The Right That Dares To Speak Its Name

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Ldition : August, 2009
1ext Compiled
and Ldited by : Arind Narrain
Marcus Lldridge
Lnglish Ldition : 1000 copies
Suggested Contribution : Rs. 50,-
Published by : Alternatie Law lorum, Bangalore
Coer Page,Layout by : Vinay C
Printed by : National Printing Press, Bangalore
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;4(+-973(&-4. .................................................................................................. 4
@ .3"#2)(&3 :7&9#A !"# %&'()"*+&( ,-. /(+&( &0 1()+" "() 2*345- ........ 9
1he Law ............................................................................................ 9
1he Parties ...................................................................................... 10
1he Bench....................................................................................... 11
1he Ruling ...................................................................................... 12
1he Rationale ................................................................................. 12
Conclusion ...................................................................................... 22
Basis o the Ruling ........................................................................ 23
1erritorial applicability o the judgment ................................... 28
B)30'+-749A 1he !"# F')A>4(* ................................................................ 29
Outline o arguments on Behal o Respondent No. 8,
Voices Against 3 ........................................................................ 29
Ldited transcript o the inal arguments beore the
Delhi ligh Court ........................................................................... 48
C-22#4()+&#,A Reactions to the !"# F')A>4(* ...................................... 93
On lreedom`s aenue: H"'*"> @3"(........................................... 93
Reorming Macaulay: I"J"8 @3"5")="J ......................................... 9
India: lrom perersion` to right to lie with dignity:
I"8C"(" I"(("7+5"( .......................................................................101
\ho`s araid o homosexuality K"> F4*3>"8"(+ ..................... 105
Striing or magic in the city o words: <"=54(D4 <+"(A
"() L+))3"5*3 !"55"+(....................................................................109
Its about all o us: 65"*"C @3"(' M43*" ..................................... 115
Good or all minorities: B"5'("73 I3"+*"( ............................... 118
Naigating the Noteworthy and the Nebulous in
Naz loundation: N+O5"> K"A3","( ........................................... 122
Keep Religion out o the Gay Debate: L+)3"5*3 @3"*+" ......... 12
@D(#+E-+9. ................................................................................................... 131
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4 1he Right that Dares to Speak its Name
1he judgment o the Delhi ligh Court in !"# %&'()"*+&( ,. /(+&( &0
1()+"? deliered on 2nd July, 2009, triggered a euphoric response rom
the Lesbian, Gay, Bisexual and 1ransgender ,LGB1, community as
well as rom the wider actiist community. 1he judgment was at the
same time both a remarkable assertion that LGB1 persons are indeed
a part o the Indian nation as well as a statement that the judiciary
remains an institution committed to the protection o those who
might be despised by a majoritarian logic. \hat the !"# judgment
also triggered was a wider conersation on LGB1 rights in liing
rooms, oices and tea shops across the country. LGB1 persons were
out o the closet and literally onto the ront pages o all Indian papers
and news channels. It`s ery rare or a judgment to hae such an
instantaneous social impact as to actually begin a national conersation.
1herein lay the magic o the !"# judgment!
1he judgment in 2009 really built upon a decade o work by the
LGB1 actiists. 1he most recent ,prior to the !"# judgment that is,
isible maniestation o the wider proile that LGB1 struggles were
getting in India was really the Queer pride eents which took place in
Delhi, Bangalore, Kolkata, Bhubaneshwar and Chennai on the
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5 Decriminalising Sexual Orientation and Gender Identity in India
weekend beore the !"# judgment, on June 28, 2009. 1he act that
the judgment was preceded by the Pride eents, although coincidental,
also points to the act that the uniqueness o the struggle against
Section 3 was that it was simultaneously a political demand and a
legal battle.
As a political demand, the struggle against Section 3 can possibly
date back to the protest against police harassment which was organised
by AIDS Bedhbha Virodhi Andolan ,ABVA, in 1993 where or the
irst time the demand or the repeal o the law was raised in a public
manner. Since then the LGB1 community has engaged the public
attention through numerous protests, demonstrations, lact linding
Reports, Conerences, lilm lestials and o course ,most recently,
pride marches.
1he court room struggle dates back to the irst legal challenge to
Section 3 which was iled by ABVA in 1994, in response to a
statement by Kiran Bedi that she could not distribute condoms in
prison as it would amount to abetting an oence under Section 3.
loweer, the petition was dismissed as the ABVA group became
deunct.
1he next key deelopment was the iling o a petition by the Naz
loundation challenging Section 3 in 2001. 1he uniqueness o the
!"# petition is that though it began as a legal petition by one NGO it
slowly gathered wider support both within the LGB1 community as
well as within sections o the public. 1hus the !"# petition began to
carry the burden o the expectations o a community, with each
torturous turn in the legal proceedings ollowed with great interest
by members o the community. Initially the way the LGB1 community
was kept abreast o the legal deelopments was both through the
organising o periodic consultations on the petition by the Lawyers
Collectie ,the Lawyers or Naz loundation, or LGB1 groups as
well as by regular postings on an LGB1 listsere. loweer the media
soon began to eince more interest and report regularly on the
deelopments. lor building this uniquely public character` o the
public interest litigation`, credit must go to the Lawyers Collectie
which began a process o consulting with the community at each
stage o the public interest litigation.
1he arious shits and turns in the !"# petition which were so aidly
ollowed by the LGB1 community included:
2002 Joint Action Kannur ,JACK, iled an interention supporting
the retention o the law on the ground that lIV does not
cause AIDS, and that this law is required to preent lIV
rom spreading.
2003 1he Goernment o India ,Ministry o lome Aairs, iled
an aidait supporting the retention o the law on the grounds
that the criminal law must relect public morality and that
Indian society disapproed o homosexuality.
2004 1he Delhi ligh Court dismissed the petition on the ground
that the petitioner, Naz loundation, was not aected by
Section 3 and hence had no locus standi` to challenge the
law.
2004 1he Delhi ligh Court rejected a reiew petition iled which
challenged the aboe mentioned order.
2006 On an appeal iled by Naz loundation, 1he Supreme Court
passed an order remanding the case back to the Delhi ligh
Court so the matter could be heard on merits .
2006 National AIDS Control Organisation ,NACO, iled an
aidait stating that the enorcement o Section 3 is a
hindrance to lIV preention eorts.
2006 An interention was iled by B.P. Singhal stating that
homosexuality is against Indian culture and that the law needs
to be retained.
2006 An interention was iled by Voices Against 3 supporting
the petitioner and stating that Section 3 is iolatie o the
undamental rights o LGB1 persons.
2008 1he matter was posted or inal arguments beore C.J. Shah
and J. Muralidhar.
2009 2 July - Judgment deliered.
Decriminalising Sexual Orientation and Gender Identity in India
As can be noted rom the aboe time line, some o the key
deelopments were the interentions iled by an AIDS denial group
called Joint Action Kannur ,JACK, as well as by B.P. Singhal, a ormer
BJP Rajya Sabha MP. 1hese deelopments indicated that the struggle
against Section 3 not only had to actor in the state but also take on
board ciil society oices such as that o the lindu Right as well as
AIDS-deniers. In 2006, to urther strengthen the petitioners Naz
loundation, Voices Against Sec 3`, a coalition o child rights,
women`s rights and queer rights groups, iled an interention
supporting the demand or a reading down o the law.
So, when the Delhi ligh Court Bench o Chie Justice Shah and
Justice Muralidhar heard the inal arguments in 2008, they had to
contend with the range o opinions, all o which had to be heard and
considered beore the judgment could be deliered. 1hough the inal
arguments were completed in Noember 2008, the judgment was
inally deliered only on July 2, 2009 It was an eagerly awaited
judgment both in terms o what it could mean or the LGB1
community as well what it could portend or Indian Constitutional
law. In both contexts it did not disappoint. As one actiist noted, it
was as i a weight had been lited rom our shoulders and one was
inally set ree` and legal academics noted how the !"# judgment
could open out new interpretations o non-discrimination law.
luge as the impact o this pronouncement was, not many can directly
access this judgment due to the sometimes inaccessible nature o
legal language. 1his compilation aims to aid a wider comprehension
o the nature, the logic and reasoning ollowed by the Delhi ligh
Court as well as to understand the implications o the !"# judgment.
It aims to contextualise, elucidate and explicate on the !"# judgment.
1o do so this compilation is enisaged in three parts:
In the irst part titled ; LD34>"*+D H'+)4: !"# %&'()"*+&( ,. /(+&( &0
1()+"? we aim to proide a schematic break-up and guide to the arious
components o the judgment. 1his section will introduce the judgment
in a manner which will hopeully be easily comprehensible to a lay
audience.
In the second part titled @"DOA5&'(): B34 !"# F')A>4(* we reproduce

the Outline o arguments submitted by Mr. Shyam Dian to the Bench.
\e hae selected this rom the oluminous written submissions by
all parties only because this written submission centrally ocusses on
the question o dignity on which the !"# judgment is hinged as well
as because the suggested operatie directions proides an insight into
possible uture legal demands. 1he second part also includes an edited
transcript o the inal arguments beore the Delhi ligh Court. 1he
edited inal arguments proide an insight into the range o arguments
beore the Delhi ligh Court, the modes in which the arguments were
made, as well as the responses o the Judges.
1he third part has a range o opinion pieces which were published in
the immediate atermath o the judgment. 1he opinion pieces seek
to contextualise the judgment within the larger historical canas and
also explicate on key aspects o the judgment.
!"# %&'()"*+&( ,-. /(+&( &0 1()+" "() 2*345-
\P,C, 455,2001 - Decided July 2, 2009
!"# F)E
Section 3 o the Indian Penal Code was drated by Lord Macaulay
and enacted in 1860 during British colonial rule. Section 3 IPC is
under a sub-chapter titled O Unnatural Oences`. It reads:
GHHI J44)(7+)5 8DD#43#K \hoeer oluntarily has carnal
intercourse against the order o nature with any man, woman
or animal, shall be punished with imprisonment or lie, or
with imprisonment o either description or a term which
may extend to ten years, and shall also be liable to ine.
Lxplanation- Penetration is suicient to constitute the carnal
intercourse necessary to the oence described in this section.`
1he law makes it a crime to engage in carnal intercourse against the
order o nature`. 1his has been interpreted by the judiciary to include
all sexual acts other than penile-aginal intercourse. 1his includes anal
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intercourse, oral sex, and een mutual masturbation. In practice, the
law has been enorced almost exclusiely against homosexuals and
other sexual minorities and commonly used as a tool to threaten and
harass Lesbian, Gay, Bisexual and 1ransgender ,LGB1, persons.
!"# L)+(&#,
1)M N-749)(&-4 |Petitioner| is a non-goernmental organisation
,NGO, dedicated to lIV,AIDS outreach and interention with the
men-who-hae-sex-with-men ,MSM, community. 1hey iled a Public
Interest Litigation challenging the constitutional alidity o Section
3, arguing that it seerely hampered lIV,AIDS public health eorts
and thus the right to health o the MSM community.
1he J4&-4 -D ;49&) was represented by the O&4&,(+< -D P-2#
@DD)&+, and the O&4&,(+< -D P#)5(" Q N)2&5< R#5D)+#. Much to
the Court`s consternation, the two ministries took contradictory stands,
with the lome Ministry supporting Section 3 and the lealth
Ministry siding with the petitioner`s public health arguments against
Section 3. 1he argument o the lome Ministry was that law cannot
run separately rom society and that Section 3 o the IPC relected
the alues and morals o Indian society.
1he 1)(&-4)5 @;*. C-4(+-5 8+')4&,)(&-4 S1@C8T, a subdiision
o the lealth Ministry, submitted an aidait corroborating the Naz
loundation`s contention that Section 3 hampers lIV outreach and
preention eorts. By driing high-risk actiities underground, NACO
said, Section 3 made it extremely diicult to get needed inormation
and serices to those most at risk o contracting lIV.
U-&3#, @')&4,( GHH is a coalition o twele women`s rights, child
rights and LGB1 groups which was dedicated to ending Section 3`s
criminalisation o the lies o LBG1 persons. In their aidait, they
adanced the argument that Section 3 creates an association o
criminality towards people with same-sex desires and that its continued
existence creates and osters a climate o undamental rights iolations
o the LGB1 community.
O+I BILI .&4'")5, a ormer BJP politician, submitted an aidait
arguing that Indian society considers homosexuality to be repugnant,
immoral and contrary to the cultural norms o Indian society and
thereore desering o criminalisation.
V-&4( @3(&-4 C-22&((## W)447+ SV@CWT submitted an aidait
disagreeing with the Naz loundation and NACO`s contention that
Section 3 hampers lIV,AIDS preention and treatment.
Lssentially, they argued that Section 3 in act sered to preent the
spread o lIV by deterring people rom engaging in high-risk actiity.
1hey also denied that lIV causes AIDS.
1he :-X#+42#4( -D 1C! -D *#5"&, the *#5"& .()(# @;*. C-4(+-5
.-3&#(< and the *#5"& C-22&,,&-4#+ -D L-5&3# were also parties
to the petition. 1hey did not ile any aidait or written submissions.
!"# B#43"
1he case was heard beore a two-judge bench o the Delhi ligh
Court, comprised o C"&#D V7,(&3# @ILI .")" and V7,(&3# *+I .I
O7+)5&9")+.
Chie Justice Shah has authored seeral important opinions in the
areas o reedom o speech and expression, enironmental rights,
disability rights and women`s rights. One o Chie Justice Shah`s
important opinions has been the decision in ;("() 6"*="5)3"( ,. /(+&(
&0 1()+", 199 ,1, BCR 90, and ;("() 6"*="5)3"( ,. /(+&( &0 1()+",
199 ,3, BCR 438, quashing the orders o the Goernment not to
telecast the President`s Award winning documentaries In Memory
o lriends` ,based on terrorism and iolence in Punjab, and Ram Ke
Naam` ,based on Ayodhya issues,, and directing Doordarshan to
telecast those documentaries. Chie Justice Shah also struck down
the decision o Censor authorities not to release the documentary
Aakrosh` on recent Gujarat communal riots, directing that the ilm
be granted certiication.
Justice Muralidhar is a ormer human rights lawyer who sered as
Counsel or the National luman Rights Commission ,NlRC, beore
joining the Delhi ligh Court. le was actie as a lawyer or the
Supreme Court Legal Serices Committee and later was its member
or two terms. lis C5& 7&(& work included the cases or the ictims o
the Bhopal Gas Disaster and those displaced by the dams on the
Narmada. le was appointed ">+D'- D'5+"4 by the Supreme Court in
seeral PIL cases and in cases inoling conicts on the death row.
!"# %75&4'
1he Court held that criminalisation o consensual sex between adults
in priate iolates the Constitution`s guarantees o dignity, equality,
and reedom rom discrimination based on sexual orientation ,Articles
21, 14 and 15,. 1hus, the Judges read down` Section 3 so that it no
longer criminalises consensual sex between adults in priate.
loweer the Judges held that Section 3 will continue to goern
cases o non-consensual sex between adults as well as any sex with
children. 1he Court held that an adult would be any person aboe 18
and that any person below 18 would be presumed not to be able to
consent to a sexual act.
1he Court also noted that this clariication o the law would hold
until parliament chose to eectuate the recommendations o the
12nd Law Commission Report, which simultaneously recommended
the amendment o rape laws and the repeal o Section 3.
1he Court also noted that the judgment will not result in the re-
opening o criminal cases inoling Section 3 that hae already
attained inality.
!"# %)(&-4)5#
1he Judges quote heaily rom progressie judgments both in India
and in other countries that hae ound rights to dignity, priacy,
equality, and non-discrimination. 1hese our concepts orm the basis
o the Court`s judgment. In order or the dignity o each person to
be protected, there must be a right to priacy that protects against
arbitrary state intererence with personal autonomy. Similarly, equality
is meaningless without a corresponding prohibition on discriminating
against certain classes o people.
1he Justices also employ a noel concept o constitutional morality`
to aoid discussing the religious propriety o homosexual conduct.
Basically, they say that the goernment should only be concerned
with the secular alues enshrined in the Constitution, not with the
moral codes o any particular religion.
*&'4&(<Y L+&X)3<
1he Court begins by adopting a iew o human dignity that priileges
the ability to reely make choices about how to lie one`s lie.
At its least, it is clear that the constitutional protection o
dignity requires us to acknowledge the alue and worth o all
indiiduals as members o our society. It recognises a person
as a ree being who deelops his or her body and mind as he
or she sees it. At the root o the dignity is the autonomy o
the priate will and a person`s reedom o choice and o action.
luman dignity rests on recognition o the physical and
spiritual integrity o the human being, his or her humanity,
and his alue as a person, irrespectie o the utility he can
proide to others.` ,para 26,
lrom this notion o dignity, the court deries a concept o priacy
that deals with persons and not places` ,para 4,. 1hat is, the right
to priacy is not merely the right to do what one wants in priate
spaces` like the home, but also a right to make choices about how to
lie one`s own lie. Priacy protects personal autonomy.
1his dignity-autonomy includes the right to sexual expression, which
necessarily entails being able to choose sexual partners without
unjustiied intererence by the state. 1he Justices elaborate on this
point by lengthily quoting the Constitutional Court o South Arica`s
germinal opinion in B34 !"*+&("8 P&"8+*+&( &0 H"9 "() <4-7+"( QR'"8+*9
,. B34 M+(+-*45 &0 F'-*+D4:
1he priacy recognises that we all hae a right to a sphere
o priate intimacy and autonomy which allows us to establish
and nurture human relationships without intererence rom
the outside community. 1he way in which one gies expression
to one`s sexuality is at the core o this area o priate intimacy.
I, in expressing one`s sexuality, one acts consensually and
without harming the other, inasion o that precinct will be a
breach o priacy.` ,para 40,
lor eery indiidual, whether homosexual or not, the sense
o gender and sexual orientation o the person are so
embedded in the indiidual that the indiidual carries this
aspect o his or her identity whereer he or she goes. A person
cannot leae behind his sense o gender or sexual orientation
at home. \hile recognising the unique worth o each person,
the Constitution does not presuppose that a holder o rights
is as an isolated, lonely and abstract igure possessing a
disembodied and socially disconnected sel. It acknowledges
that people lie in their bodies, their communities, their
cultures, their places and their times. 1he expression o
sexuality requires a partner, real or imagined. It is not or the
state to choose or to arrange the choice o partner, but or
the partners to choose themseles.` ,para 4,
Relying on seeral Supreme Court cases, the Justices locate the rights
to dignity and priacy within the right to lie and liberty guaranteed
by Article 21 o the Indian Constitution. 1his is because the right to
lie necessarily includes the right to deine one`s own lie.
In the Indian Constitution, the right to lie with dignity and
the right o priacy both are recognised as dimensions o
Article 21. Section 3 IPC denies a person`s dignity and
criminalises his or her core identity solely on account o his
or her sexuality and thus iolates Article 21 o the
Constitution. As it stands, Section 3 IPC denies a gay person
a right to ull personhood which is implicit in notion o lie
under Article 21 o the Constitution.` ,para 48,
1hus, the Court concludes that Section 3 iolates the Constitution,
not only because it criminalises acts taking place within a special zone
o priacy, but also because it criminalises indiidual choices which
are central to personal dignity. 1he Court thereby concludes that
Section 3 iolates the right o priacy which is both zonal and
decisional. 1he iolation o this broadened notion o priacy inringes
human dignity.
1he Court urther cites seeral studies and reports to illustrate how
Section 3 iolates the dignity o homosexuals een i it is not legally
enorced. 1his iolation happens through the reduction in sel-worth
that homosexuals elt, as well as through harassment rom the police
and the community at large. 1he Court says:
1he criminalisation o homosexuality condemns in
perpetuity a sizeable section o society and orces them to
lie their lies in the shadow o harassment, exploitation,
humiliation, cruel and degrading treatment at the hands o
the law enorcement machinery.` ,para 52,
1he Justices speciically reerence the colonial-era Criminal 1ribes
Act, which criminalised hijra identity, as a particularly horrendous
instance o the criminalisation o sexual minorities. Len without
actual enorcement, laws like Section 3 sere to stigmatise an entire
section o society, thereby iolating their dignity as citizens.
Z[7)5&(<
Article 14 o the Constitution guarantees that all citizens are equal
under the law. 1hus, Article 14 prohibits making legal classiications
that are not reasonably related to achieing a legitimate goernment
purpose. 1hat is, beore the goernment can treat one group o
people dierently rom eeryone else, it must irst show that it is
seeking to accomplish some legitimate goal, and then show that the
dierential treatment will achiee this legitimate goal.
In considering Article 14`s guarantee, the Court initially obseres that
popular morality cannot justiy classiications based on priate sexual
behaiour. 1his is because upholding a certain ision o moral`
conduct is not a legitimate state interest unless it preents some
demonstrable harm.
|I|t is not within the constitutional competence o the State
to inade the priacy o citizens lies or regulate conduct to
which the citizen alone is concerned solely on the basis o
public morals. 1he criminalisation o priate sexual relations
between consenting adults absent any eidence o serious
harm deems the proision`s objectie both arbitrary and
unreasonable.` ,para 92,
1he Court urther decides that although Section 3 technically
criminalises conduct only, without speciying any class o people, in
reality it acts to unairly target homosexuals as a class.
1he sexual acts which are criminalised are associated with gay men,
so Section 3 IPC has the eect o iewing all gay men as criminals.
1he act is that these sexual acts which are criminalised are associated
more closely with one class o persons, namely, the homosexuals as a
class.`
\hen eerything associated with homosexuality is treated
as bent, queer, repugnant, the whole gay and lesbian
community is marked with deiance and perersity. 1hey are
subject to extensie prejudice because what they are or what
they are perceied to be, not because o what they do. 1he
result is that a signiicant group o the population is, because
o its sexual non-conormity, persecuted, marginalised and
turned in on itsel.` ,para 94,
1he ineitable conclusion is that the discrimination caused
to MSM and gay community is unair and unreasonable and,
thereore, in breach o Article 14 o the Constitution o
India.` ,para 98,
1-4K9&,3+&2&4)(&-4
1he Court ollows another line o reasoning to ind a second way
that Section 3 unconstitutionally discriminates against homosexuals.
Article 15 o the Constitution orbids discrimination based on certain
speciic characteristics, including sex. 1he Court inds that sexual
orientation is a ground analogous to sex and that discrimination on
the basis o sexual orientation is not permitted by Art 15`,para 104,.
1o arrie at the notion o analogous ground o discrimination, the
Court draws rom decisions o the Canadian and South Arican
Supreme Courts which hae understood analogous grounds o
discrimination in these terms: what these grounds hae in common
is the act that they oten sere as the basis or stereotypical decisions
made not on the basis o merit but on the basis o a personal
characteristic that is immutable or changeable only at unacceptable
cost to personal identity` ,para 102,.
\hat in eect the Judges do by using the reasoning o analogous
grounds is to keep the door open to other groups which might suer
discrimination aailing the protection o Article 15. As the Judges
note, once again drawing rom South Arican case law, some guidelines
can be laid down as to what could be an unspeciied |analogous|
ground o discrimination. In some cases they relate to immutable
biological attributes or characteristics, in some to the associational
lie o humans, in some to the intellectual, expressie and religious
dimensions o humanity and in some cases to a combination o one
or more o these eatures` ,para 103,.
1he Justices thus construe the meaning o sex` in Article 15 to include
not merely biological or physical sex, but also sexual orientation.
lorcing someone to behae in accordance with predeined notions
o what it means to be a man` or a woman` can be considered
discrimination analogous to discrimination on grounds o sex. 1he
Court says:
1he purpose underlying the undamental right against sex
discrimination is to preent behaiour that treats people
dierently or reason o not being in conormity with
generalisation concerning normal` or natural` gender roles.
Discrimination on the basis o sexual orientation is itsel
grounded in stereotypical judgments and generalisation about
the conduct o either sex.` ,para 99,
Moreoer, the Court concludes the rights in Article 15 apply
horizontally`. luman rights theorists make a distinction between
ertical` rights ,rights o citizens against the state, and horizontal`
rights ,rights o citizens against each other,. lor example, i the
goernment were to pass a zoning law that prohibited Muslims rom
liing in a certain area, this would clearly be ertical discrimination,
because the state is iolating its citizens` right to equality. On the
other hand, i a Muslim person is reused permission to buy a house
in a housing society because he is Muslim, it would be a case o
horizontal discrimination, because other citizens are iolating his right
to equality.
Mindul o the harassment and abuse that homosexuals ace at the
hands o non-state actors like goondas, the Justices make it clear that
the Constitutional right to non-discrimination based on sex is a
horizontal right. In other words, it een prohibits discrimination o
one citizen by another in matters o access to public spaces` ,para
104,. 1his creates a powerul way to deal with police inaction when
aced with harassment o homosexuals. Because the right to non-
discrimination is horizontal, the police can iolate that right simply
by ailing to protect homosexuals when they are discriminated against
by ellow citizens. \ithout such horizontal protections, the police
could simply outsource discrimination to priate citizens by turning a
blind eye to crimes perpetrated against LGB1 people.
1he Court`s rule could hae also implications beyond seere cases o
harassment and abuse, in cases o more day to day discrimination.
Article 15 lists speciic public places where sex discrimination is illegal,
including shops, restaurants, hotels, and places o public
entertainment. 1hus, i an LGB1 person were turned away rom a
shop because o his sexual orientation or gender identity, then his
right to non-discrimination would hae been iolated.
1
%&'"( (- P#)5("
1he Justices note that the Supreme Court has read the right to lie in
Article 21 o the Constitution to include a right to health. 1his right
to health includes arious entitlements, such as an equal opportunity
to access a unctioning healthcare system.
1he Justices point out that the International Coenant on Lconomic,
Social and Cultural Rights ,ICLSCR, proides that the right to health
is iolated by discrimination based on sexual orientation or lIV status.
1hey then canass in detail the policies o international and domestic
institutions inoled in the struggle against lIV,AIDS, including
seeral important declarations by U.N. bodies. 1hey urther cite
statements by the Union lealth Minister in 2008, saying that the stigma
attached to sex workers and men who hae sex with men by Section
3 presented a serious obstacle to lIV,AIDS preention eorts.
In response to the Additional Solicitor General`s argument that repeal
o Section 3 would lead to an increase in the spread o lIV, the
Justices issue a sharp rebuke, saying his argument is completely
unounded since it is based on incorrect and wrong notions` ,para
2,. 1hey say that there is absolutely no scientiic eidence
1
lor a more extensie discussion o the implications o the horizontality
ruling, see 1arunabh Khaitan`s piece in this olume.
demonstrating a link between the decriminalisation o homosexuality
and an increase in lIV transmission rates. In act, the NACO aidait
indicates that decriminalisation would hae a positie eect on lIV
preention eorts. 1he Justices thereore conclude that Section 3
is an impediment to public health which particularly inringes on the
right to health o LGB1 persons.
Saeguarding public health may indeed be a compelling state interest
that can justiy reasonable limitation on the right to priacy. loweer,
the Court reasons, such an interest would in act compel the state to
54C4"8 Section 3, because Section 3 demonstrably hampers lIV,
AIDS preention eorts.
C-4,(&(7(&-4)5 O-+)5&(<
One o the core arguments o both the Goernment as well as Mr.
B.P. Singhal was that law did not run separately rom morality and
that law in act had to relect the wider morality. 1hey argued that the
State could thereore inringe on undamental rights to protect the
larger legitimate interest o public morality`. 1his was a core question
which the Judges had to answer.
1he Court`s reasoning was that, the goernment may only inringe
on core constitutional rights i doing so is necessary to sere to a
compelling` state interest. lor example, the state may restrict the
right to ree moement in cases o iolent unrest because there is a
compelling state interest in maintaining public order and saeguarding
security. Or, as the Court points out, the goernment may criminalise
priate sex between adults and minors because there is a compelling
state interest in protecting children against sexual exploitation.
loweer, the Judges make it extremely clear that saeguarding popular
morality is not a compelling state interest that can justiy limiting the
rights o dignity, priacy and equality o LGB1 persons. 1hus the
public`s moral opinions cannot be used as a justiication or limiting
LGB1 persons` undamental rights. 1he Court says:
Popular morality or public disapproal o certain acts is not
a alid justiication or restriction o the undamental rights
under Article 21. Popular morality, as distinct rom a
constitutional morality deried rom constitutional alues, is
based on shiting and subjectie notions o right and wrong.
I there is any type o morality` that can pass the test o
compelling state interest, it must be constitutional` morality
and not public morality.` ,para 9,
Moral indignation, howsoeer strong, is not a alid basis or
oerriding indiidual`s undamental rights o dignity and
priacy. In our scheme o things, constitutional morality must
outweigh the argument o public morality, een i it be the
majoritarian iew.` ,para 86,
1his constitutional morality` that the Court identiies is based on the
liberal democratic ideals that underlie the Indian Constitution, not
on any particular religious or cultural tradition. 1he Judges derie the
concept rom Dr. Ambedkar, who in the Constituent Assembly noted,
Constitutional morality is not a natural sentiment. It has to be
cultiated. \e must realise that our people hae yet to learn it.
Democracy in India is only a top dressing on an Indian soil which is
essentially undemocratic` ,para 9,.
1he concept seres as an eectie way to adance the entire morality
debate to a higher leel, the Justices simply state that only moral alues
drawn directly rom the Constitution can be used to limit the
undamental rights that the Constitution itsel guarantees. Religious
moral codes are irreleant. Rather than draw a simple distinction
between priate` morality and criminal law, the Judges draw a more
nuanced line between religious and ciic morality. 1hey acknowledge
that the law is based on morality, but it is a special type o morality -
constitutional morality.
1he Judges urther conclude that, 1he Constitution o India
recognises, protects and celebrates diersity. 1o stigmatise or to
criminalise homosexuals only on account o their sexual orientation
would be against the constitutional morality` ,para 80,.
C-7+( ), ) 3-74(#+ 2)\-+&()+&)4 &4,(&(7(&-4
1he other major argument that the Judges had to contend with was
the argument o the Additional Solicitor General that the Judges must
maintain judicial sel restraint while exercising the power o judicial
reiew o legislation. In eect, the Additional Solicitor General
contended that the Courts must deer to the legislature since the
legislature represented the will o the people and was the best judge
o what is good or the community. \hile the Judges concede that
ordinarily the Courts would deer to the wisdom o the legislature,
the degree o deerence would depend upon the subject matter under
consideration.
\hen matters o high constitutional importance` such as
constitutionally entrenched human rights - are under
consideration, the courts are obliged in discharging their own
soereign jurisdiction, to gie considerably less deerence to
the legislature than would otherwise be the case.` ,para 118,
1hey urther elaborate on their understanding o the judicial role,
1he role o the judiciary is to protect the undamental rights.
A modern democracy while based on the principle o majority
rule implicitly recognises the need to protect the undamental
rights o those who may dissent or deiate rom the
majoritarian iew. It is the job o the judiciary to balance the
principles ensuring that the goernment on the basis o
number does not oerride undamental rights. Ater the
enunciation o the basic structure doctrine, ull judicial reiew
is an integral part o the constitutional scheme.` ,para 125,
In this regard, the role o the judiciary can be described as
one o protecting the counter majoritarian saeguards
enumerated in the Constitution.` ,para 120,
1he Judges reer to Justice Robert Jackson`s amous passage in S4-*
N+5A+(+" L*"*4 @&"5) &0 Q)'D"*+&( ,. @"5(4**4:
1he ery purpose o the bill o rights was to withdraw certain
subjects rom the icissitudes o political controersy, to place
them beyond the reach o majorities and oicials and to
establish them as legal principles to be applied by the courts.
One`s right to lie, liberty, and property, to ree speech, a ree
press, reedom o worship and assembly, and other
undamental rights may not be submitted to ote: they depend
on the outcome o no elections.` ,para 120,
1he Judges thereby assert the responsibility o the judiciary in
protecting undamental rights regardless o the opinion o the
legislatie majority. 1hus the judiciary as an institution has a
responsibility in ensuring that legislatie majorities in tantrum against
a minority did not sterilise the grandiloquent mandate` ,para 125,.
C-4357,&-4
1he Court concludes by drawing upon the notion o equality which
underlies the Indian Constitution and making an organic connection
between the intention o the ounding athers and the need to ensure
that LGB1 persons are not discriminated against today. 1o quote
what the Court has to say:
1he notion o equality in the Indian Constitution lows rom
the Objectie Resolution` moed by Pandit Jawaharlal Nehru
on December 13, 1946. Nehru, in his speech, moing this
Resolution wished that the louse should consider the
Resolution not in a spirit o narrow legal wording, but rather
look at the spirit behind that Resolution. le said, \ords are
magic things oten enough, but een the magic o words
sometimes cannot coney the magic o the human spirit and
o a Nation`s passion.... ,1he Resolution, seeks ery eebly
to tell the world o what we hae thought or dreamt o so
long, and what we now hope to achiee in the near uture.``
,para 129,
Ater quoting rom Nehru`s Objectie Declaration, the Court goes
on to say:
I there is one constitutional tenet that can be said to be
underlying theme o the Indian Constitution, it is that o
inclusieness`. 1his Court beliees that Indian Constitution
relects this alue deeply ingrained in Indian society, nurtured
oer seeral generations. 1he inclusieness that Indian society
traditionally displayed, literally in eery aspect o lie, is
maniest in recognising a role in society or eeryone. 1hose
perceied by the majority as deiants` or dierent` are not
on that score excluded or ostracised.` ,para 130,
\here society can display inclusieness and understanding,
such persons can be assured o a lie o dignity and non-
discrimination. 1his was the spirit behind the Resolution` o
which Nehru spoke so passionately. In our iew, Indian
Constitutional law does not permit the statutory criminal law
to be held captie by the popular misconceptions o who the
LGB1s are. It cannot be orgotten that discrimination is
antithesis o equality and that it is the recognition o equality
which will oster the dignity o eery indiidual.` ,para 131,
B),&, -D ("# %75&4'
1he material the Judges marshalled to come to their inding included
judgments rom other jurisdictions, judgments rom Indian Courts,
Aidaits and other legal materials, deeloping international law, legal
academic writings, constituent assembly debates and scientiic and
medical literature. 1his section briely list out how the Judges used
this range o material.
J,# -D )DD&9)X&(, ] N;%,] \79'#2#4(, )49 -+9#+,
1he Judges note that, to illustrate the magnitude and range o
exploitation and harsh and cruel treatment experienced as a direct
consequence o Section 3 IPC, respondent No. 8 ,Voices Against
3, has placed on record material in the orm o aidaits, lIRs,
judgments and orders which objectiely documented instances o
exploitation, iolence, rape and torture suered by LGB1 person.
1he particulars o the incidents are drawn rom dierent parts o the
country` ,para 21,. 1he use o this material helps the judges to come
to the conclusion that the ears about the use o Section 3 are not
just imaginary and that the materials on record clearly establish that
the continuance o Section 3 IPC on the statute book operates to
brutalise a ulnerable, minority segment o the citizenry or no ault
on its part` ,para 22,. 1o illustrate the iolence and iolation which
LGB1 persons suer because o Section 3, one instance cited by
the Judges based upon an aidait iled by the aected person is
extracted:
1hen there is a reerence to Bangalore incident, 2004`
bringing out instances o custodial torture o LGB1 persons.
1he ictim o the torture was a hijra ,eunuch, rom Bangalore,
who was at a public place dressed in emale clothing. 1he
person was subjected to gang rape, orced to hae oral and
anal sex by a group o hooligans. le was later taken to a
police station where he was stripped naked, handcued to
the window, grossly abused and tortured merely because o
his sexual identity.` ,para 22,
J,# -D )3)9#2&3 5&(#+)(7+#
1he Judges draw upon academic literature, and what is o particular
signiicance to their conclusion is the study by Ryan Goodman on
the impact that anti-sodomy laws hae een i they are seldom
enorced. 1he argument that the Judges rely upon is that een i anti
-sodomy laws are seldom enorced they hae an impact on the lies
o LGB1 persons.
Pro. Ryan Goodman o the larard Law School, in his
well researched study o the impact o the sodomy laws on
homosexuals in South Arica argues that condemnation
expressed through the law shapes an indiiduals identity and
sel- esteem. Indiiduals ultimately do not try to conorm to
the law`s directie, but the disapproal communicated through
it, neertheless, substantiely aects their sense o sel-esteem,
personal identity and their relationship to the wider society.
Based on ield research, he argues that sodomy laws produce
regimes o sureillance that operate in a dispersed manner,
and that such laws sere to embed illegality within the identity
o homosexuals.` ,para 49,
J,# -D ,3&#4(&D&3 )49 2#9&3)5 5&(#+)(7+#
1he Judges draw upon scientiic and medical literature to come to
the conclusion that, there is almost unanimous medical and
psychiatric opinion that homosexuality is not a disease or a disorder
and is just another expression o human sexuality. lomosexuality
was remoed rom the Diagnostic and Statistical Manual o Mental
Disorders ,DSM, in 193 ater reiewing eidence that homosexuality
is not a mental disorder. In 1992, the \orld lealth Organisation
remoed homosexuality rom its list o mental illnesses in the
International Classiication o Diseases ,ICD-10,` ,para 6,.
1he Judges also reer to the amicus brie in <"=54(D4 ,. B4G"- iled by
the American Psychiatric Association to bolster their conclusion that
homosexuality is not a disease or mental illness that needs to be, or
can be, cured` or altered`, it is just another expression o human
sexuality` ,para 68,.
J,# -D 9#X#5-/&4' &4(#+4)(&-4)5 5)E
1he Judges also reer to cutting edge deelopments o jurisprudence
in international law.
^-'<)0)+() L+&43&/5#,] =>>H
1he Judges reer to the \ogyakarta Principles on the Application o
luman Rights Law in Relation to Sexual Orientation and Gender
Identity. 1hey state that, the principles are intended as a coherent
and comprehensie identiication o the obligation o States to respect,
protect and ulil the human rights o all persons regardless o their
sexual orientation or gender identity`. In particular they note that the
1he Principles recognise:
! luman beings o all sexual orientation and gender identities are
entitled to the ull enjoyment o all human rights,
! All persons are entitled to enjoy the right to priacy, regardless
o sexual orientation or gender identity,
! Lery citizen has a right to take part in the conduct o public
aairs including the right to stand or elected oice, to participate
in the ormulation o policies aecting their welare, and to hae
equal access to all leels o public serice and employment in
public unctions, without discrimination on the basis o sexual
orientation and gender identity.` ,para 44,
*#35)+)(&-4 -D L+&43&/5#, -D Z[7)5&(<] =>>_
1he Judges also reer to the Declaration o Principles o Lquality`
issued by the Lqual Rights 1rust in April, 2008, which can be described
as current international understanding o Principles on Lquality. 1hey
draw upon these principles to elucidate the notion o indirect
discrimination`. 1he Judges note that,
Indirect discrimination occurs when a proision, criterion
or practice would put persons haing a status or a characteristic
associated with one or more prohibited grounds at a particular
disadantage compared with other persons, unless that
proision, criterion or practice is objectiely justiied by a
legitimate aim, and the means o achieing that aim are
appropriate and necessary. larassment constitutes
discrimination when unwanted conduct related to any
prohibited ground takes place with the purpose or eect o
iolating the dignity o a person or o creating an intimidating,
hostile, degrading, humiliating or oensie enironment.`
,para 93, T4>C3"-+- -'CC8+4) 79 *34 F')A4-U
C-4,(&(7#4( @,,#2`5< *#`)(#,
1he Judges also draw upon the Constituent Assembly Debates so as
to place the challenge to the constitutionality o Section 3 within
the broader ramework o the philosophy underlying the Indian
Constitution. 1hey quote the two ounding athers o the Indian
republic.
lamously the Judges quote Nehru to make the point that we need to
consider the Constitution not in a spirit o narrow legal wording but
rather in terms o the spirit underlying the Constitution. 1he quote
rom Nehru reads, \ords are magic things oten enough, but een
the magic o words sometimes cannot coney the magic o the human
spirit and o a Nation`s passion.... ,1he Resolution, seeks ery eebly
to tell the world o what we hae thought or dreamt o so long, and
what we now hope to achiee in the near uture.`` ,para 129,
1he Judges make the point that popular disapproal o certain acts is
not a alid justiication or restriction o the undamental rights under
Article 21. Popular morality, as distinct rom a constitutional morality
deried rom constitutional alues is based upon shiting and subjectie
notions o right and wrong. I there is any type o morality that can
pass the test o compelling state interest, it must be constitutional`
morality and not public morality. 1he concept o constitutional
morality they derie rom Dr. Ambedkar who in the Constituent
Assembly noted, Constitutional morality is not a natural sentiment.
It has to be cultiated. \e must realise that our people hae yet to
learn it. Democracy in India is only a top dressing on an Indian soil
which is essentially undemocratic` ,para 9,.
V79'2#4(, D+-2 3-2/)+)(&X# \7+&,9&3(&-4,
1he Judges extensiely drew rom the jurisprudence o the Courts
o many countries including liji, South Arica, long Kong, Canada,
USA and Nepal. 1hey also cited the decision o the Luropean Court
o luman Rights and the luman Rights Committee all o which
decriminalised sodomy.
Perhaps o great inluence on the Court in terms o its rhetorical
orce and impassioned argument was the decision o the South Arican
Constitutional Court in the !"*+&("8 P&"8+*+&( 0&5 H"9 "() <4-7+"( QR'"8+*9
case, which was cited a number o times. 1he Judges use the judgment
both to deelop the link between priacy and dignity and to make the
case that Section 3 has the eect o branding all gay men as
criminals. 1o quote rom the judgment,
\hen eerything associated with homosexuality is treated
as bent, queer, repugnant, the whole gay and lesbian
community is marked with deiance and perersity. 1hey are
subject to extensie prejudice because what they are or what
they are perceied to be, not because o what they do. 1he
result is that a signiicant group o the population is, because
o its sexual non-conormity, persecuted, marginalised and
turned in on itsel.` ,para 94,
V79'2#4(, -D ("# .7/#+&-+ C-7+(, &4 ;49&)
Regardless o the numerous sources as noted aboe, in the inal
analysis a inding o constitutionality has to be based upon the Indian
Constitution and its interpretation by the Supreme Court. 1he Court
does this by inding judicial decisions which lay out priacy
jurisprudence, jurisprudence on dignity and equality, as well as on the
power o the Courts to declare a statutory proision inalid. One o
the core submissions o the Union o India was that since the
parliament represented the will o the people, the Courts had no role
in adjudicating on the constitutionality o a law which parliament

had approed. Among other judgments which the Judges drew upon
were the words o J. Krishna Iyer in M"(4O" H"()3+V- case,
... 1he compulsion o constitutional humanism and the
assumption o ull aith in lie and liberty cannot be so utile
or ragmentary that any transient legislatie majority in
tantrums against any minority by three quick readings o a
Bill with the requisite quorum, can prescribe any unreasonable
modality and thereby sterilise the grandiloquent mandate.`
,para 125,
!#++&(-+&)5 @//5&3)`&5&(< -D ("# V79'2#4(
1here is some dispute about the territorial reach o the Court`s
judgment. Because the judgment modiies a parliamentary enactment
or reason o Constitutional iolations, there is a strong argument
that the judgment should apply throughout the country. Judicial
interpretation supports the position that i a ligh Court were to strike
down a law as unconstitutional, then until another ligh Court comes
up with a contrary position the law would indeed be unconstitutional
throughout the territory o India. 1his is because it would be odd
indeed or those liing in Delhi to hae stronger Constitutional rights
than other Indian citizens, Constitutional rights by their ery nature
do not respect state boundaries.
loweer, there is a counter-argument that, technically, the Delhi ligh
Court can only gie orders within its own territorial jurisdiction. 1hus,
until the Supreme Court rules on this case, any other ligh Court is
ree to disagree with the Delhi ligh Court`s judgment. I another
court does disagree, this could create a ery conusing situation
regarding the territorial alidity o Section 3. But as o now, the
Delhi ligh Court judgment is the law o the land and applicable
throughout the length and breadth o India.
;1 !PZ P;:P C8J%! 8N *ZFP; @! 1ZR *ZFP;
R%;! LZ!;!;81 18I Habb 8N =>>c
NAZ lOUNDA1ION . Petitioner
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N.C.1. Ol DLLlI & ORS ..
Respondents
87(5&4# -D C-74,#5d, @+'72#4(, -4 B#")5D -D %#,/-49#4(
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1.0 1he purpose o this outline is to track the line o arguments
adanced on behal o Respondent No. 8 ,R-8`,.
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1.1 R-8 supports the Petitioner. R-8 has iled a detailed counter
aidait. 1his counter aidait is in two separate paper books
and is at pages 1062 to 1563 o the Court record.
1.2 R-8 has also iled detailed written submissions in a separate
olume entitled \ritten Arguments on Behal o Respondent
No. 8, Voices Against 3`. 1he written submissions coer 31
pages and are crossed reerenced to 51 primary documents.
Lach o these 51 documents is identiied separately with a N5)'
172`#+I 1he documents bearing N5)' 1-,I c (- bc are or
conenience compiled in our spirally bound olumes. 1he
lagged documents comprise judgments, extracts rom scholastic
material, aidaits o persons who hae suered the
consequences o Section 3 and other material relied upon
by R-8. Lach o the aidaits is already on the record o this
Court, but has been placed in these olumes or ease o
reerence.
1.3 1he \ritten Arguments submitted on behal o R-8
comprehensiely coer the contentions adanced by this
Respondent. In the course o counsel`s arguments, R-8 will
reer to its \ritten Submissions and Volumes I to IV containing
the supporting documents ,N5)', c g bc,. R-8 will propose
L'AA4-*4) 2C45"*+,4 W+54D*+&(-`, which in its iew, ought to be passed
in the acts and circumstances o this case.
BI !PZ B@CW:%8J1* 8N %Z.L81*Z1! 1-I _
2.0 R-8 is a coalition o 12 registered and unregistered associations
that work in the ield o Child Rights, \omen`s Rights, luman
Rights and the Rights o Persons who identiy themseles as
Lesbian, Gay, Bisexual, 1ransgender, lijra and Kothi ,LGB1
persons`,.
2.1 Paragraphs 16-22 o the \ritten Submissions set out details o
the constituent organisations o R-8. 1hese organisations are
engaged in a range o actiities across the country and the work
o many o them has been recognised by the goernment.
Seeral o the organisations hae acquired an expertise in their
respectie niches, published works, organised workshops,
engaged in adocacy, conducted campaigns and hae worked
generally to promote and protect the rights o ulnerable
sections o society.
2.2 Drawing on its counter aidait, the \ritten Submissions also
explain the context in which R-8 came to be ormed and its
deep concern or the issues that arise in this case.
CI !PZ ;OL@C! 8N C%;O;1@F;.@!;81 8N
P8O8.ZhJ@F @C!;U;!^
3.0 Section 3 as applied in the ield, subjects members o the
LGB1 community to harsh treatment at the hands o the law
enorcement agencies. 1his proision subjects male and emale
homosexuals as well as transgenders to repressie, cruel and
disparaging treatment that destroys their sense o sel esteem,
inlicts grae physical and psychological harm on members o
the LGB1 community, inhibits the personal growth o these
persons and preents them rom attaining ulilment in personal,
proessional, economic and other spheres o lie. Section 3
degrades such indiiduals into sub-human, second class citizens,
ulnerable to continuous exploitation and harassment.
3.1 1o illustrate the magnitude and range o exploitation and harsh
and cruel treatment experienced as a direct consequence o
Section 3, R-8 has placed on record material in the orm o
aidaits, lIRs, judgments and orders that objectiely document
instances o exploitation, iolence, rape and torture suered
by LGB1 persons.
3.2 1he particulars o the incidents drawn rom dierent parts o
the country are set out at paras 32-4 o the \ritten
Submissions. 1he supporting material in the orm o aidaits,
reports and orders, etc. are appended as N5)', 1-,I c_K=H Q
ai ,Volume III & IV,. 1he counter aidait reers to seeral
other instances o harassment and exploitation with supporting
material.
3.3 1he material on the record clearly establishes that the
continuance o Section 3 on the statute book operate to
brutalise a ulnerable, minority segment o the citizenry or no
ault on its part. A segment o society is criminalised and
stigmatised to a point where indiiduals are orced to deny the
core o their identity and ital dimensions o their personality.
*I .ZhJ@F;!^ @1* ;*Z1!;!^
4.0 1o understand and appreciate many o the proound issues
that arise in this case, it is important to understand the notions
o sexual orientation` and gender identity`.
4.1 1he X&A9"O"5*" 65+(D+C84- &( *34 ;CC8+D"*+&( &0 1(*45("*+&("8 Y'>"(
K+A3*- <"= +( K48"*+&( *& L4G'"8 25+4(*"*+&( "() H4()45 1)4(*+*9 ,N5)'
_, ,Volume III, deine these expressions:
! Sexual Orientation` is understood to reer to each person`s
capacity or proound emotional, aectional and sexual
attraction to, and intimate and sexual relations with,
indiiduals o a dierent gender or the same gender or
more than one gender.
! Gender Identity` is understood to reer to each person`s
deeply elt internal and indiidual experience o gender,
which may or may not correspond with the sex assigned
at birth, including the personal sense o the body ,which
may inole, i reely chosen, modiication o bodily
appearance or unction by medical, surgical or other means,
and other expressions o gender, including dress, speech
and mannerisms. ,Page 6,
4.3 Justice Ldwin Cameron deines sexual orientation by reerence
to erotic attraction: in the case o heterosexuals to members o
the opposite sex, in the case o gays and lesbians, to members
o the same sex. Potentially a homosexual or gay or lesbian
person can be any one who is erotically attracted to members
o his or her own sex. ,N5)' =, page 21-22,,Volume I,.
ZI *;:1;!^] L%;U@C^ @1* @J!818O^
*;:1;!^
5.0 Dignity is a diicult concept to capture in precise terms. At its
least, the protection o dignity requires us to acknowledge the
alue and worth o all indiiduals as members o our society.
,N5)' =, page-2,, ,Volume I,.
5.1 Statutes that criminalise homosexuality hae the eect o
iewing all gay men as criminals. 1he harm imposed by the
criminal law is ar more than symbolic. Gay men are at risk o
arrest, prosecution and coniction o the oence under Section
3 simply because they seek to engage in sexual conduct which
is part o their experience o being human. 1he homosexuality
oence builds insecurity and ulnerability in the daily lie o
gay men. Such a law degrades and dealues gay men in the
eyes o society. Such a proision inades and erodes the dignity
o homosexuals ,N5)' =, page 2-28,, ,Volume II,.
5.2 1he assault on dignity takes arious orms. Proessor Ryan
Goodman o the larard Law School categorises how sodomy
laws reinorce public abhorrence o lesbians and gays resulting
in an erosion o sel esteem and sel-worth in numerous ways,
including ,a, sel relection, ,b, relection o sel through amily,
,c, erbal harassment and dispute, ,d, residential zones and
migrations, ,e, restricted public places, ,, restricted moement
and gestures, ,g, sae places` and ,h, conlicts with law
enorcement agencies. ,N5)' cH, page 685-11, ,Volume II,.
5.3 lomosexuals suer tremendous psychological harm. lear o
discrimination leads to a concealment o true identity, which is
harmul to personal conidence and sel-esteem. Compounding
that eect is the message o criminalisation that renders gays
and lesbians unworthy o protection. ,N5)' =, page 24, ,Volume
I,.
5.4 In the case o gays, it is the tainting o desire, it is the attribution
o perersity and shame to spontaneous bodily aection, it is
the prohibition o the expression o loe, it is the denial o ull
moral citizenship in society because you are what you are, that
impinges on the dignity and sel-worth o a group` ,N5)' =,
page 98, ,Volume I,.
L%;U@C^
5.5 1he right to priacy is the right o an indiidual, to be ree
rom unwarranted intrusion into matters so undamentally
aecting his or her person. Matters inoling the most intimate
and personal choices that a person may make are central to the
personal dignity and autonomy o the indiidual and are
protected rom unwarranted intrusion. At the heart o personal
liberty is the right to seek and deelop personal relationships
o an intimate character. Persons in a homosexual relationship
are entitled to seek autonomy just as heterosexual persons do.
,N5)' c, page 1,13, Justice Kennedy`s opinion, ,Volume I,.
5.6 Priacy recognises that we all hae a right to a sphere o priate
intimacy and autonomy that allows us to establishes and nurture
human relationship without intererence rom the outside
community. 1he way in which we gie expression to our
sexuality is at the core o this area o priate intimacy. I, in
expressing our sexuality, we act consensually and without
harming one another, inasion o that precinct will be a breach
o priacy ,N5)' =, page 30, ,Volume I,.
@J!818O^
5. Personal liberty presumes an autonomy o the indiidual that
includes reedom o thought, belie, expression and certain
intimate conduct ,N5)' c, page 1, Justice Kennedy`s opinion,
,Volume I,. Indiidual adults hae the reedom to determine
their own actions and behaiour, particularly where such act or
behaiour does not harm a third party. 1he notion o autonomy
extends beyond the spatial dimension. It projects beyond the
home or the closet, since indiiduals to attain growth and
ulilment cannot be conined to such spaces. 1he reedom o
conduct enjoyed by an indiidual arising rom his or her sexual
orientation is protected insoar as the intimate conduct is
between consenting adults.
NI :F8B@F !%Z1*. ;1 %Z.LZC! 8N F@R.
%ZF@!;1: !8 P8O8.ZhJ@F;!^
6.0 Since 196 a process o change has inormed legal attitudes
towards sexual orientation. 1his process has culminated in many
jurisdictions with the de-criminalisation o sodomy in priate
between consenting adults ,N5)' =, page 35-43, ,Volume I,.
6.1 In seeral jurisdictions the superior Courts and 1ribunals hae
struck down anti- sodomy laws, where such laws remained on
the statute book:
! US Supreme Court in 2003 ,N5)' c,,,Volume I,
! Constitutional Court o South Arica in 1998 ,N5)' =,,
,Volume I,
! lijian ligh Court in 2005 ,N5)' G,, ,Volume I,
! ligh Court o long Kong in 2005 and 200 ,separately
tendered,,
! Nepalese Supreme Court in 2008 ,separately tendered,,
! Luropean Court o luman Rights in 1981 and 1988
,N5)', a]b )49 i,, and ,Volume II,
! UN luman Rights Committee in 1994 ,N5)' H, ,Volume
II,
6.2 1he X&A9"O"5*" 65+(D+C84- ,N5)' _, ,Volume II, embody the
current status o human rights recognised globally with special
reerence to sexual orientation and gender identity. 1he
X&A9"O"5*" 65+(D+C84- are the work o acknowledged experts drawn
rom seeral countries. 1hese 65+(D+C84- are designed to ensure
that ulnerable minorities based on sexual orientation or gender
identity enjoy human rights to the ull extent. 1he necessity to
articulate these principles arose since despite the uniersality
o luman Rights in certain parts o the world indiiduals are
being discriminated against on the grounds o sexual orientation
or gender identity. 1he 65+(D+C84- recognise:
! luman beings o all sexual orientation and gender
identities are entitled to the ull enjoyment o all human
rights, ,page 10,
! All persons are entitled to enjoy the right to priacy,
regardless o sexual orientation or gender identity, ,page
14,
! Lery citizen has a right to take part in the conduct o
public aairs including the right to stand or elected oice,
to participate in the ormulation o policies aecting their
welare, and to hae equal access to all leels o public
serice and employment in public unctions, without
discrimination on the basis o sexual orientation or gender
identity ,page 28,.
:I 8L;1;81. ;1 ;1*;@
.0 In paragraphs 10-15 o the \ritten Submissions ,N5)' ? K N5)'
cb, ,Volume II,, R-8 has summarised the emerging recognition
in India o the need to decriminalise homosexuality.
.1 As regards, the prealence o homosexuality in South Asia, the
\ritten Submissions o R-8 summarise the position in
paragraphs 48-56 ,N5)' =_K N5)' Ga,. ,Volume III,.
PI C81.!%JC!;81 8N eC@%1@F ;1!Z%C8J%.Z
@:@;1.! !PZ 8%*Z% 8N 1@!J%Zf
8.0 1he submissions o R-8 in this behal are set out at paragraphs
58-0 o the \ritten Submissions ,N5)' GbK N5)' G_,, ,Volume
III,.
8.1 Section 3 criminalises carnal intercourse against the order
o nature`. lor a homosexual male or emale, his or her sexual
orientation is natural`. 1he sexual orientation o an indiidual
arises rom the depth o his or her being and it is not an aspect
o his or her conduct that can be termed as unnatural` or against
the order o nature`. In most reported studies, persons hae
either no choice or ery little choice in their attraction to
members o their own sex.
8.2 1he reports and studies placed on the record indicate that a
sizeable portion o the population identiies itsel as lesbian,
gay or bisexual. In the counter aidait o NACO ,R4,, the
estimated number o male homosexuals has been put at about
25 lakhs ,page 251, Court Record,.
8.3 \hile it is diicult to ascertain the exact numbers o sel-
identiying LGB1 persons in a gien population, certain
goernments hae generally adopted the position that about 5-
o an adult population identiies itsel as not heterosexual.
1he %+("8 K4A'8"*&59 1>C"D* ;--4-->4(*: P+,+8 6"5*(45-3+C ;D* Z[[\
conducted by the Department o 1rade and Industry o the
Goernment o the United Kingdom states that a .wide
range o research suggests that lesbian, gay and bisexual people
constitute 5- o the total adult population` ,N5)' GHT
SVolume IIITI
8.4 R-8 draws attention to the near unanimous medical and
psychiatric opinion that homosexuality is not a disease or a
disorder and is just another expression o human sexuality.
lomosexuality was 54>&,4) rom the W+"A(&-*+D "() L*"*+-*+D"8
M"('"8 &0 M4(*"8 W+-&5)45- ,DSM, in 193 ater reiewing
eidence that homosexuality is not a mental disorder. In 198,
ego-dystonic homosexuality was not included in the reised
third edition o the DSM ater a similar reiew. 1he DSM is
used worldwide as the standard benchmark o mental health
practice and is also widely ollowed by the Indian Psychiatric
Association.
8.5 In 1992, the \orld lealth Organisation remoed homosexuality
rom its list o mental illnesses in the 1(*45("*+&("8 P8"--+0+D"*+&(
&0 W+-4"-4- ,ICD 10,. Page 11 o the Clinical Descriptions and
Diagnostic Guidelines o the ICD 10 reads: Disorders o
sexual preerence are clearly dierentiated rom disorders o
gender identity, and homosexuality in itsel is no longer included
as a category`. 1he Indian Medical raternity also widely adopts
this standard classiication.
8. 6 According to the ;>+D'- brie iled in 2002 by the American
Psychiatric Association beore the United States Supreme Court
in the case o <"=54(D4 ,. B4G"-:
According to current scientiic and proessional understanding,
howeer, the core eelings and attractions that orm the basis
or adult sexual orientation typically emerge between middle
childhood and early adolescence. Moreoer, these patterns o
sexual attraction generally arise without any prior sexual
experience.`
1his ;>+D'- brie is at N5)' G_, ,Volume III,.
8. \hile indiiduals may undertake a range o sexual actiity,
homosexuality, like heterosexuality is not a disease or mental
illness that needs to be, or can be cured` or altered`.
8.8 lomosexuality, or the concerned indiidual, is as natural` as
heterosexuality or a heterosexual. Same sex intimacy cannot
all within the term carnal intercourse against the order o
nature` as used in Section 3. On a correct interpretation o
Section 3, homosexual acts are not coered by that proision
and a suitable declaration to that eect ought to be made by
this Court.
;I @%!;CFZ =c] !PZ %;:P! !8 F;NZ @1* !PZ
L%8!ZC!;81 8N @ LZ%.81d. *;:1;!^]
@J!818O^ @1* L%;U@C^
9.0 1he submissions o R - 8 in this behal are set out at paragraphs
116 - 134 o the \ritten Submissions ,Pages 22 - 26,. It is
submitted that the arguments relating to dignity, priacy and
autonomy are based upon distinct legal principles and each o
these grounds deseres separate consideration.
9.1 1he expression dignity o the indiidual` inds speciic mention
in the Preamble to the Constitution o India. 1he dignity o an
indiidual is clearly coered by Article 21 o the Constitution
o India. An indiidual`s dignity is ery closely linked to his
identity. 1he sexual orientation o an indiidual lies at the core
o his or her identity and arises rom a deep well-spring. An
indiidual`s sense o sel `, being`, personhood` and sel-
esteem` are all a part o the core notion o identity. 1he
testimony o a gay man, Mr. Gautam Bhan articulates the
tension between Section 3 and his sense o identity as a male
homosexual. ,N5)' ai,, ,Volume IV,. 1he oice o Mr. Bhan
is mirrored in the experience o thousands o similarly placed
indiiduals across the country.
9.2 Any law or statutory proision that denies a person`s dignity
and criminalises his or her core identity iolates Article 21 o
the Constitution. Section 3 operates to criminalise, stigmatise,
and treat as unapprehended elons` homosexual males. 1he
proision targets indiiduals whose orientation may hae ormed
beore they attained majority. It criminalises indiiduals upon
attaining majority, or no ault o the person and only because
he is being himsel.
9.3 Article 21 absolutely proscribes any law that denies an indiidual
the core o his identity and it is submitted that no justiication,
not een an argument o compelling State interest` can sanction
a statute that destroys the dignity o an estimated 25 lakh
indiiduals.
9.4 \ith respect to the sphere o priacy protected under Article
21 o the Constitution o India, this notion has been judicially
construed to deal with persons and not places` ,P"("5" @"(O
D"-4, ,2005, 1 SCC 496, para 53,. 1he distinction is ery
important. \ith respect to LGB1 persons, these indiiduals
cannot leae behind in their homes or closets their core identity.
lor eery indiidual, be they LGB1 or not, the sense o gender
and sexual orientation o the person are so embedded in the
indiidual that the indiidual carries this aspect o his or her
identity whereer he or she goes. A person cannot leae behind
his sense o gender or sexual orientation at home. R - 8 submits
that the relie granted by this Court ought to be suitably
moulded in a manner such that the priacy o LGB1 persons
is protected een in physical spaces beyond their home.
9.5 1he issue o autonomy deries rom the right to lie with dignity
and the right o priacy, both recognised dimensions under
Article 21 o the Constitution o India. 1he right to autonomy
deseres articulation and acceptance since it enables an
indiidual to make choices regarding intimate relationships
which cause no harm to third parties. 1he exercise o autonomy
enables an indiidual to attain ulilment, grow in sel-esteem,
build relationships o his or her choice and ulil all legitimate
goals that he or she may set. 1he protected sphere o autonomy
also extends beyond priate spaces since it enables a homosexual
or transgender to be himsel or hersel in public domains just
like any other indiidual.
9.6 1he moral justiication argument, that may possibly be
canassed by the other Respondents, is no answer at all to the
Dignity` submission. In her concurring opinion in <"=54(D4 ,
B4G"-, Justice O`Connor held: Moral disapproal o this group,
like a bare desire to harm the group, is an interest that is
insuicient to satisy rational basis reiew under the Lqual
Protection Clause . . . Indeed, we hae neer held that moral
disapproal, without any other asserted state interest, is a
suicient rationale under the Lqual Protection Clause to justiy
a law that discriminates among groups o persons. Moral
disapproal o a group cannot be a legitimate goernmental
interest under the Lqual Protection Clause because legal
classiications must not be drawn or the purpose o
disadantaging the group burdened by the law` . . . 1exas`
inocation o moral disapproal as a legitimate state interest
proes nothing more than 1exas` desire to criminalise
homosexual sodomy`.
9. . 1he majoritarian justiication` was also discounted by Justice
Kennedy who wrote the opinion o the Court in <"=54(D4.
,Justice 1homas described the 1exas law as uncommonly
silly`.,
9.8 \hose morality 1he Constitutional Court o South Arica
supplies an answer. \here the dictates o morality and nothing
more is used to justiy a law, that morality must be a P&(-*+*'*+&("8
morality ound in the text and spirit o the Constitution. ,N5)'
=] page 104, ,Volume I,. 1he South Arican Constitutional Court
has also rejected the public opinion` test when striking down
the death penalty in M"O="(9"(4 D"-4 ,N5)' a?, ,Volume IV,.
1he moral justiication adanced to uphold Section 3 deseres
to be rejected.
VI @%!;CFZ. caKci] *;.C%;O;1@!;81 @1* !PZ
%;:P! !8 BZ !%Z@!Z* ZjJ@FF^
10.0 1he submissions with respect to the iolation o Articles 14
and 15 o the Constitution o India are set out in paragraphs
1 - 114 o the \ritten Submissions iled by R-8.
10.1 \hile reiterating these submissions, R-8 would like to
underscore the need or appropriate directions where persons
o the LGB1 community are alleged to hae committed
oences other than Section 3. It is a widespread experience
that law enorcement oicials policing against obscene acts in
the public, etc. proceed against LGB1 persons not as they would
in respect to heterosexuals but under Section 3 as well. 1his
amounts to a particularly inidious discrimination inasmuch as
an oence under Section 3 is non-bailable and is punishable
with a sentence up to lie imprisonment. In contrast, a
heterosexual person is generally booked under Section 294 o
the IPC which carries a relatiely lighter sentence o three
months imprisonment and is a bailable oence.
10.2 1he Constitution o India in Articles 15 and 16 expressly
prohibits discrimination against any citizen on the ground only
o religion, race, caste, sex, place o birth or any o them. 1he
Supreme Court in ;('J H"5A ,2008, 3 SCC 1 at 19, para 51 has
construed Articles 14, 15 and 21 as prohibiting discrimination
on the basis o sex, race, caste &5 "(9 8+O4 7"-+-`. Sexual
orientation is a like basis` similar to the enumerated categories
in these Constitutional proisions. Indeed, the expression sex`
has been construed by high judicial authority to take in the
concept o sexual orientation. |B&&(4(, luman Rights
Committee, ICCPR, para 8., N5)' H Volume II, N5+4() ,. ;8745*",
Canadian Supreme Court, see N5)' =, page 41, Volume I| I
this submission is accepted, then Section 3 in so ar as it
targets male homosexuals because o their sexual orientation
alone, iolates Article 15.
WI ;1!Z%L%Z!@!;81 8N .ZC!;81 GHH
11.0 It is submitted that the constitutionality o a proision must be
judged keeping in iew the changed situation with the passage
o time. A law that is constitutional at a certain point o time
may with the passage o time be held to be unconstitutional.
,;('J H"5A at page 9,. In matters impacting human rights, a
progressie interpretation o the law is necessary ,M. P. M43*"
N-. /(+&( &0 1()+" ,198, 1 SCC 395 at para 1,. In a distinct
context the Supreme Court has obsered it is not necessary
and indeed not permissible to construe the Indian Penal Code
at the present day in accordance with the notions o criminal
jurisdiction preailing at the time when the code was enacted.
1he notions.hae considerably changed then and now during
nearly a century that has elapsed. It is legitimate to construe
the code with reerence to the modern needs, wheneer this is
permissible, unless there is anything in the code or in any
particular section to indicate the contrary` ,M&7"5+O ;8+ N-.
L*"*4 &0 @&>7"9 ,1958, 1 SCR 328 at para 44,.
11.1 1he court should aoid a construction that raises a serious
constitutional question and should preer an interpretation
which saes a proision rom being struck down as
unconstitutional. 1he Supreme Court in L3"3 ] P&. N-. L*"*4
&0 M"3"5"-3*5" ,196, 3 SCR 466 ,at para 33, held that i certain
proisions o law construed in one way would make them
consistent with the Constitution, and not the interpretation that
would render them unconstitutional, the Court would lean in
aour o the ormer construction`.
11.2 1o retain Section 3 as constitutional, it is necessary to construe
the phrase carnal intercourse against the order o nature` to
exclude consensual acts o sexual intercourse between
consenting adults.
11.3 On the point o interpretation o a criminal sodomy statute, in
the case o W3+54()5" !")"( . L*"*4 ,Crim App. Case Nos. lAA
85 and 86 o 2005, the ligh Court o liji declared that sections
15 ,a, and 1 were ^+(D&(-+-*4(* *& *34 4G*4(* *3"* *3+- 8"= D5+>+("8+-4-
"D*- D&(-*+*'*+(A *34 C5+,"*4 D&(-4(-'"8 -4G'"8 D&()'D* "A"+(-* D&'5-4 &0
("*'54 74*=44( ")'8*-_. 1he Court urther declared that ^1(,"8+)+*9
+( *3+- D&(*4G* )&4- (&* >4"( *3"* *34 &004()+(A -4D*+&(- +( *34 64("8 P&)4
D4"-4) *& 4G+-* 5"*345 *349 "54 -+>C89 54()454) +(&C45"*+,4 *& *34 4G*4(* &0
*34 +(D&(-+-*4(D9. ;DD&5)+(A89 *34 -4D*+&(- )4"8+(A =+*3 D"5("8 O(&=84)A4
"A"+(-* *34 &5)45 &0 ("*'54 "() "D*- &0 A5&-- +()4D4(D9 =+88 -*+88 "CC89 *&
-4G'"8 D&()'D* 74*=44( ")'8*- "() ")'8* >"84- =3454 -4G'"8 "D*+,+*9 &DD'5-
+( C'78+D &5 =+*3&'* D&(-4(* &5 +(,&8,4- C"5*+4- '()45 *34 "A4 &0 `a 94"5-_
,N5)' G,, ,Volume I,.
11.4 Similarly, the Supreme Judicial Court o Massachusetts in
P&>>&(=4"8*3 ,. K+D3"5) <. @"8*3"#"5? ,318 N.L.2d 48 ,Mass.
194, held that law which prohibited an unnatural and
lasciious` act was to be construed to be inapplicable to priate
consensual conduct o adults. It was held ^1( 8+A3* &0 *34-4 D3"(A4-
"() +( 8+A3* &0 &'5 &=( "="54(4-- *3"* D&>>'(+*9 ,"8'4- &( *34 -'7J4D* &0
C45>+--+784 -4G'"8 D&()'D* (& 8&(A45 "54 "- >&(&8+*3+D "- *34 F"DR'+*3 D"-4
-'AA4-*4) *349 =454 +( `bc\? =4 D&(D8')4 *3"* -. dc >'-* 74 D&(-*5'4) *&
74 +("CC8+D"784 *& C5+,"*4 D&(-4(-'"8 D&()'D* &0 ")'8*-. S4 )& -& &( *34
A5&'() *3"* *34 D&(D4C* &0 A4(45"8 D&>>'(+*9 )+-"CC5&,"8 &0 -C4D+0+D -4G'"8
D&()'D*? =3+D3 +- +(3454(* +( -. dc? 54R'+54- -'D3 "( +(*45C54*"*+&(_.
11.4 1he interpretation with respect to Section 3 urged by R-8 is
in keeping with contemporary understanding o sexual
orientation and gender identity, it is consistent with Indian
constitutional alues, it is consistent with international human
rights standards, it is consistent with the deelopments in this
ield o the law worldwide as relected rom legislatie changes
and decisions o the superior courts in countries across the
world.
FI C81CFJ.;81
12.0 At its root, this case is about the Lmancipation o a large
segment o our people. All o them Indian, all o them citizens.
1he Constitution o India in one o the great emancipatory
charters, liting as it does rom the status o wretchedness and
subordination - communities, castes, tribes and women - to
ull Citizenship. 1his case is about an inisible minority o
Indians that seek to unlock the assured liberties enshrined in
the Constitution, but denied to them in an aspect o lie that
matters most to them: their own identity, their own sexuality,
their own sel.
12.1 As Justice Kirby puts it, ^B34 R'4-*+&( +- 78'(*89 C&-4): D"( 8"=-
D5+>+("8+-+(A -4G'"8 >+(&5+*+4- 74 "(9 8&(A45 J'-*+0+4)e P"( ,+&84(D4 "()
)+-D5+>+("*+&( "A"+(-* *3+- >+(&5+*9 74 *&845"*4) &5 -3&'8) *34 8"= ")&C* "
84")45-3+C "() 4)'D"*+,4 5&84e 1( C8'5"8+-*+D -&D+4*+4-? +- +* 0"+5 "() 54"8+-*+D
*& )4>"() *3"* >4>745- &0 -4G'"8 >+(&5+*+4- D3"(A4 *34+5 &5+4(*"*+&( &5
8+,4 D&>C84*489 D48+7"*4 8+,4-e 1- +* +( -&D+4*9V- +(*454-*- *& C5&*4D* -'CC&5*+,4
>'*'"8 548"*+&(-3+C-? A+,4( *3"* -4G'"8 >+(&5+*+4- 4G+-*? 3",4 "8="9- 4G+-*4)
"() =+88 D&(*+('4 *& 4G+-*? =3"*4,45 *34 8"= "() -&D+4*9 -"9e_ ,Michael
Kirby, Discrimination on the ground o sexual orientation - a
new initiatie or the Commonwealth o Nations 1he
Commonwealth Lawyer, December 200 Vol.16, 1. at p. 12.,
12.2 LGB1 persons are a permanent minority in society and hae
suered in the past rom seere disadantages. 1heir dignity
has been and continues to be degraded, seerely undermining
their sense o sel-worth. 1he criminalisation o homosexuality
condemns in perpetuity this sizeable section o society and
orces them to lead their lies in the shadow o harassment,
exploitation, humiliation and cruel and degrading treatment at
the hands o the law enorcement machinery. 1he Goernment
o India estimates the MSM number at around 25 lakhs. 1he
number o lesbians and transgenders would run into seeral
lakhs o persons as well. 1his ast section o our society
comprises honourable citizens who lead wholesome lies but,
in the language o the South Arican Constitutional Court, are
denied ull >&5"8 citizenship. 1he moral` dimension o their
citizenship is denied to them, (&* because o any harm that
they hae inlicted on any other person, but &(89 because they
seek to lie lies and build relationships - so essential or the
realisation and ulilment o lie`s goals - with others, based
upon a inner aspect o their being.
12.3 1o blot, to taint, to stigmatise and to criminalise an indiidual
or no ault o his or hers, is maniestly unjust. 1o be
condemned to lie long criminality shreds the abric o our
Constitution. lor the male homosexual in particular and by its
expanded application to lesbians and transgenders as well,
Section 3 has worked to silence the promise o the Preamble
and Part III o the Constitution. It is the case o the Petitioner
and those who support the petition that it is the liberating,
emancipatory spirit underlying the lundamental Rights inoked
in this case that must preail. 1he Constitution o India
recognises, protects and celebrates diersity. LGB1 persons are
entitled to ull >&5"8 citizenship.
12.4 1his case ranks with other great constitutional challenges that
liberated people condemned by their race or gender to lie lies
as second class citizens, such as M"7& ,. f'44(-8"() |,1992, 15
CLR 1 ,3 June 1992,| ,where the ligh Court o Australia
declared that the aboriginal peoples o Australia had title to
lands prior to colonisation,, @5&=( ,. @&"5) &0 Q)'D"*+&(? |344
U.S. 1 ,1952,|, ,where the United States Supreme Court held
that segregated schools in the seeral states are unconstitutional
in iolation o the 14th Amendment,, <&,+(A ,. N+5A+(+"? |388
U.S. 1 ,196,|, ,where the United States Supreme Court held
that laws that prohibit marriage between blacks and whites were
unconstitutional, 1he debates about de-criminalisation o
homosexuality belongs to another era circa -195. 1he granting
o basic rights to homosexuals did not lead to opening up o
loodgates o delinquent behaiour` or any erosion o moral
abric` in those societies we look upon as models in terms o
social and economic deelopment.
12.5 \ith the permission o the Court, R-8 seeks to tender L'AA4-*4)
2C45"*+,4 W+54D*+&(-` that would meet the end o justice.
.J::Z.!Z* 8LZ%@!;UZ *;%ZC!;81.
I. It is declared that all persons, regardless o their sexual
orientation or gender identity, are entitled to the ull enjoyment
o all lundamental Rights guaranteed under Part III o the
Constitution o India.
II. It is declared that persons who identiy themseles as lesbian,
gay, bisexual, transgender, 3+J5" or O&*3+ are:
a, Lntitled to equality beore the law and equal protection
o the laws within the territory o India as guaranteed
under Article 14 o the Constitution o India,
b, Lntitled to be treated without discrimination as guaranteed
under Articles 14, 15 and 16 o the Constitution o India,
c, Lntitled to the reedom o speech and expression in all its
maniestations, the reedom to assemble peaceably and the
reedom to orm associations or unions, as guaranteed
under Article 19 ,1, ,a,, ,b, and ,c, o the Constitution o
India,
d, Lntitled to lie with dignity and enjoy personal liberty to
the ullest extent, as guaranteed under Article 21 o the
Constitution o India, and
e, Lntitled to priacy including autonomy with respect to
decisions and choices concerning intimate personal
relationships, as guaranteed under Article 21 o the
Constitution o India.
III. It is declared that Section 3 o the Indian Penal Code, 1860
is not applicable to and does not coer consensual, same-sex,
sexual acts between adults. In particular, it is declared that
intimate sexual acts between adult consenting males do not all
within the scope o Section 3 o the Indian Penal Code,
1860.
IV. It is declared that inasmuch as homosexual actiity between
consenting adults has been held to all outside the scope o
Section 3 o the Indian Penal Code, 1860, oences arising
rom alleged intimate acts in public would be liable to be dealt
with under other generally applicable proisions o law.
V. It is declared that on the interpretation placed by this Court on
Section 3 o the Indian Penal Code, 1860, the said proision
is constitutional and will continue to be attracted, +(*45 "8+", in
respect o sexual actiity between adults and minors, child sexual
abuse cases, and non-consensual sexual intercourse.
VI. laing regard to the documented instances o the abuse o
Section 3 and the special ulnerability o members o the
LGB1 community, the ollowing directions are issued to
Respondent Nos. 1, 2 and 5:
! lijras, kothis and other transgender persons are not be
detained oer night in police stations and are not detained
in all male cells in jails to preent harassment, abuse and
sexual assault.
! Allegations o illegal detention, custodial abuse and torture
o LGB1 persons are to be promptly inestigated and
suitable disciplinary proceedings, criminal and other legal
action is taken.
! Police training at all leels shall include a module on sexual
orientation and gender identity so that law enorcement
oicials are sensitised to the issues acing LGB1 persons.

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Beore Justices: Chie Justice A.P. Shah and Justice Dr. S. Muralidhar.
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Mr. Groer stressed that the prayer in the petition is talking about
decriminalising consensual sex between adults, and that the petitioners
are ery conscious about the act that there is a acuum when it comes
to child sexual abuse cases. le argued that since there are ery ew
reported cases where 3 has actually been applied to consensual
acts between adults, the goernment needs to show what the
compelling state interest is in keeping this law in place.
Chie Justice Shah asked Mr. Groer about how to deal with cases o
public sex to which he replied that this could be dealt with the laws
related to public nuisance, indecency etc.
\hen asked i there were examples o conictions o consenting
adults, Mr. Groer said no.
Chie Justice Shah then went on to talk about the case o a transgender
person who had sel-immolated hersel ater being sexually molested
by the police ,which he had dealt with when he was the Chie Justice
in the Madras ligh Court,.
Mr. Groer also pointed out that there are acts o child sexual abuse
that are non-penetratie and thereore Section 3 could in any case
not be eectie in dealing with it. Mr. Groer then explained how
Section 3 was an impediment to propagating sae sexual practices.
In response to Chie Justice Shah`s query, he reerred to the Lucknow
arrests where employees o Bharosa 1rust ,an organisation that
worked on sae sex practices with the MSM community, were held in
custody or 100 days, and accused o the local media o running
Sex Clubs` etc. le pointed out that Naz loundation`s interentions
were sanctioned by the Central Goernment, and that they had
1hese transcripts are based on daily postings during the course o the inal
arguments on http:,,groups.yahoo.com,group,lgbt-india,
distributed 13 million condoms per month to sex workers besides
condoms that are distributed to MSM communities.
Chie Justice Shah remarked that sae sex messages can be eectie
only when there is more openness and recognition ,o sexual
practices,.
Mr. Groer then quoted in great detail rom the \olenden Committee
Report that recommended the decriminalisation o sodomy in
Lngland in 195. le argued that the goernment cannot make priate
sexual behaiour criminal when there was no oerriding compelling
state interest.
Justice Muralidhar commented that the criminal law is inariably used
against the poor in the country and that there were no statistics on
the number o conictions in the trial courts.
Chie Justice Shah obsered that it was diicult to get third parties to
testiy in cases o consenting adults. Section 3 was used to extract
money, and that it was a case o persecution, not prosecution.`
Justice Muralidhar then talked about the opposition rom Kiran Bedi
to distribution o condoms in 1ihar Jail.
Justice Muralidhar also mentioned the doctrine o desuetude, i.e. when
a law is not used or a ery long time it could lapse ,usually used or
delegated legislation,.
Justice Muralidhar also asked i the law applied to lesbians, and Mr.
Groer said that technically it did not.
Mr. Groer said, Recently we had a gay Pride in Mumbai. One o
the policemen remarked that i the law was repealed they would not
hae to do this kind o work and that we don`t want to do this sort o
work`.
Chie Justice Shah then said, In Bombay I dealt with a ragging case
where a homosexual boy was ragged by his classmates. As a result, he
was hospitalized just beore his exams. le came to us asking or a
chance to do his exams again. \e hae all seen what could happen to
homosexuals`. le also added that homosexuality was by nature, and
not by choice`.
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1he interener B.P. Singhal`s lawyer l.P. Sharma suddenly brought
up the case o K.N. @5&=( ,which dealt with consensual
sadomasochism,. le said that anal sex by homosexuals cannot be
equated with other types o sex.
Mr. Groer mentioned the Law Commission`s 12nd Report that
recommended the deletion o Section 3, the right to dignity, priacy,
and health under the Uniersal Declaration o luman Rights, and
the act that other status` in the Optional Protocol to the International
Coenant or Ciil and Political Rights has been interpreted to include
sexual orientation.`
Justice Muralidhar inquired i the National Commission to Reiew
the \orking o the Constitution had suggested that sex be extended
to include sexual orientation or the scope o discrimination to be
widened to include sexual orientation.
Mr. Groer then argued that international principles linked notions
o highest attainable standard o health to the conditions necessary
to attain this. 1his would inole making health acilities accessible to
all, especially the most ulnerable populations. le said that ar rom
being a compelling state interest Section 3 is actually an impediment
to lIV,AIDS programs.
Mr. Groer also argued that priate` should not be restricted to mean
spatial priacy and should be related to the intention, and should be
let up to the interpretation o the court.
Justice Muralidhar then reerred to the M"O="(9"(4 F')A>4(* ,relating
to the death penalty in South Arica,, saying that the court cannot be
completely swayed by public opinion. Minorities in terms o opinion
and alues hae to be protected`, he said.
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Mr. Groer argued that the right to lie includes the right to dignity,
and all that goes with it. le argued that Section 3, by criminalising
consensual sex between adults, iolates their right to dignity.
Justice Muralidhar commented that the NACO aidait was the
strongest argument that Naz had, as it unequiocally said that Section
3 was a barrier to the right to health.
Chie Justice Shah also raised the concern that i the arguments related
to Article 14 ,right to equality, were accepted then it would mean
that the court would hae to strike down the law, while the prayer o
the petition asks only or a reading down o the law.
Justice Muralidhar then sought more clarity on the exact nature o
what the petitioners were asking or. Are you saying the section should
be read down \hat kind o declaration can the court gie without
reading down the section`
Chie Justice Shah obsered that reading down and seeking a
declaration were two separate things.
Both the judges asked or examples where the courts hae read down
a criminal statute - especially since the petitioners were not asking
or the law to be struck down entirely.
Mr. Groer then argued that the wordings o Section 3 were ague
and should be struck down.
Justice Muralidhar then asked Mr. Groer i the word whoeer` in
Section 3 could be read down. le obsered that the petitioners
were saying that the law had included categories that should not hae
been included - i.e. oerstretching or oerbreadth`. le said that
agueness` was a diicult argument to make in terms o unnatural
oences. le said that this line o argument would not help the
petitioner as ar as the inal declaration was concerned.
Mr. Groer then argued that legislatie intererence needed to be
justiied and that any restriction needs to be proportionate to the
oence.
Justice Muralidhar then obsered that saying that the legitimate aim
o Section 3 was to maintain public saety` was contraindicatie.
le suggested that the petitioners look at other statutes that oerlap
on issues related to public morality. le said that the petitioners could
not only reer to the \olenden Committee Report and should
contextualise \olenden in the context o Indian society and culture.
Mr. Groer then reerred to the M&)+(&- case in Cyprus where the
Cypriot goernment had argued beore the Luropean Commission
o luman Rights that it should be able to retain the anti-sodomy law
because culturally it was dierent rom the rest o Lurope.
Justice Muralidhar said that legitimate aim had to be seen in the context
o our Constitution and that the goernment could argue that it was
taking measures in the interests o morality and decency.
Mr. Groer replied that we lie in a democratic set up where the
rights o minorities needed to be protected, and the state needed to
show what the legitimate aim o the law was to enter the zone o
priacy.
Justice Muralidhar then pointed out that this argument would not be
applicable to child pornography. Chie Justice Shah added, 1o say
that public morality cannot be a source o criminal law is not correct.
\hat about cases o child sexual abuse` le said that decency` and
morality` could be legitimate aims that can be used to enact criminal
law een in the priate zone.`
Mr. Groer then pointed out that in this speciic example there was
no harm being caused to anyone. le said, \hile section 3 applies
to both homosexuals and heterosexuals, the police are not going to
target heterosexuals`.
Chie Justice Shah said that homosexuality, i.e. sexual orientation
cannot be cured`, so proscribing a penalty o 10 years would be
disproportionate to the oence.
Mr. Groer said that it was inherent to gay men to do these acts
,sodomy,, and that this was a part o their personality. le pointed
out that the Luropean Community did not allow countries with an
anti-sodomy law to join.
Mr. Groer argues that under Article 19 ,1,,a, eery person had a
right to receie and impart inormation, and that Section 3 impeded
this. le said that oten homosexuals, who did not hae adequate
inormation, went to psychiatrists, where they are oten administered
shock treatment.
Mr. B.P. Singhal`s lawyer Mr. l.P. Sharma interrupted saying that in
the United Nations oice there were no spousal beneits or same
sex couples.
Chie Justice Shah asked Mr. Sharma, So you admit that there are
people in this world with a dierent sexual orientation` 1o which
Mr. Sharma said that it ,retention o the law, was because o un
,that homosexuals had, and perersity. Chie Justice Shah, expressing
his displeasure shook his head and said, 1his kind o assistance will
not take us anywhere`. Mr. Groer interjected to say that i being
harassed by the police was un, then they were haing a lot o un.
Both judges then pointed out that the petitioners need to take into
account Article 19,2,, which proides exceptions to the right to
reedoms based on public order, morality etc. Mr. Groer replied that
the goernment needed to discharge its burden to proe that there
was a compelling state interest to legislate in this matter.
Mr. Groer then talked in some detail about judgements in other
courts where similar anti-sodomy laws hae been struck down. 1hese
included W')A4&( ,in Northern Ireland,, M&)+(&- ,in Cyprus, and !&55+-
,Republic o Ireland,. le pointed out that in these cases there was a
similar concern that homosexuality should not be decriminalized
because o the ear that some sections o society may draw misguided
inerences, but the Luropean Court o luman Rights had struck
down this law anyway.
Chie Justice Shah addressing the JACK lawyer Mr. R.S. Kumar said,
Do you know what is happening in 1amil Nadu A widowed person
liing with lIV AIDS is denied all rights.\e organised a programme
as a part o the 1amil Nadu Legal Serices Board or 600 widowed
women, who were able to speak openly. 1his is because they are no
longer regarded as sinners`. le went on to point out to JACK and
B.P. Singhal that saying Indian culture` was not the answer. I you
are under the impression that this happens only in the U.S you are
mistaken`, he said.
Mr. R.S. Kumar said that there was a alse diagnosis when it came to
lIV,AIDS. Chie Justice Shah snapped, People are dying. \hat
are you saying \ou are speaking with a moral attitude.` Mr. R.S.
Kumar in response said that lIV was a propagated disease.
*)< = L-,( F743" .#,,&-4
Mr. Groer then talked in great detail about the M&)+(&- , P9C5'- case
where the Luropean Court o human rights struck down an anti-
sodomy law in Cyprus. 1his was ollowed by the decision in the
!"*+&("8 P&"8+*+&( 0&5 H"9 "() <4-7+"( QR'"8+*9 T!PH<QU decision in
South Arica. le dealt in great detail with the judgments by both
Justice Ackerman and Justice Sachs striking down the anti-sodomy
law.
\hen Mr. Groer was reerring to the stigma that the law attaches to
a signiicant section o the population, Chie Justice Shah compared
this to the stigma attached to criminal tribes` who were branded by
the Criminal 1ribes Act in India.
As Mr. Groer was reading rom the South Arican decision, the isibly
moed judges began conerring amongst themseles. 1hey said this
decision reminded them o Justice lidayatullah`s decisions. Chie
Justice Shah, noticing that the Additional Solicitor General was not
present in court, remarked, I don`t know what assistance we are
going to get rom the goernment. 1he ASG is not here. le should
hae been here to listen to this.` le then compared discrimination
based on sexual orientation to discrimination based on caste. I you
belong to the untouchable` category, you suer a disadantage in
eery aspect o lie. 1he eect o criminalisation ,o homosexuality,
is like treating you as a member o a scheduled caste`, he said.
Mr. Groer then cited rom the NCGLL decision to point out that
while the state is ounded on a deep political morality, this does not
mean that it can criminalise homosexual conduct.
1he Judges then mentioned Justice Scala`s dissent in the <"=54(D4 case
where he talks about presering morality. 1he judges asked Mr. Dian
i it was possible to link the petitioners` arguments to the constitutional
proisions in Article 1 and 23 that deal with untouchability.
Contesting JACK`s position that contests the links between lIV and
AIDS, Chie Justice Shah said, In Bombay someone iled a Public
Interest Litigation saying that all lIV preention eorts should be
stopped as this was a case where God was punishing
immorality.Leryone has their own iews`.
1he Additional Solicitor General P.P. Malhotra then asked or more
time to ile a response. 1he Judges said they would not gie the
goernment more time. Pointing out that the report in the lindustan
1imes ront page which said that the ligh Court would not delier a
judgment till the goernment made its stand clear was inaccurate, the
Judges said that goernment had to make its submissions on
September 25th.
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Chie Justice A.P. Shah and Justice S. Muralidhar heard arguments
rom the intereners in the case, Voices Against 3, a coalition o
human rights, child rights, women`s rights and LGB1 rights groups
that had interened in support o the petitioners Naz loundation.
Mr. Shyam Dian, the lawyer or the petitioners said that a wide group
o persons rom dierse backgrounds were supporting this petition.
Mr. Dian began his arguments by outlining the impact o
criminalisation on homosexuals. 1his proision subjects male and
emale homosexuals as well as transgenders to repressie, cruel and
disparaging treatment that destroys their sense o sel esteem, inlicts
grae physical and psychological harm on members o the LGB1
community, inhibits the personal growth o these persons and preents
them rom attaining ulilment in personal, proessional, economic
and other spheres o lie`, he said, Section 3 degrades such
indiiduals into sub-human, second-class citizens, ulnerable to
continuous exploitation and harassment`.
Mr. Dian said that he would demonstrate, through records o
incidents rom across the country, as well as personal aidaits, reports
and orders, that the continuance o section 3 on the statute book
operated to brutalise a ulnerable, minority segment o citizens or
no ault o theirs. A segment o society is criminalised and brutalised
to a point where indiiduals are orced to deny the core o their identity
and ital dimensions o their personality`, he said.
Reerring to Proessor Ryan Goodman`s study on the impact o
sodomy laws on LGB1 persons in South Arica, Mr. Dian emphasised
that condemnation expressed through law shapes an indiidual`s
identity and sel-esteem. 1hey produce regimes o sureillance that
sere to operate in a dispersed manner, and such laws sere to embed
illegality within the identity o homosexuals.`
le argued that section 3 was a direct iolation o the identity, dignity,
and reedom o the indiidual, and that it ostered widespread iolence,
including rape and torture o LGB1 persons, at the hands o the
police and society. Section 3 allows or the legal and extra-legal
harassment, blackmail, extortion and discrimination against LGB1
persons`. 1he harm inlicted by section 3 radiates out and aects
the ery identity o LGB1 persons. Sexuality is a central aspect o
human personality, and in a climate o ear created by section 3 it
becomes impossible to own and express one`s sexuality, thereby
silencing a core part o one`s identity. It directly aects the sense o
dignity, psychological well-being and sel-esteem o LGB1 persons`,
he said.
Mr. Dian cited the luman Rights \atch Report report titled
Lpidemic o Abuse: Police larassment o lIV,AIDS social workers
in India` which documented the harassment o lIV,AIDS workers
in India. 1his report documents the police raid o the oice o Bharosa
1rust in Lucknow in June 2001, when the police arrested our health
care workers and arrested them under section 3. 1hey were charged
with possessing obscene material that was nothing but educational
material. loweer, since 3 was a non-bailable oence, the health
care workers were jailed or 48 days.
Reerring to the Judges` obserations related to the Criminal 1ribes
Act in the last hearing, Mr. Dian said that during the colonial period
hijras were criminalized on the basis o their identity, and in 189, the
criminal 1ribes Act was amended to include eunuchs. \hile this act
has been repealed, the attachment o stigma continues`, he said.
Mr. Dian then narrated another incident ,which occurred in April
2006, which was that o two adult lesbian women in Delhi who were
in a relationship. 1he ather o one o the women X` iled a complaint
stating that she was abducted by her partner \`. \ was arrested and
brought beore the police. X wanted to ile a statement under section
164 o the Criminal Procedure Code saying that she had let her
parental home o her own ree will. loweer her application was
reused, and the Magistrate, in his order recorded that it appeared
prima acie that under the guise o the section there were hidden
allegations o an oence under section 3 as well. Mr. Dian pointed
out that to constitute an oence under section 3 there needs to be
penetration, and thereby the section could not be applied in this case.
loweer, since section 3 sered to criminalise all homosexuality,
and not merely certain sexual acts, it applied to lesbians as well.
Mr. Dian then reerred to an incident in Bangalore in 2004, which
inoled the rape o Kokila, a hijra who was a community mobiliser
or Sangama, an organisation that worked on the human rights o
sexual minorities in Bangalore. Kokila was raped by ten goondas,
and the police instead o helping her, tortured her in the police station.
Mr. Dian stressed that this incident happened because she was a
transgender person.
Justice Muralidhar asked Mr. Dian what recourse could be taken or
the oences committed against Kokila. Mr. Dian said that this would
be an instance where 3 could be used. le said that or non-
consensual acts and sex with minors, Section 3 should be retained
in the statute book.
Mr. Dian also reerred to the F"9"8"O-3>+ case that was decided by
Chie Justice Shah in which the petitioner`s sister, who was a hijra,
committed suicide ater being tortured and sexually assaulted by the
police.
le talked about was the arrest o our gay men in Lucknow in 2006,
or allegedly indulging in sex in a picnic spot. Reports by both luman
Rights \atch and the National Coalition or Sexual Rights that this
incident was actually a case o police entrapment, and that none o
the men arrested were haing sex in public.
linally, Mr. Dian reerred to the complaint iled by the Inspector o
Police, Bangalore on September 11, 2006, where he states that he
raided Cubbon Park and ound 12 Khojas` who with an intention
to engage in unprotected, unnatural sex, were standing in the shade
o trees and soliciting passers by. le said that by such unsae, immoral,
sexual acts, they may spread immoral diseases like AIDS, which may
cause seere harm to the general public and thereby are likely to aect
public health.` Mr. Dian said that the aidait o Madhumita, one
o the persons arrested in the case showed that the police ersion
was alse. Madhumita states that she was standing at a bus stand when
she was surrounded 5 constables, and arrested without giing any
reason. She said that she was targeted by the police because she chose
to dress as a woman, and that section 3 branded her as criminal
and made her ulnerable to harassment and persecution rom the
police.
Ater the narration o these incidents, Mr. Dian talked about the
recently ramed \ogyakarta Principles on sexual orientation and
gender identity to clariy what exactly was meant by these terms.
1he right to dignity, said Mr. Dian, would be iolated by section
3. Drawing rom the South Arican Constitutional Court decision
in the NCGLL case, Dian said, Gay men are at risk o arrest,
prosecution, and coniction simply because they seek to engage in
sexual conduct which is part o their experience o being human.
1he homosexuality oence builds insecurity and ulnerability in the
daily lie o gay men. Such a law degrades and dealues gay men in
the eyes o society. Such a proision inades and erodes the dignity
o homosexuals.`
Lmphasizing that the assault on dignity takes on arious orms, Mr.
Dian quoted Proessor Goodman to argue that sodomy laws reinorce
public abhorrence o lesbians and gays resulting in an erosion o
sel- esteem and sel-worth in arious ways. 1hese included sel-
relection, relection o sel through amily, erbal harassment and
dispute, residential zones and migrations, restricted public spaces,
restricted moement and gestures, and conlict with law enorcement
agencies. Virtually eery dimension o the lies o gay men hae
been aected`, said Mr. Dian.
lomosexuals suer tremendous psychological harm. lear o
discrimination leads to a concealment o true identity.in the case
o homosexuals it is the tainting o desire, it is the attribution o
perersity and shame to spontaneous bodily aection, it is the
prohibition o the expression o loe, it is the denial o ull moral
citizenship in society because you are what you are, that impinges on
the dignity and sel worth o a group`, he said.
Arguing that homosexuals hae the right to priacy, Mr. Dian quoted
rom Justice Kennedy`s decision in <"=54(D4 , B4G"-. Matters inoling
the most intimate and personal choices that a person may make are
central to the personal dignity and autonomy o the indiidual and
are protected rom unwarranted intrusion. At the heart o personal
liberty is the right to seek and deelop personal relationships o an
intimate character.`
Mr. Dian argued that the notion o autonomy extended beyond the
spatial dimension. It projects beyond the home or the closet, since
indiiduals to attain growth and ulilment cannot be conined to
such spaces`, he said.
Mr. Dian then outlined the global trends with respect to laws relating
to homosexuality including the \ogyakarta Principles, the decision
o the South Arican Constitutional Court, the lijian ligh Court,
the ligh Court o long Kong, the Luropean Court o luman Rights,
the Nepalese Supreme Court, and the UN luman Rights Committee.
le said that these judgements showed that moral disapproal could
not be adequate rationale to keep 3 on the statute book. Chie
Justice Shah then pointed out that the Indian Constitution proided
that public morality could be a ground or restricting undamental
rights. Mr. Dian responded with an impassioned argument. I it is
a law which impinges on the dignity o an indiidual, not in a nebulous
sense, but aecting the core o the identity o a person. Sexual
orientation and gender identity are part o the core o the identity o
LGB1 persons. \ou cannot take this away...` le said, Morality is
insuicient reason in a case like this where you are criminalizing a
category and aecting a person in all aspects o their lies, rom the
time the person wakes up to the time they sleep`. le said that NACO
igures estimated that there were 25 lakh MSM in India, which is a
minimum igure that we are talking about.
Mr. Dian said that i the court did not declare its relie limiting the
scope o section 3, it would cast a doubt on whether LGB1 persons
enjoyed ull moral citizenship` o this country. A moral argument
cannot snu out the right to lie and personal liberty ,o LGB1
persons,.` 1his is a law that aects what a person considers himsel
to be while acing the mirror`, he said.
Addressing the point on whether the morality argument could be
used to curtail the right to lie and liberty, Mr. Dian cited Justice
1homas, who een while dissenting in the <"=54(D4 D"-4 ,U.S.,,
characterised the 1exas legislation as an uncommonly silly law`.
Chie Justice Shah asked i one could argue that section 3 would
lead to disqualiications when it came to elections, employment, etc.
*)< GA L-,( F743" .#,,&-4
Mr. Dian cited the decision o the liji ligh Court where the lijian
Court, aced with a similar dilemma as the Delhi ligh Court, had
inalidated the releant section to the extent that it declared
inconsistent that part o the section that criminalised priate
consensual acts between adults. 1his is what we recommend that
the court does. 1he section should be interpreted in a manner in
which the constitutionality is presered, not struck down`, he said.
Arguing that the grounds o discrimination in Article 15 and 16 o
the Indian Constitution should be read to include discrimination based
on sexual orientation, Mr. Dian cited the B&&(4( case ,Australia, where
the term other status` in the International Coenant o Ciil and
Political Rights was interpreted by the U.N. luman Rights Committee
to include sexual orientation`. le relied on the Canadian Supreme
Court decision in N5+4() , ;8745*" and the Indian Supreme Court
decision in ;('J H"5A to argue that sexual orientation` should be read
into other status` or the term sex` that already exists in Article 15.
1he Canadian Supreme Court held that despite the term sexual
orientation` not being speciically mentioned in the Canadian Charter,
on the basis o historic social discrimination based on sexual
orientation, it was declared an analogous ground o discrimination.
In order to show that there was increasing realization in India o the
rights o LGB1 persons, Mr. Dian pointed out that the 1amil Nadu
goernment had initiated policy measures or the welare o araanis
,hijras,, and that the Llection Commission had proided a column
or persons o the third gender`.
Agreeing with Mr. Dian, Chie Justice Shah said, 1his is also
relected in the statements made by the lealth Minister and the Prime
Minister`.
Mr. Dian said that the estimated igure o the number o homosexuals
was around 5- percent o any gien population. le said that
homosexuality was no longer a disease and had been remoed rom
the list o disorders by the American Psychiatric Association. 1he
amicus brie in the <"=54(D4 D"-4 showed that the core basis o adult
sexual attraction arose in adolescence, which most people had no
choice oer.
Quoting rom the aidait iled by Gautam Bhan, Mr. Dian showed
that the legal repercussions o Section 3 hindered the lies o
homosexuals een though society and amily could be supportie o
the issue. In his aidait, Bhan states that he elt like a second-class
citizen in his own country because o 3.
Argued Mr. Dian, Section 3 operated to criminalise and stigmatise
people or being themseles. 1here is no justiication or such a law`.
Mr. Dian elaborated on the importance o the notion o identity.
\e were discussing the issue o caste. In parts o India, men identiy
themseles by their caste. \omen oten identiy by gender. lor some,
religious identity is paramount. \hen you are enumerating identity, a
heterosexual person may not consider sexual orientation as important,
but or a homosexual, sexual identity may be paramount. Sexual
orientation is oten the irst thing that goerns a person`s lie. As we
saw in Gautam Bhan`s aidait, he asks why, though he is equal to
persons in all other aspects, he still suers rom the stigma o section
3`.
Mr. Dian said that he wanted to underscore the need or appropriate
directions where persons o the LGB1 community are alleged to
hae committed oences other than Section 3. It is a widespread
experience that law enorcement oicials policing against obscene
acts in the public etc., proceed against LGB1 persons not as they
would in respect to heterosexuals but under Section 3 as well. 1his
amounts to a particularly inidious discrimination inasmuch as an
oence under Section 3 is non-bailable and is punishable with a
sentence up to lie imprisonment. In contrast, a heterosexual person
is generally booked under Section 294 o the IPC which carries a
relatiely lighter sentence o three months imprisonment and is a
bailable oence`, he said.
Said Mr. Dian, It is submitted that the constitutionality o a
proision must be judged keeping in iew the changed situation with
the passage o time. A law that is constitutional at a certain point o
time may with the passage o time be held to be unconstitutional.
,;('J H"5AU. In matters impacting human rights, a progressie
interpretation o the law is necessary TM. P. M43*" ,-. /(+&( &0 1()+"U.
In a distinct context the Supreme Court has obsered it is not
necessary and indeed not permissible to construe the Indian Penal
Code at the present day in accordance with the notions o criminal
jurisdiction preailing at the time when the code was enacted. 1he
notions.hae considerably changed then and now during nearly a
century that has elapsed. It is legitimate to construe the code with
reerence to the modern needs, wheneer this is permissible, unless
there is anything in the code or in any particular section to indicate
the contrary``.
le said that the interpretation with respect to Section 3 urged by
Voices Against 3 was in keeping with contemporary understanding
o sexual orientation and gender identity. It is consistent with Indian
constitutional alues, it is consistent with international human rights
standards, it is consistent with the deelopments in this ield o the
law worldwide as relected rom legislatie changes and decisions o
the superior courts in countries across the world`, he said.
1o blot, to taint, to stigmatise and to criminalise an indiidual or no
ault o his or hers, is maniestly unjust. 1o be condemned to lie
long criminality shreds the abric o our Constitution. lor the male
homosexual in particular and by its expanded application to lesbians
and transgenders as well, Section 3 has worked to silence the promise
o the Preamble and Part III o the Constitution. It is the case o the
Petitioner and those who support the petition that it is the liberating,
emancipatory spirit underlying the lundamental Rights inoked in
this case that must preail. 1he Constitution o India recognizes,
protects and celebrates diersity. LGB1 persons are entitled to ull
moral citizenship`, he said.
Mr. Dian then tendered a list o suggested operatie directions or
the Court to consider while passing orders.
*)< a S=iI>_I>_T O-+4&4' ,#,,&-4,
;))+*+&("8 L&8+D+*&5 H4(45"8 T;LHU M5. 6 6 M"83&*5" 74A+(- "5A'>4(*- 0&5
B34 /(+&( &0 1()+"
Mr. Malhotra began by reerring to the L"O-3+ F')A>4(* and said that
sexual oences constitute an altogether dierent crime that are the
result o a pererse mind`. 1he Judges ,Chie Justice A.P. Shah and
Justice S. Muralidhar, reminded Mr. Malhotra that the L"O-3+ case
dealt with the rape o a one-and-a-hal year old child.
Justice Muralidhar interrupted Mr. Malhotra, and asked him to make
the Central Goernment`s stand clear. 1he goernment`s stand is
the same as in its aidaits.` Justice Muralidhar said that when two
Ministries o the goernment were speaking in dierent oices, it is
possible that the goernment chooses not to ile a counter aidait.
\hat is the stand o the Central Goernment` Chie Justice Shah
asked once more. 1he stand o the goernment is that 3 is alid`,
replied Mr. Malhotra.
Are you saying that 3 is alid as a whole, een or consenting
adults`, asked Chie Justice Shah.
1hat makes no dierence`, replied Mr. Malhotra. It is not their
,the petitioners, case that this section won`t apply to iolent or non-
consensual acts. 1heir arguments are related to consenting adults in
priate. I there is a Supreme Court judgment to this eect, then it is
releant`, said Justice Muralidhar.
1he Supreme Court has said that it is a perersity o mind. Justice
Pasayat, while he was in the Orissa ligh Court ,M+3+5 , L*"*4 &0 25+--",
has said that consent or no consent, it did not matter,` replied Mr.
Malhotra. le then read rom the text o the judgment. 1he oence
is one under section 3 o the IPC, which implies sexual perersity.
No orce appears to hae been used.neither notions o a permissie
society nor the act that in some countries homosexuality has ceased
to be an oence, has inluenced our thinking`.
1his case deals with a young boy, where there is no consent`, pointed
out Chie Justice Shah.
1he question is whether this section makes it an oence irrespectie
o age`, said Mr. Malhotra.
1hen you are saying that this line throws out the entire question o
constitutional alidity,` asked Chie Justice Shah. I`m sorry. 1his
section applies to consenting adults, and there are a number o
arguments that this is in iolation o Article 21 etc.`, he said.
1his argument is being raised because there are many people o
that kind` in society,` said Mr. Malhotra, People are indulging in it,
and they should be excused because they are consenting adults` he
asked.
1here is no question o being excused`, Chie Justice Shah remarked
sharply. 1he argument is that Article 21 is being iolated`.
Mr. Malhotra then again reerred to M+3+5 , L*"*4 &0 25+--" ,Justice
Pasayat`s decision,. ..Unnatural carnal intercourse is abhorrent to
ciilised society. It is recognised as a crime and punishable with a
strict sentence. Unlike rape under section 36, consent o the ictim
is immaterial.` Age is also immaterial`, added Mr. Malhotra.
1he judge was construing the section ,3, as it is. 1his section is
now being challenged`, said Chie Justice Shah. I am only pointing
out that the courts hae taken the iew that this act is abhorrent to
society. 1he Pasayat judgment says that een i consent is gien, it is
immaterial`, repeated Mr. Malhotra.
\ou yoursel know that these are obserations o the court and are
not the ratio o the case`, said Justice Muralidhar. I conine mysel
to the obserations o the court. 1he iew o the court is that it is
abhorrent to society`, said Mr. Malhotra.
1his is a 1983 decision. Much water has lown since then`, remarked
Chie Justice Shah.
My lord, nothing has lown in India since then`, quipped Mr.
Malhotra.
Look at both your aidaits`, said Chie Justice Shah.
1he Ministry o lealth`s concern is about the health o the person.
1he lome Ministry`s concern is law and order. I am not saying that
the states should be made party, but law and order is a state subject`,
said Mr. Malhotra.
1his is about the right to lie with dignity`, remarked Chie Justice
Shah
1he dignity o society needs to be seen too`, replied Mr. Malhotra.
1hen argue that point. Don`t reduce this petition to one line. 1ake
this issue seriously`, said Chie Justice Shah. I ully agree that this is
a serious issue and requires serious consideration`, said Mr. Malhotra.
Mr. Malhotra then argued that the rule o strict construction had to
be applied to penal statutes. No person can license another to commit
a crime, i the act has a tendency to eect breach o peace`, said Mr.
Malhotra.
Chie Justice Shah said So your arguments are that 1, it ,unnatural
sex, may create breach o peace and 2, it aects public morals`.
I will show that this ,reading down 3, will increase the chances o
eil sought to be aoided. i.e., the eil o lIV,AIDS. 1here will be
more people o this nature in society`, said Mr. Malhotra. 1his will
lead to harm in society.`
Chie Justice Shah summed up Mr. Malhotra`s arguments again: 1, It
will degrade moral alues 2, It will cause a health hazard to society 3,
It will be a detriment to the health o subjects.
Mr. Malhotra then reerred to a lull Bench decision o the A.P. ligh
Court ,N+J"9" ,-. P3"+5>"( LPP<? AIR 2001 AP 502, 1hat was a
case o taking consent or mandatory testing`, said Chie Justice Shah.
1here is still no bar on males haing sexual intercourse with emales`,
he said.
1hat is because our moral alues require one man and one woman,
his wie`, said Mr. Malhotra.
I a man contracts lIV and goes to 5 men and 5 women, he will
spread it`, said Chie Justice Shah. \hat is material is or you to
show that the existence o section 3 will act as a deterrent to such
a man`, he said.
I there is no prosecution or consensual homosexual sex, why should
it be read down`, asked Mr. Malhotra.
Criminalisation carries with it stigma`, interjected Chie Justice Shah.
In the understanding o the Central Goernment, is there a category
o MSM. las this population grown in the last ew years Does NACO
hae this data`, asked Justice Muralidhar. lactually, is the goernment
o India aware o the MSM population in the country`
NACO has sureyed it`, replied Mr. Malhotra.
\ou are saying non-criminalisation o homosexuality could lead to
encouraging homosexuality and consequently increasing incidence o
lIV,AIDS. lor that, do you hae any data`, asked Chie Justice
Shah.
I will read rom the judgment`, said Mr. Malhotra.
\e are on acts`, pointed out Chie Justice Shah.
I a man is haing sex with one woman, it is conined there. It can`t
be transmitted to others`, said Malhotra. \e need to stop this ehicle
,homosexual sex,`, he said.
low does this lead to a breach o peace`, asked Chie Justice Shah.
1he police can`t be in the house o eerybody. 1he so-called
consenting adult may be bold etc., but isn`t this more painul 1here
is no data on this`, said Mr. Malhotra.
1here is data`, said Chie Justice Shah
1he data is on what is happening in America. \e are not concerned
with that`, said Mr. Malhotra.
Chie Justice Shah then pointed out that the goernment`s aidait
dealt with deletion o 3 while the petitioner`s prayer was only reading
down. I this permitted in the case o consenting adults, it is arbitrary
again. It is discriminatory. Giing this kind o permission will cause
great harm and prejudice to society`, said Mr. Malhotra. 1hey hae
not shown one case where there has been a prosecution under 3`,
he said.
Mostly they are not prosecuted`, remarked Chie Justice Shah.
3 is not iolatie o Article 14 or 15 o the Constitution. 3 is
primarily used to prosecute child sexual abuse, and is used to bridge
the lacunae in rape laws, and is not used to prosecute homosexuality`,
said Mr. Malhotra.
1his is also their argument. 1hey are also making the distinction
between acts without consent and child sexual abuse and consenting
adults`, pointed out Justice Muralidhar.
I the court gies this kind o interpretation that it is permissible, it
will create haoc in society`, said Mr. Malhotra. le talked about
reasonable restrictions in the constitution. Justice Muralidhar then
asked Mr. Malhotra about the NACO aidait which categorically
states that criminalising homosexuality will aect access to treatment.
1he numbers will increase. \ill multiply. \hen there is law there
will be ear, otherwise there will be no ear at all`, said Mr. Malhotra.
People are araid o reporting that they are lIV positie because o
the law`, said Justice Muralidhar.
\e hae opened many centres or this purpose`, replied Mr.
Malhotra.
1he lealth Ministry`s ,NACO, aidait is ery clear`, said Chie
Justice Shah.
Mr. Malhotra then relied on the 42nd and 156th Law Commission
Reports, to show that section 3 should be retained as Indian society
by and large disapproes o homosexuality. 1he Judges pointed out
that the 12nd Law Commission Report ,the latest on the subject,
recommends that the goernment enact a separate legislation to deal
with child sexual abuse and delete section 3.
One may be willing to commit any crime. One may call a person to
one`s house, beat him, or commit murder and say it was with consent
and in priate. An oence is an oence. Consent is immaterial`, said
Mr. Malhotra.
Mr. Malhotra argued that criminal law has to address public morality
and issues o harm to society. le said the legal concept o crime
depends on moral and political considerations, and that criminal law
relected shits and changes in morality. le said that since the Indian
Penal Code had been enacted, crimes like child marriage, dowry and
widow remarriage had been brought under the scope o criminal law.
Justice Muralidhar pointed out that widow remarriage was not a crime.
le berated the goernment or submitting the aidait with this line.
I we don`t react strongly, eerything will be tolerated. 1he whole
paragraph is about morality. It just shows how serious the gentleman
,rom the goernment, is in answering a notice rom the ligh Court
on such a serious issue`, he remarked.
Justice Muralidhar asked i the goernment`s aidait actually said
that incidence o lIV,AIDS would increase i 3 is read down, or
i it was only in the goernment`s oral submissions. 1he aidait o
the Central goernment has not said that there will be a greater risk in
spreading lIV,AIDS`, said Justice Muralidhar.
1he court can`t be obliious to natural phenomena and natural acts`,
said Mr. Malhotra.
Chie Justice Shah, reerring to the NACO aidait, said that the
goernment`s own aidait said that people liing with lIV,AIDS
would be pushed underground. Mr. Malhotra pointed to a dierent
paragraph in the aidait that reerred to the need or a change in
liestyle, aoiding multiple sexual partners to reduce risk o lIV,
AIDS.
Chie Justice Shah said, Do you stand by para 5 ,which stated that
people liing with lIV,AIDS would be pushed underground because
o 3, o the aidait`
It is a goernment aidait. I can`t say I don`t stand by it`, replied
Mr. Malhotra. le said that the aidait says there is a need to preent
AIDS, encourage education programmes and motiate saer sex, i.e.
sex with one partner.
Partner could mean male or emale`, said Chie Justice Shah.
Male to male ,sex, is neither known to nature, nor known to law`,
said Mr. Malhotra. le pointed out that the incidence o lIV,AIDS
is 8 per cent in the MSM population as compared to less than 1 per
cent among heterosexuals. \hat the petitioner is saying is, permit
this 8 per cent to grow`, he said.
1he NACO aidait says 3 has an aderse impact on sae sex
programmes`, pointed out Chie Justice Shah. Please read the whole
aidait`, he said. 1here is no aerment that deletion o 3 would
spread lIV,AIDS.`
1he National Sentinel Surey data shows that 6 per cent o the
MSM population are already coered by the goernment`s
programmes. 1hat leaes 2 per cent. 1hey can also be coered through
education etc. 1hat would be the proper direction, rather than to say
this should be permitted.` Mr. Malhotra then read out the contents
o section 3. le then explained what against the order o nature`
meant, ...or intercourse, nature has speciied a place. 1hat place is
scientiically designed by nature. I it is done at that place, probably
there is no injury, or i there is an injury, it is o minor nature`. le
said that the emphasis was on the act. ..1his should be done at a
place, at a point designed by nature or that purpose, and i you do it
otherwise, it is treated as an oence`, he said.
Mr. Malhotra then reerred to an Andhra Pradesh ligh Court
judgment deliered by Justice Sinha. \hen asked by Chie Justice
Shah on the releance o this decision, Mr. Malhotra said, AIDS
spreads through homosexuals. 1his is a recognised act`. Justice
Muralidhar said, 1here are seeral major routes o inection`. Does
it ,the AP judgment, say Section 3 should be retained` asked Chie
Justice Shah. Portions o the judgment say how AIDS is spreading`,
said Mr. Malhotra. le said that the irst case lIV was reported in
1986 in India and extra-marital sex was the primary mode through
which is spread.
1his could be man to man or man to woman`, said Chie Justice
Shah. Normal sex is rom man to woman and not man-to-man said
Mr. Malhotra.
1he Petitioners case is backed by substantial material`, said Chie
Justice Shah.
Mr. Malhotra said, 1hey are arguing - it is a stigma on me, I can`t go
anywhere. low would a man get this inection I am condemning
the man. But there is no need to be sensitie to this. 1hey can go to
the doctor. 1he law cannot be read down or declared inalid because
they are sensitie. 1here is no doubt about the plight o these people,
but to say that the law should be declared inalid is not enough. 1he
eect o the law has to be direct and tangible and mere sensitiity is
not enough`.
*)< a S=?I>_I>_T @D(#+4--4 .#,,&-4
B34 H&,45(>4(* &0 1()+" 54-'>4- +*- "5A'>4(*-.
Mr. Malhotra then went on to reiterate his point that when there is an
apparent conlict` between the right to priacy o the person and the
interest o general public and society that this disease is not spread.
lomosexuality is one o the causes, which aects this disease. I this
is allowed what will happen 1here will be more sex and the disease
will be spreading. le noted that he had no objection to condoms
being supplied as that was a precaution, but it must not be made
legal. 1he law is clear and need not be read down.
\hen Mr. Malhotra was asked by the Judges as to whether the right
to health was a part o the right to lie under Article 21 he stated that
yes, but not only the right to health o those aected but also society.
linally Mr. Malhotra conceded that the right to health was included
under Article 21. loweer he continued to stress that the right to
health also included the right to health o others as well.
Chie Justice Shah posed the hypothetical question as to whether a
law which discriminated against lIV positie people by denying them
employment and isolating them would be alid. Mr. Malhotra`s
response was that no law is abstract and this right cannot be absolute.
One has to see i other person`s rights are aected. le went on to
note that the Supreme Court had said that it was a moral perersity.
1omorrow you will say that you hae a right and exercise it in the
road. \e hae to see limits, see other men`s rights as well and balance
rights.
Chie Justice Shah noted that Mr. Malhotra was relying on these
judgements to show that AIDS was transmitted through homosexual
sex. loweer on aidait you are silent on whether non-
criminalisation would lead to spread o lIV,AIDS. 1here is not a
word on this. In act the NACO aidait says the exact opposite.
\here do you get this point that de-criminalisation would result in
the spread o lIV,AIDS. Show us some study, research on this point,
surely we can`t rely on your word alone. In act the consensus around
the world is that criminalisation will drie lIV underground..1he
judgement you rely on ,N+J"9" ,. P3"+5>"( LPP< AIR 2001 AP 502,,
upholds the alidity o mandatory testing in the case o lIV,AIDS,
but the Union o India has in spite o the judgement not made testing
mandatory.\ou hae to place some material to show that
criminalisation will stop lIV. In act what lows rom your argument
is that we should not hae lIV at all because we hae Section 3."
Mr. Malhotra was repeatedly asked by Chie Justice Shah as to what
was the sum and substance o his Article 21 arguments, whether he
would make an argument on public morality as a justiication or
limiting Article 21 rights and also whether he would address the
question o dignity. Justice Muralidhar made the point that the other
party had made a ery strong oral submission as well as written
submission that Section 3 iolated the right to lie with dignity and
Mr. Malhotra had not addressed that limb o the Article 21 question.
Dignity ormed a part o the Preamble as well as Uniersal Declaration
o luman Rights. Mr. Malhotra was also asked to address the Court
on the question o whether sex in Article 15 and Article 16 included
sexual orientation.
Mr. Malhotra while assuring the Court that he would address the Court
on those points went on to make submissions on the interpretation
o Section 3. le said the question under this proision was not
whether intercourse was with consent or not but was whether it was
against the order o nature. le said that nature had deised scientiic
methods. \ou breathe through your nose, eat through your mouth.
Similarly order o nature would mean that intercourse should be in
the place speciied by nature in all human relationships een among
animals. 1he phrase order o nature` means that i a man wants to
hae intercourse with a woman, the place is speciied.` Chie Justice
Shah asked Mr. Malhotra to please address the Court on the
Constitutionality o Section 3 and to leae aside the question o
interpretation o the meaning o Section 3 as that question was
not beore the Court.
*)< D&X# S=?I>?I>_T
,Mr. Malhotra continues his arguments on behal o the Union o
India,.
*)< .&6 SG>I>?I>_T
,Mr. Malhotra continues his arguments on behal o the Union o
India,.
*)< .#X#4 ScIc>I>?T
,Mr. Malhotra continued his arguments on behal o the Union o
India,.
\hen questioned about the contention that Section 3 iolated the
right to lie with dignity, Mr. Malhotra maintained that he conceded
that eeryone had the right to lie with dignity, only dignity does not
mean that you permit all this...`
Mr. Malhotra then read rom the petition to make the point that Naz
loundation concedes that MSM and gay men are susceptible to lIV.
Chie Justice Shah said that there was no question o concession as
the point was not in dispute as all.
Mr. Malhotra then went on to read rom the written submissions o
the petitioner to make the ollowing counter assertions, that the
petitioner uses the term sexual minorities and that there is no such
thing as sexual minorities in the Constitution.
Chie Justice Shah noted that the petitioners were not praying or
inclusion as minority in a Constitutional sense but using the term to
indicate a small number o people.
Chie Justice Shah asked Mr. Malhotra to respond to the contention
that the word sex included sexual orientation. Mr. Malhotra responded
by saying that the term sexual orientation` is taken rom South Arican
law. 1he South Arican Constitution guarantees sexual orientation.
I one is used to that kind o sex, that will be presered i a man is
indulging in that kind o actiity... no such thing in India.` Chie
Justice Shah made the point that the word sex included sexual
orientation came rom the B&&(4( decision and was it the contention
o Mr. Malhotra that international law treaties which India has ratiied
could not be used to interpret Constitutional guarantees
Justice Muralidhar asked Mr. Malhotra what was his response to three
issues raised: health, priacy and dignity On priacy Mr. Malhotra
noted that he had read the same judgements as the petitioners, I3"5"O
L+(A3? H&,+() and K"JA&C"8. le did not agree with the oreign decisions
reerred to by the petitioner on priacy. Chie Justice Shah pointed
out that H5+-=&8)? K&4 and others were not anti-sodomy law decisions
but rather decisions on the scope o the right to priacy and were all
reerred to by the Supreme Court in H&,+() and subsequent decisions.
Mr. Malhotra noted that nobody intereres with priate aairs in
anybody`s house. One can do anything one wants in the priacy o
one`s home.
Justice Muralidhar then made the point that in that case the ASG had
to show compelling state interest in prosecuting consensual sexual
actiity in priate.
Mr. Malhotra noted that the law was there since 1860 and it was up to
parliament to change the law. Law isualizes all sections o society
not just a small section o society. Law should cater to the needs o
entire society. 1he will o the parliament is clear, debates can go on in
society. 1hough other proisions o the Indian Penal Code and Cr.P.C
hae been amended, this section has not been changed. It cannot be
said that the right to priacy will extend to such an extent and such
absurd leels. le said that law cannot be made inalid because o
hardship to a section o society. One can howeer remedy the hardship.
1he \olenden Committee was applicable in a dierent context and
we need not look at that. \ith reerence to B&&(4(V- case, the standards
o thought, morality in those countries are dierent, theirs is a
permissie society and our society has not adopted those standards.
1here is no such thing as consent in Section 3, the concept o
Section 3 is a kind o a orce, which is not natural, and consent has
no meaning in this context. Section 3 according to Mr. Malhotra
deals with a kind o situation where so called intercourse is against
the order o nature, harm or no harm. It is necessary to protect the
human race itsel. \e need Section 3 because man to man sex is
against the order o nature. Scientiically eerything God has made,
eat rom the mouth, etc., is disturbed i this is allowed.
Does the right to dignity imply this kind o right` 1he question
according to Mr. Malhotra was whether it was against dignity to punish
what was against the order o nature. 1here is howeer no controersy
about dignity. \ho is saying that they should be unairly treated
Nobody is saying that. 1hey should be treated airly. 1he point is
made that they are marginalized, ignored, who is doing that 1hey are
entitled to treatment. Nobody is saying treat like a second-class citizen,
i a man is suering rom something, he needs treatment.`
Mr. Malhotra noted that the Goernment o India was committed to
addressing the needs o those at great risk. 1hey say that Section 3
preents the collection o data. loweer we need to educate people,
this not good or you and or the other person.
Chie Justice Shah made the point that i we educate people that
going to prostitutes is wrong then will people stop going to prostitutes
Obiously the NACO aidait was on the point that education by
itsel was not enough.
Mr. Malhotra said, In our culture and tradition men hae sex only
with their women`. Mr. Malhotra went on to say, it is wrong to say
that access to health care is impeded as i a man goes to a doctor and
asks or treatment he will be proided. \here is the ear It is incorrect
to say that the statute is arbitrary because one can`t get treatment.
Chie Justice Shah said that on the ground, i a person had a sexually
transmitted disease and was a MSM, he would be earul o going to
the doctor knowing that the sexual act he had done was punishable
een up to lie. le knows that the behaiour is criminalised and knows
that he is liable to punishment. It remains a stigma as he cannot tell
the doctor that what he indulged in was an oence. Can you brush
aside NACO`s aidait by saying that person is eeling shy about
going to the doctor Chie Justice Shah went on to note that MSM
are subject to arious indignities which might hinder actual treatment.
1he only question Mr. Malhotra had to answer is i there was no
prosecution or sex in priate ,hardly any, why then should the
proision remain \hat is the compelling public interest sered by a
law that is rarely used In the aidait read out by Mr. Dian, there is
a situation which all o us know o -making un, ridiculing, heaping
indignities only because o the nature o sex. \hen you are not serious
about prosecution, why should this proision remain on the statute
book
Justice Muralidhar asked Mr. Malhotra to think about this point, that
i the Union o India iewed this as being against the order o nature
how it would impact on the notion o an inclusie society \e hae
an obligation to educate our people on how to exist with people who
are not like you \ou need to ask the question on how to help
communities to coexist. \hat impact will this hae on the argument
o compelling state interest`
Chie Justice Shah went on to note, that the stand o the goernment
in most o the cases where the law was challenged , W')A4&(? M&)+(&-?
long Kong, South Arica it was conceded by the Goernment that
the law was rarely used. It was only used or harassment. I the
Goernment was not serious about enorcement, why should it be
there
Chie Justice Shah then summarized the arguments o Mr. Malhotra
as:
1, 1he remoal o the law would lead to the spread o lIV,AIDS.
loweer there was no study submitted by Mr. Malhotra on this
point.
2, It would lead to a loss o morality as our culture is dierent.
1here is howeer dierent thinking within the Goernment on
this ery important issue. In eect your stand would tell an entire
section o the population that they are law breakers and send a
message to society. In the M&)+(&- case or example it was held
that een in an orthodox Christian country like Cyprus, the
majority iew and public morals alone were insuicient or
continued criminalisation.
Justice Muralidhar then made the point that a public interest litigation
was not to be iewed as an adersarial litigation, it is not dispute
resolution but problem soling. Certain elements o the case beore
us should be iewed in a constructie manner.
Chie Justice Shah then went on to say that since Mr. Groer was
present it would be right to mention the case in the Bombay ligh
Court which related to the termination o employment o a person
who was lIV positie and how in that case all parties agreed to
cooperate to ind a solution and did not see it as a adersarial litigation.
Chie Justice Shah then reerred to the NACO aidait and said that
there were real diiculties aced by an organ o goernment.
Justice Muralidhar then made the point that the Goernment itsel
was not able to interene but rather depended upon NGO`s or lIV
interentions.
Justice Shah also noted that the State o 1amil Nadu`s notiication on
araanis was telling in terms o thinking which recognised their rights.
1he Court rose and the next date o hearing was ixed or post the
acation on Oct 15. Chie Justice Shah asked Mr. Malhotra how much
Decriminalising Sexual Orientation and Gender Identity in India
more time he needed and then ixed a hal day session on October 15
a ull day on Oct 16 ,aternoon was ixed or intereners, and a hal
day on October 1.
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Mr. Malhotra submitted some additional material to the Court. le
continued his submissions by making the point that lIV transmission
was through sexual contact and as per the study o sexual behaiour
in the U.S., oer 89 o the transmission was due to homosexual
behaiour.
Chie Justice Shah asked a question about the alidity o the article
relied upon by Mr. Malhotra and made the point that the author o
the piece was a Minster in the Catholic Church. Justice Muralidhar
noted that on page six o the article submitted by Mr. Malhotra the
entire discussion was based on the Bible. Chie Justice Shah went on
to read rom the article that AIDS was a judgment o God` and
noted the article seemed to be complete propaganda. Mr. Malhotra
retorted by saying how come anything on the other side is accepted and
anything on this side is seen as propaganda.
Chie Justice Shah noted that Mr. Malhotra should reer to the NACO
aidait on the point.
Mr. Malhotra went on to read rom the article titled, 1he health risks
o gay sex` by Dr John Diggs to say, that there were ie distinctions
between gay and heterosexual relationships. 1hose dierences include:
A. Leels o promiscuity
B. Physical health
C. Mental health
D. Liespan
L. Deinition o monogamy
Mr. Malhotra went on to read rom the article to make the points
that there was a high leel o promiscuity among gay men with 5
o male homosexuals haing more than 100 partners. 1his according
to Mr. Malhotra would mean that lIV would spread like wildire.
1he medical consequence would be the spread o lIV, syphilis etc.
le also noted that lesbians are 3-4 times more likely to hae risky
sex. 1here was a high incidence o psychological abuse among gay
and lesbian people. 1here was also a high rate o intraenous drug
use among lesbian, gay and bisexual people. Long term sexual idelity
is rare in gay relationships.
Chie Justice Shah responded by asking who was Dr. John Diggs, the
author o the article le made the point that he was a practicing
internist and not a doctor. le noted that the Court was interested in
scientiic opinions not the opinions o religious bodies. le noted
that a iew o a religious body which iewed them as sinners could
not be taken notice o by the Court.
Mr. Malhotra responded by saying that Dr. John Diggs has produced
statistics on the serious health consequences o engaging in
homosexual sodomy. lomosexual sodomy is an eicient transmitter
o S1D,lIV and anal intercourse is a serious health hazard.
Chie Justice Shah replied by asking who were the traditional alues
coalition on whose website, the John Diggs article was hosted. le
said, what are his credentials and how do we accept it On one hand
we hae NACO and on the other we hae Dr. Diggs rom America`
Mr. Malhotra said that the only reason he cited the study was to show
that homosexuality caused a ery serious health problem. le went
on to read rom the study to say that, the sexual actiity enjoyed by
homosexuals results in bacterial inections, and een cancer. 1here
are actiities like golden showers, and insertion o objects into the
rectum which cause oral and anal cancer. A study o homosexual
practices shows 3 enjoyed sodomitical actiities and 23 enjoyed
water sports.
Chie Justice Shah asked whether eerything on the internet was to
be taken as gospel. le noted that they were not taking it and that
they were going by the Goernment`s own aidait.
Mr. Malhotra said that AIDS is causing haoc in society. Chie Justice
Shah noted that the NACO Report had to be countered by scientiic
material by bodies such as the \lO and not religious bodies. le
asked Mr. Malhotra to get material on what the position o bodies
such as the \lO was
Mr. Malhotra went on to cite another study which also noted the high
leels o promiscuity and unhealthy behaiour among the homosexual
community. le noted that 29 o homosexuals had 300 partners in
a lietime and 8 had oer 300 partners. In New \ork and San
lrancisco where gays were concentrated one report suggests that they
had een 1000 partners.
Chie Justice Shah interjected to say that going by Mr. Malhotra`s
argument should we then put 20 lakh homosexuals behind bars le
went on to quote rom the study by saying that homosexuality is
death` is really a one-sided iew o religious bodies.
Mr. Malhotra noted that the igures were based on research by a
research scholar.
Chie Justice Shah said that there were doctors among religious bodies
as well and anyway what does the \lO say le noted that the key
issue was how ar can the goernment interene in the priacy o a
person and whether the state`s interention was correct
Mr. Malhotra made another submission about the spread o lIV
through homosexual sex to which Chie Justice Shah noted that he
recently addressed a gathering o 600 widows whose husbands had
died o lIV. So it was not only gay partners who suered rom lIV,
AIDS.
Justice Muralidhar asked Mr. Malhotra to show some statistics releant
to India. le went on to ask i Mr. Malhotra could produce any study
to show that this actiity increases risk to such an extent that it needs
to be criminalised. 1here are two arguments which you hae put
orward. One is on public morality and the other is on public health
and saety. All literature including the NACO aidait points to the
contrary o what you are suggesting in terms o the second argument.
NACO is telling us that continued criminalisation will result in denial
o the right to health o this group.`
Mr. Malhotra replied by saying that they are entitled to all health
beneits.
Justice Muralidhar responded by saying that they are not entitled but
hae a right to health and continued criminalisation preents their
exercising this right. 1his is the argument o the other side, whether
Section 3 preents a person rom exercising his right
Mr. Malhotra asked i in the garb o this right one can deny the right
to health o the rest o society
On being asked to produce statistics rom India Mr. Malhotra noted
that the other side went to the U.S. and other places but he was being
asked to keep to India. Justice Muralidhar noted that or acts and
statistics we must irst and oremost, go to expert bodies in India.
But law and judgments could go to other jurisdictions. Chie Justice
Shah asked Mr. Malhotra to show some scientiic material that retaining
criminalisation would work as a deterrent.
Mr. Malhotra noted that, this kind o actiity, by a man and a woman
it spreads. In normal sex, man is required by law to hae sex with one
person. Now i they are haing sex with 100s o persons, 200, 500
een more, it`s more likely to transmit disease`. Counsel or Naz
loundation interened by citing a UNAIDS policy brie on lIV and
Sex between men, which noted that the criminalisation and
stigmatisation o MSM impeded lIV preention work. Chie Justice
Shah noted that you want to disown the NACO aidait and say
that criminalisation is a must. \e are trying to say that it`s not only
NACO but UNAIDS as well which is a U.N. body which is arguing
or respecting rights o MSM.`
Justice Muralidhar said that another argument Mr. Malhotra could
make would be to show that decriminalisation had led to the spread
o lIV,AIDS. Chie Justice Shah noted that in both the W')A4&(
and the M&)+(&- case the same arguments were adanced. 1he Court
did not see any merit in them. Len within the U.N. the consensus
seems to be that discrimination and stigmatisation has not helped.
Mr. Malhotra took the judges to a compilation which showed in which
countries homosexuality was decriminalised and in which countries it
continued to be an oence. Chie Justice Shah noted that the point
one could get rom the compilation was that all democratic countries
are in aour o decriminalisation. Mr. Malhotra then cited rom an
article titled, \hy gay marriage is not only wrong but socially
destructie`, to make the point that ater gay marriage was made legal
in the Netherlands, lIV, S1D rates were soaring. Chie Justice Shah
noted that marriage was a ery dierent issue which was not being
discussed here.
1hen Mr. Malhotra read an article titled homosexuality and religion
with its source being the wikipedia. At which point consul or the
petitioners submitted that wikipedia was an unreliable source as
anybody could modiy the article.
Mr. Malhotra then went on to read and respond to the written
arguments o the petitioners. le noted that with respect to Article
14, Section 3 did not iolate the proision as the law applied to all
persons equally. It did not single out certain persons. It applied equally
to all classes o persons - whether emale or male, with this kind o
unnatural thing being prohibited by law. It does not or example
state that the proision applies only to women, men aboe 50 etc. It
applies to eery citizen uniormly.
Chie Justice Shah noted that the argument o the petitioners was
the oer inclusiity o the proision.
1he Court then rose with the next hearing ixed or the next
day, 16.10.08.
*)< 1&4# SciIc>I>_T
,Mr. Malhotra continued his submissions on behal o the Union o
India,.
*)< !#4 S=>Ic>I>?T
M5. M"83&*5" D&(*+('4) 3+- -'7>+--+&(-.
Chie Justice Shah summarised Mr. Malhotra`s submissions as coering
the grounds that there was no right o priacy in the Indian
Constitution and i there was a right to priacy it can be curtailed on
the grounds o a larger morality or the rights o society. Article 14 is
applicable to all and does not target a particular class. In Article 15
the word sex does not include sexual orientation. I the bar on
consensual sex between same sex adults is lited, een i the proision
is not used, it is a moral code. It creates ear in the minds o people
which will go i remoed. I the proision goes then this conduct
will spread and this will lead to more spread o diseases. Right to
health as a part o Article 21 should also consider the health o society.
P&'(-48 0&5 @.6. L+(A3"8? K4-C&()4(* !&. g? M5. Y.6. L3"5>" *34( 74A"( 3+-
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Mr. Sharma began by saying that the word carnal reerred to lesh
and what it meant when used in the Indian Penal Code was leshy
intercourse be it oral or anal or whateer.
Justice Muralidhar then asked counsel who he was representing
Mr Sharma said that he was representing B.P. Singhal.
Justice Muralidhar then asked who B.P. Singhal was.
Mr Sharma replied that he was a social worker and he was representing
the matter so that the majority iew could be there.
Mr. Sharma continued his submissions by stating that against nature
meant that it was unnatural, immoral and irrational. \hen it is a social
eil then there is no question o consent. le then reerred to an
article by Dr. Diggs on how sex between men was linked to lIV.
Chie Justice Shah responded by saying that place anything beore us
but not Dr Diggs.
Mr. Sharma submitted that Dr. Diggs was a part o a religious network
called the 1raditional Values loundation.
Mr. Sharma sought to rely upon another Dr. Lepak. Chie Justice
Shah asked the question o whether this was research and that counsel
could rely upon a goernment source, U.N. body, but not rely upon
these materials.
Mr. Sharma then proceeded to read the NACO aidait to make the
point that only 36 o MSM used condoms and that 64 did not
use condoms. lurther they did it at public places, had multiple partners
and were not aithul.
Chie Justice Shah asked counsel to address arguments on
constitutional grounds like Articles 14, 19 or 21.
Mr. Sharma continued his submissions to note that on a reading o
the NACO aidait, lIV is one part and homosexuality is another
part. I lomosexuality was allowed, there was a chance o epidemic
o lIV. I 64 do not use condoms and surrender to the disease
then they can`t come to court and say legalise it.
le went on to submit that he would like to support the aidait o
the Ministry o lome Aairs. I man is married and wie is sitting at
home, then what will happen to her I you allow this on grounds o
two consenting adults then, brother-sister marriage should be allowed.
Gambling, adultery should be allowed.
Chie Justice Shah interjected to say that you are missing the point,
it is not about the lawulness o marriage`.
Mr. Sharma submitted that he was on morality, the joint amily
structure and that we must not import eils rom the west. \e hae
traditional alues and we must go by that. It would aect the institution
o marriage and i women get doubt about what their husbands are
doing, there will be a lood o cases o diorce.
le went on to note that what would happen to the country in 2100 i
there was this indulging in homosexuality as the sex ratio would change.
Chie Justice Shah asked according to your lindu orthodox opinion
what was the reason or the sex ratio being skewed in aour o men.
Mr. Sharma submitted that emale oeticide it was a social eil. One
should worship girls. No sensible person can kill a child. Abortion
should not be allowed. 1he social eil is that a girl is an unwanted
child. le urther added that it was poerty, which resulted in this
social eil.
Chie Justice Shah pointed out that een in well o amilies there are
studies, which show that there is 100 termination o oetuses when
parents come to know that it is a girl child.
Chie Justice Shah asked Mr. Sharma to restrict his arguments to law
and asked him to rerain rom political arguments.
1he Court rose and the matter was posted or the 6th and th
Noember, 2008.
*)< Z5#X#4 SiIccI>_T O-+4&4' .#,,&-4
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Mr. Sharma addressed the Lucknow arrests in 2001 in great detail
and made the point that when the arrests happened it led to the
recoery o magazines containing nude pictures o men and women,
sae guide to gay sex, ideo containing sexually explicit scenes haing
a nude male on the coer, artiicial penis, and two pamphlets which
when translated rom lindi read, It does not make a dierence how
you do sex, or who you do it with, it does not make a dierence i it
is sae wrong , or right, natural or natural , moral or immoral. \hy
do you argue so much, we only hae one slogan, destroy AIDS`.
le cited this to make the point that I don`t know what organisations
are doing, the credibility is doubtul and whether these organisations
hae come to court with clean hands is doubtul`. le said that the
pamphlet indicated that 1he Centre was being used to train people
in homosexuality by abandoning all morals and saety precautions`.
le urther submitted that i one wants to do sex one should do it in
a ciilised manner and not hae sex as in the Stone Age`.
Chie Justice Shah inquired i NACO programmes were like this
Mr. Sharma went on to say that NACO aidait says that oer 60
do not use condoms and such persons do not desere sympathy or
mercy`.
Mr. Sharma then reerred to K. ,. @5&=( to make the point that
homosexuals enjoy group sex and een enjoy committing iolence.
1his is sexual perersity and when they were consenting adults,
criminal acts warranting prosecution were committed in the course
o such perersity`. le said that it was disconcerting to see tendency
o homosexuals to indulge in group sex`.
Chie Justice Shah noted that when the K.,. @5&=( judgment was
deliered, sodomy was not a crime in the U.K. So een i Section 3
is read down and homosexual acts between consenting adults does
not amount to an oence under Section 3, it would still be an
oence i grieous hurt is inlicted on the passie partner een i
partner has consented to it`.
Chie Justice Shah wanted to know about the releance o the
judgment.
Mr. Sharma responded that anus is not designed by nature or any
intercourse and i the penis enters the rectum, ictim is ound to get
injury`. 1he actiity itsel causes bodily harm.
Chie Justice Shah asked whether the submission that this act itsel
causes injury, because it is unnatural or is likely to cause injury had
been argued beore. \hether in any culture, western, oriental, in
seeral countries where ban is lited, in \lO Reports, has
anyone argued that act itsel causes injury Can you orce @5&=( to
the logical conclusion that sex between two males itsel is a cause o
injury 1his submission has neer been raised beore any Court till
now \hy is that
Mr. Sharma continued to read rom @5&=( to make the point that
drink and drugs are employed to obtain consent and increase
enthusiasm, there is genital torture on anus, testis, blood letting.
Burning o penis...`
Mr. Anand Groer interened to say that @5&=( was to do with iolence
and dealt with a act situation not contemplated by \olenden and
that this was recognized by the judgment itsel.
Chie Justice Shah reerred to communities in India who inlict
iolence on themseles so that they are closer to God.
Mr. Sharma interjected to say that it was not releant and i
Muslims cause injury to themseles during Muharam it should not be
allowed as well.
Mr. Sharma continued to read rom @5&=( to again emphasize that
homosexuals indulge in group sex. Chie Justice Shah interjected to
ask i it was based on personal knowledge that Mr. Sharma knows
that homosexuals enjoy group sex`
Mr. Sharma then obsered that since it was a pererted kind o
sex.in the name o thrill, enjoyment and un the young shall walk
into the trap o homosexual addiction. 1he tragic aspect o this is
that alcohol, drug and disease are the natural concomitants o
homosexual actiity`.
le urther noted that there was a stigma around homosexuality not
because o the law, but because it was immoral and against the order
o nature. le asserted that petitioners had produced no eidence
that homosexuality in India is not considered a social eil. le noted
that the law had a deterrent eect without which there would be
male brothels and group sex`.
le went on to submit that, it was stigma not ear o the law, which
dries MSM to lead a secluded existence. lad section 3 been really
so ear inspiring, we would not hae been seeing people participating
in gay demonstrations, proclaiming openly that they are homosexuals,
or brazenly canassing or MSM`.
Mr. Sharma then submitted that the court should not interene in a
policy matter and that it had no power to rewrite, recast or redesign
the section.
Mr. Sharma then reerred to his written compilation to make the point
that the physiology o eery organ has a special purpose and that
the anus was only or excretion, and no other purpose. 1he ejaculatory
ducts were meant or the carrying o semen and that there were no
such muscles in the anus. In the science o sexual physiology and
anatomy, it is completely logical that intercourse is heterosexual and
any other way o releasing semen is unnatural`.
Mr. Sharma then obsered that, i the consenting adults doctrine was
allowed then one would hae to allow gambling, adultery, selling and
buying kidneys, prostitution, smoking, incest marriage. lurther all
Indian laws with respect to marriage would hae to be amended.
le then submitted that i this was allowed it would shatter eery
member o the amily and all relations. It would be deastating to
wie and children. 1he Indian amily system is about loe and
dedication to our parents and grand parents`.
Chie Justice Shah interjected to say that he wished Indian amilies
were like this and we could see this in our lie.
Mr. Sharma submitted that no wie wants to share her husband. I a
son is homosexual, you can`t prohibit a ather rom beating him,
disqualiy him rom inheriting property and domestic iolence between
man and man will increase. \ou can`t co-exist within the amily because
o ideological dierences and this will aect the amily system and
aect public morals`. le urther submitted that, there would be
nobody to protect homosexuals when they grew old. 1hey will say
the want to adopt a child born out o heterosexuality. I this is
permitted then they will lie a miserable lie, when they are old they
will hae no relationship een i they hae multiple partners now.
1he remoal o the section is not in their interest`.
le also submitted that with respect to sex being drien underground
and the need to negotiate saer sex, it was still being done in public
places and it was wrong to say that homosexual sex was drien
underground. 1here was no bar on buying a condom as nobody asked
you i you were heterosexual or homosexual.
L'7>+--+&(- 79 M5. K",+ L3"(O"5 I'>"5 &( 743"80 &0 F&+(* ;D*+&( P&'(D+8
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Mr. Kumar submitted that there was no scientiic eidence that lIV
causes AIDS, that a change in this proision would mean that all
marriage laws would hae to be changed, and that under Sections
269 and 2 o the Indian Penal Code anyway, any intentional
spreading o an inectious disease would be an oence.
Chie Justice Shah noted that Sections 269 and 2 applied to both
homosexuals and heterosexuals and it was wrong to say that the mere
commission o sexual acts without knowledge would be prosecutable
under the proisions. lurther not all homosexuals had AIDS. It was
also wrong to assert that marriage laws would hae to change as the
ground o diorce which was sex outside marriage applied to both
homosexual and heterosexual sex.
Mr. Kumar then asserted that Naz loundation did not come to Court
with clean hands and was part o an international network which was
using lIV to push an agenda.
Anand Groer objected strenuously and said that the complaints iled
by JACK against all counsels who had appeared in the Naz case, Mr.
Dian, Ms. Jaisingh, Mr. Sorabjee was meant to intimidate.
Mr. Kumar then noted that an earlier petition iled on the same matter
was dismissed, that the Lucknow arrests were about running a gay
club which charged Rs. 1000 per day, that the petitioners were not a
lawul trust etc.
Chie Justice Shah obsered that he had neer seen such low leel o
submissions and that Counsel should make submissions on
Constitutionality o the proision.
K4J&+()45 &( 743"80 &0 !"# %&'()"*+&( 79 ;("() H5&,45
Mr. Groer submitted two studies by uniersities based in Australia on
the consequences o the decriminalisation o homosexuality. le used
the studies to make the point that post decriminalisation there were
no negatie consequences and they proided a complete answer to
the acile propositions made. 1here was no change in the impact on
minors, the use o orce, priate homosexual behaiour and in act
had a positie impact on problems o public homosexual behaiour. It
also allowed the police to diert resources to serious crime.
Chie Justice Shah wanted to know whether decriminalisation did
lead to a higher risk or lIV which was the argument.
Mr. Groer noted that the studies pointed out that there was no
increase in S1Ds which is a marker or lIV.
Chie Justice Shah then raised the question whether there was any
analogy between prostitution and MSM in terms o lIV preention.
Justice Muralidhar obsered that the success o lIV programmes
among sex workers was possibly because they were ghettoised and in
one space while MSM were still underground.
Mr. Groer obsered that the only way orward was to push condoms
in a big way.
1he Court then rose and the matter was scheduled to be completed
tomorrow on .11.08.
*)< !E#5X# HIccI>_ SN&4)5 *)< -D 1)M "#)+&4',T
Mr. Groer continued with his rejoinder by stating that in India the
lIV epidemic is caused by dierent actors and that in India MSM
were not uelling the epidemic but rather it was emale sex workers.
As per the 200 NACO study, there is an oerall decline in inections
in south and Northeast India. 1he decline in the south is because o
interentions among lemale Sex \orkers. le submitted that you
couldn`t distribute condoms to MSM`s, as then one will become
abettors to the oence.
Mr. Malhotra interened to say that nobody was saying that and that
we are prepared to proide condoms to all.
Mr. Groer noted that it was not enough to say that they can come
and get condoms but the state had to be proactie. le noted that the
state has an obligation to treat eeryone and the importance o
condom proision was proed as incidence o new inections among
emale sex workers had come down. le submitted that i lIV spreads
through homosexuality alone, it would hae remained conined to
homosexual population. But since this group was also haing sex with
the general population lIV spread to the general population. lence
i you scale up interentions with MSM, it will hae a positie impact
on the health o the wider society as well.
le then submitted that under Article 21 the state had a burden to
discharge, i.e. that there was a compelling state interest to intrude
into the right o priacy. 1here was no such data by the state and in
act the state was diided in its opinion. \ith respect to the question
o child sexual abuse and non consensual sex, the prayer was clear,
since there is no law on child sexual abuse, the section as only been
sought to be read down and not struck down. 1here will be no eect
on marriage laws i this prayer is granted and the introduction o
consent based distinction is already there in Section 35 and will not
create any diicult problems.
Mr. Groer noted that with respect to the main contention o morality,
he noted that while morality is a alid ground under Article 19,2, it
cannot be literally imported into Article 21 as a restriction. 1he state
would hae to show more than just morality, to restrict rights under
Article 21. 1he understanding o M"(4O" H"()3+ can`t be that, we
limit Article 21, but rather that we expand Article 21.
Justice Muralidhar gae the example o two statutes, one restricts a
gay parade and another restricts a gay person`s right to dress in a
particular way, saying he should wear suits only etc. Can morality be
a ground or restricting expression and right to proession as well
lor example i an MSM is an adocate and a Bar Council Rule
prohibits him, clearly public decency and morality cant be ground or
restricting the right to practice any proession.
Chie Justice Shah obsered that i the state depried a person o the
right to health, could the state inoke morality as a ground and were
the restrictions under Article 19 releant at all
Mr. Groer noted that pre-P&&C45 there was a compartmentalised iew
but now you can`t take that iew. \ou can`t just say morality, but
rather must show that morality is a compelling state interest.
Chie Justice Shah then asked whether i one imagined that lIV was
not there and the petitioner comes beore the Court, the argument
would not just be about the right to health and dignity would be
central issue.
Mr. Groer agreed with the Bench and noted that i as a heterosexual
person he walked in the park, it was unlikely that he would be arrested
under Section 3.
O+I ."<)2 *&X)4 D-+ U-&3#, @')&4,( GHH

Mr. Dian submitted a note to the Court on the doctrine o seerability,
making the point that the doctrine o seerability o enorcement
would be o releance the Court. 1his might be done by granting a
perpetual injunction restraining enorcement o the law on the
orbidden ield.
1he principle deried rom P3">"57"'A="8"V- case and cited by lM
Seerai in his P&(-*+*'*+&("8 <"= &0 1()+"? is that by applying the rule o
seerability in application`, the Court may restrain the enorcement
o a law or statutory proision in respect o that class o subjects o
which the law in inalid. lere, Section 3 is inalid insoar as it
coers consensual same sex acts between adults.
Mr. Dian then submitted another note, which was a brie response
to the oral submissions by the contending respondents. 1he Judges
perused the note and then Mr. Dian briely made an oral submission
on only one point - the question o public morality.
1he right to lie with dignity is guaranteed to all persons.
1he declaration is necessary because it will enable LGB1
persons to lie with dignity and express a ital dimension o
their identity. I identity and sel-worth are important, i ull
moral citizenship is important, then public morality cannot
be allowed to trump it. 1he actiity with respect to which the
declaration is sought does not cause harm to any third party.
Public morality is not a alid or suicient justiication to deny
a person his dignity, particularly where the morality is not in
itsel a discernible constitutional alue or morality. Indeed,
in this context, it is the undamental rights enshrined to protect
minorities including sexual minorities that ought to preail.
Morality by itsel, in the absence o any other harm cannot
be a ground to restrict the right to lie with dignity.`
1he Union o India and other interener respondents were gien till
Monday to ile their written submissions and the matter was posted
or inal orders.
84 N+##9-2d, @X#47# H"'*"> @3"(
1he historic judgment reading down Section 3 in the Delhi ligh
Court on 1hursday chose its words ery careully. It turned or help
to an older moment, a moment o origin. Citing the constitutional
debates o 1946, it reminded us o another India. An India that was
being imagined just as it was coming to reedom. Nehru urged, in
those debates, that we see the Constitution in its spirit rather than in
any narrow legal wording. On 1hursday, Judges Shah and Muralidhar
sought to unearth that spirit. I there is one constitutional tenet,`
they argued, that can be said to be the underlying theme o the
Indian Constitution, it is that o inclusieness`. 1his Court beliees
that the Indian Constitution relects this alue deeply ingrained in
Indian society, nurtured oer seeral generations.` A ew lines later,
they argued urther: Indian constitutional law does not permit
criminal law to be held captie by popular misconceptions o who
the LGB1s are. It cannot be orgotten that discrimination is the
antitheses o equality and that it is the recognition o equality which
will oster the dignity o eery indiidual.
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Court one, item one on the Delhi ligh Court`s cause list. 1en thirty
in the morning on the 2nd o July. A high court pass secured by a ew
dozen actiists each o whom was remembering moments rom the
last decade o ighting Sec 3. It is these simple words and an
electronic pass receipt that a moement lasting decades and a legal
battle lasting eight years came down to. In the end, it was enough.
\hen the judgment was read, you could eel the emotion in the room.
Our tears lowed not just because we had won`. 1hey came or the
judgment that had set us ree. 1his judgment is a judgment about
dignity. It is about an India that Nehru imagined - an India that
would open its arms and embrace all who lied within it. It is about
the words equality, dignity and rights inding roots in the lies o
millions o queer Indians who today can eel their eet on the ground
o their own country.
1his judgment is a return to Ambedkar. 1he judges reminded us o
the Ambedkar who so passionately ought or the constitution o his
imagination. In Ambedkar`s India, he wrote erently that the courts
o law o our land must be ruled by a constitutional morality` and
not a public morality. State interest, he argued, cannot be goerned
by public morality but by the spirit o the Constitution. In the days to
come, as morality debates will no doubt lood our media and public
spaces, we must keep this other morality equally in mind. A morality
that we share as citizens, not just as indiiduals.
1his judgment is about equality. Citing Article 15 o our Constitution,
the judges ruled that sex` as commonly used in non-discrimination
statutes must also include sexual orientation`. Non-discrimination
legislation based on gender, sex now can be read to include sexual
orientation. Reading Article 15 into the judgment, the judges hae
reminded us decriminalising queer people also means simultaneously
treating them with equal respect in jobs, in hospitals, in our homes
and in our public places.
\et how do we read this judgment not just as queer people but also as
Indians no matter our sexuality, gender, religion, caste, language or
region Moements across this country hae and continue to struggle
or their rights. lrustrations with the goernment and the system`
are commonplace. Many hae argued that change is not possible in
India and een less in the new India, which in its shine has separated
rom the Bharat that so many inhabit. 1his judgment is a renewal o
aith in the system so many o us - this writer included - ind so
easy to almost lose aith in. It is a reminder that the Constitution is
still alie, and that moements and ights sometimes end in days o
ictory. All Indians must celebrate that - it is not just queer rights
that were protected today, but all the rights o all Indians.
\e will remember tomorrow to be more cautious. 1he queer
moement has long said that the ight or the dignity o queer people
will not be won just in the courtroom. Our ights are in the spaces
where homophobia impacts people`s lies: amilies, clinics, police
stations, oices and the streets o our cities. 1he law will not change
these spaces oernight. Our ights are ar rom oer. 1his judgment,
howeer, has untied our hands. Our debates now to change public
opinion will be played on leel playing ields amongst citizens as equals.
\e hae the words o this judgment and the chance to make them
come alie outside the courtroom.
1he biggest change, howeer, will be within the hearts and minds o
queer people. 1he process o accepting ourseles, o not being
ashamed, o belieing in our right to hae rights is a long and lonely
one. 1he process o thinking o ourseles as equal citizens takes een
longer. 1his judgment will change what a young queer woman sees
when she`s in the mirror. 1here are no words to explain what that
means or how aluable it is.
lor the goernment o India and its ministers, who recently hae
spoken about Section 3, they should read this judgment closely as
they come to their consensus`. 1hey should ask themseles which o
the tenets o this judgment they wish to consider and reconsider.
1hey should remember that Ambedkar and Nehru imagined statesmen
and women in their assemblies. 1he day has come or them to return,
along with the rest o us, to that imagined assembly.
Inclusieness, alues, tolerance, constitutional morality, equality. In
the older imagination o India, these words would not be just about
queer people or homosexuality. 1oday, these hae taken the irst step
to become Indian words again. 1he judges hae reminded us that
these are the ingrained alues o Indian culture that so many are
trying to deend`. 1his judgment should be seen by all o us, gay or
straight, no matter what we think o sexuality and homosexuality, as
a ictory or a secular, democratic, constitutional and ree India. \e
should all be proud. 1oday, queer people are inally, proudly, happily
also just eeryday Indians - ree, equal, and breathing deeply the air
o a day that eels like no other.
1oday, queer people are ellow citizens. 1oday, queer people will inally
eel the ground below their eet.
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Madam, card dikhaye.` 1his was the ourth time I was stopped
or checking` on my way into the Delhi high court the morning o
July 2. Not that one can blame the security personnel. 1here was a
media circus outside the court compound. Satellite-topped OB ans
took up the better part o Sher Shah Road and reporters with cameras
and microphones in hand were starting to lood the ootpath.
Clearly they too had got the preious night`s exciting news - the
judgment on Indian Penal Code`s ,IPC, Section 3 was to be
deliered.
It is a case that, like so many others, my colleagues and I hae ollowed
with great interest. 1he 3 case, iled way back in 2001, was about
gay rights, yes, but also about the broader notions o equality, dignity,
minority` rights and o womens` rights in challenging legal and social
norms that impose a single understanding o sexuality. So July 2 was
indeed judgment day.
I sighed and showed my Bar Council card yet again and pushed the
door into Court No.1. It was 10.30 am and the room was packed.
Gay rights actiists, lawyers, seeral petitioners o the case, reporters
and spectators packed the room waiting or the judgment that could
change many lies. As judgments in other cases were read out, the
rising nerousness was palpable.
1he group looked up expectedly as the Bench that had heard the case
- Chie Justice A.P. Shah and Justice S. Muralidhar - walked in. In
keeping with court tradition, the room rose and bowed to the judges
in respect and sat down, this time on the edge o their seats. 1he
judges, perhaps keenly aware o the path-breaking judgment they were
about to delier, kept a studiously straight ace.
Chie Justice Shah looked out at the packed courtroom and said,
almost grimly, that he would read out the conclusion. 1he ront row
comprising the lawyers or both sides - Naz loundation, Voices
Against 3, the Goernment o India, Joint Action Committee,
Kunnur ,Jack, and B.P. Singhal, the Bharatiya Janata Party`s ormer
Rajya Sabha MP, stood at attention to hear the erdict. 1hree sentences
into the Chie Justice`s reading and, like a wae sweeping a ootball
stadium, one row ater the other rose in attention -holding hands,
straining to catch eery word.
It was expected. \et when these words were read out, \e declare
that Section 3 IPC, insoar it criminalises consensual sexual acts o
adults in priate, is iolatie o Articles 21, 14 and 15 o the
Constitution`, an audible gasp went around the room. By the time
the Chie Justice had inished reading the conclusion o the judgment,
people were openly weeping and there were handshakes and hugs all
around.
\atching the spectators collapse on each other, oercome by emotion,
the guards charged with maintaining decorum in the court room
quickly ushered the group out. Out o the court room and down
three loors, most walked in a daze, looking around at their riends
and colleagues wondering i they had actually heard what they had
been waiting to hear or so long. Other lawyers in the Delhi high
court gaped at the big troop descending the stairs, one wondering out
aloud with unintentional accuracy, Kahan se release hoke aayen hain
ye sab ,\here hae all these people been released rom,`
1here was little time or the news to really sink in, to truly appreciate
the enormity o the moment. As they all stepped out into a beautiul
Delhi day, the actiists and lawyers were mobbed by the teleision
media asking their aourite and most inane question - low do
you eel` As one actiist put it later in the day, low can you explain
what reedom eels like`
One-hundred-and-ie pages long, the judgment was almost
immediately aailable on the Delhi high court website. 1he conclusion,
haing been read out in court, was being quoted in all the news reports.
But as a lawyer I couldn`t wait to read the meat` o the judgment -
the reasoning, the leap in our understanding o the law and the Indian
Constitution, o the rights o priacy, equality, dignity that the
judgment no doubt held.
1he judges had a diicult job with this case. Not only were they
being asked to determine i the gay community enjoyed the rights o
priacy, liberty, health, equality and whether Section 3 in its
disproportionate impact on the gay community iolated these
constitutional principles, they were also conronted with a proision
that they could not repeal completely. Something een the petitions
did not ask or.
Section 3 is a colonial relic. A proision o the IPC authored by
Lord Macaulay, it relected the most conseratie in Victorian alues
by prohibiting all sexual acts, consensual or not, that did not lead to
procreation and punishing whoeer oluntarily has carnal intercourse
against the order o nature with any man, woman or animal.` 1his
included consensual oral and anal sex, making straight people criminals
under this law as much as gay people but the orce o the law weighed
squarely against the latter. \hat complicates matters is the emphasis
in the IPC on male to emale penile-aginal rape as the primary orm
o sexual assault, so other orms o non-consensual sexual acts
including child sexual abuse against boys that are not coered by a
speciic proision in the IPC are coered by Section 3.
1he judgment grapples with these dierse and complex issues with
inesse and inspirational legal acumen. It is irst and oremost an
equality judgment articulating in unambiguous terms the impact o
criminalization and discrimination - rom the inability to access
goernment lIV programmes to extreme harassment and iolence.
It recognizes that discrimination based on sexual orientation is
prohibited by the Indian Constitution. It asserts a constitutional
morality` rather than a popular morality as the basis or law and
goernment policy. And on all these counts, the judgment inds that
Section 3 ails, insoar as it applies to adult, consensual, priate sex.
As requested by the organizations that iled the case, Section 3
continues to be in orce or cases o non-consensual sex and sexual
abuse o children. In doing so it still requires the attention o
Parliament to reorm this centuries-old law which, with its limited
understanding o sexual iolence, denies many ull protection o the
law.
1he 3 judgment has gien oice to the ultimate ision o India -
a society based on inclusieness. 1o quote rom the judgment, \here
society can display inclusieness and understanding, such persons can
be assured o a lie o dignity and non-discrimination.` Captured in
this one statement is the idea o a country that accords dignity and
equal rights to all - regardless o religion, race, caste, sex, place o
birth and, now, sexual orientation, indeed o any status or identity
that becomes a basis or exclusion or ostracisation. It is a call, inally,
or an anti-discrimination law that will ensure that goernment and
priate actors alike are bound by constitutional morality.
And it is, ultimately, a judgment that has sered as a great reminder
o why, sometimes, we do in act, loe the law.
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1he Delhi ligh Court judgment makes the articulation o LGB1
rights a torchbearer or a more general understanding o
discrimination, oppression, social exclusion and the denial o liberty,
on the one hand, and the meaning o reedom and dignity, on the
other.
Constitutional morality is not a natural sentiment. It has to be
cultiated. \e must realize that our people hae yet to learn it.` -
B.R. Ambedkar quoted in para 9 o the !"# %&'()"*+&( F')A>4(*.
1he recent judgment o the Delhi ligh Court in the !"# %&'()"*+&(
,45-'- H&,45(>4(* &0 !PB &0 W483+ "() 2*345- is a milestone in the
jurisprudence on diersity and pluralism in India. Importantly, it also
inaugurates intersectional jurisprudence that examines questions o
constitutionalism in relational terms that underscore inclusieness.
By this token then, it is not merely a judgment that bears signiicance
or the rights o lesbian, gay, bisexual and transgender peoples ,LGB1,.
It makes the articulation o LGB1 rights a torchbearer or a more
general understanding o discrimination, oppression, social exclusion
and the denial o liberty, on the one hand, and the meaning o reedom
and dignity, on the other.
1he \ogyakarta Principles on the Application o luman Rights Law
in Relation to Sexual Orientation and Gender Identity launched on
March 26, 200 were drated by experts rom 25 countries
representatie o all regions o the world. 1hese principles delineate
in painstaking detail the obligation o states to respect, protect and
ulil the human rights o all persons regardless o their sexual
orientation or gender identity. On December 18, 2008, the United
Nations General Assembly was presented with a statement endorsed
by 66 states rom around the world reairming in substance the
\ogyakarta principles. It is these international eorts along with the
moement or LGB1 rights within India that proided the context
and arguments or the decriminalization o homosexuality.
Drawing on Dr. Ambedkar, the court rejected the argument that
homosexuality was contrary to public and popular morality in India,
upholding constitutional morality instead, the diusion o which was
contingent on Dr. Ambedkar`s ideas o notional change, as eident
in the lines quoted aboe. 1o quote rom the judgment: 1he
Constitution o India recognizes, protects and celebrates diersity.
1o stigmatize or to criminalize homosexuals only on account o their
sexual orientation would be against the constitutional morality` ,para
80,. Linked to this is the obseration o the Court on the question o
the horizontal application o rights, with speciic reerence to Article
15,2,, a barely remembered but critical part o Article 15: No citizen
shall obstruct another rom access to public places on grounds o
caste, sex and other speciied grounds ,para 104,. 1his purposie and
intersectional reading o Article 15,2,, hitherto restricted largely to
practices o untouchability is-a-is Dalits, opens out an important
strategy in constitutional interpretation.
Applying the U.N. luman Rights ramework to an understanding o
sexual orientation and gender identity, the judgment sets out three
categories: ,a, non-discrimination, ,b, protection o priate rights,
and ,c, the ensuring o special general human rights protection to all,
regardless o sexual orientation or gender identity.
Perhaps the most important issue the judgment addresses is the
meaning o sex` in Article 15,1, o the Constitution o India: 1he
state shall not discriminate against any citizen on grounds only o
religion, race, caste, sex, place o birth or any o them.` Does the
term sex` in this context reer to attribute or perormance Is sex to
be applied in a restricted ashion to gender or can the multiple
resonances o its common usage be taken into account, so that sex is
both gender ,attribute, and sexual orientation ,perormance, 1his is
particularly signiicant because, as the judgment demonstrates through
an extensie reiew o case law and principles rom dierent parts
o the world, gender and sexual orientation are an intrinsic and
inalienable part o eery human being, they are constituents o a
person`s identity. In the words o Justice Sachs o South Arica, the
constitution acknowledges that people lie in their bodies, their
communities, their cultures, their places and their times` ,Sachs J. in
B34 !"*+&("8 P&"8+*+&( 0&5 H"9 "() <4-7+"( QR'"8+*9 ,. B34 M+(+-*45 &0
F'-*+D4,. It is this composite identity o eery person that is airmed
through a nuanced reading o sex` in Article 15,1,: \e hold that
sexual orientation is a ground analogous to sex and that discrimination
on the basis o sexual orientation is not permitted by Article 15 ,Para
104,.`
Justice P.N. Bhagwati`s delineation o the right to dignity in %5"(D+-
P&5"8+4 M'88+( ,. ;)>+(+-*5"*&5? /(+&( B455+*&59 &0 W483+ "() 2*345-, that
the right to lie includes the right to lie with human dignity and all
that goes along with it, namely, the bare necessaries o lie, .
expressing onesel in dierse orms, reely moing about and mixing
and commingling with ellow human beings,` proides the starting
point or the discussion on the importance o sel-respect, sel-worth
and priacy to human social lie, recognised nationally and
internationally. And priacy is particularly important in the area o
sexual relationship where the thumb rule is simply that |i|, in
expressing our sexuality, we act consensually and without harming
one another, inasion o that precinct will be a breach o our priacy`
,6"5+- ;)'8* B34"*54 1 ,. L8"*&(, ,413 US 49 ,193,, page 63,.
1he criminalization o homosexuality, the judgment says, by
condemning in perpetuity an entire class o people, orcing them to
lie their lies in the shadow o harassment, exploitation, humiliation,
cruel and degrading treatment at the hands o the law enorcement
machinery` denies them moral ull citizenship` ,para 52,. Because
Section 3 is aimed at criminalizing priate conduct o consenting
adults, the court held that it comes within the meaning o
discrimination, which seerely aects the rights and interests o
homosexuals and deeply impairs their dignity` ,para 93,. It is unair
and unreasonable and, thereore, in breach o Article 14 o the
Constitution o India` ,para 98,.
1he right to public health is another aspect o human rights that is
seriously undermined through the criminalization o same sex
behaiour. 1here are two parts to this right, both o which lead back
to the undamental right to lie under Article 21. 1he irst is the right
to be healthy. In this context, the concerns o the National AIDS
Control Organization ,NACO, are pertinent. lear o the law-
enorcement agencies obstructs disclosure, which in turn impedes
lIV,AIDS preention programmes and increases the risk o inection
in high-risk groups.
1he second part o the right to health is more expansie and includes
the right to control one`s health and body, the right to sexual and
reproductie reedom, the right against orced medical treatment and
the right to a system o health that oers equality o opportunity in
attaining the highest standard o health. \hile seeral documented
testimonies o LGB1 persons speak o the treatment o their sexual
orientation as a psychiatric,mental disorder, the judgment importantly
airms the indings worldwide that sexual orientation is an expression
o human sexuality - whether homosexual, heterosexual or bisexual.
Compelling state interest,` instead o ocusing on public morality,
the judgment says, demands that public health measures are
strengthened by de-criminalization o such actiity, so that they can
be identiied and better ocused upon` ,para 86,.
Asserting that there is no presumption o constitutionality where a
colonial legislation is concerned, the judgment holds that Section 3
ails the test o strict scrutiny` which would require proportionality
between the means used and the aim pursued. And when it is a
question o matters o high constitutional importance`` like the
rights o LGB1 persons, the courts are obliged to discharge their
soereign jurisdiction, in this case, reading Section 3 down to apply
only to child sexual abuse.
It is pertinent to point out here that the Andhra Pradesh ,1elangana
Areas, Lunuchs Act speciically targets Lunuchs and lijras in ar
more direct ways than Section 3 does. \e hope that the momentum
o the moement or LGB1 rights will turn its ull orce on obsolete
legislation like this as well, so that transgender communities in areas
where such laws are in orce begin to enjoy the ullest reedoms and
lie with dignity.
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1he legal philosopher and reormer Jeremy Bentham produced B34
B34&59 &0 <4A+-8"*+&( in the irst hal o the 19th century. It propounded
the great principle o utility, a eritable working manual or lawmakers
all oer the world: 1he public good ought to be the object o the
Legislator, general utility ought to be the oundation o his reasonings.
1o know the true good o the community is what constitutes the
science o legislation, the art consists in inding the means to realize
that good.`
1he lesson was simple yet proound. le propounded that nature has
placed man under the realm o pleasure and pain. 1o these man owes
his ideas, judgments and determination o his lie. Lil is pain or the
cause o pain. Good is pleasure or productie o pleasure. Criminal
law prescribes a series o punishments or dierent acts and omissions.
Lery punishment produces pain at least to him on whom it is inlicted.
Punishment, thereore, is an eil. Its only justiication is that it preents
a greater eil or produces in some other or others or the general
public much more pleasure. lrom these two principles he had no
diiculty in ormulating the principles on which a rational penal code
should be constructed.
1he Delhi ligh Court recently produced a memorable judgment
declaring Section 3 o the Indian penal code constitutionally inalid.
Lord Macaulay and his ellow commissioners who ramed that code
had presumably not taken Bentham`s teachings seriously, at least when
they introduced their notion o Victorian morality into this section.
Voluntarily haing intercourse against the order o nature with any
man, woman or animal is declared a serious crime or which the
punishment may well extend to 10 years and ine or both. As judicially
interpreted and noticed by the Delhi ligh Court, sexual actiities hit
are the ollowing:
1. Intercourse by a man with a woman other than aginal, such as
inoling the anus, mouth or any other oriice in the human
body,
2. Intercourse with any male inoling the anus or any other oriice,
3. Act commonly known as practice o bestiality.
Section 3 by its marginal note classiies all three as unnatural
oences. Macaulay did not know that the ish, iguana lizards, roosters,
dogs, cats, horses, rabbits, lions and many other species mount others
o the same sex. lomosexual behaiour is so rampant in non-human
species that it is diicult to justiy the epithet unnatural or this
behaiour.
Neither Bentham nor any other rational person would see in these
actions any element o producing the eil o pain. O course my
assumption is that intercourse is by ree consent and does not inole
minors who are incapable o consenting to remain untouched by the
section.
1he Delhi ligh Court judgment is ull o learning and reerences to
literature on psychiatry, genetics, religion and judgments deliered in
other jurisdictions, particularly the US and Canada. It reers to the
report o the British \olenden Committee and the Sexual Oences
Act, 196, by which Lnglish law de-criminalised homosexuality. It
ortiies its conclusions by the 12nd report o the Law Commission
which also took the same iew: Section 3 in its present orm has to
go`.
1he Delhi ligh Court judgment is substantially based upon the
citizen`s right to priacy and a lie o dignity. 1he court correctly
concluded that these rights can only be subordinated to some
oerriding public interest. Counsel or the Union o India could not
point out any and the court rightly rejected his eeble argument that
the law in some remote way promotes public health. 1he submission
was in the teeth o the iew o the American Psychiatric Association
presented to the United States Supreme Court in 2002 in the case o
<"=54(D4 ,. B4G"-:
According to current scientiic and proessional
understanding, howeer, the core eelings and attractions that
orm the basis or adult sexual orientation typically emerge
between middle childhood and early adolescence. Moreoer,
these patterns o sexual attraction generally arise without any
prior sexual experience.
1hus, homosexuality is not a disease or mental illness that
needs to be, or can be, cured` or altered`, it is just another
expression o human sexuality.`
Now the iew or which the additional solicitor general canassed
was the iew o the home ministry with which the health ministry
did not agree. 1o the best o my knowledge it has neer happened
that two goernment departments made conlicting and irreconcilable
submissions in a public hearing beore a high court. I hope that the
goernment puts its house in order beore the Supreme Court.
\hat urther surprises me, is that the most eectie 8th respondent,
namely the National Aid Control Organization ,NACO, did not use
Bentham`s powerul argument which any court should normally
consider almost conclusie.
1he Delhi Judgment does not recommend homosexuality or een
approe o it. But it is obnoxious arrogance to claim that my conduct
is natural while others iolate nature. 1he constitution o India does
not tolerate such tyranny. No legislator or ruler can tell those who
obey his laws I am one o the elect, and God takes care to enlighten
the elect as to what is good and what is eil. le reeals himsel to me
and speaks by my mouth. All you who are in doubt, come and receie
the Oracle o God,` thus wrote Bentham.
A short reerence to the history o homosexuality is called or. During
the Greco Roman period, there is ample eidence to show that
homosexual behaiour between men as well as between women was
common - and within clear conentional limits - approed. Judeo-
Christian literature, howeer, relects a general aersion to homosexual
behaiour which was seen as an emblem o decadent paganism -
godless, debauched, and heretical. lor both Jews and early Christians,
the Old 1estament story o the destruction o Sodom became the
oundation text o homophobia, een though neither Jews nor early
Christians, including Christ himsel, unanimously interpreted it as a
text condemning homosexual behaiour.
During the next thousand years between the all o Rome and the
beginning o the Renaissance, the Roman Catholic Church
condemned any non-procreatie act between persons o either sex.
Pope Gregory IX called sodomites abominable persons - despised
by the world and dreaded by the council o heaen`. In the late 13th
century the irst case o a homosexual being burnt at the stake came
to be staged. Protestantism was equally rigorous in its condemnation.
In the 19th century, homophobia turned into hysteria. Lord Macaulay
imported it into India. lomophobia is thus a western product which
was unknown to sexually ree India. 1he Delhi ligh Court can take
credit through its judgment that India is going back to its enlightened
roots. Oscar \ilde and his loer Alred Douglas had already shocked
Victorian Lngland, initiating the end o homophobia.
Our earth is a crowded planet and cannot sustain more humans.
Semitic religions condemn pederasty because it does not add to the
population. Malthusian wisdom, which I endorse ully, is a credit item
in the balance sheet o homosexuality.
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Ater agitating or many years against the existence o Sec. 3 o
the Indian Penal Code which decriminalized homosexuality in India,
it is understandable that the Delhi ligh Court decision in the !"#
%&'()"*+&( case, decriminalising homosexuality, has been welcomed
and celebrated by the LGB1 community. But to see it as a ictory o
the LGB1 community alone would be to do injustice to the Delhi
ligh Court`s remarkably progressie and well reasoned decision and
the immense potential the judgement has or changing the course o
equality jurisprudence in the country.
It would also display a ery narrow understanding o the relationship
between constitutional change and social moements striing or a
more just and democratic society. Like K&4 ,. S")4 which legalised
abortions in the United States, or @5&=( ,. @&"5) &0 Q)'D"*+&(, which
ended racial segregation in public educational institutions, the !"#
%&'()"*+&( decision has the potential o being a case whose name
conjures up the history o a particular struggle, celebrates the ictory
o a moment and inaugurates new hopes or the uture. 1he ictory
is also highly signiicant because it inaugurates a radical politics o
impossibility. By oerturning what would hae been impossible to
imagine, the decision does not merely change the conditions o the
group whose rights and demands are in question, but changes the
horizon o possibility or the law and or constitutional interpretation
itsel.
In this article we shall be looking at two dimensions o the high court
decision, irst, what it means within the realm o constitutional
imagination, as well as what its immediate impact on the eeryday lie
o queer community has been.
Constitutions are not merely Charters o goernance, they are also
ethical documents which lay down a collectie commitment that
members o a community make, to a set o principles, as well as to
each other, about the kind o lie they wish to pursue. 1hus the political
orm that we choose to goern our societies is not separable rom the
way that we choose to goern ourseles as indiiduals, and our relation
to others. \ho or how I choose to loe is then both an indiidual
choice, as well as a question o political orm and expression.
lollowing Nehru`s quote in the decision, o words being magical
things, one way o reading the constitution is to see it as a city o
words built on the oundational promise made in its preamble -
towards securing or its citizens justice, liberty, equality and raternity-
and recall that these are irtues that justiy why we gie unto ourseles
a constitution, or why we agree to be constituted` within a collectie.
1he perection o the city o words presumes a coherent we`ness`
that already exists. But we also know that it would be nae to beliee
that the city o words inds its perect relection in reality, and more
oten than not the real world is always an imperect one in which
promises remain unulilled, and in the memorable words o Langston
lughes, dreams are deerred. 1his is certainly true or the
constitutional underclass, or whom, the city o words remain just
that: words, and who remain unconstituted by irtue o their class,
caste or sexual orientation. But isn`t it is also the case that the constant
striing or the perect community and the attempts at bridging the
distance between the city o words and the imperect city is precisely
what we name as politics. It is in the distance that is traersed between
the two cities, that struggles reside. And inally it is only through
politics and struggles that rights are created. Only in the mist coered
regions o legal theory would we imagine that rights are the product
o judicial authorship, and this is a point acknowledged in the !"#
decision, when in a Baxi moment, they acknowledge that a constitution
does not create rights, it merely conirms their existence.
It would equally be a mistake to think o the Constitution as the
perect embodiment o alues which do not change, een as we strie
towards them. Constitutions proide a basis o radical change only in
so ar as they are willing to be changed themseles - not just through
executie iat or judicial interpretation - but through an understanding
o the history o struggles, and through an incorporation o the
concrete practices o equality and liberty in arious orms o lie.
Stanley Caell in his book about remarriage comedies, B34 6'5-'+* &0
Y"CC+(4-- ,itsel a reerence to the commitments made in the
Declaration o Independence, argues that the constitutional promise
about lie, liberty, and the pursuit o happiness has a public ace to it,
and this generally translates into what it is to claim these in law. But
there is equally the priate ace o these claims, and these can only be
located in little communities o loe`, and the question that brings
the public and priate realms together consists o asking what it means
to ask human society to create the condition or these small
communities to be built.
\hat ater all is the !"# %&'()"*+&( decision i not the airmation o
such a community`s right to assert their loe, and to do it with
autonomy and dignity. But what is inoled in the legitimization o
the loe that dare not speak its name, is the emergence o what
Laurence 1ribe ,a renowned scholar o constitutional law at larard
Law School, would call a right that dares to speak its name. In other
words, our understanding o, and our commitment to ideas o equality,
dignity and justice are not just products o abstract philosophical
alues and political will, but also o our ethical imagination. Caell
says that one cannot base the little community o loe only on an
appeal to the law, nor on an approach o eeling alone. It is an emblem
o the promise that human society contains room or both, but you
cannot wait or the perected community to be ormed beore you
orm the little community. In the years leading up to the Naz
loundation decision, the LGB1 community had already redeined
what it means to make a commitment to an ideal, through a
commitment to a orm o loe. By locating this commitment in the
language o Personhood and personal autonomy, the ligh Court
renders the constitution ulnerable - in the best way possible - to a
redeinition o the alues o equality and dignity, a moe which is
ital i we are bring our imperect world closer to the city o words.
But, as Nehru`s quote in the judgment reminds us that een the magic
o words sometimes cannot coney the magic o the human spirit
and a nation`s passion`, and we who strie towards the city o words
orget sometimes that that the magic o the human spirit does not
necessarily proclaim itsel as a scream. 1racy Chapman once wrote
o a talking about a reolution, and how it sounds like a whisper. It is
said that a prisoner once weathered down a thick prison wall by
whispering stories into its walls oer a number o years. 1he !"#
%&'()"*+&( case is a good instance o how the stubborn and ormidable
walls o prejudice that inorm most public institutions can be broken
down, and the next barrier is to spread the whisper around a bit. And
by outing sexuality into public discourse in a manner neer done
beore, the !"# %&'()"*+&( decision is already talking about a reolution.
One good indication o this is the media coerage and national debate
on homosexuality that the judgement has sparked o in ery dierse
social and political spaces. 1his 105 page document has in a sense
outed an issue that has only been talked about in hushed and
embarrassed tones in most households. 1he public debate about the
decision in the media has made possible conersations in homes,
oices and schools about homosexuality and the impact o the section
3. My ather called and congratulated me when he heard about
the judgement`, said a gay riend, ecstatically. 1hough out to his
parents, he has struggled to talk about his sexual orientation. Ater
the judgement, we hae talked about homosexuality at home almost
eery second day because o some aspect or the other that has been
discussed in the media`, he said.
1he judgement has meant a newound respectability and legitimacy
or the issue. A ew days ater the judgement, we were asked by a
ligh School in Bangalore to talk to their Std XI and XII students
about the case. \hile this was probably something that should hae
happened long ago, the interest generated by the !"# case has meant
initations to speak at a wide ariety o orums - schools, colleges,
media organisations, NGO`s and unders. As lawyers, we ound that
the judgement proided leerage in interactions with the police. In
the irst 3 incident` we dealt with post the judgement, we handled
the case o a 26 year old gay man whose laptop, mobile phones and
other aluables were stolen by a man who he had inited home to
spend the night. 1he police were helpul at irst, but change their
attitude when they discoered that our client was gay. 1he sub-
inspector reused to gie our client the belongings he had recoered
and threatened our client with section 3 unless he paid him Rs.
30,000. \e had to talk to a superior police oicer and recoer the
laptop. Ater we did this, we talked to the police oicer about the
judgement and the act that it represented changing iews in Indian
society. 1he police oicer reluctantly agreed that what homosexuals
did inside their homes was none o his business.
\hile it is technically a decision only to decriminalize homosexuality,
arguments around equality, and the judges` reading o gender and
sexuality hae meant a ar wider impact. Len those ighting the case
were taken aback when the 1imes o India reported couples across
India getting married and citing the judgement as proo that they
could do so. 1his has now sparked o a Special Leae Petition beore
the Supreme Court iled by an astrologer, who says that this judgement,
amongst other catastrophes, will lead to LGB1 persons demanding,
marriage, inheritance etc. 1hankully we are spared o assertions like
the one made by Nero who claimed that homosexuality caused
earthquakes. Moral turpitude is somehow a little easier to deal with
than earthquakes, een i many o us may beliee the decision may
hae seismic eects.
In another remarkable incident, a client approached a lawyer we know
or a matrimonial case. She was perplexed when she was told that she
was not legally entitled to hal the property. But what about the
case` she asked hopeully \hat case`, said the lawyer, who was
puzzled. 1he Delhi ligh Court case. Doesn`t it mean that we are all
entitled to equal rights now`, she asked.
\hile this may sound ar etched, it`s not that ar rom the truth.
Seeral legal commentators hae already pointed out that the Delhi
ligh Court`s interpretation o the anti discrimination proisions
Article 15, where it has read sex` to mean sexual orientation` could
potentially beneit other minorities.
1
1he Court has said that orcing
someone to behae in accordance with predeined notions o what is
means to be a man` or a woman` can be considered discrimination
based on sex, in iolation o Article 15 o the Constitution. 1he court
says:
1he purpose underlying the undamental right against sex
discrimination is to preent behaiour that treats people
dierently or reason o not being in conormity with
generalization concerning normal` or natural` gender roles.
Discrimination on the basis o sexual orientation is itsel
grounded in stereotypical judgments and generalization about
the conduct o either sex.` ,p99,.
1
See 1arunabh Khaitan, Good or all minorities` in this olume.
1he Court`s reading o the strict scrutiny` test and its horizontal
application o rights ,where citizens are guaranteed rights is a is
one another in public spaces, has meant that it will make it much
more diicult or discrimination against ulnerable minorities like
disabled persons, women and ironically, een religious minorities who
hae so ar ranged rom being ambialent to opposing the judgement.
1he !"# judgement`s potential or minority rights has urther been
strengthened by the judges discussion on Constitutional morality
where they make it clear that public morality and majoritarian opinion
has to be subserient to constitutional morality and protection o
undamental rights.
1he Court`s interpretation o priacy` to mean much more than spatial
priacy or priacy in the home to a much broader notion o autonomy
and personhood has meant that 3 cannot be applied in public spaces
where much o same sex intimacy takes place. 1his expansie
interpretation o priacy has tremendous potential, in other spheres
like women`s reproductie rights.
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1here come moments in the lie o a nation when it has to conront
its deepest prejudices and ears in the mirror o its constitutional
morality. 1he Delhi ligh Court`s judgment in !"# %&'()"*+&( ,-. /(+&(
&0 1()+", decriminalising priate, adult, consensual homosexual acts,
does just that. 1he judgment is a powerul example o judicial
cratsmanship. It is, unusually amongst recent judgments that are
constitutionally signiicant, clear and precise. It embodies the right
combination o technical rigour in thinking about the law, with a
persuasie ision o the deepest alues those laws embody.
1here will be an appropriate time or a detailed legal analysis o the
judgment. Many will, doubtless, latch on to the judgment as oending
something called our tradition or our alues. But to interpret it this
way would be a mistake. \hat the court says is this. Under our
constitutional scheme, no person ought to be targeted or discriminated
against or simply being who they are. I we gie up this alue, we
gie up eerything all o us cherish: both our liberty and our right to
be treated equally. 1his judgment is deending our alues. Simply put,
the judgment says that the state has no presumptie right to regulate
priate acts between consenting adults. It protects priacy. 1hat is
our alue. 1he judgment says that indiiduals should not eel so
stigmatized that they are unable to seek medical help. 1hat is our
alue.
1he judgment is irst and oremost a deence o liberty, equality,
priacy and a presumptie check on state power. It is a eature o
these alues that they are secure only when they are enjoyed by all.
Priacy cannot be genuinely protected i the state is gien arbitrary
power oer some groups, equality cannot be realised i inidious
distinctions between citizens persist, rights o liberty cannot be genuine
i they apply only to all those who are alike. 1he essence o toleration
is that each one o us can be sae rom the ear o stigma,
discrimination, persecution, only when all o us are sae, otherwise
what we get is a countereit toleration. So let it be clear: this judgment
is not about a minority, not about alorising a liestyle, it is about the
alues that made us who we are as a nation. Neither the detractors o
this judgment, nor its deenders or that matter, should orget the
act that it is in the name o a genuine common morality that this
decision can be deended.
\e should not minimize the act that social change in matters as
delicate as sexuality is diicult to negotiate in any society. 1he judgment
is admirably tactul in pointing out simply one act: the state has not
been able to proe that it can demonstrate that serious harms result
as a consequence o these priate acts. Claims o such harm are oten
causally unounded, based on prejudice and oten een less plausible
than harms that result rom many o the practices we do tolerate. At
least on this much there is a consensus amongst the 126 nations who
hae decriminalized this practice beore India. Len or those,
otherwise uncomortable, at least this much should be enough to
ground the basic legal claim the court has made. 1here ought to be at
least oerlapping consensus on this point.
1he discourse on toleration this has generated is reealing. 1here is
the usual assortment o religious leaders who are appealing to their
traditions. One thing should be clear: a claim can hae no standing
simply because it is made on the grounds o religion or, as in the case
o the VlP, tradition. \ithout saying so, the court has made this
abundantly clear. And it will be interesting i this secular logic is now
ollowed through in all cases pertaining to equality and liberty. 1he
court has ore-grounded personal autonomy as a constitutional alue,
and potentially set the stage or questioning community practices that
impede this alue.
1he second strand o discomort with the case is more interesting
and could potentially be a resource in sustaining the social legitimacy
o the judgment. 1his strand is not so much intolerant, but is simply
uncomortable at haing to take a position on the issue. Its mode o
tolerance is a kind o benign neglect, Don`t ask, don`t tell.` 1his
may not be a perect normatie position. Nor may it be an option in
modern society. \hat they are resenting is not so much the
decriminalization, as much as the need to discuss and take a stand.
1hey do not want to discriminate or stigmatize, what they would like
is, to use an old-ashioned phrase, a certain modesty in sexual matters
o any kind. 1his anxiety is in a more general sense inescapable. Our
society will hae to ind intelligent ways o dealing with it. But it
would be a mistake to necessarily brand this anxiety as a orm o
intolerance. In its own ways, this discourse o modesty might sustain
the kind o tolerance that simply says, Let it be.`
But now that the court has gien a judgment, this ery same diident
group would rather not hae another polarizing debate. Politicians
rushing to oerturn this judgment might as well take into account the
act that some seeming discomort may not relect genuine sentiment
against decriminalization. I you want a traditional` argument you
could say this. In India, tolerance, when it worked, was a product o
a kind o benign neglect: to each its own. It is a colonial law that, by
bringing the state in, went against the possibility. 1he court certainly
has a ision o an equal and inclusie society, and it may be too ar-
etched to say that all o us are ready or it. But at the ery least, by
getting the state out o priate consensual adult relations, the court
allows or this more modest, but not insigniicant, kind o toleration
to take place.
1here will be other interesting technical implications o the arguments
the court has used. Some will see in the court`s emphasis on non-
discrimination grounds or greater state interention in regulating
relations amongst priate parties. Others might argue that the court`s
application o the strict scrutiny` test potentially protects priate
parties rom easy state interention. But these are matters or the
Supreme Court to resole in dierent cases. But or now, we should
be thankul that the court has shown great legal and moral clarity.
1here will be opposition rom sel-appointed custodians o tradition.
But the least we can do is say: accept the judgment and moe on
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,Jawaharlal Nehru, quoted in the !"# %&'()"*+&( case,
paragraph 129,
1he brouhaha oer it notwithstanding, the least surprising thing about
the Delhi ligh Court`s erdict in !"# %&'()"*+&( ,-. /(+&( &0 1()+" is
the result o the case: that law has no business in the bedroom o
consenting adults engaging in an actiity that harms no one. Len the
mere words o Article 14 ,right to equality, and Article 21 ,right to
lie and liberty, o the Constitution and existing jurisprudence under
these Articles would hae suiced to reach this result. \hen aced
with this issue in the last couple o decades, constitutional courts
worldwide hae almost inariably gien the same answer. Gien the
liberal, secular and egalitarian Constitution o India, it is the opposite
result that would hae surprised constitutional lawyers. 1he magic o
the human spirit and o a nation`s passion lie not so much in the
result o the judgment as in its progressie reinterpretation o certain
constitutional proisions, especially that o Article 15, een though it
was not strictly necessary to reach this result.
Article 15 prohibits discrimination on grounds such as religion, race,
caste and sex. Until recently, it had remained a largely sterile proision,
subsumed entirely by the general guarantee o equality under Article
14 and rarely gien the distinct importance that it deseres. lour key
innoations under Article 15 in this judgment hae gien it a new
lease o lie. I conirmed by the Supreme Court, these innoations
will proide unprecedented constitutional protection rom
discrimination to all ulnerable minorities - including Muslims,
Christians, women, tribals, Dalits, gays and disabled persons. It is odd,
then, that some o those who are likely to be the biggest beneiciaries
o this interpretation are also the ones who most ocierously want
to see it oerturned.
1he high court has held that personal autonomy is inherent in the
grounds mentioned in Article 15`. It is autonomy that allows us to
orm relationships and pursue the projects that gie our lies meaning.
Systematic discrimination diminishes the quality o all our lies by
denying us access to an adequate range o aluable options, in all the
things that matter most in our lies: housing, jobs and partners. 1hus,
the irst important innoation in the case was to include those grounds
that are not speciied in Article 15 but are analogous to those speciied
therein ... those which hae the potential to impair the personal
autonomy o an indiidual`. 1hereore, een though grounds such
as disability and pregnancy are not speciied in Article 15, they now
hae its protection. Notice that the high court had already held that
sex`, a speciied ground, includes sexual orientation`. 1hereore,
opening up the scope o Article 15 to other analogous grounds like
disability was not crucial or the result o the case. \et, gien this
ruling, all autonomy-related grounds can now claim the special
protection o Article 15.
1he second innoation under Article 15 is the incorporation o strict
scrutiny` as the appropriate standard o reiew. Until recently, all
that the State needed to proe is that the challenged measure is
reasonable`. 1his is a deerential, rather than a strict, standard o
reiew. But the high court has now read seemingly conlicting Supreme
Court precedents harmoniously to clariy that although the principle
o strict scrutiny would not apply to airmatie action under Article
15,5, ... a measure that disadantages a ulnerable group deined on
the basis o a characteristic that relates to personal autonomy must
be subject to strict scrutiny`. In simpler terms, it will be much harder
to justiy discrimination against a ulnerable minority ,Dalits, Muslims,
women, and so on, protected by Article 15 than used to be the case.
Again, the discussion on strict scrutiny was not important or the
result in this case. 1he high court was clear that a proision o law
branding one section o people as criminal based wholly on the State`s
moral disapproal o that class goes counter to the equality guaranteed
under Articles 14 and 15 under any standard o reiew.` 1he main
beneit o this higher standard o reiew will be reaped in uture
cases by all ulnerable minorities.
1he third important constitutional innoation under Article 15 is the
pronouncement by the high court that it proides protection rom
discrimination perpetuated not only by the State ,ertical` protection,
but also by a priate indiidual ,horizontal` protection,: In other
words, it een prohibits discrimination o one citizen by another in
matters o access to public spaces.` Again, gien that a central law
was in question, this case was concerned only with ertical
discrimination. But by stating that the protection o Article 15 is
horizontally applicable as well, the high court has widened the scope
o an earlier Supreme Court judgment, which granted horizontal
protection only to women ,N+-3"O" ,-. L*"*4 &0 K"J"-*3"(, 199,. Now,
eery Muslim or Dalit citizen who is denied housing by a landlord on
the ground o his or her religion has a constitutionally enorceable
claim against the landlord. Recently, the Centre or the Study o Social
Lxclusion, Bangalore, in an open letter to the minister o minority
aairs, demanded an eectie equal opportunities commission to
combat discrimination in the priate sector. 1he !"# %&'()"*+&(
judgment makes that demand a constitutional imperatie.
linally, the judgment recognizes that discrimination includes not just
direct discrimination, but also indirect discrimination and harassment.
1his is another key demand in the CSSL open letter. Indirect
discrimination occurs when a supericially non-discriminatory measure
has a disproportionate impact on a ulnerable group. A housing society
that only lets to egetarians has a disproportionate impact on certain
religious and caste groups. Under this interpretation, such indirect
discrimination is prohibited by Article 15.
1hese constitutional innoations make no dierence to the actual
result in the !"# case. 1he judges could hae reached the same result
by a sterile ruling that relied solely on the words o the Constitution.
loweer, they chose to inoke its spirit and hae crated a remarkably
progressie jurisprudence on anti-discrimination law. I these
interpretations are accepted by the Supreme Court, Article 15 is set
to become one o the key constitutional guarantors o personal
autonomy or ulnerable minorities.
It may seem that this judgment does not obiously beneit lemanshu,
who is lindu, Lnglish-educated, male, able-bodied, north Indian,
straight, lindi-speaking and upper-caste. But should lemanshu lose
his legs in an accident, or get posted in a non-lindi speaking or non-
lindu-majority area, he too will be protected. 1he court has
recognized that pluralist societies rarely hae permanent majorities
or minorities. 1he Constitution stands or the principle o minority
protection, whoeer they might happen to be. 1his should be noted
by the '84>" and the archbishops who seem to hae ailed to enision
a ellowship o the disenranchised in their response to the court`s
judgment.
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1here hae been ew, i any, cases whose proceedings hae been closely
ollowed and judgment keenly awaited as !"# %&'()"*+&(. 1he erdict
was eagerly anticipated, not just by lawyers and court watchers, but
also by actiists and a broad cross-section o ordinary people. Acutely
aware o their role in contemporary history, the judges on the !"#
%&'()"*+&( bench did not disappoint. 1heir conclusion that Section
3 is unconstitutional is-a-is consensual adult sex is set in the
elegant tapestry o a careully spun decision embroidered with copious
citations. 1he judges display great courage and cratsmanship in
ashioning a historic decision heard loud and clear, not only in India,
but across the world.
I, or one, irst got word about the decision rom a riend in Dhaka
who e-mailed her South Asian riends about the breaking news. It
helped that the Delhi ligh Court immediately made the decision
aailable on its website, and the BBC promptly posted a link spurring
downloads across the globe. A riend called me rom New \ork to
say that he could not retriee the judgment because the high court`s
serer was clearly oerloaded. Oer the weekend, the New \ork 1imes`
story on Naz loundation was among the top ten most popular stories
on the newspaper`s website. Naz loundation is likely to rial the mango
this summer as India`s top export! I don`t know o any other Indian
case that has enjoyed this much ame.
1he beauty o !"# %&'()"*+&( is that it skilully mixes originalism
,rarely used by Indian judges anymore, with pragmatism in
constitutional interpretation. It is a product o considerable
strategizing, deep thinking, and extensie research. At the same time,
the judges display great humanism, sensitiity, and empathy - qualities
rarely displayed in most Blackstonian judicial monasteries. 1he
decision`s artul prose, which sounds almost poetic in seeral places,
is tempered by humility and modesty. Its cadences hae the
unmistakable stamp o Chinnappa Reddy`s compassion and Bhagwati`s
orensic reasoning without the distraction o Krishna Iyer`s bombast.
Symbolically as well as substantiely, !"# %&'()"*+&( marks a radical
change in our Republic`s constitutional jurisprudence. It undamentally
alters the relationship between a large disenranchised, yet mostly silent
and dispersed, minority and the hegemonic Indian state. lor that
reason, I beliee it genuinely qualiies or that oten gratuitously
misused epithet o legal writing: a landmark judgment.` \et, like all
landmark judgments, !"# %&'()"*+&( has its strengths, weaknesses,
and penchant or controersy. 1o crudely adopt local imagery, the
decision has the grandeur o the Red lort`s majestic ramparts as well
as the conusion o Old Delhi`s maze o bazaars, crowded streets,
and alleys. In assessing this bewildering landscape, I`ll celebrate today
the judgment`s impressie monuments that display great judicial
architecture and cratsmanship. In tomorrow`s post, I will deal with
!"# %&'()"*+&(`s not-so glamorous dimensions.
1. At its core, !"# %&'()"*+&( is an emphatic reiteration o the ision
o our Republic`s lounders to establish a just, inclusie, and
tolerant India. Mindul o the bitter and shameul legacies o
our history, our lounders were especially unwilling to
countenance any orm o social exclusion. 1his is eident in,
among other things, Article 1`s unprecedented constitutional
prohibition on untouchability` - a term deliberately let
undeined in the Constitution. !"# %&'()"*+&( extends the
command o Article 1 to abolish new aatars o disability based
on sexual identity or orientation. 1he decision is also a reminder
,not so much to India, but other less-enthusiastic jurisdictions,
that a constitution is a liing document, and its protections must
be dynamically interpreted to apply to new situations and
challenges.
2. In airming priacy as a undamental right under Article 21 ,the
Constitution`s guarantee o lie and personal liberty, and inoking
it to partially inalidate Section 3, !"# %&'()"*+&( constitutes a
bold reial o substantie due process reasoning that has been
rarely used by Indian courts. Perhaps, in this respect, !"# is the
Son or Daughter o M4("O" because the ormer is an
unmistakable progeny o the latter. ,A better child than Varun
Gandhi at any rate,. lor it was in M4("O" H"()3+ that the Supreme
Court, ighting the real and imagined ghosts o Gopalan,
endorsed the use o substantie due process to embellish the
Constitution`s undamental rights and reedoms.
In the thirty-two years since M4("O" H"()3+ was handed down,
the Supreme Court has expanded the scope o Article 21 to
discoer a whole host o new rights, such as education, health,
and shelter, in cases such as /((+O5+-3("(. loweer, most o
those new` rights are socio-economic in nature and are
recognized in the Constitution`s Directie Principles. Moreoer,
the underlying cases ,with the exception o /((+O5+-3("(, in which
these rights were discoered` did not require the courts to set
aside or inalidate any central or state statutes.
I !"# %&'()"*+&( remains undisturbed or is airmed by the
Supreme Court, it will be only third time - by my reckoning -
that an Indian court has used substantie due process to discoer
a new ciil and political right ,priacy, and inalidate a statute
or transgressing that right. 1he only other decisions to use
substantie due process in this manner are M+*3', where the
Supreme Court struck down Section 303 o the Penal Code,
which prescribed a mandatory death sentence or a lie conict
who commits murder and P"("5" @"(O, where the Court
inalidated an Andhra Pradesh reenue state that compromised
conidential banking inormation. K"*3+(">, in which the Court
inalidated criminal sanctions under Section 309 o the Penal
Code or suicide attempts, also used substantie due process
reasoning. But, as we all know, Rathinam was subsequently
oerruled by a constitution bench in H+"( I"'5.
3. !"# %&'()"*+&( abandons the Supreme Court`s reticence about
priacy in I3"5"O L+(A3, H&7+(), and K"J"A&C"8 and orceully asserts
that there is such a right in Article 21`s guarantee o lie and
liberty. \hile that itsel is a noteworthy constitutional milestone,
the Delhi ligh Court has gone een urther by arguing that
priacy concerns ocus on persons` rather than places. In so
doing, the ligh Court articulates a unique non-spatial and
portable understanding o priacy. 1his understanding seeks to
liberate priacy rom its traditional ocus on protecting the
sanctity o the home, bedroom, ,or, perhaps, in this case, the
closet,. 1his subtle, but skilully reasoned, aspect o !"#
%&'()"*+&( is its most attractie constitutional eature. I suspect
that it is this eature that will ensure the case is cited or many
years to come in courts and classrooms. I should say, howeer,
that tomorrow I will quarrel with the high court`s reasoning and
actual conclusion on this issue. So, this is only qualiied praise.
4. I am especially struck by !"# %&'()"*+&(`s insistence on a strictly
secular approach in adjudicating constitutional claims. It wisely
aoids any reerence to religious or moral dimensions, een
though petitioners explicitly touched upon them in oral and
written submissions ,they argued that Section 3 was based on
Judeo-Christian` alues,. In this respect, !"# %&'()"*+&( is
strikingly dierent rom other substantie due-process cases, such
as K"*3+(">, its closest relatie in some respects. In his rambling
opinion in K"*3+(">, Justice lansaria quoted extensiely rom
religious and spiritual sources to support his thesis that the
Constitution protects a right to die. By contrast, !"# %&'()"*+&(
is content with citing only the secular icons o our past, Nehru
and Ambedkar. 1heir personal iews on homosexuality remain
publicly unknown, but their political philosophy would appear
to tolerate it.
5 Unlike any other decision beore it, !"# %&'()"*+&( has the unique
potential to diminish popular, but irrational, moral condemnation
o stigmatized groups. \itness the headlines in the Indian press
reporting the decision It is ok to be Gay,` Sexual Lquality,`
Gay and linally Legal,` and Sexual reolution in India.` It is
or this reason, perhaps, that my good riend, Lawrence Liang
argues that !"# %&'()"*+&( is India`s K&4 moment. Indeed, the
mass publicity and anare heralding the decision presents a rare
opportunity or actiists to reshape public opinion and inluence
a wider social debate about gay rights. 1his is especially important,
as in the long run, gays and other disaected groups cannot
only rely on courts to adance their ciil rights agenda. 1hey
must build new political coalitions and engage the legislatie
process.
6 !"# %&'()"*+&( gies new meaning to identity politics in India.
Dominant political and legal conceptions o identity ocus on
groups traditionally knitted together by religious, caste, or
linguistic ties. By acknowledging the distinct status o persons,
whose only common bond is sexual orientation, and addressing
them as a collectie ,actually using the phrase LGB1`,, !"#
%&'()"*+&( recognizes the emergence o new social identities while
careully sidestepping lingering concerns about their elite roots
and urban biases.
. linally, the decision bolsters the Delhi ligh Court`s reputation
or being India`s most important constitutional court apart rom
the Supreme Court. In recent years, the ligh Court has produced
some innoatie decisions that push the boundaries o our
constitutional jurisprudence. 1wo notable gems are M"R7&&8 %+)"
Y'--"+( , K"J I'>"5 6"()49, 2008 ,6, Del. 533 ,decrying misuse
o obscenity prosecutions, F'-*+D4 "() 6"54(*- %&5'> 0&5 M4"(+(A0'8
Q)'D"*+&( ,. /(+&( &0 1()+", A.I.R. 2001 Del. 212 ,airming
constitutional rights o children and outlawing corporal
punishment in Delhi schools,. !"# %&'()"*+&( is the latest
milestone in the Delhi ligh Court`s impressie track record, and
a demonstration that one does not always need to depend on
the Supreme Court or constitutional salation.
B34 "'*3&5 +- " D&(*5+7'*&5 *& *34 <"= "() &*345 *3+(A- 78&A "*
3**C:ii8"="()&*345*3+(A-.78&A-C&*.D&>i
V75< >H] =>>?

W##/ +#5&'&-4 -7( -D ("# ')< 9#`)(# L+)3"5*3 @3"*+"
lomosexuality has done what wise men through the ages hae not
managed to do - it has brought the worthies o all religions together.
Christian priests, Muslim mullahs and sundry lindu swamis are all in
high dudgeon oer the ruling o the Delhi ligh Court that eectiely
decriminalizes homosexual behaiour. Against the law o God and
nature, says one, un-Islamic, says another, while the third brings up
the trump card - it is against Indian culture.
\hen was the last time one heard all the religions speak in one oice
Gays should be proud o themseles.
But while these high-minded people spew ire and brimstone and
talk about the end o ciilization being round the corner, we hae to
stop and ask - is this judgment about religion or about the laws o a
soereign nation
India does not work according to religious laws but according to the
Constitution. 1he honourable judges, who hae come up with one
o the most brilliant and nuanced judgments in recent years, hae
made it abundantly clear that the writers o that wonderul document
had spoken o equality under the law. 1hey hae quoted Jawaharlal
Nehru to remind eeryone that he wanted that spirit o equality to be
uniersally applicable - homosexuals as citizens o India desere
that equality.
1he judgment has not thrown in any dollops o Indian culture or
religion. \et, all the major objectors so ar hae been rom the religion,
culture sector. Murli Manohar Joshi, who despite being a physics
proessor keeps science irmly out o his thinking, has said that a
couple o judges cannot be aboe Parliament or the people`. le
has not so ar inoked God, but gie him time.
1o be sure, no society can unction without its culture and traditions,
and judges, like eeryone else, work within that enironment, rom
which social mores are drawn. 1he Chinese, who are anti-religion
and atheistic, are steeped in Conucianism which has Buddhist
connections. 1he lrench, despite their abhorrence or religion, cannot
escape their Christian past. And linduism in its arious orms has
played a big role in what we are today.
But the preailing attitudes o an era and o its ruling classes also put
their stamp on our norms. Section 3, which expressly calls all orms
o unnatural sex criminal, was the brainchild o 1B Macaulay and his
Victorian mind.
1he Victorians were not without their perersions, but unctioned
within repressie social conentions. 1hose Victorian alues - and,
thereore, laws - hae inluenced generations o Indians, as Macaulay
predicted. Our police orce today is still run by the mentality o looking
at ellow citizens as seditious criminals. Successie goernments o
independent India, whether by lethargy or design, hae chosen not to
amend many archaic laws. Considering that homosexuality is hardly a
priority and it itted well with cultural mindsets, there was no
compulsion to apply any thinking to it.
But the world has moed on. Discriminatory laws are being amended.
By section 3 o the Indian Penal Code, all these years a gay person
could be thrown into jail or his sexual preerence. It has taken oer a
decade o hard work and lobbying to get gays out o its ambit, though
the section can still be used against paedophiles and rapists.
1he courts hae once again shown that they lead the way in irtually
imposing progressie legislation on our hide-bound society. Now that
the gays hae crossed the irst big hurdle, they hae to take the next
steps careully. Celebrating with song, dance, and outrageously camp
behaiour is all ery well, but any strategy to ight o challenges to
this ruling cannot all into the trap set by the religion- and culture-
wallahs.
I remember, when a bunch o iolent loonies went on the rampage
against the screening o Deepa Mehta`s ilm %+54 a decade and a hal
ago, lesbian groups hit back by declaring that homosexuality was ery
much part o Indian culture`. 1hat is totally the wrong way to go
about it.
Any number o examples o reerences to homosexuality can be dug
up in Indian mythology or, or that matter, rom other religions. But
that is a reductionist idea that immediately allows the religious groups
to shit the battle to their chosen arena. It is a no-win situation - the
other side will always win. Moreoer, the scriptures and our myth and
lore hae many reerences to incest or sati, should we just accept
them blindly
Most important, inoking culture and tradition will deeply oend a
ast majority o Indians, who are still ambialent, een hostile, to
homosexuality. 1he gay community needs their support.
No, the battle has to be ought and won on legal grounds. In any
democratic republic, with a unctioning Constitution and a strong
legal system, the law is the best weapon and can be used as a
brahmastra. 1he political classes hae largely welcomed the judgment,
those parties which are unsure hae wisely chosen to keep quiet. 1he
prime minister is taking an interest. Signs o major changes are in the
air.
1he priest, the mullah, and the swami must be told that they hae a
right to hold and express iews, but their writ does not run in this
country. \e hae allowed these elements to get away with a lot in
recent times and they hae become emboldened. Now they must be
shown their place.
One day, perhaps, the ires o hell will consume all sinners, but or
the moment we must lie by the laws o the land.
*1@ ;49&)
V75< a] =>>?
http:,,www.dnaindia.com,opinion,column_keep-religion-out-o-the-
gay-debate_121112

1he atermath o the Naz judgment was a deluge o publicity. Many
nationwide news channels gae lie coerage o the decision`s release.
\ithin hours, news o the judgment was being carried by international
news sites like CNN
1
, BBC
2
, and the New \ork 1imes
3
. Reactions
came switly rom across the political and cultural spectrum. Various
human rights organizations, including UNAIDS, welcomed the
judgment as a crucial step in ensuring the dignity o millions o
indiiduals throughout India
4
. Actiists and commentators lauded
;
0
*
4
5
=
&
5
)
1
CNN International, Indian Court: gay sex is legal,` 2 July 2009: http:,,
edi ti on. cnn. com,2009,\ORLD,asi apc,0,02,i ndi a. sex. rul i ng,
index.htmlere~edition_world
2
BBC News, Gay sex decriminalized in India,` 2 July 2009: http:,,
news.bbc.co.uk,2,hi,south_asia,8129836.stm, BBC News, Gay sex ruling:
iews rom India,` 2 July 2009: http:,,news.bbc.co.uk,2,hi,south_asia,
81303.stm
3
N.\. 1imes, Indian Court oerturns gay sex ban,` 2 July 2009: http:,,
www.nytimes.com,2009,0,03,world,asia,03india.html
4
1he lindu, Judgment on Section 3 welcomed` 03 July 2009: http:,,
www.hindu.com,2009,0,03,stories,200900361381800.htm
the ligh Court justices or producing a clearly reasoned and humane
opinion
5
. 1he Union Law Minister indicated that the goernment
would hae to consider the judgment in more detail beore reaching a
position
6
. le later met with the lome Minister and lealth Minister
to prepare a report or submission to the Prime Minister
.
loweer, not all reactions to the ligh Court`s decision were positie.
A small number o religious leaders were ocal in their opposition to
the judgment. In a supremely ironic gesture o ecumenism, the
president o Jamaat-e-Islami lind called or leaders o all religious
traditions to set aside their dierences and join in condemning the
decriminalisation o homosexual acts
8
. Len some staunchly
conseratie politicians entered the debate to oice their displeasure
with the judgment`s apparent acceptance o homosexuals in society
9
.
\et, in spite o this noise and bluster it must be noted that the National
Council or Churches in India ,NCCI, issued a document urging its
member Churches to accompany the People with Dierent Sexual
Orientation ,PDSO, in their journey.` It urged the Churches to create
orums to discuss human sexuality and proposed to re-read and re-
interpret Scriptures rom the PDSO perspectie.
10
Similarly the two
major political parties did not express any opinion on the judgment,
with the Communist Parties as well as the Nationalist Congress Party
welcoming the judgment. In spite o the portrayal by a ew religious
oices who took up inordinate air-time, religious opinion in not
5
1he lindu, Admirable judgment: Vikram Seth,` 3 July 2009: http:,,
www.hindu.com,2009,0,03,stories,20090036142000.htm
6
1he lindu, \e need to examine the details o the erdict, says Moily,` 3 July
2009. http:,,www.hindu.com,2009,0,03,stories,200900361391800.htm
ND1V, Got diided on section 3`, 4 July 2009: http:,,www.ndt.com,

news,india,got_diided_on_section_3.php
8
1he lindu, Muslim clerics eel amily system will be destroyed,` 3 July 2009:
http:,,www.hindu.com,2009,0,03,stories,200900361341800.htm
9
DNA India, `Decriminalising homosexuality will send the wrong signals`,` 8
July 2009: http:,,www.dnaindia.com,bangalore,interiew_decriminalising-
homosexuality-will-send-wrong-signals_122161
10
http:,,www.indiancatholic.in,news,storydetails.php,12908-1-6-Protestant-
leaders:-Churches-need-to-rethink-stance-on-homosexuality
uniormly opposed to the decriminalisation o homosexuality. Political
opinion is similarly diided.
loweer, the more conseratie oices iled special leae petitions in
the Supreme Court praying or an interim stay o the judgment
pending an appeal. Among them was Baba Ramde, who expressed
concern that decriminalising homosexual relationships would lead to
the spread o homosexuality and thus negatiely impact India`s
population growth. le also claimed homosexuality was a curable
disease that could be treated through proper yoga and meditation
techniques
11
. ,1his prompted Manendra Singh Gohil, the gay prince
o the ormer state o Rajpipla, to point out that ten years o practicing
yoga had simply made him a more conident homosexual.,
12
At a hearing on July 9, the Supreme Court heard arguments rom
another petitioner, Suresh Kumar ,reportedly an astrologer,. Mr.
Kumar argued that the decision had led to a spate o gay marriages
across the country, and that the Supreme Court must act immediately
to presere the institution o marriage. le also made the this is
against Indian culture` argument, een though that argument had
already been thoroughly addressed in the ligh Court. According to
the petition: 1he ligh Court completely lost sight o the act that
the Indian society still remains, by and large, a conseratie and
primitie society and shining nature o Indian societies ound in metros
,which is less than 6 to per cent, cannot represent the whole Indian
society or understanding the social and cultural Indian net`
13
.
Apparently, primitie is preerable to shining.
1he Supreme Court reused to decide on the request or an interim
order staying the judgment, until the Union o India had made clear
its stand. 1he Chie Justice urther pointed that a ew oerenthusiastic
11
1he lindu, Baba Ramde to challenge Court erdict on gay sex,` July
2009: http:,,www.hindu.com,thehindu,holnus,0022009002033.htm
12
DNA India, lomosexual prince dares yogis to cure` him,` 31 July 2009:
http:,,www.dnaindia.com,india,report_homosexual-prince-dares-yogis-to-
cure-him_128869
13
1he lindu, Section 3: Centre may seek more time to ile response,`
20 July 2009: http: ,,www. hindu. com,2009,0,20,stories,
200902060031000.htm
homosexuals trying to get married was not a good reason to stay the
judgment, but merely a reason to educate the public about what the
judgment actually said
14
,the judgment did not deal in any way with
marriage laws,. \et the Court did grant the astrologer standing to
appeal the case, een though he had not been a party to the original
proceedings in the ligh Court. Accordingly, the Court issued notices
to the Centre and the Naz loundation that the appeal had been taken,
requesting that they ile their responses within ten days
15
.
1hen, ater a hearing on July 20 inoling lawyers rom all parties, the
Court reused to grant the astrologer`s requests or an interim stay o
the judgment, largely because the Union o India did not support
such a moe. Chie Justice Balakrishnan gae the Centre ten weeks
to ormulate and ile its inal position on the judgment. 1he Law
Ministry is to prepare a detailed analysis o the judgment, which it
will submit to a panel o three ministers ,lome, lealth, and Law,.
1his panel will then send the report with its recommendations or a
ote beore the entire cabinet
16
.
1here is cause or cautious and guarded optimism about the outcome
o the Supreme Court appeal. 1hough the Centre has been
characteristically non committal in its response to the judgment, there
are signals that the goernment will not take a irm stand against the
ligh Court`s ruling
1
. In a particularly promising deelopment, the
Union law minister Veerappa Moily recently called the ligh Court`s
judgment well-researched, well-documented, |and| well-argued,` and
acknowledged that Section 3 has sered as an instrument o
14
1he lindu, Supreme Court takes up petition against gay sex,` 10 July 2009:
http:,,www.hindu.com,2009,0,10,stories,200901054981000.htm
15
DNA India, Centre relieed as SC issues notice on gay ruling,` 9 July 2009:
http:,,www.dnaindia.com,india,report_centre-relieed-as-sc-issues-notice-
on-gay-ruling_12249
16
1imes o India, Section 3: Cabinet to take inal call on got stand,` 29
July 2009: http:,,timesoindia.indiatimes.com,NL\S,India,Section-3-
Cabinet-to-take-inal-call-on-got-stand-,articleshow,4832153.cms
1
DNA India, Goernment unlikely to oppose Delhi lC gay erdict,` 29 July
2009: http:,,www.dnaindia.com,india,report_goernment-unlikely-to-
oppose-delhi-hc-gay-erdict_128029
exploitation in the past. le also said that certain colonial-era laws are
not compatible with the Constitution, and the courts hae the power
to decide the law when such conlicts arise
18
.
Until such time as the Supreme Court inally decides the case arriing
at a dierent conclusion rom the !"# judgment or another ligh
Court comes up with a dierent interpretation o the constitutionality
o Section 3, LGB1 persons are ull citizens o India.
18
DNA India, Anti-gay law was an instrument o exploitation, says Moily,` 2
August 2009: http:,,www.dnaindia.com,india,report_anti-gay-law-was-an-
instrument-o-exploitation-says-moily_129130

The Right That Dares To Speak Its Name

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!"# %&'()"+&( ,-. /(+&( &0 1()+" "() 2345- !"# %&'()"*+&( ,-.

. /(+&( &0 1()+" "() 2*345-

In the second part titled @"DOA5&'(): B34 !"# F')A>4(* we reproduce

in adjudicating on the constitutionality o a law which parliament

48 1he Right that Dares to Speak its Name

O+I ."<)2 *&X)4 D-+ U-&3#, @')&4,( GHH

9 Decriminalising Sexual Orientation and Gender Identity in India

101 Decriminalising Sexual Orientation and Gender Identity in India

105 Decriminalising Sexual Orientation and Gender Identity in India

109 Decriminalising Sexual Orientation and Gender Identity in India

115 Decriminalising Sexual Orientation and Gender Identity in India

118 1he Right that Dares to Speak its Name

122 1he Right that Dares to Speak its Name

12 Decriminalising Sexual Orientation and Gender Identity in India

130 1he Right that Dares to Speak its Name

ND1V, Got diided on section 3`, 4 July 2009: http:,,www.ndt.com,

136 1he Right that Dares to Speak its Name

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