a provision of law does not per se invalidate a legislation. It must be presumed,
unless contrary is proved, that administration and application of a particular law would be done not
with an evil eye and unequal hand (see: A. Thangal Kunju Musaliar v. M. Venkatachalam Potti,
Authorised Official and Income-Tax Officer and Anr.) : [1956]29ITR349(SC) . In Budhan Choudhry and
Ors. v. State of Bihar : 1955CriLJ374 a contention was raised that a provision of law may not be
discriminatory but it may land itself to abuse bringing about discrimination between the persons
similarly situated. This court repelled the contention holding that on the possibility of abuse of a
provision by the authority, the legislation may not be held arbitrary or discriminatory and violative of
Article 14 of the Constitution. From the decided cases in India as well as in United States of America, the
principle appears to be well settled that if a statutory provision is otherwise intra-vires, constitutional
and valid, mere possibility of abuse of power in a given case would not make it objectionable, ultra-
vires or unconstitutional. In such cases, action and not the section may be vulnerable. If it is so, the
court by upholding the provision of law, may still set aside the action, order or decision and grant
appropriate relief to the person aggrieved. In Mafatlal Industries Ltd. and Ors. v. Union of India and Ors. :
1997(89)ELT247(SC) , a Bench of 9 Judges observed that mere possibility of abuse of a provision
by those in charge of administering it cannot be a ground for holding a provision procedurally or
substantively unreasonable. In Collector of Customs v. Nathella Sampathu Chetty :
1983ECR2198D(SC) this Court observed: The possibility of abuse of a statute otherwise valid does
not impart to it any element of invalidity. It was said in State of Rajasthan v. Union of India :
[1978]1SCR1 it must be remembered that merely because power may sometimes be abused, it is no
ground for denying the existence of power. The wisdom of man has not yet been able to conceive of a
Government with power sufficient to answer all its legitimate needs and at the same time incapable of
mischief. (Also see: Commissioner, H.R.E. v. Sri Lakshmindra Thirtha Swamiar of Sri Shirur Meth
: [1954]1SCR1005 . As observed in Maulavi Hussein Haji Abraham Umarji v. State of Gujarat
MANU/SC/0567/2004 : 2004CriLJ3860 . Unique Butle Tube Industries (P) Ltd. v. U.P. Financial Corporation
and Ors. : [2002]SUPP5SCR666 and Padma Sundara Rao (dead) and Ors. v. State of Tamil and Ors.
[2002]255ITR147(SC) , while interpreting a provision, the Court only interprets the law and cannot
legislate it. If a provision of law is misused and subjected to the abuse of the process of law, it is for the
legislature to amend, modify or repeal it, if deemed necessary. In its anxiety to protect the so-called
rights of LGBT persons and to declare that Section 377 IPC violates the right to privacy, autonomy and
dignity, the High Court has extensively relied upon the judgments of other jurisdictions. Though these
judgments shed considerable light on various aspects of this right and are informative in relation to the
plight of sexual minorities, we feel that they cannot be applied blindfolded for deciding the
constitutionality of the law enacted by the Indian legislature. This view was expressed as early as in
1973 in Jagmohan Singh v. State of U.P. (1973) 1 SCC 20. In that case, a Constitutional Bench considered
the legality of the death sentence imposed by the Sessions Judge, Shahjahanpur, which was confirmed
by the Allahabad High Court. One of the arguments raised by the counsel for the appellant was that
capital punishment has been abolished in U.S. on the ground of violation of the 8 considering that
argument, this Court observed: Reference was made by Mr Garg to several studies made by Western
scholars to show the ineffectiveness of capital punishment either as a detterent or as appropriate
retribution. There is large volume of evidence compiled in the West by kindly social reformers and
research workers to confound those who want to retain the capital punishment. The controversy is
not yet ended and experiments are made by suspending the death sentence where possible in order
to see its effect. On the other hand most of these studies suffer from one grave defect namely that they
consider all murders as stereotypes, the result of sudden passion or the like, disregarding motivation in
each individual case. A large number of murders is undoubtedly of the common type. But some at least
are diabolical in conception and cruel in execution. In some others where the victim is a person of high
standing in the country society is liable to be rocked to its very foundation. Such murders cannot be
simply wished away by finding alibis in the social maladjustment of the murderer. Prevalence of such
crimes speaks, in the opinion of many, for the inevitability of death penalty not only by way of
deterrence but as a token of emphatic disapproval by the society. We have grave doubts about the
expediency of transplanting Western experience in our country. Social conditions are different and so
also the general intellectual level. In the context of our Criminal Law which punishes murder, one
cannot ignore the fact that life imprisonment works out in most cases to a dozen years of imprisonment
and it may be seriously questioned whether that sole alternative will be an adequate substitute for the
death penalty. We have not been referred to any large-scale studies of crime statistics compiled in this
country with the object of estimating the need of protection of the society against murders. The only
authoritative study is that of the Law Commission of India published in 1967. It is its Thirty-fifth Report.
After collecting as much available material as possible and assessing the views expressed in the West
both by abolitionists and the retentionists the Law Commission has come to its conclusion at paras
262 to 264. These paragraphs are summarized by the Commission as follows at p. 354 of the Report:
The issue of abolition or retention has to be decided on a balancing of the various arguments for and
against retention. No single argument for abolition or retention can decide the issue. In arriving at any
conclusion on the subject, the need for protecting society in general and individual human beings must
be borne in mind. It is difficult to rule out the validity of, or the strength behind, many of the arguments
for abolition. Nor does the Commission treat lightly the argument based on the irrevocability of the
sentence of death, the need for a modern approach, the severity of capital punishment, and the
strong feeling shown by certain sections of public opinion in stressing deeper questions of human
values. Having regard, however, to the conditions in India, to the variety of the social upbringing of its
inhabitants, to the disparity in the level of morality and education in the country, to the vastness of its
area, to the diversity of its population and to the paramount need for maintaining law and order in the
country at the present juncture, India cannot risk the experiment of abolition of capital punishment.
Arguments which would be valid in respect of one area of the world may not hold good in respect of
another area, in this context. Similarly, even if abolition in some parts of India may not make a material
difference, it may be fraught with serious consequences in other parts. On a consideration of all the
issues involved, the Commission is of the opinion, that capital punishment should be retained in the
present state of the country. The Court also referred to an earlier judgment in State of Madras v. V.G.
Row 1952 SCR 597. In that case, Patanjali Sastri, CJ. observed: It is important in this context to bear
in mind that the test of reasonableness, wherever prescribed, should be applied to each individual
statute impugned, and to abstract standard, or general pattern, of reasonableness can be laid down as
applicable to all cases. The nature of the right alleged to have been infringed, the underlying purpose
of the restrictions imposed, the extent and urgency of the evil sought to be remedied thereby, the
disproportion of the imposition, the prevailing conditions at the time, should all enter into the judicial
verdict. In evaluating such elusive factors and forming their own conception of what is reasonable, in
all the circumstances of a given case, it is inevitable that the social philosophy and the scale of
values of the judges participating in the decision should play an important part, and the limit to
their interference with legislative judgment in such cases can only be dictated by their sense of
responsibility and self-restraint and the sobering reflection that the Constitution is meant not only for
people of their way of thinking but for all, and that the majority of the elected representatives of the
people have, in authorising the imposition of the restrictions, considered them to be reasonable. The
responsibility of Judges in that respect is the greater, since the question as to whether capital sentence
for murder is appropriate in modern times has raised serious controversy the world over,
sometimes, with emotional overtones. It is, therefore, essential that we approach this constitutional
question with objectivity and proper measure of self-restraint. The afore-stated judgment was relied
upon in Surendra Pal v. Saraswati Arora (1974) 2 SCC 600. Learned counsel who appeared for the
appellant in that case relied upon a passage from Halsburys Laws of England on the issue of
presumption of undue influence in the case of parties engaged to be married. While refusing to rely
upon the proposition laid down in Halsburys laws of England, this Court observed: The family law in
England has undergone a drastic change, recognised new social relationship between man and
woman. In our country, however, even today a marriage is an arranged affair. We do not say that there
are no exceptions to this practice or that there is no tendency, however imperceptible, for young persons
to choose their own spouses, but even in such cases the consent of their parents is one of the
desiderata which is sought for. Whether it is obtained in any given set of circumstances is another
matter. In such arranged marriages in this country the question of two persons being engaged for any
appreciable time to enable each other to meet and be in a position to exercise undue influence on one
another very rarely arises. Even in the case of the marriage in the instant case, an advertisement was
resorted to by Bhim Sain. The person who purports to reply is Saraswatis mother and the person who
replied to her was Bhim Sains Personal Assistant. But the social considerations prevailing in this
country and ethos even in such cases persist in determining the respective attitudes. That apart, as we
said earlier, the negotiations for marriage held in Saraswatis sisters house have all the appearance of a
business transaction. In these circumstances that portion of the statement of the law in Halsbury
which refers to the presumption of the exercise of undue influence in the case of a man to a woman to
whom he is engaged to be married would hardly be applicable to conditions in this country. We have had
occasion to point out the danger of such statements of law enunciated and propounded for meeting the
conditions existing in the countries in which they are applicable from being blindly followed in this
country without a critical examination of those principles and their applicability to the conditions,
social norms and attitudes existing in this country. Often statements of law applicable to foreign
countries as stated in compilations and learned treatises are cited without making a critical examination
of those principles in the background of the conditions that existed or exist in those countries. If we are
not wakeful and circumspect, there is every likelihood of their being simply applied to cases
requiring our adjudication without consideration of the background and various other conditions to which
we have referred. On several occasions merely because courts in foreign countries have taken a different
view than that taken by our courts or in adjudicating on any particular matter we were asked to
reconsider those decisions or to consider them for the first time and to adopt them as the law of this
country. No doubt an objective and rational deduction of a principle, if it emerges from a decision of
foreign country, rendered on pari materia legislative provisions and which can be applicable to the
conditions prevailing in this country will assist the Court in arriving at a proper conclusion. While we
should seek light from whatever source we can get, we should however guard against being blinded by
it. In view of the above discussion, we hold that Section 377 IPC does not suffer from the vice of
unconstitutionality and the declaration made by the Division Bench of the High court is legally
unsustainable. The appeals are accordingly allowed, the impugned order is set aside and the writ
petition filed by respondent No.1 is dismissed. While parting with the case, we would like to make it clear
that this Court has merely pronounced on the correctness of the view taken by the Delhi High Court on
the constitutionality of Section 377 IPC and found that the said section does not suffer from any
constitutional infirmity. Notwithstanding this verdict, the competent legislature shall be free to consider
the desirability and propriety of deleting Section 377 IPC from the statute book or amend the same as
per the suggestion made by the Attorney General.

Read more at: http://www.livelaw.in/why-section-377-is-constitutional/

The severe criticism of the Supreme Courts judgment on constitutionality of Section 377 of the
IPC raises a serious issue as to whether the judicial decision making ought to be guided by legal
principles or prospective media trial? It would be a dangerous trend if the guiding factor for a
Court to decide on constitutional matters were to be the criticism it may attract from liberals.
The judgment has been criticized on the ground that:
1. It is regressive and a step backwards towards the LGBT (Lesbian, Gay, Bisexual and
Transgender) equal rights and recognition. The Court should have taken a liberal view
and legitimized homosexuality.
2. It fails to meet the standards of decision making which is expected from the Supreme
Court.
3. It is legally wrong. Section 377 to the extent that it forbids sexual act of two consenting
adults of the same gender is unconstitutional.

Regressive or judicial?
The first criticism suggests that there the Supreme Court ought to have taken only one view, i.e.,
to uphold the High Court judgment. This criticism fails to accept that a Court is free to uphold the
view of either of the parties litigating before it. After having willingly subjected the issue to the
judiciary, it is unusual, that one of the parties were so sure about the view that the Court ought to
have taken.

This criticism also blurs the role of judiciary and the legislature. If allowing same sex intercourse
is moral, legal, progressive and widely acceptable then it is the job of the legislature to amend the
law. The changing notions of morality and sex, cannot by themselves be grounds for declaring a
provision unconstitutional.

Weak analysis; Loose ends

The second criticism, though, is justified. After reserving the judgment for over 21 months, it was
expected that the judgment would be more exhaustive. The judgment does not discuss the
judicial developments in other parts of the world. A better analysis was certainly required.

It also contains invariably long extracts of the earlier reported judgments, without fully discussing
the propositions. There is a contradiction, when the Supreme Court mentions that no incidents of
discriminatory attitude exhibited by state agencies towards sexual minorities and consequential
denial of basic human rights to them have been specifically stated, whereas the high court has
extensively relied on the same.

Para 43 of the judgment, treats with disdain the population of gays, lesbians, bisexuals or
transgenders and was certainly uncalled for since ultimately those figures have no bearing while
adjudicating on the validity of the Section. On a bare reading of the judgment, it appears that
there are several loose ends left to be tied.

Lawrence vs Texas: Substantive due process

The main issue is, however, whether the Supreme Court has completely overlooked the
Constitution and legal principles. Some critics have gone to the extent of stating that the court
has abdicated its judicial function or has shown non-application of mind.

The criticism completely ignores few fundamental principles that evolved by our judiciary time to
time. The courts presume any law to be validly enacted. Once it is presumed, the burden shifts
on the party challenging the provision. The critics, however, argue the converse. The Indian
Courts have never accepted the strict scrutiny test, which has been used in the US in affirmative
action cases. Even in Lawrence vs Texas, the US Supreme Court did not strike down the sodomy
law in the State of Texas, by applying the test of strict scrutiny.

In Lawrence vs Texas, the sodomy law was struck down since it was held that it violates
substantive due process guaranteed under the Fourteenth Amendment of the US Constitution. It
was held that the law did not further any legitimate state interest which can justify its intrusion into
the personal and private life of the individual. Substantive Due Process allows the courts to test
as to whether the enacted law is as such just, fair and reasonable.

In contrast, Article 14 of our Constitution does not recognise any concept of substantive due
process. Article 14 has two limbs: the state is not to deny to any person (i) equality before law
or (ii) the equal protection of the laws. The second limb implies protection of equal laws for all
similarly situated persons.

In this perspective, challenge to Section 377 is unfounded.

No such process here

First, it does not classify individuals into different categories. The criminality is attached to the act
of carnal intercourse against the order of nature. Such an act is criminal irrespective of the
sexual tendencies of the person concerned. Thus, even a consensual heterosexual act which
does not involve penile vaginal intercourse is criminal.

Second, even if it is assumed that the section does create classification amongst persons, the
court is correct to the extent it states in Para 42 that those who indulge in carnal intercourse in
the ordinary course and those who do it against the order of nature constitute different class.
Before the SC, the Union of India justified the classification on grounds of (a) strong societal
disapproval and (b) health concerns.

A declaration from the court that sexual intercourse, apart from penile vaginal intercourse is
also an acceptable practice, is a concept borne out of substantive due process, which has also
not been accepted by the Indian courts.

It is asking the court to give a moral opinion or a value judgment on the issue.

Sex not equal to sexual orientation

The SC judgment does not carry any discussion on Article 15 of our Constitution, according to
which no citizen should be discriminated only on the grounds of sex. The SC clubs Article 14
and 15 together.

However, once it is understood that the Article criminalises the act and is applicable to both
males and females, the argument of discrimination on grounds of Article 15 fails. Even the High
Court did not hold that the section resulted in discriminatory behaviour because of sex of a
person. Instead, the High Court equated sexual orientation to sex.

If the logic of the High Court were carried further, then denying marriage to same sex couple or
any kind of restriction whatsoever on same sex couples, would also be unconstitutional.
Right to privacy: Executive only
The argument that Section 377 violates right to privacy overlooks a basic principle. Article 21
states that no one can be deprived of his life or personal liberty except according to procedure
established by law. Certainly, it is a matter of ones personal choice and preference to have
sexual intercourse either penile vaginal or otherwise. Such a choice ought to be respected.

However, as pointed out by Professor MP Singh, in an article in NUJS Law Review, any state
action would amount to infringement of right to privacy, if not backed by a competent law. In the
present case, it is not the state action, which was being challenged, but the law itself. Most of the
cases, involving right to privacy have been challenges to the executive action and not the
statute itself.
The SC is correct to the extent that Section 377 does not mandate perpetrate harassment,
blackmail and torture on certain persons. Furthermore, the proposition that merely because a law
can be subjected to abuse or misuse, has also never been a ground to hold it unconstitutional is
correct and unassailable.

LGBT window open

It is also not the case that the judgment leaves no window open for LGBT community. Para 38 of
the judgment clearly provides the way ahead. While extensively dealing with the reported
judgments, it has been held that in all the cases where the accused have been prosecuted on an
offence under Section 377 IPC, there has been non-consensual and markedly coercive situations
and the keenness of the Court in bringing justice to the victims who are either women or children
cannot be discounted while analyzing the manner in which the section has been interpreted.

The judges clearly stated that they are apprehensive of whether the Court would rule similarly in
a case of proved consensual intercourse between the adults.

Last, those who have appeared in Justice Singhvis court would vouch for his credentials,
thoroughness, and his views on executive arbitrariness, environment, land acquisition and poor in
general.

Amongst lawyers, it was perceived that he would take a conservative approach on the issue.
Maybe for him, Section 377 does not merit the attention that it currently does. Even globally the
issue attracts fierce debate.

However, on a proper analysis, the SC judgment is in line with the judicially evolved principles
and the Constitution. It is doubtful if the judgment, even with all its current flaws, would have been
so severely criticised if it had upheld the High Court judgment.
But it would be a sad day if media reactions become a factor in judicial decision making even on
constitutional issues.

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 DelhiHigh Court
Welcome!
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
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intercourse against the order of nature punishable by imprisonment extending free up toaccount.
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
fore grounded the importance of sexual rights, lent dignity to people of different sexualities and
upheld the Constitutional values of democracy and equality.
Random Pick

This is a view that seems to be shared by a multitude of the intelligentsia in the country. Judging
This article deals with the debate
from the response that the Delhi High Courts ruling has received, it is becoming quite apparent
regarding the that
raising of the age of
the once traditional and culture-centric nation is opening its doors to possibilities of the
consent ethos
by the Protection of Children
evolving in a direction that was previously seen as appalling. The new wave of judicial activism from Sexual Offences
Bill, 2012...
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.

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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 andStatistics our
interactions within society.
Total Articles 1349
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
Total Authorsto 3868
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
143992
instance where a LGBT person has been persecuted. [2] In the last two decades,LGBT activism
Total Views
85
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,
Total categories 40
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 penetration
Finger-anal penetration
Finger-vaginal penetration
Object-vaginal penetration.[6]
This establishes the rule criminalizing sodomy in India.

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], theHigh 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 intercourse with a man, woman or an animal;

such intercourse was against the order of nature;
the act was done voluntarily by the accused; and
penetration had occurred.

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
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

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
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

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

Apr 3, 2006: The apex court directs the HC to reconsider the matter on merit and remands the case back to
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.
High Court reserves its verdict on petitions filed by gay rights activists seeking decriminalisation of homosexual

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
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
Limiting their plea, the petitioners submit that Section 377 IPC should apply only to non-consensual penile non-vaginal sex and
penile non- vaginal 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.

I. Whether Section 377 is violative of

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
Constitution of 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

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

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 non-arbitrary 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

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

Therefore, sexual orientation is a ground analogous to sex and that discrimination on the basis of sexual orientation is not
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

III. Whether it violates

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 Article21 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

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

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

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-and-sexuality/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
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. 18-31, 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
http://www.iheu.org

author can be reached at: prarthana@legalserviceindia.com

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Section 377 of the Indian Penal Code interprets homosexuality as a criminal act being unnatural. The fact that this code of
morality was enacted in 1861 is a clear marker of it being rooted in the beliefs and ideals of that particular society. In addition to
that, this law was passed by a colonial administration imposing its homegrown beliefs and ideals without there being any active
discussion amongst non-existing representatives from the colony. The English Common Law prescribed that sodomites should be
burnt alive. Though not punished with capital punishment, sodomy or unnatural sex is still punishable with imprisonment of 10
years to life in England and Wales.

Today, there are many countries still continuing that age old prejudice against an abnormality or disability which is considered a
disease or a curse from the high above. After the Indian Supreme Court denouncing the lower courts earlier decriminalizing
homosexuality, the news of an Australian court doing the same with regard to gay marriages didnt come as a surprise considering
the fact that Australia is officially a government run of Christian beliefs. However, the same cannot be said to be right in case of
India as its constitutionally a secular state which must ensure justice and liberty for we, the people of India.
Some of the statements made by a God fearing individual whom I know personally when asked about the recent Supreme Court
judgment of Section 377 were, Dont hate the sinner, hate the sin, People love to copy the western trends and God is not
confused. He knew what He meant when He created man and woman. These argument deserve due consideration from any
authority deciding upon this legal provision. Though it wont be wrong to argue that the legislature is best positioned and also
technically the proper authority to remove the disability from the law book, it is also a well known fact that the judicial activism of
India Supreme Court is unprecedented even against the Supreme Court of the United States (SCOTUS). One of the reasons can be
the high standards set by the judiciary to maintain its independence and not being under any obligation towards the ruling
administrators. So why did the SC fell short of its populist expectations? Or did it?

The Delhi High Court derived most of its reasoning in decriminalizing Section 377 on the 172 nd Report of the Law Commission of
India and other academic papers. In effect, it decriminalized consensual sexual acts of adults in private being violative of Articles
21, 14 and 15 of the Constitution of India (Right to life and equality). Interestingly, the Ministry of Home Affairs had argued that
Section 377 IPC provides a punishment for unnatural sexual offences, carnal intercourse against the order of nature and does not
make any distinction between procreative and non-procreative sex, which did underscore the Governments arrogance in admitting
the fact that its the interpretation and implementation which creates fear and leads to violation of constitutional liberties. So when
the highest court found this order lacking legal reasoning it surely must have figured out something which we, ordinary people of
India, didnt. I, therefore, went through the whole judgment of Justice Singhvi to make sense of all hullabaloos.

In Justice Singhvis words, ..while the High Court and this Court are empowered to review the constitutionality of Section 377 IPC
and strike it down to the extent of its inconsistency with the Constitution, self restraint must be exercised and the analysis must be
guided by the presumption of constitutionality. He further clarified that unless a clear constitutional violation is proved, this Court
is not empowered to strike down a law merely by virtue of its falling into disuse or the perception of the society having changed as
regards the legitimacy of its purpose and its need. In other words, even though a particular law is frowned upon or perceived to be
primitive by the society at large, its for the Parliament to make the desired changes as and when it gets the opportunity to do so. I
would say it is a credible reason to not to get carried away and exercise to self restraint while deciding upon a legal provision.

With regard to Section 377, the court was clear when it stated that Section 377 IPC does not criminalize a particular people or
identity or orientation. It merely identifies certain acts which if committed would constitute an offence. Such a prohibition regulates
sexual conduct regardless of gender identity and orientation. A legitimate reasoning I must say. Neither is the provision against any
single class of individuals nor does it intends to coerce any class as such. Ones orientation and identity remain unaffected with or
without the legal provision. Its the apprehension or the fear of state action or the non acceptance of the larger part of Indian society
of LGBTs which has made the issue of section 377 a human rights issue. As the Court has rightfully noticed, there hasnt been any
human right violation reported in last 150 years of the law being in the books. As such, Courts cannot get carried away with
academic and activist propaganda and assume itself a role well played only by the legislature, that of enacting or removing a law. To
settle the question of reasonable apprehension which a class of individuals have, the Court have laid it very succinctly that if a
statutory provision is otherwise intra-vires, constitutional and valid, mere possibility of abuse of power in a given case would not
make it objectionable, ultra-vires or unconstitutional. In such cases action and not the section may be vulnerable. If it is so, the
court by upholding the provision of law, may still set aside the action, order or decision and grant appropriate relief to the person
aggrieved.

Therefore, I believe the Supreme Court has shown a high state of maturity in not flowing with the general perceptions and keeping
its foot on the ground. In an earlier judgment, the Court had warned that on several occasions merely because courts in foreign
countries have taken a different view than that taken by our courts or in adjudicating on any particular matter we were asked to
reconsider those decisions or to consider them for the first time and to adopt them as the law of this country. While we should seek
light from whatever source we can get, we should however guard against being blinded.
 Whether the LGBT movement is a Western phenomenon or whether there is a serious need to sincerely bring changes to the existing
Indian laws, the issue has now become national and now its for the Parliament to make up its mind and make sure that individuals
rights are protected without adversely affecting the moral and ethical structure of Indian society.

Tags: LGBT, Section 377, Supreme Court of India

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YEAR OF KARMA

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September 2016

TWINKS TO TWEETS

RT @WIPO: The "books for blind"#MarrakeshTreaty is now in force:ow.ly/TnLY304IaE8. Spread the

word and celebrate with us! https://t 9 hours ago
RT @sunil_abraham: Despite the Supreme Court, you need Aadhaar to get a loan from
microfinance companiesscroll.in/article/817366 #UID 16 hours ago
RT @MishiChoudhary: So what is the plan for the morning after #AADHAR database gets
compromised? #YahooBreach one cud change passwords, wht 2 days ago
Governments hv mastered the art of bypassing SC judgmts.. seems the trend is 'SC orders r nt
mandatory'.. sorry statwitter.com/i/web/status/7 6 days ago
One of my fav hotel groups have been#Starwood .. #Marriott, try to make it special amongst all
others ..twitter.com/WSJ/status/779 1 week ago
#SmartCity #ThinkPrivacy #Security wld b smarter 4 a welfare State 2 'regulate bfr donate' its
residents data to pvt. companies.. @PMOIndia 1 week ago
#IAPP #KnowledgeNetBLR State Federated IDs for Businesses.. State collects PII, business gets
access, consumer asks: who is accountable?1 week ago
RT @datasociety: A bundle of primers from our Enabling Connected Learning initiative tackle
privacy, equity, & efficacy in education: https1 week ago
RT @BlrCityPolice:#NoBandhInBengaluruTomorrow : As A Preventive Measure #Section144 will
continue till Sep 25 In Bengaluru. Strong bandobu2 weeks ago
@sunil_abraham refreshing talk.. defeating tech won't be tht hard, choosing the right one is
critical.. guess we hv to live w/othrs choices2 weeks ago

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