Sunteți pe pagina 1din 3


“Sex is what you are born with, gender is what you

Recognize and sexuality is what you discover.”
Homosexual intercourse was made a criminal offense under Section 377 of the Indian
Penal Code, 1860. This made it an offence for a person to voluntarily have "carnal
intercourse against the order of nature." In 2009, the Delhi High Court decision in Naz
Foundation v. Govt. of NCT of Delhi found Section 377 and other legal prohibitions
against private, adult, consensual, and non-commercial same-sex conduct to be in direct
violation of fundamental rights provided by the Indian Constitution. According to a
ruling by the Indian Supreme Court, decisions of a High Court on the constitutionality of
a law apply throughout India, and not just to the territory of the state over which the High
Court in question has jurisdiction. However, even there have been incidents of
harassment of homosexual groups.

Statement of Problem
 The main problem related to homosexuality is Lesbian, gay, bisexual and
transgender (LGBT) people in India face legal and social difficulties not
experienced by non-LGBT persons. Sexual activity between people of the same
gender is illegal, and same-sex couples cannot legally marry or obtain a civil
partnership. India does, however, legally recognize Hijras as a third gender,
separate from men or women.
 The other problem is also like the literacy rate of “Trans gender people” is about
46% according to government of India census 2011.
Some of the major objectives of the project are:
 To create a proper social status and recognition of the LGBT group in the society.
 To give them a proper representation into the jobs, politics.
 To protect them from the abuse they face into the society.
According to Article 377 the said provision criminalises consensual sexual
acts between adults in private, which Infringes the fundamental rights under Articles 14,
15, 19 & 21 of the Constitution of India.1
whether the constitutionality of the Art 377 is maintainable or not?

The method used or research done for making this project on the topic “LGBT and
Fundamental Rights” is the non-empirical legal research. This type of research is also
known as doctrinal research. It is concerned with what the law says and also concerned
with analysis of the legal doctrine and how it has been developed and applied. It carried
out on a legal proposition by way of analyzing the existing statutory provisions and case
by applying the reasoning power.

Laws Used

Article 377 IPC: 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 term which may extend to ten
years, and shall also be liable to fine.

Article 14:. Equality before law The State shall not deny to any person equality before
the law or the equal protection of the laws within the territory of India Prohibition of
discrimination on grounds of religion, race, caste, sex or place of birth.

Article 15: article 15(1) and (2) prohibit the state from discriminating any citizen on ground of
any religion, race, caste, sex, place of birth or any of them. ... Thus, article 15(3) and 15(4) are
foundational bricks of reservation in the country.

Article 19:The Constitution of India provides the right of freedom, given in articles 19, 20, 21
and 22, with the view of guaranteeing individual rights that were considered vital by the framers
of the constitution. The right to freedom in Article 19 guarantees the Freedom of speech and
expression, as one of its six freedoms.

Article 21: Protection Of Life And Personal Liberty: No person shall be deprived of his
life or personal liberty except according to procedure established by law. Article 21 Of
The Constitution Of India.


The case came up for hearing before a bench comprising Chief Justice Ajit Prakash
Shah and Justice S. Muralidhar, and the judgment was delivered on 2 Jul 2009. The
Court located the rights to dignity and privacy within the right to life and liberty
guaranteed by Article 21 (under the fundamental Right to Freedom charter) of the
Constitution, and held that criminalization of consensual gay sex violated these rights.
The Court also held that Section 377 offends the guarantee of equality enshrined in
Article 14 (under the fundamental Right to Equality charter) of the Constitution, because
it creates an unreasonable classification and targets homosexuals as a
class.[10] Public animus and disgust towards a particular social group or vulnerable
minority, it held, is not a valid ground for classification under Article 14. Article 15 of the
Constitution forbids discrimination based on certain characteristics, including sex. The
Court held that the word "sex" includes not only biological sex but also sexual
orientation, and therefore discrimination on the ground of sexual orientation is not
permissible under Article 15.[11] The Court also noted that the right to life under Article
21 includes the right to health, and concluded that Section 377 is an impediment to
public health because it hinders HIV-prevention efforts.[12]
The Court did not strike down Section 377 as a whole. The section was declared
unconstitutional insofar it criminalises consensual sexual acts of adults in private. The
judgement keeps intact the provision insofar as it applies to non-consensual non-vaginal
intercourse and intercourse with minors. The court stated that the judgement would hold
until Parliament chose to amend the law.[13]

There are many drawback related to constitutionality of Article 377 of IPC some of them
 Infringement of article 14, 15, 19, and 21 of the Indian Constitution.
 Restricts the life and personal liberty of the persons in LGBT section in the
 Restricts the proper growth and representation of this section.

By doing this project I concluded that there is a lacuna in the society relating to the
provisions for LGBT section .There is also need to check the check the constitutional
validity of art 377 of IPC. This section of society is needed to be uplifted an recognized



1. J.N. Pandey, Constitutional Law of India (Central Law Agency Allahabad)

2. Bare Act – The Constitution of India