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Dr RAM MANOHAR LOHIYA NATIONAL LAW UNIVERSITY

LUCKNOW

A RESEARCH PROJECT ON LEGALITY


OF HOMOSEXUALITY
Constitutional Morality and Public Morality, a
Vis--vis Discussion on Homosexuality

Submitted to

Submitted by

Anil Sain

Gayathree P Thampi

Assistant Professor

Roll Number 58

Basics of Legislation

Semester II - BA LLB
ACKNOWLEDGEMENT

This Project is a bonafide record of all the data collected pertaining to the topic. I hereby
acknowledge the help and support of our university Vice Chancellor Prof. Gurdip Singh, my
guide and teacher Mr. Anil Sain, and the staffs of the library for their timely help and
suggestions. I thank all the teachers who have taught me. I also thank my friends for their sincere
support. Last but not the least; I thank my parents for all that they have given me and God
almighty for keeping me in best condition to finish this project in time and best of my abilities.

TABLE OF CONTENTS

Acknowledgement..1
List of Abbreviations.3
List of Cases3
Introduction....... 4
Hypothesis..5
Research Project....6
Chapter 1 -The issue of homosexuality from religious point of view.6
Chapter 2 - The legalities and illegalities of same sex marriage
Chapter 3 - Attitude of various nations towards same sex ..
Chapter 4 - Issue of Homosexuality in India.
Chapter 5 Art. 21 and Sec 377, a contradiction?
Research Methodology17
Coverage...17
Data collection..... 17
Sources..17
Conclusion....18
References20

LIST OF CASES
Naz Foundation v. Govt. of NCT of Delhi
Baker v. Nelson

ABBREVIATIONS
Supreme Court SC
High Court HC
Section Sec
Article- Art.
Government Govt.
IPC Indian Penal Code

INTRODUCTION

The fight for equality among the various genders of our race has a millennium long history.
There has been a long struggle for male and female equality. The latest addition to this universal
struggle is the case of transgender. LGBT protests, laws etc has been filling the headlines for
quite some time now. LGBT stands for Lesbian, Gay, Bisexual and Transgender. This has been a
recent hot topic owing to the recent ruling of the SC that same sex intercourse being treated as a
criminal offense. There is a list of countries, most of it being Christian nations, who has legalized
same sex marriage and homosexuality even though their religion forbids it. Several
organisations, including the Naz Foundation (India) Trust[1], the National AIDS Control
Organisation, Law Commission of India, Union Health Ministry, National Human Rights
Commission and

The Planning

Commission of

India have

expressed

support

for

decriminalizing homosexuality in India, and pushed for tolerance and social equality for lesbian,
gay, bisexual, and transgendered people. The issue of homosexuality got its popularity with Naz
Foundation v. Govt. of NCT of Delhi, which on 2 July 2009, Delhi HC ruled that consenting
sexual intercourse between adults of same sex is not illegal and rendered Sec 377 of the Indian
constitution as invalid. But, on 11 December 2013, the decision was overruled by the SC and
same gender intercourse was again made illegal. Ever since then, there has been number of
protests against the SC decision and making things worse, an appeal filed on this matter by Naz
foundation was rejected, in a way, shutting all the possible hopes for the homosexuals.
The main objective of this project to study in detail the issue of homosexuality with an Indian
perspective, while analyzing the status of LGBT rights across the world. Now the question
arises- Sec 377 is in contradiction with Art. 21, thus by the virtue of Art. 13 (2), it is rendered
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unconstitutional and it invalidates itself. If not so, what could the possible reason so strong that it
led the SC to overlook one of the most important Art.s of Indian Constitution?

[1]

Naz Foundation v. Govt. of NCT of Delhi, 160 Delhi Law Times ,277

HYPOTHESIS

Sec 377 in very much constitutional and holds nothing against Art. 21.
Sec 377 should be read as an independent law and should not be read with Art. 21
Sec 377 rules all sexual intercourse of unnatural kind as illegal and is silent about same sex
intercourse.

The issue of homosexuality from religious point of view

Homosexuality is not a new issue in India. Infact, the Naz Foundation case, its judgments and
further events triggered a chain of action which eventually brought into public notice the long
existing problem in our society. Homosexuality is criticized all over the world based on different
grounds. One of the most important base on which this very much natural phenomenon is termed
unnatural is because the god said so. A better way of putting it would be that the religion
prohibits it. Let us first analyze what various religions say about homosexuality. Since India is
religiously secular it is indeed important to consult more than one religion for this purpose.
Hinduism
Hinduism has taken various positions, ranging from positive to neutral or antagonistic. Referring
to the nature of Samsara,the Rigveda, one of the four canonical sacred texts of Hinduism says
'Vikruti Evam Prakriti' (perversity/diversity is what nature is all about, or, what seems un-natural
is also natural).[2] The third gender is mentioned in the Vedas. It is customary to distribute gifts to
such people as it is believed that all their sexual energy is converted to spiritual and they has the
power to give a boon or curse. In certain regions of India, when a baby is born, the house is
visited by transgenders who are given money as to give blessings to the newborn. If displeased,
they can curse the new born to be a transgender himself. In Mahabharatha, there is a mention of
Brihandala, the transgendered form of Arjun. He is said to have a transgendered child of the
name Iravan, who is considered as a deity in certain parts of India. Also, many of the highly
revered characters of the epics like Shikhandi are mentioned to be homosexual. This proves that
there were homosexuals who were highly revered even at those times. In some Hindu sects
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(specially among the hijras), many divinities are androgynous. There are Hindu deities who
are intersex (both male and female); who manifest in all three genders; who switch from male to
female or from female to male; male deities with female moods and female deities with male
moods; deities born from two males or from two females; deities born from a single male or
single female; deities with principal companions of the same sex, and so on.
[2] Kavi, Ashok Row, 'Expose the Hindu Taliban!' , 2009

Sikhism and Buddhism


The most common formulation of Buddhist ethics are the Five Precepts and the Eightfold Path,
one should neither be attached to nor crave sensual pleasure. The third of the Five Precepts is "To
refrain from committing sexual misconduct."[3] Hence, Buddhism condemns all sorts of sexual
pleasure and does not specifically talk about homosexuality. A notable exception in the history of
Buddhism occurred in Japan during the Edo period, in which male homosexuality, or more
specifically, love between young novices and older monks, was celebrated.[4]
Sikhism has no written view on the matter, but in 2005, a Sikh religious authority described
hkiomosexuality as "against the Sikh religion and the Sikh code of conduct and totally against
the laws of nature," and called on Sikhs to support laws against gay marriage.[5]
Christianity
Some liberal Christians are supportive of homosexuals. Other Christian denominations do not
view monogamous same sex relationships as bad or evil. Denominations that oppose
homosexuality

include

Protestant denominations,

the Eastern
such

as

Orthodox

the Methodist

Church
churches,

and
Reformed

some mainline
Church

in

America the American Baptist Church, as well as Conservative Evangelical organizations and
churches, such as the Evangelical Alliance, the Presbyterian Church in America and the Southern
Baptist Convention. Many Pentecostal churches such as the Assemblies of God, as well
as Restorationist churches, like Jehovah's Witnesses and Mormons, also take the position that
homosexual activity is immoral. The Catholic Church does not condemn homosexuality as sinful
per se but states that homosexual inclinations are "intrinsically disordered".[6]
Islam
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Islam condemns homosexuality in all forms.


[3]

Higgins, Winton, "Buddhist Sexual Ethics", BuddhaNet Magazine, <http://www.buddhanet.net/winton_s.htm>, Retrieved 02/21/2014

[4]

Leupp, Gary P, Male Colors, the Construction of Homosexuality in Tokugawa Japan. Berkeley: The University of California Press, (1995).

[5]

World Sikh group against gay marriage bill, CBC News, Tuesday, 29 March 2005

[6]

Catechism of the Catholic Church, <http://www.vatican.va/archive/ENG0015/_INDEX.HTM>,last retrieved on 2/21/2014.

The legalities and illegalities of same sex marriage


Most often than not, gay marriages are criticized on the basis of moral grounds rather than legal.
A very important argument in illegalizing gay marriages is that what is unnatural is offensive. I
can be seen as beastly. Humans are civilized creatures and need to put our intellectual superiority
in effect by following the cultural norms unique to human species. Marriage is a sacrament
where god unites a man and a women. Giving way to legal acceptance to gay marriage would
hurt society on a number of levels. First, legal identification of gay couples would legitimize
morally wrong unions. It would be morally wrong in a society that looks at marriage to be
fundamentally being between a man and a woman; this being from a religious point of view.
Further, gay marriage would in the end fail marriage as the basis of an established society. Since
gay unions cannot produce children through ordinary and proper procreation, such unions do not
add to the survival of the human race. Furthermore, it is immoral to legitimize gay unions
because it is not in the best interests of the children who might be adopted by gay couples. These
children would be lacking of either the awareness of fatherhood or motherhood.[7]
There are also arguments for the legalizing of gay marriage and LGBT rights. Main argument
would be that gay or not gay, homosexual of heterosexual, every citizen of any country has a set
of fundamental rights that are given to them. The most important of it would be that of sexual
intercourse between consenting adults and the freedom of marriage. For the mere reason that
they are of a different sexual orientation, which is out of their control, they cannot be denied of
this basic right. For answering the question as to why we would need separate laws for the
LGBT, the answer would be that, they are already living in a very prejudiced society. Being a
minority based on their sexual orientation they would have many problems that the ambit of the
general laws would not cover. Therefore we need a separate Sec of laws to take care of it.

[7]

Gay Marriage A Moral Issue,Law Teacher, <http://www.lawteacher.net/family-law/essays/gay-marriage-a-moral-issue-family-lawessay.php#ixzz2tycIfteq>, last accessed on 2/21/2014

Attitude of various nations towards same sex

Legalizing Homosexuality and same sex marriage is not an issue unique to India. Many countries
have dealt with or are dealing with this issue of homosexuality. It is interesting to note that
though USA as a whole has no particular stand against homosexuality, each state of USA has
different and often contradicting rules pertaining to homosexuality and gay marriages.
United States of America
In 1972, the SC of Minnesota in Baker v. Nelson ruled that a state's denial of a civil marriage
license to a same-sex couple did not violate the U.S. Constitution. In 1993, the Hawaii SC ruled
that the state constitution's ban on sex discrimination entitled a same-sex couple to a civil
marriage license unless the state could prove it had a "compelling state interest" for denying such
a license.[4] Same-sex marriage was legal in Hawaii for a day, before the judge stayed his ruling.
Hawaii amended its constitution in 1998 to allow the legislature to restrict marriage to differentsex couples. Same sex marriage became legal in Massachusetts on May 17, 2004. In California,
gay marriages were legalized on February 7, 2012 by the United States Court of Appeals for the
Ninth Circuit and is currently waiting a decision on whether it will be heard or not by the United
States SC. Same sex marriage became legal in Connecticut on November 14, 2008. Same sex
marriage became legal on April 26, 2009 in Iowa. The Vermont state legislators choose civil
unions. Civil unions became legal in Vermont on July 1, 2000. Civil unions became legal in New
Jersey on February 19, 2007. But, Currently two state SC decisions have allowed same sex
couples to adopt: - Florida and Arkansas. In Maine In a voter initiative held on November 6,
2012, same-sex marriage was approved and became legal on December 29, 2012.

[8]

Wilson,

Reid. "Missouri

governor

allows

same-sex

couples

to

file

joint

tax

returns".

<http://www.washingtonpost.com/blogs/govbeat/wp/2013/11/15/missouri-governor-allows-same-sex-couples-to-file-joint-tax-returns/?tid=pm_pop>.
Retrieved January 15, 2014.

In New Hampshire On June 3, 2009, Governor Lynch signed the same-sex marriage bill passed
by the New Hampshire state legislators. Same-sex marriage in New Hampshire became legal on
January 1, 2010. On June 24, 2011, Governor Cuomo signed the same-sex marriage bill passed
by the New York state legislature. Same-sex marriage became legal in New York on July 24,
2011.
Australia
Australia has an interesting history of legalizing gay rights. Gay marriages were legal in
Australia for five days in November 2013 before . But that fleeting window was slammed shut
Thursday by the Australian HC, which ruled that a recent local law legalizing same-sex marriage
was invalid. That means that the marriages of the couples who took advantage of the law to tie
the knot - 27 according to local media -- will be annulled. An appeal petition has been filed and
the whole community of Australia is waiting for the decision.
Middle East
Middle Eastern countries are well known for their strict sharia rules and courts which are ruled
by religion more than logic. Same sex activities are legal in few countries of the Middle East like
Bahrain, Iraq, Israel, Palestine (west bank) and Jordan. Female same sec activities alone are
allowed in countries like Kuwait, Palestine Gaza and Qatar. Same sex adoption is allowed only
in Israel and Palestine (west bank). Israel is the only country in the Middle East which allows
unregistered co-habitation, gender identity, military service and has anti-discrimination laws.
Evan in Qatar, foreign same sex marriages are recognized but that does not allow the same
within their country.
South and East Asia

Only Nepal recognizes or legalizes same sex activity in South Asia. Nepal also has rules against
homosexual discrimination and gives the freedom of gender identity. All other countries have
explicit rules stating that any kind of same sex activity is illegal. In Maldives, Iran and
Afghanistan, the penalty for homo sexual activities is death. In Pakistan also, third gender is
official protected by a ruling of the SC in 2010.
Europe
Europe shows a wide range of attitudes towards homosexuality, ranging from countries which
are very much intolerant to homosexuality to countries which are very much in favour of it.
France, Belgium, Netherlands, United Kingdom and Spain are very much for the homosexual
couples, providing them with marriage and adoptive rights, military job rights and stringent antidiscrimination laws. There are moderately tolerant countries like Andorra, Bulgaria, Gibraltar,
Portugal, Ireland and Jersey, which though do not have explicit rules legalizing Same Sex
marriages or which has legalized same sex marriages but not adoption rights, has explicit rules
against discrimination and also for gender identity.
Africa
Africa is a continent with a bit of radical yet traditional outlook towards homosexuality. Africa
has been reported with the maximum number of corrective rapes. Corrective rape is a term used
for all the sexual assaults that is committed on a homosexual or the so accused by the opposite
sex in order to correct the homosexuality in them. This has accentuated the number of AIDS
victims in such area greatly. It would be interesting to note that not only most African Nations
have a wide range of anti- homosexual rules and laws, the crimes done against them such as
corrective rapes and burning alive, are often overlooked by the government on the pretext of
cultural and ethical demands of the nations.

Issue of Homosexuality in India


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Though Hinduism is mostly silent about homosexuality and Islam does not care much, Indian
society is still primarily homophobic and recently our judiciary interpreted that even our
constitution which sees everyone with equal eyes, think that homosexuals are the sinned and they
should be denied of their fundamental rights. Homophobia is prevalent in India.Public discussion
of homosexuality in India has been inhibited by the fact that sexuality in any form is rarely
discussed openly. In recent years, however, attitudes towards homosexuality have shifted
slightly. In particular, there have been more depictions and discussions of homosexuality in the
Indian news media[9] In September 2006, Nobel Laureate Amartya Sen and acclaimed
writer Vikram Seth and other prominent Indians publicly demanded the repeal of Sec 377 of the
IPC.
On 30 June 2008, Indian labour minister Oscar Fernandes backed calls for decriminalisation of
consensual gay sex, and the Prime Minister Manmohan Singh called for greater tolerance
towards homosexuals.[10] On 23 July 2008, Bombay HC Judge Bilal Nazki said that India's
unnatural sex law should be reviewed.[11] The Law Commission of India had historically
favoured the retention of this Sec, but in its 172nd report, delivered in 2000 it recommended its
repeal. In December 2002 Naz India filed a Public Interest Litigation (PIL) to challenge IPC Sec
377 in the Delhi HC.[12] On 4 July 2008, gay activists fighting for decriminalization of consensual
homosexuality at the Delhi HC got a stimulus when the court opined that there was nothing
unusual in holding a gay rally, something which is common outside India. [13] On 2nd july 2009,
Delhi HC struck down Sec 377 partially as to provide provision to legalizing gay marriages and
sexual intercourses between consenting adults.

[9] UN body slams India on rights of gays The Times of India, 24 April 2008
[10] Reverse swing: It may be an open affair for gays, lesbians", The Times Of India, 2 July 2008.
[11] Thomas , Shibu, "Unnatural-sex law needs relook: Bombay HC", The Times of India, 25/07/2008
[12] "Advocacy, Sec 377
[13] "HC dismisses case against gay rally", Hindustan Times, 04/07/2008.

On 11 December 2013, on appeal, the SC of India upheld the constitutionality of Sec 377 of the
IPC, and stated that the Court was instead deferring to Indian legislators to provide the soughtafter clarity. In its judgment the SC stated

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"We declare that Sec 377 IPC, insofar it criminalises consensual


sexual acts of adults in private, is violative of Art.s 21, 14 and 15 of the Constitution. The
provisions of Sec 377 IPC will continue to govern non-consensual penile non-vaginal sex and
penile nonvaginal sex involving minors... Secondly, we clarify that our judgment will not result
in the re-opening of criminal cases involving Sec 377 IPC that have already attained finality."[14]
Post this ruling government filed an appeal in the SC which was also rejected. Two days after the
HC ruling, Pink Pages, Indias first online magazine for the homosexuals was released. Celine
Jaitley, a Bollywood actress, restarted Indias first magazine for the homosexuals called the
Bombay Dost.
Numerous parades were held and protests rang all over the nation. Prince Manvendra Singh
Gohil, who hails from Rajpipla in the Gujarat, publicly came out as gay. This resulted in his
family

disowning

him

but

they

later

reconciled.

Anjali

Gopalan inaugurated Alan

Turing Rainbow festival and flag offed the Asia's first Gender queer pride parade as a part of
Turing Rainbow festival organized by Srishti Madurai a literary and resource circle for
alternative gender and sexualities it was established by Gopi Shankar a student of The American
College in Madurai to eradicate social discrimination faced by the LGBT community,this is the
first parade in Asia to highlight 20 other kinds of genders apart from LGBT.[15] Whole India rose
up for the rights of its minority. And yet, the future of homosexuals in India, there security and
safety is still in the verdict yet to come.

[14] George, Arun, Government to legislate against Criminalising homosexuality? < http://www.firstpost.com/living/live-govt-to-legislate-against-criminalisinghomosexuality-1280861.html>, Retrieved on 11/12/2013

[15]

"Cities / Madurai : Madurai comes out of the closet", The Hindu. 2012-07-30, Retrieved 22/02/2014

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Art. 21 and Sec 377, a contradiction?


Every time the court try to relate the provisions of Sec 377 of IPC, the counter arguments based
on the provisions of Art. 13 (2) which requires Sec 377 to be read in sync with Art. 21. Before
we vilify or agree with that argument, let us see what the provision of Sec 377 of Indian Penal
Code. It states,
Unnatural offences.--Whoever voluntarily has carnal intercourse against
the order of nature with any man, woman or animal, shall be punished with
1*[imprisonment for life], or with imprisonment of either description for a term which
may extend to ten years, and shall also be liable to fine.
Explanation.-Penetration is sufficient to constitute the carnal intercourse necessary to the
offence described in this Sec.

And Art. 13 (2) and Art. 21 of the constitution says respectivelyArt. 13 (2) - The State shall not make any law which takes away
or abridges the rights conferred by this Part and any law made in contravention of this clause
shall, to the extent of the contravention, be void.
Art. 21 - No person shall be deprived of his life or personal liberty except according to
procedure established by law.
Here the concept of personal liberty and procedure established by law is very much ambiguous
that more or less, it is the discretion of the judiciary alone to give meaning to this word and read
the Art. in accordance to a situation. But the same is the case with order of the nature. The mere
description of the two articles, 13 (2) and 21, read with section 377 of IPC is enough to prove the
invalidity and unconstitutionality of section 377 of IPC. The judiciary would have no right to
deprive an individual of his right to have sexual intercourse with anyone he deems fit provided
that there is mutual consent and that the both consenting parties are adults and is prudent enough
to understand his acts.

Research Methodology
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Coverage
This project basically covers some basic details pertaining to attitude of various countries about
homosexuality. It also discusses mainly the attitude and laws in India that makes homosexual
intercourses illegal. There is also a discussion on the constitutionality of Sec 377 of IPC.

Data collection
Data has been collected from various web resources mainly. Numerous articles have been
consulted in the making of this project and newspaper articles are assumed to be reliable while
making this project.

Sources
This project is made using both primary sources like books and newspaper
articles and secondary sources like internet.

Conclusion
The very term unnatural used for homosexuality is a violation of their right. Sec 377 does not
anywhere specify that homosexual intercourse is illegal. The only mention is that which is
against the order of nature. But who are we to decide what is not of the order of the nature when
homosexuality is very much natural and not artificially induced. It would be very much wrong to
violate the aspects of Art. 21 of our constitution which is a fundamental right, on the pretext of a
judicial interpretation. Interpretation of homosexual intercourse in light of Sec 377 of IPC is in
contradiction with Art. 21 of our constitution and hence is unconstitutional by the virtue of Art.
13(2) of our constitution. Many progressed nations have seen the importance of human rights
over the stereotypical opinion of the society and have given its LGBT minorities with a set of
rules that would essentially help them to lead a normal life.

References

14

Gay Marriage A Moral Issue, Law Teacher, <http://www.lawteacher.net/familylaw/essays/gay-marriage-a-moral-issue-family-law-essay.php#ixzz2tycIfteq>, last

accessed on 2/21/2014
Higgins, Winton, "Buddhist Sexual Ethics", BuddhaNet Magazine,

<http://www.buddhanet.net/winton_s.htm>, Retrieved 02/21/2014


Leupp, Gary P, Male Colors, the Construction of Homosexuality in Tokugawa Japan.

Berkeley: The University of California Press, (1995).


World Sikh group against gay marriage bill, CBC News, Tuesday, 29 March 2005
Catechism
of
the
Catholic
Church,
<http://www.vatican.va/archive/ENG0015/_INDEX.HTM>,last

retrieved

on

2/21/2014
Kavi, Ashok Row, 'Expose the Hindu Taliban!' , 2009
Naz Foundation v. Govt. of NCT of Delhi, 160 Delhi Law Times 277
UN body slams India on rights of gays The Times of India, 24 April 2008
Reverse swing: It may be an open affair for gays, lesbians", The Times Of India, 2

July 2008.
Thomas , Shibu, "Unnatural-sex law needs relook: Bombay HC", The Times of India,

25/07/2008
"Advocacy, Sec 377
"HC dismisses case against gay rally", Hindustan Times, 04/07/2008.

George, Arun, Government to legislate against Criminalising homosexuality?


< http://www.firstpost.com/living/live-govt-to-legislate-against-criminalisinghomosexuality-1280861.html>, Retrieved on 11/12/2013

"Cities / Madurai : Madurai comes out of the closet", The Hindu. 2012-07-30,
Retrieved 22/02/2014

Wilson, Reid. "Missouri governor allows same-sex couples to file joint tax returns".
<http://www.washingtonpost.com/blogs/govbeat/wp/2013/11/15/missouri-governorallows-same-sex-couples-to-file-joint-tax-returns/?tid=pm_pop>. Retrieved January
15, 2014.

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