1

IN THE HIGH COURT OF DELHI AT NEW DELHI

WRIT PETITION (C) NO. 7455 OF 2001

Naz Foundation

Petitioner

Respondents

versus
Government of NCT, Delhi and others

WRITTEN SUBMISSIONS ON BEHALF OF PETITIONER

I.

HISTORY OF SECTION 377

A.

Tracing the developments in England

It is submitted that both the historical context from which 377 owes its origins and its
religious underpinnings are relevant to identifying its underlying assumptions and
purposes.
LIST OF DATES

DATE

EVENT

1290

The first records of sodomy as a crime can be found in the Fleta, the
text categorically prescribed for the burning alive of the sodmomite

1300

Records of sodomy as a crime also found in the Britton, the text also
prescribed for the burning of the sodomite
A Petition of the English Parliament banished foreign artisans and
traders who were accused of having introduced the too horrible vice
which is not to be named
Passing of the Buggary Act of 1533 which penalised acts of sodomy
by hanging.
British criminal laws covering homosexual acts in the reign of Henry
VIII prohibited the abominable Vice of Buggery (A term which was
associated with sodomy by the thirteenth century).committed with
mankind or beast.

1377
1533-34

Buggery was described as a vice. The term buggery traces back to

bougre, or heretic in old French, and to the Latin Bulgarus for
Bulgaria (seen as a place with heretics).1 By the thirteenth century
the term had become associated with sodomy, that is anal
intercourse.2 The 1534 statute took over the offence of buggery from
ecclesiastical law. The word abominable was taken from Leviticus
(18:22 and 20:13).
The religious character of the provision is unmistakable.
1535
1536, 1539 and
1540
1548
1
2

Henry VIII, polices religious morals and the programme

encompassed execution of diehard English Catholics including Sir
Thomas More
The Buggary Act of 1533 was renewed three times
A new version of the Act was passed (2 & 3 Edward VI. C.29)

2
1563

When Henrys daughter Mary succeeded her brother and restored

Englands papal allegiance, all these Protestant Acts were repealed.
But when Henrys daughter Elizabeth became queen, a new version
of the Act (5 Elizabeth, c.17) was passed in 1563
From 1563 it continued as a non-ecclesiastical criminal law. The
penalty was death, a common penalty in the period for most offences.
It remained a capital offence until 1861.
The law was originally enacted one year after Parliament
ended Papal jurisdiction over the English Church. Catholic courts
had been unsympathetic to Henry VIIIs divorce case. The buggery
law was part of a widening campaign against Catholics, which led to
the expropriation of the monasteries, a campaign that began in earnest
in 1536.

1644

The crime was described by Sir Edward Coke as a detestable and

abominable sin
The 1661 Articles of War, governing the navy, as revised in 1749,
prohibited the unnatural and detestable Sin of Buggery or Sodomy
with Man or Beast
The revised Articles of war governing the navy prohibited the
unnatural and detestable sin of sodomy with Man or Beast
Sir William Blackstone in his Commentaries on the Laws of England
referred to the 1534 law as prohibiting the infamous crime against
nature. No exact definition of buggery or sodomy was provided
Law was barely enforced
The number of men arrested began to rocket due to changes in
structure of criminal justice
Two men were the last to be executed in Britain for sodomy
Prosecutions shifted to charges of indecent assault which was
apparently easier to prove
In a famous case, two men were charged with conspiracy to commit
buggery and soliciting others to do so by cross-dressing in streets and
theatre
8.921 men were indicted for sodomy, gross indecency and unnatural
misdemeanours. Most of the men convicted were imprisoned but
between 1806 and 1861, 404 men were sentenced to death

1661
1749
1767
Pre 1720s
1780
1835
Post 1850
1870
1806-1900

1957

Report on the Committee on Homosexual Offences and Prostitution,

which enumerated the problems faced by homosexuals and provided
for a deeper understanding of the issue.
The said report can be construed as a stepping stone for the modern
understandings of sexual relations
The English law was reformed in Britain by the Sexual Offences Act
of 1967, which decriminalized homosexuality and acts of sodomy
between consenting adults.

1967

B.

Tracing the developments in India

Tracing the history of homosexuality in India

(Ancient India)
It is submitted that homosexuality has been prevalent and recognised in all its forms
during ancient and medieval Indian history. The various texts and works illustrate the
same
MANUSMRITI

3
The Manusmriti scorns female homosexuals. It states, "If a girl does it (has sex) to
another girl, she should be fined two hundred (pennies), be made to pay double (the girl's)
bride-price, and receive ten whip (lashes). But if a (mature) woman does it to a girl, her
head should be shaved immediately or two of her fingers should be cut off, and she
should be made to ride on a donkey." And: "If a man has shed his semen in non-human
females, in a man, in a menstruating woman, in something other than a vagina, or in
water, he should carry out the 'Painful Heating' vow." Further: "If a twice-born man unites
sexually with a man or a woman in a cart pulled by a cow, or in water, or by day, he
should bathe with his clothes on." The 'Painful Heating' vow is traditionally said to
consist of cow's urine, cow dung, milk, yogurt, melted butter, water infused with
sacrificial grass, and a fast of one night.
Compared to the treatment of female homosexuals, the treatment of male homosexuals is
relatively mild. Modern commentators misread the Manusmritis severe punishment of a
womans manual penetration of a virgin (8.369-70) as anti-lesbian bias. In fact, the
punishment is exactly the same for either a man (8.367) or a woman who does this act,
and is related not to the partners genders but to the virgins loss of virginity and
marriageable status. The Manusmriti does not mention a woman penetrating a non-virgin
woman.
Note that there are no threats of 'eternal' damnation. There is nothing permanent in the
Hindu world. There is always another life, another chance
KAMASUTRA
In the Kamasutra, there is a rather disdainful reference to male masseurs who indulge in
oral sex (auparashtika).
According to the Hindu sage Vatsayana, author of the renowned treatise on love, the
Kamasutra, homosexual practice is allowed by the holy writ (Dharmasutras) with just a
few exceptions. Indeed, the Kamasutra devotes an entire chapter to Auparistaka homosexual intercourse.
Kama Sutra, emphasizes pleasure as the aim of intercourse. It categorizes men who desire
other men as a third nature, further subdivides them into masculine and feminine types,
and describes their lives and occupations (such as flower sellers, masseurs and
hairdressers). It provides a detailed description of oral sex between men, and also refers
to long-term unions between men.
In the Kama Sutra sex acts involving homosexuality are regarded in some castes
permissible while not in other castes.
ARTHASHASTRA
The Arthashastra imposes a minor fine on a man who has ayoni sex.
RAMAYANA
In the Valmiki Ramayana, Hanuman is said to have seen Rakshasa women kissing and
embracing those women who have been kissed and embraced by Ravana.
The reference in the Ramayana to Sri Rama as purusamohana Rupaya -- so handsome as
to be pleasing even to men -- indirectly suggests that homosexuality would have been
considered, at least in certain quarters, a legitimate behaviour
MAHABHARATA
In Hinduism many of the divinities are androgynous and some change gender to
participate in homoerotic behaviour. In the popular Hindu epic Mahabharata, a
transgender character named Shikhandini plays a pivotal role (5.191-5).
Drupada raises his daughter Shikhandini as a man and even gets 'him' a wife. When the
wife discovers the truth on the wedding night, all hell breaks loose; her father threatens to
destroy Drupada's kingdom. The timely intervention of Yaksha saves the day: he lets
Shikhandini use his manhood for a night and perform his husbandly duties.
According to a folk narrative from Koovagam in Tamil Nadu, the Pandavas were told to
sacrifice Arjuna's son Aravan if they wished to win the war at Kurukshetra. Aravan
refused to die a virgin. As no woman was willing to marry a man doomed to die in a day,

4
Krishna's help was sought. Krishna turned into a woman, married Aravan, spent a night
with him and when he was finally beheaded, mourned for him like a widow. These stories
allow women to have sex with women and men to have sex with men on heterosexual
terms. One may interpret these tales as repressed homosexual fantasies of a culture.
In the Mahabharata when Arjuna is deprived of his manhood after he spurns the sexual
attentions of the nymph Urvashi. Consequently, the mighty archer is forced to live as a
'eunuch dance teacher' called Brihanalla in the court of King Virata for a year.
QURAN
Male homosexuality in Muslim culture existed during the Mughal period in India. Under
the Muslim rulers homosexuality entered court life. In Islamic Sufi literature homosexual
eroticism was used as a metaphorical expression of the spiritual relationship between God
and man, and much Persian poetry and fiction used homosexual relationships as examples
of moral love. Although the Quran and early religious writings display mildly negative
attitudes towards homosexuality, Muslim cultures seemed to treat homosexuality with
indifference, if not admiration.
1. Homosexual acts are condemned as unnatural.
2. (Will ye commit abomination such as no creature ever did before you?) 7:80-81
3. Male homosexual activities are condemned as unnatural. 26:165-6
0 Male homosexuals commit abominations and act senselessly. 27:54-55
Male homosexuals acts are condemned as unnatural. 29:28-29
In 5:5, there is a word akhdanin. It is the plural of khidn, with the root kh-d-n and has
the following meanings:
4. -Amorous friends, companions or associates [male or female]
5. -Friends, companions or associates affected with sensual appetency [male or female]
6. -Friends, companions or associates to commit fornication with them in secret [male or
female]
According to 5:5 [wala muttakhithee akhdanin] and 4:25 [wala muttakhithati
akhdanin], it is not allowed to have:
-Amorous friends, companions or associates [male or female]
-Friends, companions or associates [male or female] affected with sensual appetency
-Friends, companions or associates [male or female] to commit fornication with them
in secret
In the same verse 5:5, there is a word musafiheena. It has the root s-f-h which carries
the following meaning:
-Fornication
-Sexual intercourse between partners who are not married to each other
According to Quraish dialect, when a man demanded a woman in marriage, he said,
INKIHNI, and when he desired fornication, he said SAFIHINI
According to 5:5, 4:24 [ghayra musafiheena], 4:25 [ghayra masafihatin], it is not allowed
to have:
-Fornication
-Sexual intercourse between partners who are not married to each other

5
In the same verse 5:5, there is a word muhsineena. Its root is h-s(aad)-n, which has the
following meanings:
-To be chaste or continent and abstain from what is not lawful or decorous [i.e amorous
relationship and/or fornication] because of being married
According to 5:5, 4:24 [muhsineena], 4:25 [muhsanatin], it is prescribed:
To be chaste or continent and abstain from what is not lawful or decorous [i.e amorous
relationship and/or fornication] by doing proper marriage

In 24:33 there is a word WalyastaAAfifi. Its root is a(in)-f-f, which means:

To remain chaste or continent and abstain from what is not lawful or decorous [i.e
amorous relationship and/or fornication] before one gets married
So according to 24:33, it is prescribed:
To remain chaste or continent and abstain from what is not lawful or decorous [i.e
amorous relationship and/or fornication] before one gets married
MISC
An overview of temple imagery, sacred narratives and religious scriptures does suggest
that homosexual activities - in some form - did exist in ancient India. Though not part of
the mainstream, its existence was acknowledged but not approved.
In the popular tradition of Hinduism, sexual prowess is considered helpful in unleashing
spiritual energy to attain liberation. Both Siva and Krishna are said to have engaged in
homosexual activities.
Ancient Hindu law books, from the first century onwards, categorize ayoni (non-vaginal
sex) as impure. But penances prescribed for same-sex acts are very light compared to
penances for some types of heterosexual misconduct, such as adultery and rape.
The sacred epics and the Puranas (fourth to fourteenth-century compendia of devotional
stories) contradict the law books; they depict Gods, sages, and heroes springing from
ayoni sex. Unlike sodomy, ayoni sex never became a major topic of debate or an
unspeakable crime.
Hindu scriptures contain many surprising examples of diversity in both sex and gender.
Medieval texts narrate how the God Ayyappa was born of intercourse between the God
Shiva and Vishnu when the latter temporarily took a female form.
A number of fourteenth-century texts in Sanskrit and Bengali (including the Krittivasa
Ramayana, a devotional text still extremely popular today) narrate how hero-king
Bhagiratha, who brought the sacred river Ganga from heaven to earth, was miraculously
born to and raised by two co-widows, who made love together with divine blessing.
These texts explain his name Bhagiratha from the word bhaga (vulva) because he was
born of two vulvas.
Ancient texts like Rig Veda (which dates back around 1500 BC), sculptures and vestiges
depict sexual acts between women as revelations of a feminine world where sexuality
was based on pleasure and fertility.
In the Padma Purana is the story of a king who dies before he can give his two queens the
magic potion that will make them pregnant. Desperate to bear his child, the widows drink
the potion, make love to each other (one behaving as a man, the other as a woman) and

6
conceive a child.
Perhaps the most popular stories revolving around gender metamorphoses are those
related to Mohini, the female incarnation of Lord Vishnu. They are found in many
Puranas. Vishnu becomes a woman to trick demons and tempt sages. When the gods and
demons churn the elixir of immortality out of the ocean of milk, Mohini distracts the
demons with her beauty and ensures that only the gods sip the divine drink. In another
story, Mohini tricks a demon with the power to incinerate any creature by his mere touch
to place his hand on his own head. Mohini is so beautiful that when Shiva looks upon her
he sheds semen out of which are born mighty heroes such as Hanuman (according to
Shiva Purana) and Ayyappa (according to the Malayalee folk lore).
II.

INTERPRETATION OF SECTION 377

A.

Textual reading
1. Section 377 of the Indian Penal Code, 1860 (hereinafter
referred to as IPC) is placed in Chapter XVI of the IPC.
It reads as follows:
377. Unnatural offences.Whoever voluntarily has
carnal intercourse against the order of nature with any man,
woman or animal, shall be punished with imprisonment for
life, or with imprisonment of either description for a term
which may extend to ten years, and shall also be liable to
fine.
Explanation.Penetration is sufficient to constitute
the carnal intercourse necessary to the offence described in
this section.
2. It is important to advert to two other provisions of the IPC,
viz. sections 375 and 497 IPC.
3. The relevant portion of section 375 of the IPC reads as
follows:
375. Rape.A man is said to commit rape who, except
in the cases hereinafter excepted, has sexual intercourse
with a woman under circumstances falling under any of the
six following descriptions:

Explanation.Penetration is sufficient to constitute

the sexual intercourse necessary to the offence of rape.

7
Exception.Sexual intercourse by a man with his
own wife, the wife not being under fifteen years of age, is
not rape.
4. Section 497 of the IPC reads as follows:
497. Adultery.Whoever has sexual intercourse with a
person who is and whom he knows or has reason to believe
to be wife of another man, without the consent or
connivance of that man, such sexual intercourse not
amounting to the offence of rape, is guilty of the offence of
adultery, and shall be punished with imprisonment of either
description for a term which may extend to five years, or
with fine, or with both. In such case the wife shall not be
punishable as an abettor.
5. Unnatural offences:
(a) The marginal note refers to the acts proscribed as
unnatural offences. This expression, however, is not
used in the text of section 377.
(b) The expression whoever in section 377 can be a man
or a woman. It cannot be an animal as voluntariness has
to be associated with the person covered by the
expression whoever.
(c) The expression whoever in section 377 refers not
only to a penetrating person, but also to the person who
is penetrated.
(d) The expression man, woman or animal that appears
later, the passive partner or the abettor could be a man,
woman or animal.
(e) On the other hand, section 376 IPC makes it explicitly
clear that the offence of rape under can only be
committed by a man on a woman.

8
(f) The expression whoever in 497 IPC necessarily refers
only to man.
6. Voluntarily:
(a)

The expression voluntarily is used as opposed to

the term consent.

(b)

A voluntary act by a person requires only one

person. On the other hand, where the term
consent is used, at least two persons are required.
However, consent is irrelevant for section 377. So,
even if both parties consent, they could be
convicted.

(c)

In light of judicial precedents, it will be shown that

in most cases, the passive partner is convicted as an
abettor. Contrarily, section 497 of the IPC clearly
stipulates that the wife (the passive partner, whether
willing or unwilling) shall not be punishable as an
abettor.

(d)

If a person is coerced, it takes away the element of

voluntariness and therefore the person cannot be
convicted.

(e)

Voluntarily would also denote the element of

mens rea for the offence.

(f)

Voluntarily denotes willingness. A person, e.g. a

child, may be willing but in unable statutorily to
consent.

7. Carnal: According to the Concise Oxford Dictionary

(Ninth edition 1995), the term carnal means of the body
or flesh; worldly and sensual, sexual.
(a)

The expression carnal intercourse is used in

section 377 IPC as distinct from the expression

9
sexual intercourse, which appears in Sections 375
and 497 IPC.
(b)

All the three sections presuppose that act of carnal

intercourse that penetration is sufficient to
constitute carnal intercourse. This is in contrast to
the full act of sexual or carnal intercourse, which
would mean the discharge of semen. This would
imply that the penetration contemplated in all the
three sections is that of the penis and even that
partial penetration would be sufficient. Non-penile
penetration does not come within the purview of
penetration in 375 or 377 or 497 IPC.

(c)

Section 375 and 497 IPC on the one hand Section

377 IPC on the other operate in different fields.
Section 375 IPC explicitly applies only to
intercourse between a man and a woman. Therefore,
the expression sexual intercourse is penilevaginal sex.

(d)

The expression carnal intercourse is all sexual

acts other than penile vaginal.

This is further

evident from the expression against the order of

nature used in section 377 IPC.
(e)

Against the order of nature: The expression

carnal intercourse against the order of nature
refers to penile- non-vaginal sexual acts that do not
result in procreation.

8. Explanation: The explanation stipulates that penetration

is sufficient to constitute carnal intercourse. As has been
judicially interpreted, and also in the context of section 375
IPC, penetration as opposed to the full act of sex coupled

10
with seminal discharge is required for the offence to be
committed. Even partial penetration would do.
9. Section 377 also proscribes carnal intercourse [consent
being irrelevant] with a woman and penalises it with
imprisonment of up to 10 years or life imprisonment. No
exception is carved out. Therefore, a husband can also be
punished for carnal intercourse with his wife.
10. Section 375 suggests that a husband can have sexual
intercourse with his wife who is 15 years and above.
Section 497 proscribes sexual intercourse with a married
woman and penalises it with imprisonment up to 5 years.
The only exception to section 497 is where sexual
intercourse is with husbands consent or connivance. A
husband can only consent to sexual intercourse by someone
with his wife. There is no question of consent to carnal
intercourse with his wife (which he himself cannot engage
with his wife).

B.

Judicial interpretation of Section 377

11. Section 377 IPC has been interpreted to cover oral sex, anal
sex and penetration of other orifices.

B.1.

Oral sexTests

12. In Government v. Bapoji Bhatt, 1884 Mysore Law Reports

280, it was held that the act of putting a penis in a boys
mouth is not covered by section 377 IPC, which is based on
English sodomy law and which requires that the act be in
that part where sodomy is usually committed, meaning
thereby the anus. The courts had earlier also held in R v
Jacobs, (1817) Russ & Ry 331 CR, and Govindrajulu, in
re, (1886) 1 Weir 382, that inserting the penis in the mouth
would not amount to an offence under 377 IPC (the latter

11
case concerning the insertion of the penis in a womans
mouth; unfortunately the text of these two judgments not
available).
13. However, in Khanu v. Emperor, 1925 Sind 286, it was held
that section 377 IPC punishes certain persons who have
carnal intercourse against the order of nature with inter alia
human beings [if the oral sex committed in this case is
carnal intercourse], it is clearly against the order of nature,
because the natural object of carnal intercourse is that here
should be the possibility of conception of human beings,
which in the case of coitus per os is impossible. (at page
286,

column

1).

It

was

held

that

the

sin

of

Gomorrahcoitus per os (oral sex)is no less carnal

intercourse than the sin of Sodomcoitus per anus
and was covered by section 377 IPC.

Thus the court

evolved the non-procreative test for acts to be covered

under section 377 IPC.
14. In Lohana Vasantlal Devchand v. State, AIR 1968 Guj 252,
of the two accused who had anal sex with a boy, one had
engaged in oral sex with the boy, and the issue was whether
oral sex amounted to an offence under section 377 of the
IPC. It was held that the orifice of the mouth is not,
according to nature, meant for sexual or carnal intercourse
(see page 254, para 9, RHC) and that penetration of penis
in the mouth of another constitutes penetration required
under section 377 (see page 256, para 10, LHC). It was also
held that if the stage of the aforesaid act was for
stimulating the sex urge, it may be urged that it was only a
prelude to carnal intercourse. But when there is a deviation
liable to be termed perversion, it would not be a mere
prelude to carnal intercourse as it replaces the desire of

12
coitus (see page 253, para 7, RHC). The court evolved
what may be termed the imitative and the perversion
tests, which would define the acts under section 377 IPC.
15. In Fazal Rab Choudhary v State of Bihar, AIR 1983 SC
323, it was held that 377 IPC implied sexual perversity.
Thus sexual perversity was the guiding principle.
16. Following Fazal Rab Choudhary, in Mihir alias Bhikari
Charan Sahu v State of Orrissa, (1992) 1 Crimes 1096, it
was also held that the act covered under 377 IPC related to
sexual perversity and deprivation of the mind.
17. Similarly, in Calvin Francis v. Orissa, 1992 (2) Crimes
455, relying on Lohana, it was held that oral sex fell within
the ambit of section 377 (see para 10 page 457). The court
used the references to the Corpus Juris Secundum relating
to sexual perversity and abnormal sexual satisfaction as
the guiding criteria.
B.2.

Orifices

18. In Khandu v. Emperor, AIR 1934 Lah 261, it was held that
coitus per nose of a bullock is an offence under section 377
IPC.
19. In State of Kerala v. Kundumkara Govindan, 1969 Cri LJ
818, it was held that insetting the penis between the thighs
of another is carnal intercourse against the order of nature
(see para 22).
20. In Brother John Antony v. State, 1992 Cri LJ 1352,
following Govindan, it was held that section 377 IPC
covered oral sex and also manipulation and movement of
penis by way of insertion and withdrawal while being held
by victims in such a way as to create orifice-like thing till
ejaculation of semen (see page 1259, para 24).

13
21. In State v. Bachmiya Musamiya, 1999 (3) Guj LR 2456, it
was held that intercourse between the thighs too would be
covered by section 377 (see para 46, page 2476). It was
further held that since statute does not specify any
particular opening to which penetration can be made,
penetration into any orifice of any ones body except the
vaginal

opening

of

female

is

sufficient

for

establishment of the crime. (see page 2477, para 48).

B.3.

Penetration

22. Penetration is required for a conviction under section 377.

In Noshirwan v. Emperor, AIR 1934 Sind 206, it was held
that section 377 requires that penetration, however little,
should be strictly proved (emphasis supplied) (page 208).
In Biren Lal v. State of Bihar, 1996 (2) Crimes 285, it as
held that penetration must be proved for committing or
attempting to commit an offence under section 377 (see
page 287).
23. Further, in Noshirwan v. Emperor, AIR 1934 Sind 206, it
was held that an attempt to commit this offence should be
an attempt to thrust the male organ into anus of the
passive agent. Some activity by accused in that particular
direction ought to be proved strictly. (emphasis supplied)
(page 208).
B.4.

Abetment

24. In DP Minwalla v Emperor, AIR 1935 Sind 286, that the

act sought to be abetted, which would be covered by
section 377 IPC need not be committed and the abettor
would be liable for conviction under 377 read with 116
IPC.
B.5.

Consent

14
25. In Grace Jayamani v EP Peter, AIR 1982 Kant 46, it was
held, following the Full Bench decision of the Punjab Court
in B v B, 1882 Punjab Record, that a husband would be
guilty of sodomy on his wife if she were not a consenting
party.
B.6.

Prejudice

26. In Queen Emperess v Khairati, 1884 ILR 6 ALL 204, a

person who was a hijra, was picked up by the police on the
ground that his appearance and dress was that of a woman,
and was subjected to medical examination which revealed
sexually transmitted disease and misshapen anus
whereupon he was charged, tried and convicted under 377
IPC. Ultimately he was acquitted by the court as there was
no specific incident that he was charged with.
B.7.

Analysestests

27. As is evident from the analyses above, the tests for

attracting the penal provisions have changed from the nonprocreative to imitative to sexual perversity.
28. As for oral sex, the view has differed from the earlier times
when it was not considered to be covered by section 377
IPC to later when it was included within its ambit and
much later still when for a hetero-sexual act it would not be
covered if it were a prelude to sexual intercourse, that is
penile vaginal sex or if the woman consented to oral sex
with a man.
29. As for orifices, whereas earlier the natural orifices of a
human body, excluding the vagina, that is the anus and the
mouth, were considered necessary to be penetrated for the
purpose of attracting section 377 IPC, in the later
judgments the orifice could be created, though with the

15
human body, such as thighs joined together, the palm
folded etc.
30. Therefore there is considerable amount of uncertainty in the
nature of the offence under section 377 IPC.

III.

IMPACT OF SECTION 377

31. Apart from the direct impact of criminalisation of men who
have sex with men, section 377 has an invidious indirect
impact on the lives of sexuality minorities.
32. As will be shown below, section 377 drives the HIV
epidemic underground by criminalising men who have sex
with men and also impedes HIV prevention efforts.
33. Further, as will be shown by the intervenor Respondent No.
7, section 377 results in sexuality minorities being
subjected to harassment and extortion.

IV.

PRINCIPLES OF INTERPRETATION OF FUNDAMENTAL RIGHTS

34. It is an established position of law that fundamental rights
under Articles 14, 19 and 21 have to be read together.
35. Further, the right to equality under Article 14 and the rights
to dignity and privacy under Article 21 are interlinked and
each of these rights have to be fulfilled for the other rights
to be truly effectuated.
36. It is also an established position of law that international
law, especially those enshrined in international covenants
such as the International Covenant on Civil and Political
Rights and the International Covenant on Economic, Social
and Cultural Rights can be used to expand and give effect
to the fundamental rights guaranteed by our Constitution.

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V.

SECTION 377

VIOLATES

ARTICLE 21

OF THE

CONSTITUTION

OF

INDIA.
V.A.

Rights covered by Article 21.

37. Article 21 of the Constitution of India states that No

person shall be deprived of his life or personal liberty
except according to procedure established by law.
38. It is now an established position of law that:
(a)

The rights to life and personal liberty are inherent in

human beings and the Constitution does not confer
them on persons.

(b)

Article 21, thus, seeks to protect these inherent

rights by prohibiting the State or any person from
depriving a person of the right to life or personal
liberty except in accordance with a procedure
established by law.

(c)

Any law interfering with personal liberty of a

person must satisfy the triple test(a) it must
prescribe a procedure, (b) it must withstand the tests
of the fundamental rights conferred by Article 19,
both substantive and procedural, and (c) the law
must be tested with reference to Article 14, i.e. the
law and procedure authorising interference must be
right, just and fair and not arbitrary, fanciful or
oppressive [See Maneka Gandhi v. Union of India,
AIR 1978 SC 597, at page 624, para 56, reiterated
in District Registrar and Collector, Hyderabad v.
Canara Bank, (2005) 1 SCC 496, at page 524, para
56].

(d)

An infringement of the rights to life and personal

liberty can only be justified by a compelling State

17
interest. [See Gobind v. State of Madhya Pradesh,
(1975) 2 SCC 148, at page 157, para 31]
39. The Honble Supreme Court of India has interpreted the
right to life and personal liberty to include the right to
privacy, right to dignity and the right to health.
40. As will be shown below, section 377 violates the right to
privacy, right to dignity and right to health of sexuality
minorities, particularly men who have sex with men.

V.B.

Section 377 violates the right to privacy of persons and is

not saved by any compelling State interest.

V.B.1.

The right to privacy is a component of Article 21

and can only be infringed if there is a compelling State

interest.
41. Article 21 protects the right to life and personal liberty
against intervention by the State. The right to privacy has
been recognised as a component of the right to personal
liberty [See Kharak Singh v. State of Uttar Pradesh (1964)
1 SCR 232; Gobind v. State of Madhya Pradesh, (1975) 2
SCC 148; R. Rajagopal v. State of Tamil Nadu, (1994) 6
SCC 632, at para 28]
42. While so interpreting, the Honble Supreme Court of India
has, time and again, relied on the jurisprudence of the
United States courts.
United States jurisprudence
43. In Griswold v. State of Connecticut, 381 US 479 (1965), the
Supreme Court of the United States, while striking down a
law

that

forbade

the

use

of

contraceptives

as

unconstitutional, held that specific guarantees in the Bill

of Rights have penumbras, formed by emanations from

18
those guarantees that help give them life and substance
Various guarantees create zones of privacy [See Griswold
v. State of Connecticut, 381 US 479 (1965), at page 484,
para 8]. The Court found that the law, which applied even
to married couples, was repulsive to the notions of privacy
surrounding the marriage relationship (emphasis supplied)
[See Griswold v. State of Connecticut, 381 US 479 (1965),
at page 485, para 9].
44. In Eisenstadt v. Baird, 405 US 438 (1972), the Supreme
Court of the United States struck down a law that forbade
inter alia distribution and use of contraceptives by
unmarried persons to prevent pregnancy as violative of the
rights of single persons. While recognising that the right to
privacy of married couples protected in Griswold inhered in
the marital relationship, the Court noted that the marital
couple consisted of individuals and held that If the right to
privacy means anything, it is the right of the individual,
married

or

single,

to

be

free

from

unwarranted

governmental intrusion into matters so fundamentally

affecting a person as the decision wither to bear or beget a
child (emphasis supplied) [See Eisenstadt v. Baird, 405
US 438 (1972), at page 453, para 8].
45. In Roe v. Wade, 410 US 113 (1973), the Supreme Court of
United States, while striking down laws that prohibited
abortion per se for both single and married women, noted
that while the Constitution of the United States did not
explicitly mention any right to privacy, the Supreme Court
of the United States has recognised that a right of personal
privacy, or a guarantee of certain areas or zones of privacy,
does exist under the Constitution [See Roe v. Wade, 410
US 113 (1973), at page 726, para 9]. Referring to earlier

19
decisions, the Court held that only personal rights that can
be deemed fundamental or implicit in the concept of
ordered liberty, are included in this guarantee of
personal privacy [See Roe v. Wade, 410 US 113 (1973), at
page 726, para 9]. However, the Court recognised that the
State had a compelling interest in the health of the pregnant
woman, post-first trimester, and the foetus, subsequent to
viability, and could regulate abortion procedures to protect
these interests.
Indian jurisprudence
46. In Kharak Singh v. State of Uttar Pradesh, (1964) 1 SCR
332, the Supreme Court, for the first time, recognised that
domiciliary visits, which were unauthorised by law,
violated the personal liberty of individuals. [See Kharak
Singh v. State of Uttar Pradesh, (1964) 1 SCR 332]
47. In Gobind v. State of Madhya Pradesh, (1975) 2 SCC 148,
while examining the constitutional validity of regulations
that permitted surveillance of certain persons, the Supreme
Court relied on Griswold v. Connecticut and Roe v. Wade. It
noted that individual autonomy is protected in part under
our Constitution and held that privacy primarily concerns
the individual [See Gobind v. State of Madhya Pradesh,
(1975) 2 SCC 148, at page 156, para 23]. It further held
that any right to privacy must encompass and protect the
personal intimacies of the home, the family, marriage,
motherhood, procreation and child rearing the only
suggestion that can be offered as a unifying principle
underlying the concept has been the assertion that a
claimed right must be a fundamental right implicit in the
concept of ordered liberty [See Gobind v. State of Madhya
Pradesh, (1975) 2 SCC 148, at page 156, para 24]. While

20
enumerating certain facets that the right to privacy
encompasses, the Supreme Court refrained from laying
down an exhaustive list and noted that the right to privacy
would have to go through a process of case-by-case
development. [See Gobind v. State of Madhya Pradesh,
(1975) 2 SCC 148, at pages 156157, paras 24 and 28]. The
Court also held that [if]f the court does find that a claimed
right is entitled to protection as a fundamental privacy
right, a law infringing it must satisfy the compelling State
interest test (emphasis supplied) [See Gobind v. State of
Madhya Pradesh, (1975) 2 SCC 148, at pages 155156,
para 22].
48. In R. Rajagopal v. State of Tamil Nadu, (1994) 6 SCC 632,
while dealing with the issue of whether a publishing house
could publish the biography of a person exposing misdeeds
of public officials, was called upon to determine the right
of privacy of individuals vis--vis freedom of press. The
Court held that the right to privacy is a broad right that
encompasses the right to be let alone [See Rajagopal v.
State of Tamil Nadu, (1994) 6 SCC 632, at page 649, para
28].
49. In District Registrar and Collector, Hyderabad v. Canara
Bank, (2005) 1 SCC 496, the Supreme Court, while
deciding the constitutional validity of a state amendment
that permitted inspection of documents in private custody,
noted that the Supreme Court of India has accepted that
the right to privacy deals with persons and not places
[See District Registrar and Collector, Hyderabad v.
Canara Bank, (2005) 1 SCC 496, at page 523, para 53]. It
held that legislative intrusion into privacy must be tested
on the touchstone of reasonableness as guaranteed by the

21
Constitution and for that the purpose the court can go into
the proportionality of the intrusion vis--vis the purpose
sought to be achieved [See District Registrar and
Collector, Hyderabad v. Canara Bank, (2005) 1 SCC 496,
at page 515, para 34].
50. The right to privacy is thus premised on the proposition that
there exists a zone of privacy created by various
fundamental rights into which the State cannot intrude
unless there is a compelling State interest.
51. It is also recognised that at the core of the right to privacy
are those matters related to ones private life and intimate
relationships. It is not marriage-centred. This sphere of
private intimacy and autonomy must allow persons to
develop human relationships without interference from the
outside community or from the State. Further, privacy is
not restricted to spatial privacy.

V.B.2. Section 377 violates the right to privacy.

52. It is recognised that at the core of privacy are those matters
related to ones private life and intimate relationships.
53. Certain facets that have been held to fall within the right to
privacy necessarily encompass intimate relationships.
While an explicit right to ones sexual relations or
preferences may not have been carved out in the
Constitution, it is submitted that a reasonable and
meaningful

interpretation

of

Article

21

requires

acknowledgement that private consensual sexual activities

between adults are indeed included within the right to
privacy. As has been held by this court, In the application
of the Constitution, our contemplation cannot only be of

22
what has been but what may be [See Gobind v. State of
Madhya Pradesh, (1975) 2 SCC 148, at page 156, para 23].
54. It is submitted that sexual intimacies between individuals,
whether homosexual or heterosexual, fall within the
protected zone of privacy.
55. Section 377, by criminalising certain consensual sexual
acts, violates the right to privacy.

V.B.3. There is no compelling State interest to justify the

infringement of the right to privacy by Section 377.

56. There is no compelling State interest in criminalising

consensual sexual activity between adults.
57. The Respondent No. 5(a), i.e. the Union Ministry of Home
Affairs, has opposed the present petition claiming inter alia
that Section 377 is a justified interference by public
authority in the interest of public safety and protection of
health and morals [See Reply affidavit of Respondent No.
5(a) dated 4 September 2003 at para 8]
58. On the other hand, the Respondent No. 5(b) has supported
the petition and admitted that section 377, by criminalising
consensual sex between adults of the same sex, hampers
HIV intervention efforts aimed at sexuality minorities. [See
Reply of Respondents No. 4 and 5(b) dated 17 July 2006, at
para 5 and 6]
59. The fact that two ministries of the Government of India
have taken differing stands on the issue is, by itself, more
than sufficient to show that there is no compelling State
interest that justifies the invasion of the right to privacy of
sexuality minorities.

23
60. The burden is on the State to show that an impugned law
does not violate the fundamental right guaranteed by the
Constitution under Article 21. The differing stands of the
Government shows that it has not even sought to
discharged its burden, much less having actually discharged
it.
61. Even if section 377 is a procedure established by law, the
State has not provided a reason to justify the infringement
of the right to privacy. One justification provided by the
State is that section 377 protects public morality.

The

morality it imposes, however, is parochial and severely

curtails the freedom of a minority. There is no evidence to
suggest that the Indian public widely believes that people
who engage in homosexual conduct should be criminalised.
62. Further, the Constitution requires the rights of the
marginalised and unpopular to be protected, even in the
face of public disapproval. Mere public preference cannot
be a sufficient justification for curtailing a right, more so
penalising a conduct. It is respectfully submitted that the
States argument on public morality should be rejected as
insufficient

justification

for

the

infringement.

[See

Wolfenden Report, at pages 910, paras 12-14 and at pages

2022, paras 48-50, 52-54]
63. The State also claims that section 377 is necessary to
protect public health and curtail the spread of HIV. In fact,
as is discussed later in the submissions, criminalising same
sex sexual conduct is detrimental to public health, since it
pushes the disease underground and makes interventions
more difficult. Public health cannot therefore provide a
justification for section 377s curtailment of the right to

24
privacy [See Reply of Respondent Nos. 4 and 5(b) dated 17
July 2006, at para 5 and 6]
64. On its own admission, the State seldom prosecutes
consensual, private sexual acts between adults. It is hard to
believe that a reason can be compelling and necessary, and
simultaneously insufficiently important to enforce. As the
United Nations Human Rights Committee pointed out in
Toonen

v.

Australia,

No.

488/1992,

CCPR/C/50/D/488/1992 (March 31, 1994), if a State does

not make use of a criminal provision, it cannot claim that
that provision is essential for the maintenance of public
order or public morality.
65. At best, section 377 is overbroad. The criminal provision is
certainly necessary to prohibit sexual conduct with children
and non-consensual sexual conduct between adults that is
not prohibited under sections 375 and 376.

Generally,

criminal provisions are justified on the basis that they

prevent harm. In the realm of sex, whether or not harm is
caused is dependent on consent. Where consent is given, a
person is not harmed and the conduct falls back within the
realm of personal autonomy that does not require policing
by the State. Only where there is no consent is criminal
sanction justified.
66. It is only in the exceptional circumstance where the intent
of the doer is to cause harm that the State intervenes even
in the realm of consent.

V.B.4. Section 377 does not satisfy the three-pronged test

laid down in Maneka Gandhi.
67. Under Article 21, the right to privacy may only be curtailed
by a procedure established by law. As stated earlier, such a

25
law under Article 21 must satisfy a three-pronged test [See
Maneka Gandhi v. Union of India, AIR 1978 SC 597, at
page 610, para 26 and pages 622625, paras 55 to 56
reiterated in District Registrar and Collector, Hyderabad v.
Canara Bank, (2005) 1 SCC 496, at page 524, para 56].
68. It is respectfully submitted that the burden is on the State to
prove that section 377 is constitutionally valid under Article
21. The State has not met its burden in this regard.
69. As will be shown below, the law does not pass the test even
of Article 14 or Article 19 of the Constitution.

V.C.

Section 377 violates the right to dignity of individuals and

therefore violates Article 21.

70. The right to life has been interpreted by the Honble

Supreme Court of India to include the right to live with
human

dignity

[See

Francis

Coralie

Mullin

v.

Administrator, Union Territory of Delhi, (1981) 1 SCC 608,

at pages 618619, para 8].
71. Elaborating further, the Supreme Court of India held that
the right to life includes the right to live with human
dignity and all that goes along with it, namely, and
expressing oneself in diverse forms, freely moving about
and mixing and commingling with fellow human beings
[it] must include the right to carry on such functions and
activities as constitute the bare minimum expression of the
human self [See Francis Coralie Mullin v. Administrator,
Union Territory of Delhi, (1981) 1 SCC 608, at pages 618
619, para 8].
72. Case law also recognises that the right to privacy is derived
from, and intimately related to, the right of each person to
dignity. Privacy-dignity claims deserve to be examined

26
with care and to be denied only when an important
countervailing interest is shown to be superior [See
Gobind v. State of Madhya Pradesh, (1975) 2 SCC 148, at
page 156, para 22].
73. Further, while interpreting Article 21, the Honble Supreme
Court in Kharak Singh referred to the words of the
preamble to the Constitution that it is designed to assure
the dignity of the individual and therefore those cherished
human values as the means of ensuring his full
development and evolution [See Kharak Singh v. State of
Uttar Pradesh, (1964) 1 SCR 332, at para 13].
74. Dignity, though a notoriously elusive concept, but is
concerned with the realisation of ones humanness, and
all that that entails.

Its nature is best captured by the

Canadian Supreme Court in Law v. Canada (Minister of

Employment and Immigration), [1999] 1 S.C.R. 497 at para
53:
Human dignity means that an individual or group
feels self-respect and self-worth. It is concerned
with physical and psychological integrity and
empowerment. Human dignity is harmed by unfair
treatment

premised

upon

personal

traits

or

circumstances which do not relate to individual

needs, capacities, or merits. It is enhanced by laws
which are sensitive to the needs, capacities, and
merits of different individuals, taking into account
the context underlying their differences. Human
dignity is harmed when individuals and groups are
marginalized, ignored, or devalued, and is enhanced
when laws recognize the full place of all individuals
and groups within Canadian society.

27
75. Dignity is violated whenever a person is demeaned,
degraded or treated as a second-class citizen [See Egan v
Canada 1995 Can. Sup. Ct. LEXIS 34 at para 36, per
LHeureux-Dub J dissenting, but not on this point].
76. A similar meaning has been embraced by the South African
Constitutional Court. Dignity requires, at the minimum,
that the innate value and worth of all individuals as
members of society is recognised [See National Coalition
for Gay and Lesbian Equality and Others v. Minister of
Justice and Others 1998 (12) BCLR 1517 (CC); 1999 (1)
SA 6 (CC) at para 28].
77. Dignity, then, is concerned with the rights of an individual,
and is linked to personal self-realisation and autonomy. If
the right to privacy derives from a respect for human
dignity, it must also be an individualistic right, accruing to
a person wherever he may be.
78. The Supreme Court has held that [e]very act that offends
against or impairs human dignity would constitute
deprivation pro tanto of this right to live and it would have
to be in accordance with reasonable, fair and just procedure
established by law which stands the test of other
fundamental rights[See

Francis Coralie Mullin v.

Administrator, Union Territory of Delhi, (1981) 1 SCC 608,

at page 619, para 8].
79. In the present case, section 377, by criminalising private,
consensual sex between adults, offends against and impairs
the expression of the human self of sexuality minorities,
more particularly men who have sex with men, and thus
violates their right to live with dignity.

28
80. As will be shown below, section 377 is not reasonable, fair
or just law. Further, it does not stand the test of other
fundamental rights.
81. Section 377, in as much as it criminalises private,
consensual sex between adults, violates the right to dignity
of sexuality minorities and therefore violates Article 21 of
the Constitution.

V.D.

Section 377 violates the right to health of men who have

sex with men and therefore violates Article 21.
V.D.1. The State is obliged to protect the right to health.

82. It is well established that the right to health inheres in the

fundamental right to life under Article 21 [See Paschim
Banga Khet Mazdoor Samity v. State of West Bengal,
(1996) 3 SCC 37, page 4344 and page 48, paras 9 and 16;
Surjit Singh v. State of Punjab, (1996) 2 SCC 336, at page
342, para 11; Vincent Panikurlangara v. Union of India,
(1987) 2 SCC 165, at page 173174, para 16; Dr Ashok v.
Union of India, (1997) 5 SCC 10, at pages 1920, paras 4
5; State of Punjab and Others v. Ram Lubhaya Bagga,
(1998) 4 SCC 117, at pages 122125 and 130, paras 5, 6
and 30].
83. The right to health under article 21 has been interpreted in
accordance

with

international

law,

especially

the

International Covenant on Economic, Social and Cultural

Rights, 993 UNTS 3. [See above]
84. Article 12 of the International Covenant on Economic,
Social and Cultural Rights makes it obligatory on the State
to fulfil everyones right to the highest attainable standard
of health.

29
85. The right has acquired expansive meaning obliging the
State to take measures to fulfill, respect and protect health.
[See General Comment No. 14 to Article 12 of
International Covenant on Economic, Social and Cultural
Rights, at para 33].
86. The State is obligated to ensure availability and
accessibility of health related information, education,
facilities, goods and services, especially for vulnerable or
marginalised groups, without discrimination on inter alia,
grounds of sexual orientation. [See General Comment No.
14 to Article 12 of International Covenant on Economic,
Social and Cultural Rights, at paras 12 and 18].
87. Men who have sex with men are at a high risk of HIV
transmission and in urgent need of prevention and care as
admitted by Respondent No. 4 (NACO) and 5 (b)
[MoHFW] [See Reply on behalf of Respondent Nos. 4 and
5(b) dated 17 July 2006 at paras 3 and 4; UNAIDS, Policy
Brief, HIV and Sex Between Men, 2006].
88. The Government of India is committed to addressing the
needs of those at greatest risk of HIV including, among
other groups, men who have sex with men [See United
Nations General Assembly Declaration of Commitment on
HIV/AIDS, 2001, at para 64; NACO, MoHFW, National
AIDS Control Programme Phase III [2007-2012] Strategy
and Implementation Plan, November 2006, at pages 18
32].

V.D.2. Section 377 restricts the right to health of men who

have sex with men.

30
89. Criminalisation of same sex activity prevents the State
from delivering health services to men who have sex
with men.
(i)

Section 377 prevents collection of HIV data among

men who have sex with men.
(a)

Fear of law enforcement leads to underreporting on male to male transmission of

HIV.

(b)

Respondent No. 4 has been conducting HIV

surveillance since 1994 but estimates among
men who have sex with men were only
available from 2003 [See UNAIDS, Men
who have sex with men, The Missing Piece
in National Responses to AIDS in Asia and
the Pacific, at page 18].

(c)

Absence of data results in insufficient

services and facilities for men who have sex
with men [See Monitoring the AIDS
Pandemic (MAP), Male-male sex and
HIV/AIDS in Asia, Report 2005, at page 4]

(ii)

Section 377 prevents the State from imparting

information on the risk of HIV transmission during
male to male sex.
(a)

Public

messages

on

HIV/AIDS

by

Respondents No. 4 and 5 focus on

heterosexual (penile-vaginal) transmission
only. [See Monitoring the AIDS Pandemic
(MAP), Male - male sex and HIV/AIDS in
Asia, Report 2005, at page 6].
(b)

Dissemination

of

information

on

sex

between men is restricted by law [See Azadi

31
Bachao Andolan Delhi Unit v. All India
Radio and Others, Order of the CMM, Delhi
dated 23 October 1997, at paras 61 62, 65
66, 7980 and 85].
(c)

Denial of information has led to lower or no

risk perception about male-male sex [See
Dandona L, et al, Sex behaviour of men
who have sex with men and risk of HIV in
Andhra Pradesh, India, AIDS, 2005, Vol.
19, No.6, 611619].

(iii)

Section 377 prevents the State from supplying

condoms in prisons despite the imminent threat of
HIV due to unprotected male male sex. Such an
act is perceived to aid the commission of offence
under Section 377. [See Aids Bhedbhav Virodhi
Andolan v. Union of India and Others, Civil Writ
Petition No. 1784 of 1994, dismissed for non
prosecution by an order of this Honble Court dated
22 January 2001]

90. Anti-HIV interventions with men who have sex with

men are subject to threat, prosecution and closure.
(i)

Respondent Nos. 4 and 5(b) submit that prevention

of HIV among men who have sex with men is
entrusted to non government organisations (NGOs).
[See Reply on behalf of Respondents No. 4 and 5(b)
dated 17 July 2006, at para 4].

(ii)

NGO staff reaching out to men who have sex with

men are targeted by the police for promoting
illegal homosexual acts. [See Human Rights Watch,
Epidemic of Abuse: Police

Harassment of

32
HIV/AIDS Outreach Workers in India, July 2002,
Vol. 14, No. 5(C), at page 19].
(iii)

In 2001, four members of Bharosa and Naz

Foundation

International

were

arrested

in

Lucknow and prosecuted under Section 377 [See

Human Rights Watch, Epidemic of Abuse: Police
Harassment of HIV/AIDS Outreach Workers in
India, July 2002, Vol.14, No. 5(C), at page 19].

91. Section 377 weakens protection against HIV.

(i)

Fear of identification, arrest and prosecution under

Section 377 drives same sex activity under ground,
severing contact with prevention, treatment and
care.
(a)

Homosexual men avoid disclosing anal STIs

for fear of being reported to enforcement
authorities.

(b)

Untreated

genital

infections

increase

chances of HIV. [See Setia Maninder Singh,

et. al, Men who have sex with men and
transgenders in Mumbai India: an emerging
risk group for STIs and HIV, Indian
Journal of Dermatology, Venereology and
Leprology, Vol. 72, No. 6, Nov-Dec, 2006,
425431].
(c)

Absence of safe spaces lead to risky sex

increasing chances of HIV transmission
among men who have sex with men [See
Reply on behalf of Respondents No. 4 and 5
(b), at para 5].

33
(d)

Criminalisation causes stigma, fear and

prejudice against sexuality minorities which
increases health risks. [See Steve W Cole, et
al, Elevated Physical Health Risk among
Gay Men who conceal their homosexual
identity, Health Psychology, 1996, Vol 15,
No.4, 243251].

(ii)

Impact of Section 377: High burden of disease

among men who have sex with men.
(a)

Men engaging in same sex acts report a

disproportionate burden of STIs and HIV.

(b)

A study among males in slums in Chennai

showed HIV prevalence of 6.5% among
men who have sex with men as compared to
0.9% among other men. [See Go V.F, et al,
High HIV Prevalence and Risk Behaviours
in Men Who Have Sex With Men in
Chennai, India, J. Acquir Immune Defic
Syndr, Vol 35, Number 3, March 1 2004,
314319, at page 316]

(c)

While nationally, HIV prevalence among

males in India is less than 1%, more than 8%
of men who have sex with men are
estimated to be infected with HIV. [See
Reply on behalf of Respondents No. 4 and
5(b) dated 17 July 2006, at para 4].

(d)

Where men who have sex with men are

provided services, risky sexual practices
have reduced [See (Amfar) Treat Asia, MSM
and HIV/AIDS Risk in Asia, 2006, at page
16].

34

VI.

SECTION 377

VIOLATES

ARTICLE 14

OF THE

CONSTITUTION

OF

INDIA.
VI.A. Prohibitions imposed by Article 14.
92. Article 14 of the Constitution of India provides that The
State shall not deny to any person equality before the law
or the equal protection of the laws within the territory of
India.
93. Thus, Article 14 is in the nature of a prohibition on the
State.
94. It is now an established position of law that Article 14
requires any law to be free from vagueness and
arbitrariness and to satisfy the valid classification test.
95. As will be shown below, section 377 violates Article 14 of
the Constitution because:
(i)

The expression carnal intercourse against the order

of nature in section 377 is vague and leads to
arbitrariness.

(ii)

Section 377s goal is not to achieve a legitimate

purpose or object.

(iii)

The classification created by section 377 does not

satisfy the tests laid down in this behalf by the
Honble Supreme Court.

(iv)

Section 377 disproportionately impacts sexuality

minorities, especially men who have sex with men,
and constitutes hostile discrimination against them.

(v)

The

penalty

prescribed

by

section

377

disproportionate to the acts proscribed.

VI.B. Section 377 is vague and therefore violates Article 14.

96. It is an established position of law that:

is

35
(i)

A statute is void for vagueness if its prohibitions are

not clearly defined. The rationale for this is that the
provisions enacted should be clear so that persons
affected know the true intention [See Kartar Singh
v. State of Punjab, (1994) 3 SCC 569, at page 648
para 130 Harish Chandra Gupta v. State of Uttar
Pradesh, AIR 1960 All 650, at page 652, para 12].

(ii)

Where a law does not offer a clear construction and

the persons applying it are in a boundless sea of
uncertainties and the law prima facie takes away a
guaranteed freedom, the law must be held to offend
the Constitution [See State of Madhya Pradesh v.
Baldeo Prasad, AIR 1961 SC 293, at page 297, para
9; K. A. Abbas v. Union of India, AIR 1971 SC 481
at page 496, para 48]

97. Section 377 proscribes carnal intercourse against the order

of nature. However, the expression is not defined. Nor
does section 377 provide any indication as to what acts are
proscribed.
98. As has been shown above, the application of section 377
has become inconsistent and varied over the years. For
instance, courts earlier held that oral sex was not covered
by section 377; however, subsequently, section 377 was
held to cover oral sex. Courts have interpreted section 377
to cover not only non-penile-vaginal sex but also imitative
sex and acts that amount to sexual perversity.
99. Such inconsistencies and an ever-increasing broadening of
the scope of section 377 results in uncertainty as to the
nature of the acts which are proscribed by section 377,
thereby leaving persons ignorant of the scope of the
proscription contained in section 377.

36
100.

When called upon to apply section 377, judges are

faced with uncertainty over whether imitative acts and acts

amounting to sexual perversity are indeed covered by
section 377. Further, the application of section 377
necessarily results in curtailment of the fundamental rights
and

fundamental

freedoms

of

sexuality

minorities,

especially men who have sex with men.

101.

Section 377 is thus vague and does not clearly

define its prohibitions. Such vagueness lends to arbitrary

application of section 377 against sexuality minorities.
102.

Therefore, section 377 is void for vagueness and the

attendant arbitrariness.
VI.C. Section 377s goal is not to achieve a legitimate purpose.
103.

While scrutinising the validity of laws vis--vis the

permissibility of differential treatment, the aim of that

particular law and whether it achieves a legitimate purpose
is also to be examined [See General Comment No. 18 to
the International Covenant on Civil and Political Rights on
non-discrimination].
104.

This principle has been utilised extensively by the

European Court of Human Rights.

105.

The Honble Supreme Court of India has adopted

the twin tests of legitimate aim and proportionality to the

aim pursued, which are now internationally accepted
standards. In Anuj Garg v. Hotel Association of India,
(2008) 3 SCC 1, the Honble Supreme Court utilised these
tests to scrutinise the Punjab Excise Act, 1914, which
prohibited employment of any man under 25 years of age
and any woman in premises where liquor or intoxicating
drug is consumed by the public. [See also Deepak Sibal v.
Punjab University, (1989) 2 SCC 145, at para 20]

37
106.

Section 377 penalises carnal intercourse against

the order of nature. As has been explained above, it

proscribes unnatural, i.e. non-procreative sexual acts as
opposed to natural procreative sexual acts.
107.

A purported object of section 377 could be to

penalise all non-procreative sexual acts. However, the

proscription of non-procreative sexual acts cannot be a
legitimate aim of the State. This is especially the case in
present societal conditions where the State itself promotes
family planning and use of condoms to prevent sexually
transmissible infections and HIV.
108.

Another purported object of section 377, as alleged

by the Respondent No. 4 in its response, is to impose a

code of public morality. However, public morality is not the
province of criminal law [See Wolfenden Report, at pages
9-10, paras 12-14 and at pages 20-22, paras 48-50, 52-54].
109.

Thus, section 377 does not have and does not

achieve a legitimate purpose. Therefore, section 377

violates Article 14 of the Constitution.

VI.D. The classification created by section 377 is not valid.

VI.D.1. Section 377 creates a classification between
unnatural and natural acts.
110.

Assuming without admitting that section 377 does

not suffer from vagueness and has a legitimate purpose,

section 377 creates a classification between carnal
intercourse against the order of nature, which are termed
unnatural, and sexual intercourse, which are natural.

VI.D.2. Section 377 clubs together disparate acts, which is

impermissible.

38
111.

It is a well established position of law that

classification must not be arbitrary, but must be rational,

and must be based on some qualities or characteristics to be
found in the persons / things grouped together and not in
others who are left out. [See D. S. Nakara v. Union of
India, (1983) 1 SCC 305 : AIR 1983 SC 130, at page 133,
para 11.
112.

Section 377 groups together different sexual acts

and acts performed between different actors, even though

many of the acts do not cause any harm to anybody.
113.

Firstly, section 377 makes no distinction between

consensual and non-consensual acts. It renders consent

irrelevant and takes away from an individuals right to
autonomy.
114.

Secondly, section 377 makes no distinction between

acts engaged in between adults and acts where at least one

of the parties is a minor.
115.

Thirdly, section 377 makes no distinction between

acts engaged in the public sphere and acts engaged in the

private sphere.
116.

In the instances listed above, consensual sex

between adults in private does not cause any harm to

anybody.
117.

Thus, it is evident that the disparate grouping in

section 377 does not take into account relevant factors such
as consent, age and the nature of the act or the absence of
harm caused to any body.
VI.E. Section

377

minorities.

disproportionately

impacts

sexuality

39
118.

It is an established position of law that when

scrutinising the constitutional validity of a provision, the

effect or impact of a law must also be looked into.
119.

The purpose of Article 14s equal protection clause

is to offer redress to vulnerable groups assailed by

discriminatory practices. Indeed, vulnerable minorities
require protection from prejudice that will not be corrected
by the workings of the ordinary political process.
120.

By its very nature, sexual acts engaged in by gay

men,

being

penile-non-vaginal,

are

non-procreative.

Therefore, section 377 targets predominantly sexual acts

engaged in by homosexuals. In so doing, it targets a group
of persons, mainly homosexual men, based on their sexual
preferences which are necessarily of a non-procreative
nature.
121.

Section 377 thereby disproportionately affects

homosexuals because it adversely affects their right to

engage in private sexual acts between consenting adults.
122.

Further, the stigma perpetuated by the presence of

the provision considerably damages the dignity of

homosexuals.
123.

Based upon the harm described earlier resulting

from the application of Section 377, it is submitted that

sexuality minorities, including MSM and gay men,
constitute a vulnerable group who require protection from
prejudice.
124.

Section 377s legislative objective is grounded in

discriminatory attitudes concerning homosexuality.

125.
acts

Section 377s prohibition of non-procreative sexual

criminalises

predominantly

homosexual

sexual

relations and is propelled by a prejudicial and irrational

40
notion of sex. It thus violates Article 14 because it
disproportionately affects gay men.
VI.F. The penalty prescribed by section 377 is disproportionate
to the acts proscribed
126.

Section 377 prescribes punishment of imprisonment

up to 10 years or life. Further all offence committed under

section 377 are cognizable and non-bailable offences. The
principle of proportionality under article 14 requires that
punishment prescribed should be proportionate to the
proscribed offence and should not be excessive and unduly
harsh.
127.

The punishment of imprisonment up to 10 years or

life is disproportionate to the offences of oral sex, anal sex,

etc., criminalised under section 377.
128.

Further, given the fact that the impugned provision

encompasses private sexual activity among consenting

adults, the disparate grouping of acts that fall under the
section and the lack of any guidance as to what activities
should attract the penal provision, the penalty of 10 years
or life could be applied irrespective of the circumstances or
the gravity of the act. Therefore, the punishment prescribed
under the section is grossly disproportionate to the crime
committed and thus violative of Article 14
129.

Though Section 377 provides for punishment of

upto ten years or life of either description or a fine, there

are no guiding principles as to the discretion that is to be
exercised. [See Bachan Singh v. State of Punjab, (1980) 2
SCC 648, at page 748, para 197]

VII.

SECTION 377
INDIA.

VIOLATES

ARTICLE 15

OF THE

CONSTITUTION

OF

41
VII.A. Article 15 prohibits discrimination on the ground of sex
130.

Article 15(1) provides that the State shall not

discriminate against any citizen on grounds only of

religion, race, caste, sex, place of birth or any of them.
131.

It is an established position of law in India that the

direct and inevitable effect of a law can be looked into to

ascertain whether fundamental rights have been infringed
and that if the effect of State action on a fundamental right
is direct and inevitable, a fortiori it must be presumed to
have been intended by the authority taking the action. (See
Maneka Gandhi v. Union of India, AIR 1978 SC 597, para
68A at page 635).
VII.B. Prohibition of discrimination on the ground of sex
includes prohibition of discrimination on the ground of
sexual orientation.
132.

The expression sex is fluid and is not a static

concept. It cannot be restricted to only the biological male

and female sex, as even this differentiation on biological
factors is a limited one.
133.

Further,

it

also

includes

gender,

i.e.

the

differentiation of humans on the basis of social factors.

134.

The prohibition of discrimination on the ground of

sex is intended to prohibit the attachment of standard

behavioural pattern to gender. The purpose underlying the
fundamental right against sex discrimination is to prevent
behaviour that treats people differently for reason of not
being in conformity with generalisations concerning
normal gender roles. Discrimination on the basis of
sexual orientation is itself grounded in stereotypical
judgments and generalisations about the conduct of either
sex. [See petition, paras D(I)(b) and (c)].

42
135.

It is an established position of law in international

jurisprudence that prohibition of discrimination on the

ground of sex includes prohibition of discrimination on
the ground of sexual orientation.
136.

Under the International Covenant on Civil and

Political Rights, 999 UNTS 171, (hereinafter referred to as

ICCPR) India is obliged to respect and to ensure to all
individuals the rights under the ICCPR [See article 2,
paragraph 1, ICCPR]. Further, the ICCPR recognises the
right to equality and states that the law shall prohibit any
discrimination on any ground such as race, colour, sex,
language, religion, political or other opinion, national or
social origin, property, birth or other status [See article 26,
ICCPR].
137.

In

Toonen

v.

Australia,

No.

488/1992,

CCPR/C/50/D/488/1992 (March 31, 1994), the Human

Rights Committee, while holding that certain provisions of
the Tasmanian Criminal Code which criminalise various
forms of sexual contact between men violated the ICCPR,
observed that the reference to sex in articles 2,
paragraph 1, and 26 [of the ICCPR] is to be taken as
including sexual orientation. [See Toonen, para 8.7].
VII.C. Section 377 has a disproportionate impact on sexuality
minorities, particularly men who have sex with men and
gay men.
138.

As has been shown, section 377 criminalises non-

procreative sex, primarily anal and oral sexthe primary

expressions of sexualities minorities. Sexual acts between
persons of the same sex are non-procreative and considered
as being against the hetero-normative (male-female/penilevaginal) of sex.

43
139.

Further, an analysis reveals that section 377 is

primarily applied against homosexuals. [See analysis of

section 377 cases]
140.

Section 377s prohibition of non-procreative sexual

acts prescribes traditional sexual relations upon men and

women. In so doing, the provision discriminates against
homosexuals on the basis of their sexuality, i.e. on the basis
of their sex [See petition, para D(II)].
141.

What is invidious is that section 377 proscribes all

consensual sexual acts between adults of the same sex.

VII.D. Section 377 violates Article 15(1) of the Constitution.
VII.D.1.

The basis of differential treatment is a

prohibited ground.
142.

To establish discrimination under Article 15, one

has to show that the differential treatment is based on a

prohibited ground, e.g. sex, race, etc. It is not an essential
condition that the law expressly makes the prohibited
ground the basis of the classification.
143.

In the present case, section 377 criminalises the acts

of sexuality minorities, particularly men who have sex with

men and gay men.
144.

Though facially neutral, the primary object and the

direct and inevitable effect is the prohibition of sexual acts

between sexuality minorities based on their sexual
orientation.
145.

It is an established position of law that if the effect

of a State action is to infringe a fundamental right and that

effect is brought about by a distinction based on a
prohibited ground (e.g. sex, race, etc), it would constitute
discrimination on the prohibited ground, however laudable
the object of the State action may be [See Punjab Province

44
v. Daulat Singh, AIR 1946 PC 66, page 71, column 1 and
State of Bombay v. Bombay Education Society, [1955] SCR
568, page 584].
146.

It is also an established position of law that it is not

essential that the group on which the law operates be a

homogenous group consisting only of members of the class
who have been classified on a prohibited ground. It is
enough for a law to be struck down as being discriminatory
on a prohibited ground that the law operates so that its
effect in some cases is that some persons are discriminated
only on the basis of a prohibited ground [See Punjab
Province v. Daulat Singh, AIR 1946 PC 66, page 71,
column 1].
147.

In the present instance, the effect of section 377 is

that it disproportionately impacts sexuality minorities on

the basis of their sexual orientation. This was clearly
foreseen and intended by the Legislature to so impact.
Section 377 invades their rights to equality, privacy and
health and fundamental freedoms such as the freedom of
speech and expression and freedom of association.
148.

Therefore, section 377 constitutes discrimination

on the ground of sexual orientation and therefore on the

ground of sex under Article 15, despite being couched in
facially neutral language.

VII.D.2.

Section 377 is not saved by Article 15(3)

and ought to be read down.

149.

Article 15(1) read with Article 15(3) mean that

discrimination on a prohibited ground can be saved only if

the State has made a special provision for women and
children, i.e. it is beneficial to women and children.

45
Article 15(3) has been associated with proactive protection
and

promotion

of

opportunities

for

women

[See

Government of AP v. PB Vijaykumar, AIR 1995 SC 1648,

1651, para 7]. Considerations arising out of sex may be
relevant under Article 15(3) to justify measures that benefit
women and children.
150.

Section 377, in as much as it proscribes consensual

sexual acts between adults of the same sex, is not saved by

Article 15(3).
151.

Therefore, section 377 ought to be read down to

exclude consensual sex between adults of the same sex.

VIII. SECTION 377

VIOLATES

ARTICLE 19(1)

OF THE

CONSTITUTION

OF INDIA.

152.

Article

19

guarantees

various

fundamental

freedoms to the citizens of India.

153.

These freedoms may be subject to reasonable

restrictions only on the grounds enumerated in the

Constitution. The burden is on the State to show that the
impugned law is saved by an enumerated reasonable
restriction.
154.

It

is

well

established

that

constitutionally

guaranteed freedoms have to interpreted broadly and the

reasonable restrictions under thereupon be construed
narrowly.
155.

As will be shown below, section 377 violates the

freedom of speech and expression and the right to be

informed under Article 19(1) (a), the freedom to assemble
peacefully and without arms under Article 19(1) (b), the
freedom to form associations under Article 19(1) (c) and

46
the freedom to move freely throughout the territory of India
under Article 19(1) (d). Section 377 is not saved by clauses
(2) to (5) of Article 19 as it does not constitute a reasonable
restriction upon the infringed freedoms

VIII.A.

Section 377 violates freedoms under Article 19(1)(a).

.

VIII.A.1.

Section 377 violates the freedom of speech and

expression.
156.

Article 19(1)(a) guarantees the freedom of speech

and expression to all citizens. This freedom includes the

right to express ones convictions and opinions freely by
word of mouth, writing, printing, pictures or any other
mode. A democratic government attaches great importance
to this freedom because without this freedom the appeal to
reason which is the basis of democracy cannot be made.
[See Life Insurance Corporation of India v. Prof.
Manubhai Shah, (1992) 3 SCC 637, at pages 650651, para
8]
157.

The freedoms under Article 19(1), more particularly

under Article 19(1)(a) are necessary for the overall

development of ones personality, character and orientation.
158.

By its criminalisation of a particular sexual conduct,

particularly those engaged in by sexuality minorities,

section 377 imposes a culture of silence around these
issues. It restricts an individuals ability to make personal
statements about ones sexual preference, as well as
discuss, broadcast, circulate and publish material with
respect to ones sexual preference.
159.

Section 377 thus infringes the freedom of speech

and expression of sexuality minorities.

47
VIII.A.2.

Section 377 violates the right to be

informed.
160.

It is an established position of law that the freedom

of speech and expression under Article 19(1)(a) includes

the right to impart and receive information and ideas [See
Secretary, Ministry of Information and Broadcasting v.
Cricket Association of Bengal, (1995) 2 SCC 161, at page
213, para 43].
161.

As section 377 impedes the free speech and

expression of issues surrounding sexuality minorities, it

inevitably also infringes other corresponding rights of
sexuality minorities, i.e. the right to information and the
right to impart and receive ideas.
162.

More

particularly,

section

377

impedes

the

imparting and receipt of ideas and information relating to

harm reduction in the context of sexually transmissible
diseases, including HIV.
163.

For instance, a prosecution on obscenity was

launched against Population Services International and

Parivar Seva Sanstha for producing programmes dealing
with issues on safe sex and sexuality, with emphasis on
prevention of HIV and sexually transmissible diseases,
which were aired on radio. [See Azadi Bachao Andolan
Delhi Unit v. All India Radio and Others, Order of the
CMM, Delhi dated 23 October 1997]

VIII.A.3.
164.

Section 377 is not saved by Article 19(2).

The burden is on the State to prove that an

impugned law is saved by a reasonable restricted as

enumerated in clause (2) of Article 19.

48
165.

In the present case, the State has, in its reply, only

denied that any of the fundamental freedoms guaranteed

under Article 19 have been infringed [See Reply affidavit of
Respondent No. 5(a) dated 4 September 2003, at reply to
para 13F and reply to grounds]. Thus, it has not alleged or
proved that the violation of the rights and freedoms under
Article 19(1)(a) are saved by Article 19(2).

VIII.B.

Section 377 violates the fundamental freedoms

under Article 19(1)(b)-(d).

VIII.B.1.

Section 377 violates rights to assembly, association

and movement.
166.

Articles 19(1)(b) to (d) guarantee the freedom to

assemble peacefully and without arms, the freedom to form

associations and the freedom to move freely throughout the
territory of India respectively.
167.

The proscription by section 377 of the sexual

conduct engaged in by sexuality minorities, more

particularly men who have sex with men, instils an
apprehension

in

sexuality

minorities

about

openly

identifying themselves and assembling together or forming

an association. Further, the punitive likelihood attached to
advocacy efforts by such groups also violates their
fundamental freedoms to assembly and association.
168.

The punitive likelihood attached to engaging in the

proscribed sexual conduct also restricts the right to freely

move throughout the territory of India.
VIII.B.2.
Article 19

Section 377 is not saved by clauses (3) to (5) of

49
169.

As stated earlier, the burden is on the State to prove

that any infringement of Article 19 is saved by a

corresponding enumerated reasonable restriction.
170.

In the present case, the State has denied that any

fundamental freedom has been infringed. It has not averred,

much less proved, that the infringement is saved by any of
the reasonable restrictions.

IX.

RELIEFS SOUGHT
171.

The Petitioner is seeking a reading down of section

377 to the extent that it criminalises private consensual sex

between adults.
172.

The relief sought has been framed in this manner to

ensure the continuance of applicability of section 377 to

cases involving children or cases involving non-consensual
sex.

X.

JURISPRUDENCE OF OTHER COUNTRIES

173.

It is submitted that courts in other jurisdictions have

struck down similar laws that criminalise same-sex sexual

conduct on the grounds of either privacy or dignity or
equality or all of them. A list of such judgments is given
below:
1.
2.
3.
4.

5.
6.

ECHR DECISIONS
Dudgeon v. United Kingdom, [1981] ECHR 5 (22 October
1981)
Norris v. Ireland, [1988] ECHR 22 (26 October 1988)
Modinos v. Cyprus, [1993] ECHR 19 (22 April 1993)
UNHRC
Toonen v. Australia, No. 488/1992,
CCPR/C/50/D/488/1992 (31 March 1994)
FIJI
Dhirendra Nadan and Another v. State, August 2005 (Fiji)
HONGKONG
Leung T C William Roy v. Minister for Justice, HCAL

50
160/2004 (2005)
Leung T C William Roy v. Minister for Justice,

7.

CACV317/2005, High Court (2006)

SOUTH AFRICA
8.

National Coalition for Gay and Lesbian Equality and

Another v. The Minister of Justice and Others, 1999 (1)
SA 6 (CC)
UNITED STATES

9.

Lawrence v. Texas, 539 U.S. 558 (2003)

Place: New Delhi

Date: 17.09.2008

Filed by

{Trideep Pais)
Advocate for the Petitioner

IN THE HIGH COURT OF DELHI AT NEW DELHI

WRIT PETITION (C) NO. 7455 OF 2001

Naz Foundation
versus

Petitioner

51
Government of NCT, Delhi and others

Respondents

ADDITIONAL WRITTEN SUBMISSIONS ON BEHALF OF

PETITIONER ON WHETHER ENFORCEMENT OF PUBLIC
MORALITY COULD BE A COMPELLING STATE INTEREST TO
INFRINGE THE RIGHT TO PRIVACY OF HOMOSEXUALS
Right to privacy may only be curtailed by a procedure established by law for a
compelling state interest
1. It is an established position in law that the right to privacy can be curtailed only for
a compelling state interest. Once it has been established that the right to privacy has
been infringed, then the burden is on the State to show that the zone of privacy has
been infringed for a compelling state interest.
2. One of the reasons faintly advanced by the State without any substantiation to
justify the invasion of privacy is the enforcement of public morality and will of the
majority.
Is enforcement of public morality / will of majority a compelling state interest in
order to justify invasion of privacy of adult homosexuals engaging in consensual sex
in private?
3. It is submitted that the State cannot contend that section 377 is needed to enforce
public morality or otherwise reflects the will of the Indian majority populace.
Segments of society may sincerely oppose the type of conduct prohibited by section
377, and they are entitled to their beliefs. However, neither the desire to enforce a
certain morality, nor the sheer will of the majority are compelling public interests.
While legislative enactments may reflect the will of the majority, there are certain
rights so fundamental that they will not be denied to a minority no matter how
despised by a society. The right to privacy is one such right. [See Dudgeon v.
United Kingdom 1981 ECHR 5] In fact, there is no compelling public interest in the
enforcement of section 377 that is sufficient to justify the harm done to consenting
adults when their sphere of personal privacy is intruded upon.
4. It is further submitted that it is not the role of criminal law to intrude into the zone
of private morality when individuals consent to have sexual relations in private
without causing harm to each other or others. It is not the role of criminal law to
enforce private morality. [See Wolfenden Report at page 14 of the compilation in

52
volume 1(B)]. The Wolfenden Committee regarded the function of the criminal
law in this field as:
to preserve public order and decency, to protect the citizen from
what is offensive or injurious, and to provide sufficient safeguards
against exploitation and corruption of others, particularly those who
are specially vulnerable because they are young, weak in body or
mind, inexperienced, or in a state of special physical, official, or
economic dependence,
but not
to intervene in the private lives of citizens, or to seek to enforce any
particular pattern of behaviour, further than is necessary to carry out
the purposes we have outlined.
The Wolfenden Committee concluded that homosexual behaviour between
consenting adults in private was part of the realm of private morality and
immorality which cannot be the role of criminal law to enforce.
5. Several courts of various democratic countries have held that the invasion into the
zone of privacy of adult homosexuals having sex in private with consent and
without intending to cause harm to one another or others, is not justified on the
ground of enforcing public morality or will of the majority.
6. In the case of Dudgeon v. United Kingdom, [1981] ECHR 5 (22 October 1981),
[see pages 270- 272 of the compilation in volume 2(A)(II)], the court weighed the
justification of public morality on the touchstone of the notions of necessity
linked to that of a democratic society and to determine on the basis of the
aforesaid principles whether the reasons purporting to justify the interference in
question are relevant and sufficient. The Court held that:
It cannot be maintained in these circumstances that there is a
"pressing social need" to make such acts criminal offences, there
being no sufficient justification provided by the risk of harm to
vulnerable sections of society requiring protection or by the effects
on the public. On the issue of proportionality, the Court considers
that such justifications as there are for retaining the law in force
unamended are outweighed by the detrimental effects which the very
existence of the legislative provisions in question can have on the
life of a person of homosexual orientation like the applicant.
Although members of the public who regard homosexuality as
immoral may be shocked, offended or disturbed by the commission
by others of private homosexual acts, this cannot on its own
warrant the application of penal sanctions when it is consenting

53
adults alone who are involved. (emphasis supplied)
The Court further held:
Accordingly, the reasons given by the Government, although
relevant, are not sufficient to justify the maintenance in force of the
impugned legislation in so far as it has the general effect of
criminalising private homosexual relations between adult males
capable of valid consent. In particular, the moral attitudes towards
male homosexuality in Northern Ireland and the concern that any
relaxation in the law would tend to erode existing moral standards
cannot, without more, warrant interfering with the applicant's
private life to such an extent.
7. In the case of Norris v. Ireland, [1988] ECHR 22 (26 October 1988), the Court
drew similarity with the Dudgeon case and relied on the reasoning in Dudgeon case
to hold that:
It cannot be maintained that there is a "pressing social need" to make
such acts criminal offences. On the specific issue of Proportionality,
the Court is of the opinion that "such justifications as there are for
retaining the law in force unamended are outweighed by the
detrimental effects which the very existence of the legislative
provisions in question can have on the life of a person of homosexual
orientation like the applicant. Although members of the public who
regard homosexuality as immoral may be shocked, offended or
disturbed by the commission by others of private homosexual acts, this
cannot on its own warrant the application of penal sanctions when it
is consenting adults alone who are involved [see para 46 at page 310
of the compilation in volume2(A) (II)]
8. In the case of Leung T C William Roy v. Minister for Justice, HCAL 160/2004
(2005) [see para 145 on page nos. 563 564 of the compilation in Volume 2(A)
(III)]. while considering whether public morality constituted a valid justification for
penalizing homosexual conduct, the Court held that:
As to the second ground relied on societys claimed entitlement to
indicate disapproval of homosexual conduct and its preference for a
heterosexual lifestyle the Commission cannot accept that this could
in any event constitute an objective or reasonable justification for
inequality of treatment under the criminal law. As the Court observed
in its Dudgeon judgment in the context of Article 8 (Art. 8) of the
Convention:

54
Decriminalisation does not imply approval, and a fear
that some sectors of the population might draw misguided conclusions
in this respect from reform of the legislation does not afford a good
ground for maintaining it in force with all its unjustifiable features.
9. In the case of National Coalition for Gay and Lesbian Equality and Another v.
The Minister of Justice and Others, 1999 (1) SA 6 (CC), Justice Ackerman
observed that:
The criminalisation of sodomy in private between consenting males is
a severe limitation of a gay mans right to equality in relation to sexual
orientation, because it hits at one of the ways in which gays give
expression to their sexual orientation. It is at the same time a severe
limitation of the gay mans rights to privacy, dignity and freedom. The
harm caused by the provision can, and often does, affect his ability to
achieve self-identification and self-fulfilment. The harm also radiates
out into society generally and gives rise to a wide variety of other
discriminations, which collectively unfairly prevent a fair distribution
of social goods and services and the award of social opportunities for
gays. Against this must be considered whether the limitation has any
purpose and, if so, its importance. No valid purpose has been
suggested. [see para 36 at page no. 401 of the compilation in
volume 2 (A) (II)]
While rejecting the ground of public morality as a legitimate purpose for
infringement of the right to privacy, Justice Ackerman held that:
The enforcement of the private moral views of a section of the
community, which are based to a large extent on nothing more than
prejudice, cannot qualify as such a legitimate purpose. There is
accordingly nothing, in the proportionality enquiry, to weigh against
the extent of the limitation and its harmful impact on gays. It would
therefore seem that there is no justification for the limitation. [see
para 37 at page no. 401 of the compilation in volume 2 (A) (II)]

Justice Sachs while concurring with Justice Ackerman opined that:

The Constitution certainly does not debar the state from enforcing
morality. Indeed, the Bill of Rights is nothing if not a document
founded on deep political morality. What is central to the character
and functioning of the state, however, is that the dictates of the
morality which it enforces, and the limits to which it may go, are to be
found in the text and spirit of the Constitution itself.

55

The fact that the state may not impose orthodoxies of belief systems
on the whole of society has two consequences. The first is that gays
and lesbians cannot be forced to conform to heterosexual norms; they
can now break out of their invisibility and live as full and free citizens
of South Africa. The second is that those persons who for reasons of
religious or other belief disagree with or condemn homosexual
conduct are free to hold and articulate such beliefs. Yet, while the
Constitution protects the right of people to continue with such beliefs,
it does not allow the state to turn these beliefs - even in moderate or
gentle versions - into dogma imposed on the whole of society. [see
paras 136 137 at page no. 472 of the compilation in volume 2 (A)
(II)]

10. In the case of Dhirendra Nadan and Another v. State, August 2005 (Fiji), the
Court again followed the reasoning of the Wolfenden Committee report and the
Dudgeon

case

in

rejecting

the

argument

that

enforcement

of

public

morality/majority opinion is a valid justification for infringement of the right to

privacy of adult homosexuals having consensual sex in private. The Court held that:
The criminalization of carnal acts against the order of nature
between consenting adult males or females in private is a severe
restriction on a citizens right to build relationships with dignity and
free of State intervention and cannot be justified as necessary.
The legitimate public interest in allowing prosecution for such crimes
of male rape or predatory gross male indecency can be served by the
specific preservation of that interest while severing from these penal
provisions any offence for consensual adult male or female sex acts.
I find this right to privacy so important in an open and democratic
society that the morals argument cannot be allowed to trump the
Constitutional invalidity. [See page no. 494 of the compilation in
volume 2(A) (II)].
11. In the case of R v. M.(C.), 41 C.R. (4th) 134 (1995), the Ontario Court of Appeal
held that,
When governments define the ambits of morality, as they do when
they enunciate laws, they are obliged to do so in accordance with
constitutional guarantees, not with unwarranted assumptions. Sending

56
young people to jail for their own protection when they exercise sexual
choices not exercised by the majority, represents, in my view, even if
benignly intended, precisely such unwarranted assumptions. The line
which has unjustifiably been crossed, therefore, is the one protecting
an individual's right under s. 15 to be free from discrimination when
the government imposes ambits of morality. [see para 34 at page no.
618 A of the compilation in volume 2 (A) (III)]
12. In the case of Lawrence v. Texas, 539 U.S. 558 (2003), the Court held that moral
disapproval is not by itself a legitimate state interest to justify a statue that bans
homosexual sodomy. Delivering the majority opinion of the court, Justice Kennedy
held:
The present case does not involve minors.

It does not involve

persons who might be injured or coerced or who are situated in

relationships where consent might not easily be refused. It does not
involve public conduct or prostitution. It does not involve whether the
government must give formal recognition to any relationship that
homosexual persons seek to enter. The case does involve two adults
who, with full and mutual consent from each other, engaged in sexual
practices common to a homosexual lifestyle.

The petitioners are

entitled to respect for their private lives. The State cannot demean
their existence or control their destiny by making their private sexual
conduct a crime. Their right to liberty under the Due Process Clause
gives them the full right to engage in their conduct without
intervention of the government. "It is a promise of the Constitution
that there is a realm of personal liberty which the government may not
enter." The Texas statute furthers no legitimate state interest which can
justify its intrusion into the personal and private life of the
individual.
Further, Justice OConnor while concurring in the majority judgement added that:
Indeed, we have never held that moral disapproval, without any other
asserted state interest, is a sufficient rationale under the Equal
Protection Clause to justify a law that discriminates among groups of
persons.

13. There are two differing viewpoints on the issue at hand. According to one view,
homosexual acts per se are immoral and criminal law should be used, to penalise it
and to enforce moral behaviour. The other view distinguishes between, on the one
hand, the area of private morality within which a homosexual can exercise his civil
rights without interference and, on the other hand, the area where state regulation is

57
required for the protection of children and others who are incapable of giving valid
consent and protection of individuals in case of non-consensual sex.
14. It is submitted that whereas it could be a compelling state interest to regulate by
law the area for the protection of children and others incapable of giving a valid
consent or the area of non-consensual sex, on the ground of enforcing public
morality, enforcement of public morality does not amount to a compelling state
interest to justify invasion of the zone of privacy of adult homosexuals engaging in
consensual sex in private without intending to cause harm to each other or others.
15. Furthermore, the contention of the State that section 377 is necessary to enforce
public morality cannot be sustained having regard to the enforcement of section
377. Most of the cases under section 377 have been prosecuted for offences of child
sexual abuse or rape, cases in which either consent or capacity to consent has been
missing. Very few cases have been filed against MSM. According to the States own
admission, the State seldom utilises or enforces section 377. It is hard to believe
that a reason can be compelling and necessary, and simultaneously seldom
enforced.
Place : New Delhi
Date: 26.09.2008

IN THE HIGH COURT OF DELHI AT NEW DELHI

WRIT PETITION (C) NO. 7455 OF 2001
Naz Foundation

Petitioner

Respondents

versus
Government of NCT, Delhi and others

58
ADDITIONAL WRITTEN SUBMISSIONS OF THE PETITIONER
FOR READING DOWN SECTION 377 TO SAVE IT FROM
UNCONSITUTITONALITY
Section 377 should be read down to exclude private adult consensual
sexual activities
1. Article 13(2) of the Constitution provides that any law which
takes away or abridges fundamental rights is void, to the extent of
the contravention.
2. As has already been shown, section 377 violates fundamental
rights guaranteed under Articles 14, 15, 19 and 21, in so much as
it denies adults the right to private consensual sexual activities.
3. Therefore it is the Petitioners case that section 377 ought to be
struck down as being unconstitutional and therefore void.
However, section 377, as it reads, also covers non consensual
penile-non-vaginal intercourse and penile-non-vaginal intercourse
where one of the parties is a minor. As there is no law extant
which would cover these crimes, it would therefore be undesirable
to completely strike down the provision. It would be in the fitness
of things that 377 IPC be limited to non-consensual penile-nonvaginal sex and/or where one of the parties is a minor.
4. The Honble Supreme Court has, in a number of cases involving
constitutional validity of statutes, taken recourse to reading them
down to save them instead of striking down the impugned
provisions. The expression reading down is a compendious
expression and courts can read down an impugned provision in
various ways, including by way of limiting its applicability to
areas, which would otherwise be constitutional.
5. Some of the relevant judgments of the Honble Supreme Court are
discussed below.
6. In D. S. Nakara v. Union of India, AIR 1983 SC 130, where
pensioners were classified classification on the basis of the date of
retirement specified in the memoranda to determine eligibility to
receive pension on the basis of the revised formula and this was
challenged as being violative of Article 14, the Court held
whenever classification is held to be impermissible and the
measure can be retained by removing the unconstitutional portion

59
of classification, by striking down the words of limitation, the
resultant effect may be enlarging the class. In such a situation the
Court can strike down the words of limitation in an enactment.
That is what is called reading down a measure. [See D. S.
Nakara, paras 5960 at page no. 295 of Volume 5]
7. In R. M. D. Chamarbaugwalla v. Union of India, AIR 1957 SC
628, the Court, while determining the constitutional validity of the
definition of prize competition, examined whether the definition
ought to be restricted its application to only those competitions
which involved the element of gambling in order to save it from
unconstitutionality. It laid down the principles of severability and
read down the definition of prize competition by severing (its)
application to competitions in which success does not depend to
any substantial extent or skill (emphasis supplied) [See R. M. D.
Chamarbaugwalla, para 23 at page No. 14 of Volume 8]
8. In Kedar Nath v. State of Bihar, AIR 1962 SC 955, while
preferring a construction of section 124A of IPC, which would
save it from an infringement of Article 19(1)(a), the court relied
on R. M. D. Chamarbaugwalla and held if the impugned
provisions of a law come within the constitutional powers of the
legislature by adopting one view of the words of the section or
Act, the Court will take that view of the matter and limit its
application accordingly in preference of the view which would
make it unconstitutional on another view of the interpretation of
the words in question (emphasis supplied). It construed the
impugned provision so as to limit their application to acts
involving intention or tendency to create disorder, or disturbance
of law and order, or incitement to violence. (emphasis supplied)
[See Kedar Nath v. State of Bihar, paras 2627 at page 31 of
Volume 8]
9. In K. A. Abbas v. Union of India, AIR 1971 SC 481, while
discussing the constitutional validity of section 5(b)of the
Cinematograph Act, 1952, which was challenged on the grounds
of being vague, the Court held: if possible the Court instead of
striking down the law, may itself draw the line of demarcation
where possible but the effort should be sparingly made and only
in the clearest of cases. (emphasis supplied) However, in the
facts of the case, the Court found that the impugned law was not

60
vague [See K. A. Abbas v. Union of India, para 48 at page no.
236-237 in volume 5].
10. In Kartar Singh v. State of Punjab, (1994) 3 SCC 569 where there
was an anomaly and vagueness in the imprecise definition of the
words abet, communication and association, the Court read
in the requirement of mens rea and held that actual knowledge
or reason to believe on the part of a person to be roped in with
the aid of the definition should be read into it instead of reading
it down and clause (i) of the definition 2(1)(a) should be read as
meaning the communication or association with any person or
class of persons with the actual knowledge or having reason to
believe that such person or class of persons is engaged in
assisting in any manner terrorists or disruptionists so that the
object and the purpose of the clause may not otherwise be
defeated and frustrated. (emphasis supplied) [See Kartar Singh
Singh v. State of Punjab, para 134 at page 81 of Volume 5]
11. So also in State of Andhra Pradesh v. National Thermal Power
Corporation, (2001) 5 SCC 203, the Court examined the
definition of consumer under the State electricity laws which
extended its applicability of the laws to other states and therefore
violated Articles 286 and 269 of the Constitution. The Court, in
order to save the impugned definition from unconstitutionality,
read down the definition and restricted its applicability to those
who receive electricity for consumption or distribution for
consumption within the State. [See State of Andhra Pradesh v.
National Thermal Power Corporation, para 31 at page nos, 120121 of volume 8]
12. In Bhim Singhji v. Union of India, (1981) 1 SCC 166, where
limiting the wide import of section 23 of the Urban Land Ceiling
Act, Justice Krishna Iyer held the limitation on the wide words
of Section 23(1) is a matter of semantics and reading down
meaning of down with loose lexical amplitude is permissible as a
part of judicial process [See Bhim Singhji, , para 17 at page 52
of Volume 8].
13. In Dhirendra Nadan & Anr. v. State, Criminal Appeal Case No.
HAA 84 &86 of 2005, a provision in the Penal Code of Fiji
[Section 175 (a) and (c)] similar to section 377 of the IPC, which
the Fijian High Court held to be inconsistent with the Constitution

61
and invalid to the extent that it criminalises private consensual
sex. The Court held that:
In the event that adults engage in consensual sexual acts
against the order of nature in private and are prosecuted under
section 175(a) and (c) of the Penal Code applying general
constitutional principles, the relevant sections of the Penal Code
are invalid and the prosecutions a nullity.
Invalidity in this context does not mean that the offending
sections in the Penal Code ceased to exist rather they are simply
rendered inoperative to the extent of this inconsistency.
(emphasis supplied) [2nd para from top at page no. 500 of
Volume 2 (A) (II)]
14. In the case of Egan v. Canada [1995] 2 S.C.R. 513, 601 [at page
no. 622 753 of Volume 2 (A) (III)], the court observed, having
found s. 2 of the Old Age Security Act to be unconstitutional, I
now turn to the issue of remedy under s. 52 of the Constitution
Act, 1982. The decision of this Court in Schachter, supra, leaves
the Court with several options:
(1) the Court may strike down the legislation, thereby scuttling
the spousal allowance; or (2) the Court may strike down yet
suspend that declaration for a specific period of time so that the
government may enact a constitutionally legitimate spousal
allowance program; or (3) given the discretion to intervene only
"to the extent of the inconsistency", the Court may "read in" or
"read out/read down" the impugned legislation, either
immediately or under a suspensive declaration. [para 217 at
page 745 of the volume 2(A) (III)]
The appellants request a remedy akin to the third option above.
The Court accordingly, held that: the definition of "spouse" in s.
2 of the Act should be read down by deleting the words "of the
opposite sex" and reading in the words "or as an analogous
relationship" after the words "if the two persons publicly
represented themselves as husband and wife". [para 218 at page
745 of the volume 2(A) (III)]
15. The Petitioner therefore humbly submits that instead of striking
down the impugned provision altogether, in view of the fact that
striking the provisions altogether would also decriminalize nonconsensual penile-non-vaginal sex and penile-non vaginal sex
involving minors, the alternate remedy of reading down section

62
377 by limiting its application non-consensual penile-non-vaginal
sex and penile-non vaginal sex involving minors be taken
recourse to, which would exclude private, consensual intercourse
between adults from the applicability of section 377, which would
have to be held unconstitutional.
Place: New Delhi
Date: 26.09.2008

Filed by
{Trideep Pais)

Advocate for the Petitioner