CASE ANALYSIS:NAZ FOUNDATION V.

GOVERNMENT OF
DELHI NCT

CONSTITUTIONAL LAW -I

Submitted by:

Suyogaya Awasthy

2014127

SEMESTER III

DAMODARAM SANJIVAYYA NATIONAL LAW UNIVERSITY

Visakhapatnam

OCTOBER 2015

1
2
 CERTIFICATE

Title of the subject: CONSTITUTIONAL LAW -I

Name of the faculty: Mr. ZALEN SHAH SIR

I, Suyogya awasthy, hereby declare that this Project titled submitted by me is an original work
undertaken by me. I have duly acknowledged all the sources from which the ideas and extracts
have been taken. The projects free from any plagiarism issue.

(Signature of the candidate)

Place: Visakhapatnam Name: Suyogya
Date: XX/XX/XX Roll No. 2014127
Semester III

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 TABLE OF CONTENT

TITTLE PAGE NO.

ACKNOWLEDGMENT 4

INTRODUCTION 6

SECTION TITLE
INTRODUCTION TO THE JUDGEMENT 9
QUROM 12
COUNSELS 12
STATUTES REFERRED
13
CONSTITUTION OF INDIA
CASES REFERRED 13
INTRODUCTION 17
FACS OF THE CASE 18
FINAL JUDGEMENT 21
28

CONCLUSION 29
BIBLIOGRAPHY 30

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 ACKNOWLEDGEMENT
I have endeavored to attempt this project. However, it would not have been feasible without the
valuable support and guidance of Mr.ZALEN SHAH Sir.I would like to extend my sincere
thanks to her.

I am also highly indebted to Damodaram Sanjivayya National Law University Library Staff, for
their patient co-operation as well as for providing necessary information & also for their support
in completing this project.

My thanks and appreciations also go to my classmates who gave their valuable insight and help
in developing this project.

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 Naz Foundation

Vs.

Government of NCT and Ors.

160(2009)DLT277

WP(C) No. 7455/2001

Decided On: 02.07.2009

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INTRODUCTION TO THE JUDGEMENT

The High Court (Court) firstly reiterated the test for any law which interferes in personal liberty,
as set out in Maneka Gandhi v. Union of India (1978) 1 SCC 248: that (i) there must be a
procedure; (ii) that procedure must be tested against one or more of the fundamental rights
conferred under Article 19 which are applicable; and (iii) it is also susceptible to be tested against
Article 14, and must be right, just, fair and not arbitrary.

Right to Privacy
The Court noted that the Indian Constitution does not contain an explicit provision in relation to
the right to privacy, however the Supreme Court has interpreted such a right on the basis of
Article 19 protecting freedom of expression and movement, and Article 21 protecting the right to
life and liberty. The Court made extensive reference to United States jurisprudence on the right
to privacy as read into the Constitution, including Roe v. Wade 41 US 113 (1973) and Planned
Parenthood of South-eastern Pa v. Casey 505 US 833 (1992). It then went on to consider the
development of this right in India including the case of Kharak Singh v. The State of U.P. (1964)
1 SCR 332, which traced the right to privacy in India to the right to life in Article 21 of the
Constitution. In addition, the Court referred to specific rights of persons of different sexual
orientation in this respect by reference to the Yogyakarta Principles on the Application of Human
Rights Law in Relation to Sexual Orientation and Gender Identity, which the Court noted asserts
the rights to equal enjoyment of rights of all persons regardless of their sexual orientation.Taking
stock of these provisions, the Court concluded that Section 377 denies the dignity of such
individuals, criminalises their identity and violates their right to privacy which is protected
within the ambit of Article 21 of the Constitution. In making this finding the Court dismissed the
arguments of the MHA that the decriminalisation

of sodomy will lead to the increase of HIV/AIDS on the basis that there was no medical evidence
to support this contention. The Court also noted that this claim contradicted the arguments made
by NACO and the Ministry of Health and Family Welfare. With respect to the public morality
arguments put forward by the respondents the Court, citing the European Court of Human Rights
jurisprudence of Dudgeon v. The United Kingdom, 45 Eur. Ct. H.R. (ser. A) (1981), and
Norris v. Republic of Ireland, 142 Eur. Ct. H.R. (ser. A) (1988), stated that mere public
disapproval or popular morality is not a sufficient basis for placing such restrictions on the
enjoyment of fundamental rights. The Court asserted that the only morality which matters is
Constitutional morality. The Court determined that the Constitution of India protects and
promotes diversity and ensures an egalitarian society where freedom is no longer a privilege. The
Court determined that criminalisation of homosexuality runs counter to that Constitutional
morality.

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Article 14 and Equality
The Court reiterated the test set by Article 14 that any distinction or classification be based on an
intelligible differentia which has a rational relation to the objective sought and is not unfair or
unjust. Section 377, the Court said, does not distinguish between public and private acts, or
between consensual and non-consensual acts thus does not take into account relevant factors
such as age, consent and the nature of the act or absence of harm. The Court stated that such
criminalisation in the absence of evidence of harm seemed arbitrary and unreasonable. In
considering the legal principles imposed by Article 14 of the Constitution the Court took into
account the Declaration of Principles of Equality as current international understanding of
Principles on Equality. Drawing on Principles 1 (right to equality), 2 (equal treatment) and
5(definition of discrimination) the Court emphasised the need to include sexual
orientationamong protected grounds of discrimination and build indirect discrimination and
harassment into any consideration of the right to equality. Thus, dealing with the argument that
Section 377 was neutral, as submitted by the MHA, the Court stated that although the provision
on its face is neutral and targets acts rather than persons, in its operation it unfairly targets a
particular community, having the result that all gay men are considered criminal. This led the
Court to conclude that Section 377 discriminated against a particular community in
violation of Article 14 of the Constitution.

Article 15 Sex or Gender?

Article 15 was described by the Court as a particular application of the general right to equality
under Article 14. The Court considered the petitioners argument that the reference to sex in
Article 15 should be interpreted as including sexual orientation on the basis that discrimination
on the grounds of the latter is based on stereotypes of conduct on the basis of sex. The Court
itself referred to the Human Rights Committees decision in Toonen v. Australia ,
(No.488/1992CCPR/C/ 50/D/488/1992, March 31, 1994) in which the Tasmanian Criminal
Code which
criminalised sexual acts between men, was considered a violation of Article 2 of the
International Covenant on Civil and Political Rights, where a reference to sex was taken as
including sexual orientation.

On that basis the Court stated:

We hold that sexual orientation is a ground analogous to sex and that discrimination on the
basis of sexual orientation is not permitted by Article 15. Further, Article 15(2) incorporates the
notion of horizontal application of rights. In other words, it even prohibits discrimination of one
citizen by another in matters of access to public spaces. In our view, discrimination on the
ground of sexual orientation is impermissible even on the horizontal application of the right
enshrined under Article 15.
The Court consequently found that Section 377 was unconstitutional on the basis of
Article 15 of the Constitution.
In its conclusion, the Court referred to the belief in inclusiveness which is ingrained in the

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Indian Constitution and explained that discrimination was:
]he antithesis of equality and that it is the recognition of equality which will foster the dignity
of every individual.
In the light of its findings on the infringement of Articles 21, 14 and 15, the Court found it
unnecessary to deal with the issue of violation of Article 19 of the Constitution.
In sum, the Court declared that Section 377 of the Indian Penal Code, insofar as it
criminalises consensual sexual acts of adults in private, violates Articles 21, 14 and 15 ofthe
Constitution.

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 QUROM

A.P. Shah, C.J.

Dr. S. Muralidhar, J

COUNSELS

Petitioner

Anand Grover,

Sr. Adv., Trideep Pais,

Shivangi Rai, Mehak Sothi

Tripti Tandon, Advs.

For Respondents

Chetan Chawla,

Adv. for UOI, Mukta Gupta, Standing Counsel (Crl.),

Gaurav Sharma, Shankar Chhabra, Advs. for GNCT of Delhi,

Ravi Shankar Kumar, Ashutosh Dubey, Advs. for respondent No.6/Joint

Action Council Kannur

, H.P.Sharma,

Adv. for respondent No. 7,

B.P. Singhal,

S. Divan,

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 Sr. Advs., V. Khandelwal,

Arvind Narain,

S. Nandini,

Mayur Suresh,

Vrinda Grover

Jawahar Raja, Advs. for respondent No. 8

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 STATUTES REFERRED

Sexual Offences Act, 1967

The Criminal Tribes Act, 1871

Punjab Excise Act, 1914 - Section 30

Indian Penal Code 1860, (IPC) - Section 292

Indian Penal Code 1860, (IPC) - Section 366

Indian Penal Code 1860, (IPC) - Section 377 to 376E and 497

Code of Criminal Procedure (CrPC), 1997

; Code of Criminal Procedure, 1973 (CrPC)

Constitution of India - Section 10

Constitution of India - Article 2

Constitution of India - Article 3

Constitution of India - Article 8

Constitution of India - Article 12

Constitution of India - Article 13

Constitution of India - Article 14

Constitution of India - Article 15

Constitution of India - Article 15(1)

Constitution of India - Article 15(2)

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 Constitution of India - Article 15(5)

Constitution of India - Article 16

Constitution of India - Article 17

Constitution of India - Article 19

Constitution of India - Article 19(1)

Constitution of India - Article 19(2)

Constitution of India - Article 21

Constitution of India - Article 246(1)

, Constitution of India - Article 372

CONSTITUTION OF INDIA,1950
ARTICLE 10 Continuance of the rights of citizenship Every person who is or is deemed to be a
citizen of India under any of the foregoing provisions of this Part shall, subject to the provisions
of any law that may be made by Parliament, continue to be such citizen

ARTICLE 2 Admission or establishment of new States: Parliament may by law admit into the
Union, or establish, new States on such terms and conditions, as it thinks fit

Article 3. Formation of new States and alteration of areas, boundaries or names of existing
States: Parliament may by law
(a) form a new State by separation of territory from any State or by uniting two or more States or
parts of States or by uniting any territory to a part of any State;
(b) increase the area of any State;
(c) diminish the area of any State;
(d) alter the boundaries of any State;
(e) alter the name of any State; Provided that no Bill for the purpose shall be introduced in either
House of Parliament except on the recommendation of the President and unless, where the
proposal contained in the Bill affects the area, boundaries or name of any of the States, the Bill
has been referred by the President to the Legislature of that State for expressing its views thereon
within such period as may be specified in the reference or within such further period as the
President may allow and the period so specified or allowed has expired Explanation I In this
article, in clauses (a) to (e), State includes a Union territory, but in the proviso, State does not
include a Union territory Explanation II The power conferred on Parliament by clause (a)

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includes the power to form a new State or Union territory by uniting a part of any State or Union
territory to any other State or Union territory

Article 8. Rights of citizenship of certain persons of India origin residing outside India
Notwithstanding anything in Article 5, any person who or either of whose parents or any of
whose grand parents was born in India as defined in the Government of India Act, 1935 (as
originally enacted), and who is ordinarily residing in any country outside India as so defined
shall be deemed to be a citizen of India if he has been registered as a citizen of India by the
diplomatic or consular representative of India in the country where he is for the time being
residing on an application made by him therefor to such diplomatic or consular representative,
whether before or after the commencement of this Constitution, in the form and manner
prescribed by the Government of the Dominion of India or the Government of India

Article12. Definition In this part, unless the context otherwise requires, the State includes the
Government and Parliament of India and the Government and the Legislature of each of the
States and all local or other authorities within the territory of India or under the control of the
Government of India

Article 13. Laws inconsistent with or in derogation of the fundamental rights

(1) All laws in force in the territory of India immediately before the commencement of this
Constitution, in so far as they are inconsistent with the provisions of this Part, shall, to the extent
of such inconsistency, be void
(2) The State shall not make any law which takes away or abridges the rights conferred by this
Part and any law made in contravention of this clause shall, to the extent of the contravention, be
void
(3) In this article, unless the context otherwise requires law includes any Ordinance, order, bye
law, rule, regulation, notification, custom or usages having in the territory of India the force of
law; laws in force includes laws passed or made by Legislature or other competent authority in
the territory of India before the commencement of this Constitution and not previously repealed,
notwithstanding that any such law or any part thereof may not be then in operation either at all or
in particular areas
(4) Nothing in this article shall apply to any amendment of this Constitution made under Article
368 Right of Equality

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

Article 15. Prohibition of discrimination on grounds of religion, race, caste, sex or place of birth

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(1) The State shall not discriminate against any citizen on grounds only of religion, race, caste,
sex, place of birth or any of them
(2) No citizen shall, on grounds only of religion, race, caste, sex, place of birth or any of them,
be subject to any disability, liability, restriction or condition with regard to
(a) access to shops, public restaurants, hotels and palaces of public entertainment; or
(b) the use of wells, tanks, bathing ghats, roads and places of public resort maintained wholly or
partly out of State funds or dedicated to the use of the general public

Article 16. Equality of opportunity in matters of public employment

(1) There shall be equality of opportunity for all citizens in matters relating to employment or
appointment to any office under the State
(2) No citizen shall, on grounds only of religion, race, caste, sex, descent, place of birth,
residence or any of them, be ineligible for, or discriminated against in respect or, any
employment or office under the State
(3) Nothing in this article shall prevent Parliament from making any law prescribing, in regard to
a class or classes of employment or appointment to an office under the Government of, or any
local or other authority within, a State or Union territory, any requirement as to residence within
that State or Union territory prior to such employment or appointment
(4) Nothing in this article shall prevent the State from making any provision for the reservation
of appointments or posts in favor of any backward class of citizens which, in the opinion of the
State, is not adequately represented in the services under the State
(5) Nothing in this article shall affect the operation of any law which provides that the incumbent
of an office in connection with the affairs of any religious or denominational institution or any
member of the governing body thereof shall be a person professing a particular religion or
belonging to a particular denomination

Article 17. Abolition of Untouchability Untouchability is abolished and its practice in any form
is forbidden The enforcement of any disability arising out of Untouchability shall be an offence
punishable in accordance with law

Article 19. Protection of certain rights regarding freedom of speech etc

(1) All citizens shall have the right
(a) to freedom of speech and expression;
(b) to assemble peaceably and without arms;
(c) to form associations or unions;
(d) to move freely throughout the territory of India;
(e) to reside and settle in any part of the territory of India; and
(f) omitted
(g) to practise any profession, or to carry on any occupation, trade or business
(2) Nothing in sub clause (a) of clause ( 1 ) shall affect the operation of any existing law, or
prevent the State from making any law, in so far as such law imposes reasonable restrictions on
the exercise of the right conferred by the said sub clause in the interests of the sovereignty and
integrity of India, the security of the State, friendly relations with foreign States, public order,
decency or morality or in relation to contempt of court, defamation or incitement to an offence

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Article 21. Protection of life and personal liberty No person shall be deprived of his life or
personal liberty except according to procedure established by law

Article 246. Subject matter of laws made by Parliament and by the Legislatures of States
(1) Notwithstanding anything in clauses ( 2 ) and ( 3 ), Parliament has exclusive power to make
laws with respect to any of the matters enumerated in List I in the Seventh Schedule (in this
Constitution referred to as the Union List)

Article 372. Continuance in force of existing laws and their adaptation

(1) Notwithstanding the repeal by this Constitution of the enactments referred to in Article 395
but subject to the other provisions of this Constitution, all the laws in force in the territory of
India immediately before the commencement of this Constitution, all the laws in force in the
territory of India immediately before the commencement of this Constitution shall continue in
force therein until altered or repealed or amended by a competent Legislature or other competent
authority
(2) For the purpose of bringing the provisions of any law in force in the territory of India into
accord with the provisions of this Constitution, the President may by order make such
adaptations and modifications of such law, whether by way of repeal or amendment, as may be
necessary or expedient, and provide that the law shall, as from such date as may be specified in
the order, have effect subject to the adaptations and modifications so made, and any such
adaptation or modification shall not be questioned in any court of law
(3) Nothing in clause ( 2 ) shall be deemed
(a) to empower the President to make any adaptation or modification of any law after the
expiration of three years from the commencement of this Constitution; or
(b) to prevent any competent Legislature or other competent authority from repealing or
amending any law adapted or modified by the President under the said clause Explanation I The
expression law in force in this article shall include a law passed or made by a legislature or other
competent authority in the territory of India before the commencement of this Constitution and
not previously repealed, notwithstanding that it or parts of it may not be then in operation either
at all or in particular areas Explanation II Any law passed or made by a legislature or other
competent authority in the territory of India which immediately before the commencement of
this Constitution had extra territorial effect as well as effect in the territory of India shall, subject
to any such adaptations and modifications as aforesaid, continue to have such extra territorial
effect Explanation III Nothing in this article shall be construed as continuing any temporary law
in force beyond the date fixed for its expiration or the date on which it would have expired if this
Constitution had not come into force Explanation IV An Ordinance promulgated by the Governor
of a Province under Section 88 of the Government of India Act, 1935 , and in force immediately
before the commencement of this Constitution shall, unless withdrawn by the Governor of the
corresponding State earlier, cease to operate at the expiration of six weeks from the first meeting
after such commencement of the Legislative Assembly of that State functioning under clause
( 1 ) of Article 382, and nothing in this article shall be construed as continuing any such
Ordinance in force beyond the said period

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 CASES REFERRED

Case Law Indian

Maneka Gandhi v. Union of India (1978) 1 SCC 248;

Kharak Singh v. The State of U.P. (1964) 1 SCR 332;
State of Madras v. V.G.Row AIR 1952 SC 196.

Case Law Non-Indian

Roe v. Wade 41 US 113 (1973);

Planned Parenthood of South-eastern Pa v. Casey 505 US 833 (1992);
Dudgeon v. The United Kingdom, 45 Eur. Ct. H.R. (ser. A) (1981);
Norris v. Republic of Ireland, 142 Eur. Ct. H.R. (ser. A) (1988);
Toonen v. Australia , (No.488/1992 CCPR/C/ 50/D/488/1992, March 31,
1994).

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INTRODUCTION
The Naz Foundation1, an NGO in India, filed a writ petition in the Delhi High Court challenging
the constitutional validity of Section 377 of the Indian Penal Code (IPC), 1860. This Section
penalised crimes amounting to 'unnatural offences', which had the effect of criminalising
consensual sexual intercourse between adults, even when conducted in private.
The petitioner argued that Section 377 infringed upon Articles 14, 15, 19 and 21 of the Indian
Constitution. They also argued that the Section should only criminalise non-consensual penile,
non-vaginal sex and penile, non-vaginal sex involving minors.
In a landmark judgment delivered on July 2, 2009, the Delhi High Court ruled that Section 377
of the Indian Penal Code violated a number of fundamental rights, including the right to privacy
and right to dignity under the fundamental right to life and liberty (Article 21), the right to
equality (Article 14), and prohibition of discrimination on grounds of sex (Article 15). The case
has been appealed to the Supreme Court of India.

History of the Legislation

The first accounts of sodomy as a crime were recorded in the Common Law of England texts, in
Fleta in 1290 and in the Britton in 1300.1 In both texts, the recommended punishment for the
crime of sodomy was to burn the perpetrators alive. Sodomy, also called buggery, was later
punished by hanging, under the Buggery Act of 15337. Under the 1533 law, buggery was
described as the 'detestable and abominable Vice of Buggery committed with mankind or beast.'8
The statute was repealed and then re-enacted in 1563 by Queen Elizabeth I. 2 In the 19th century,
even though the sentences for sodomy were reduced, and oral-genital sexual acts were removed
from its definition, sodomy still retained its criminal status. Sodomy was frequently documented
as a criminal act in scholarly publications as well. The renowned legal scholar William
Blackstone described sodomy as an 'abominable crime' in his Commentaries on the Laws of

1 Human Rights Watch, This Alien Legacy: The Origins of Sodomy Laws in British Colonialism, 13(2008), last visited on
24.10.2013

2 H. Montgomery Hyde, The Love That Dared Not Speak Its Name: A Candid History of Homosexuality in Britain, (Boston,
Little Brown 1970) last visited on 24.10.2013

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England from 1765 and 1769. Blackstone's writings on this subject had a substantial effect on the
development of anti-sodomy laws in the Americas and other British colonies. Thus, the Common
Laws of England, statutory provisions through history, and scholarly publications have played an
important role in the dissemination of anti-sodomy laws in different parts of the world, including
India. In England, the Wolfenden Committee released a report in 1957 recommending that
homosexual behavior between consenting adults in private should no longer be a criminal
offence.3 The report questioned the legitimacy of labeling homosexuality as a disease, and went
on to state that the function of law was not to intervene in the private lives of citizens, or to seek
to enforce any particular pattern of behaviour.
Subsequent to the release of the report, law reform took place in England on introduction of The
Sexual Offences Act in 1967.4 This Act served to decriminalize homosexuality as well as private
consensual acts of sodomy with adults, providing for a limited decriminalisation of homosexual
acts given certain conditions. It decriminalised consensual sex between adults in private who
have attained the age of 21. Still, this Act continued to discriminate between homosexuals and
heterosexuals, instituting a higher age of consent for homosexual than for heterosexual acts,
where the consent age was set at 16.5 In 2004, the Sexual Offences Act, 2003 came into force,
introducing neutral laws for everyone and removed the discrimination regarding the age of
consent.6 Similarly, in another British colony, Canada, a law was passed in 1969 as part of an
Omnibus Bill that amended the Criminal Code of Canada and decriminalised
homosexuality. The amendment was based on a simple aphorism offered by the minister Pierre
Elliott Trudeau in 1967: The state has no business in the bedrooms of the nation.

Section 377 and Judicial Interpretation

3 The Wolfenden Report, Report of the Committee on Homosexual Offences and Prostitution, 23 (1963), last visited on
25.10.2013

4 Matthew Waites, Regulation of Sexuality: Age of Consent, 54 (3) Oxford Journal, last visited on 25.10.2013

5 Matthew Waites, Regulation of Sexuality: Age of Consent, 54(3) Oxford Journals, last visited on 25.10.2013

6 Sexual Offences Act, 2003, S. 7; R Wintermute, Sexual Orientation Discrimination in Individual Rights and the law in Britain
(C Mccrudden and G Chambers eds., 1994), last visited on 25.10.2013

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India has an anti-sodomy provision that is Section 377 of the Indian Penal Code. This section has
been included in a Chapter of the Indian Penal Code titled 'Of Offences to the Human Body'. The
sub-chapter in which Section 377 is located is titled 'Of Unnatural Offences'. 7 Section 377 reads
as follows:

Unnatural Offences - Whoever voluntarily has carnal19 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.

Lord Macaulay drafted the Indian Penal Code and introduced it in British India in 1861. 8 At that
time, moral standards largely based on religious views (particularly Judeo-Christian beliefs)
governed the inclusion of many laws. Thus, sodomy was criminalised because, according to
Judeo-Christian beliefs, sexual intercourse for non-procreative purposes was 'against the order of
nature'.9 Section 377 reflects these beliefs and codifies them as part of Indian law. Section 377,
since its conception, has been the subject of changing judicial interpretation in India. Different
tests have been prescribed over time to penalize crimes under this Section. Initially, in cases such
as Khanu v. Emperor,10 the court held that the test to determine whether carnal intercourse is
against the order of nature is to see whether the sexual act is performed without the possibility of
reproduction. Later cases such as Lohana Vasantlal Devchand v. State11 and Calvin Francis v.

7 Indian Penal Code, 1860.

8 id Skuy, Macaulay and the Indian Penal Code of 1862: The Myth of the Inherent Superiority and Modernity of the English
Legal System Compared to India's Legal System in the Nineteenth Century, 513-557, last visited on 25.10.2013

9 Siddarth Narrain, The Queer Case of Section 377 (Feb. 16, 2012), Sarai Reader 2005: Bare Acts 466.
http://www.sarai.net/publications/readers/05-bare-acts/06_siddharth.pdf, last visited on 25.10.2013

10 AIR 1925 Sind 286

11 AIR 1698 Guj 252

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Orissa12 arrived at contradictory judgments as to whether oral sex fell within the ambit of Section
377. In Calvin Francis, the Court made its judgment using the guiding conditions of 'sexual
perversity' and 'abnormal sexual satisfaction'. Subsequently, in Fazal Rab Choudhary v. State of
Bihar,13 the Court held that for a crime to be punishable under Section 377, it would have to
indicate a level of 'sexual perversity'. Therefore, the first test described in Khanu in order to
determine whether sexual acts were against the order of nature was based on considerations of
possibility of procreation, whereas the later test described in Calvin Francis and Fazal Rab
Choudhary was based on considerations of sexual perversity. In the judgment of Brother John
Antony v. The State14, the Madras High Court held that in the case on hand, the male organ of
the petitioner is said to be held tight by the hands of the victims, creating an orifice like thing for
manipulation and movement of the penis by way of insertion and withdrawal. In the process of
such manipulation, the visiting male organ is enveloped at least partially by the organism visited,
namely, the hands which held tight the penis. The sexual appetite was thus quenched by the
ejaculation of semen into the hands of the victims, as prima facie revealed by the statements of
various victim boys. The Court held that the petition fell within the ambit of Section 377 and
the defendant would have to face trial. The determination of the meaning of the term 'carnal
intercourse against the order of nature' has been a matter of substantial judicial concern. The
meaning of Section 377 was restricted to anal sex initially in 1884; it was expanded to include
oral sex by 1935, and later was broadened further to include thigh sex. The absence of a consent-
based distinction in the wording of the section has equated homosexual sex with rape and
equated homosexuality with sexual perversity.

FACTS OF THE CASE

Pratap Bhanu Mehta, It's About All of Us, Indian Express, 4 July, 2009.

12 1992 (2) Crimes 455

13 AIR 1983 SC 323

14 1992 Cri.L.J. 1352

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This judgement is first and foremost a defence of liberty, equality, privacy, and a presumptive
check on state power. It is a feature of these values that they are secure only when they are
enjoyed by all. Privacy cannot be genuinely protected if the state is given arbitrary power over
some groups; equality cannot be realized if invidious distinctions between citizens persist; rights
of liberty cannot be genuine if they apply only to all those who are alike. The essence of
toleration is that each one of us can be safe from the fear of stigma and discrimination,
persecution, only when all of us are safe; otherwise what we get is a counterfeit toleration. So let
it be clear: this judgement is not about a minority, not about valorizing a lifestyle, it is about the
values that made us who we are as a nation. Neither the detractors of this judgement, nor its
defenders for that matter, should forget that it is in the name of a genuine common morality that
this decision can be defended.

The Petitioner
The Naz Foundation (the petitioner in the 2009 case) is an NGO that has been working for many
years on HIV/AIDS intervention and prevention. In the course of its work, the petitioner has
extensively interacted with sections of society that are especially vulnerable to contracting this
disease, such as homosexuals, transgenders, and other sexual minorities. The petitioner argued
that Section 377 should be limited for several reasons outlined below. First, the petitioner argued
that the existence of Section 377 of the Indian Penal Code caused extensive discrimination
towards the gay community and transgendered individuals by state authorities (under the pretext
of enforcing the provision of the IPC), severely impairing HIV/AIDS prevention efforts. 15 The
discrimination that sexual minorities faced from the state authorities included atrocities such as
physical and verbal abuse, harassment, and assault. According to the petitioner, the existence of
Section 377 led to the denial of fundamental rights to these individuals. Second, the petitioner
contended that legislation criminalising consensual oral and anal sex was based on Judeo-
Christian moral standards and had no place in modern society. According to the petitioner,

15 Naz Foundation v. Government of NCTand Ors., 160 (2009) DLT277.

23
Section 377 was predominantly used in contemporary India in cases of sexual assault and abuse
of minors. Thus, criminalising consensual same-sex activity in private served as nothing more
than a weapon for police brutality and abuse.16 The existence of this section perpetuated
discrimination, abuse, harassment, arbitrary arrests and detention amongst other human rights
travesties. This in turn adversely affected HIV/AIDS prevention efforts, since these communities
took their activities underground in fear of persecution and abuse and became largely
inaccessible to AIDS prevention workers. The provision therefore directly resulted in the
marginalisation and victimisation of a certain class of people for no legitimate reason.17
Third, the petitioner submitted that Section 377 of the IPC infringed upon the fundamental rights
of privacy and dignity that fall within the ambit of Article 21 of the Indian Constitution. The
petitioner argued that there was no aspect of a person's life more private than sexual relations,
and because sexual preference is an integral part of the core of an individual's private space. It
formed an inalienable part of the person's right to life. Section 377 conveyed the message that
homosexuals were of less value than other sections of society by demeaning and humiliating
them, and blatantly violating their right to live a dignified life. The petitioner argued that the
fundamental right to privacy and dignity under Article 21 could only be waived in existence of a
compelling state interest, but that such an interest was notably absent in the application of
Section 377.18 Fourth, the petitioner submitted that Section 377 infringed upon the fundamental
right to equality under Article 14 of the Indian Constitution because there was no rational
connection between the legislative objective of the Section (to penalise 'unnatural sexual acts')
and the classification created by this Section (differentiating between procreative and non-
procreative sexual activities). Because it arbitrarily targeted the gay community, the petitioner
contended that the classification was unreasonable.19 The petitioner also submitted that the
expression 'sex' in Article 15 of the Indian Constitution could not be read to include only gender
16 Peoples' Union for Civil Liberties, Human Rights Violations against the Transgender Community: A study of kothi and hijra
sex workers in Bangalore, India (2003), last visited on 26.10.2013

17 Supra note 1.

18 Michael Kirby, The Sodomy Offence: England's Least Lovely Criminal Law Export?, Journal of Commonwealth Criminal
Law, 22, 24, last visited on 27.10.2013

19 AIR 1925 Sind 286

24
but should also include sexual orientation. Therefore, since Article 15 outlined the right of non-
discrimination, it implied that discrimination on the basis of sexual orientation (perpetuated by
Section 377) violated this fundamental right.20 Finally, the petitioner also submitted that Section
377 curtailed the basic freedoms guaranteed to all citizens under Article 19(1) (a), (b), (c) and
(d). The petitioner argued that the section curtailed an individual's ability to make personal
statements about one's sexual preferences, one's right of association/assembly, and one's right to
move freely to engage in homosexual conduct.21

Reply by Union of India

The Union Ministry of Home Affairs opposed the writ petition on the grounds that Section 377
of the IPC led to justified interference of state authorities in citizens' lives for the sake of
safeguarding public health and morals. In response to the petitioner's case, the Ministry of Home
Affairs sought to retain Section 377, submitting first that there was no fundamental right to
engage in same sex activities. The Additional Solicitor General (ASG), representing the Ministry
of Home Affairs in the case, called homosexuality in India 'abhorrent', and stated that the right to
privacy could be curtailed in the presence of compelling state interest, which includes conditions
of decency and morality, outlined in Article 19(2) of the Indian Constitution. In terms of
protecting the morals of society, the Court first stated the known principle that if a law infringes
upon the right to privacy (as Section 377 does), then it must satisfy the 'compelling state interest'
test.22 Enforcement of public morality does not amount to a compelling state interest, justifying
invasion of the private sphere of an adult individual who chooses to engage in sex without
harming others. The Court stated that 'popular morality or public disapproval of certain acts does
not amount to justification of curtailment of the fundamental right bestowed under Article 21'.

Moral indignation of the public, even if it is very strong, does not form a valid basis for denying
individuals their fundamental rights of dignity and privacy.The only type of morality that can
pass the compelling state interest test is constitutional morality.The Court stated that the

20 H. Montgomery Hyde, The Love That Dared Not Speak Its Name: A Candid History of Homosexuality in Britain, (Boston,
Little Brown 1970), last visited on 27.10.2013

21 W. Prest, Blackstone and His Commentaries: Biography, Law, History, 3 (Oxford, Hart 2009), last visited on 25.10.2013

22 Gobind v. State of MP(1975) 2 SCC 148

25
Constitution of India 'recognises, protects and celebrates diversity', and to criminalise
homosexuals solely on the basis of their sexual orientation would be totally against the notion of
constitutional morality. Second, in response to the petitioner's argument that Section 377
infringed upon Article 14 of the Indian Constitution, the respondent submitted that because
Section 377 was gender-neutral, it did not violate the fundamental right to equality under Article
14. The Court's response to this argument is outlined in section 2.3 of this report.
The third argument of the respondent was that there was no need to read down Section 377 since
the section was predominantly used in cases of child sexual abuse and not to punish
homosexuality.17The Court found that this argument was contradicted by facts. It noted that
various studies, documents and judgments confirm the misuse of Section 377 through abuse and
persecution of homosexuals and other sexual minorities. The Court also stated that if the ASG's
assertions were true, and Section 377 was not being used to prosecute homosexuals engaged in
consensual acts in private, then the provision was not necessary to protect morals or public health
with regard to sexual minorities in particular. Therefore, Section 377 from this perspective would
fail the 'reasonableness test'. The Court also stated that since the respondent had admitted that
Section 377 was rarely used to prosecute homosexuals, the criminalisation of same-sex conduct
did not serve any public interest. In direct contradiction to the petitioner's first argument, the
respondent submitted that Section 377 aided HIV/AIDS prevention, since the provision
criminalised same-sex relations that were likely to foster the spread of HIV/AIDS. The ASG,
arguing on behalf of the respondent, submitted that anal sex, conducted between men without the
use of protection, was one of the main causes of HIV/AIDS. He submitted that decriminalisation
of homosexuality would not serve any purpose since it would perpetuate this type of sex, which
in turn would be detrimental to public health. In his submission, he regarded homosexuality as a
disease, and prescribed medical treatment for homosexuals. The Court did not agree with the
submissions of the ASG. First it rejected the characterization of homosexuality as a disease. The
ASG had submitted that Section 377 in no way impaired the ability of homosexuals to access
healthcare and HIV/AIDS prevention measures, which the Court found to be false in light of the
extensive studies on the impact of Section 377 done by the petitioner and NACO. The Court
found the argument of the respondent to be 'completely unfounded since it is based on incorrect
and wrong notions', because there was no evidence showing the link between decriminalisation
of homosexuality and the spread of HIV/AIDS. Responding to the petitioner's final argument

26
regarding Section 377's violation of Article 19(1) of the Indian Constitution, the respondent
contended that Section 377 did not impact the freedoms given under Article 19(1), since it
criminalised only a sexual act, leaving people free to express their opinions on homosexuality
and its decriminalisation. Therefore, the respondents maintained that Section 377 was
constitutionally valid. However, in light of the Court's findings on Section 377 of the IPC's
infringement on Articles 14, 15 and 21 of the Indian Constitution, the Court did not find it
necessary to explore infringement of Article 19. Interestingly, the Ministry of Health and Family
Welfare submitted an affidavit, prepared by the National AIDS Control Organisation (NACO)
that took a contrary stance to the Ministry of Home Affairs. NACO's submission corroborated
the petitioner's contention that homosexuals and other sexual minorities were highly susceptible
to HIV/AIDS, and stated that the increased vulnerability of these particular groups stemmed
from a higher level of unsafe activity as well as impaired decision-making abilities that hindered
HIV/AIDS prevention.
In terms of the right to health (recognised as a part of Article 21 of the Indian Constitution), the
Union Ministry of Health and Family Welfare argued that since homosexuals lived in constant
fear of law enforcement, they were reluctant to reveal same-sex sexual behaviour. As a result,
this large section of society carried out its sexual activities in silence, making it very difficult for
public health workers to access them for the purpose of HIV/AIDS intervention and prevention.
NACO submitted that it was imperative that the gay community had the right to render
themselves visible without fear of persecution by state authorities so that HIV/AIDS prevention
efforts could be effectively conducted. The Law Commission of India, in its 172nd report,
recommended the removal of Section 377 before the judgment in 2000. The Law Commission, in
reviewing laws relating to sexual offences (in light of increased incidence of sexual assault of
minors as well as custodial rape), endorsed the deletion of Section 377 along with amendments
in Section 375 of the IPC to a new Section 376E.The Law Commission recommended the
redefinition of Section 375 under 'Sexual Assault', penalizing not only rape but also any non-
consensual, non-penile-vaginal penetration. On these grounds, the Court was unable to accept the
respondent's argument that Section 377 should be retained to cover consensual sex between
adults in private in the interest of public health and morality.
Article 21 of the Constitution of India

27
The Court, drawing on the judgment of the Supreme Court in Maneka Gandhi v. Union of India23
outlined the test by which a law interfering with personal liberty was declared to be
constitutionally valid. The test, known as the three-fold test, requires the following: (i) the law in
question must have prescribed a procedure; (ii) the procedure must have withstood a test of one
or more of the fundamental rights conferred under Article 19 which may be applicable in a given
situation; and (iii) it must have been liable to be tested with reference to Article 14. The Court
stated that the dignity of an individual, which is specifically mentioned in the Preamble of the
Constitution, lay on the notion that the physical and spiritual integrity of every individual was
recognised, along with his or her humanity and value as a person, irrespective of the utility he or
she could provide to others. The Court, drawing on the words of Justice P.N. Bhagwati and
Justice V.R. Krishna Iyer, described the right to dignity as a part of India's constitutional culture
and an inalienable part of the right to life enshrined in Article 21. The right to privacy, though not
codified in a separate provision of the Constitution, had been declared by various judgments over
the years to be an implicit part of the right to life and liberty under Article 21 of the Constitution.
The right to privacy had been called the 'right to be let alone'. The Court, quoting from the
dissenting judgment in the U.S. Supreme Court case Bowers v. Hardwick, stated that this right
was not merely a negative right by which one could occupy a particular space free from State
interference, but a positive right by which individuals could continue with their lives, make
important decisions, and decide their intimate relations without fear of penalty. The right to
privacy recognised that every individual has a sphere around his or herself in which he or she
could autonomously conduct human relationships in private, without interference from outsiders.
The Court declared that the way in which one gave expression to one's sexuality was at the core
of this sphere of privacy. The Court also said that every individual's sexual orientation and sense
of gender was deeply embedded, and formed an integral part of his or her identity. The
personhood of an individual largely depended on his or her ability to exercise autonomy,
allowing one to attaining fulfillment, to increase his or her self-esteem, and to and build
relationships on his or her own terms, free from State interference. The Court stated that Section
377 of the IPC denied persons their individual dignity and criminalized their 'core identity' on the
sole basis of their sexuality, thereby violating their right to life under Article 21 of the Indian
Constitution. According to the Court's judgment, Section 377 denied homosexuals the right o full
23 [1999] 2 S.C.R. 203

28
personhood, which is implicit to Article 21 of the Indian Constitution.

Article 14 of the Constitution of India

In seeking to determine whether Section 377 violated the right to equality under Article 14 of the
Indian Constitution, the Court first stated the test of permissible classification by which a
classification can be deemed to not infringe upon Article 14. In order to pass the test of
permissible classification, two conditions are required, namely (i) the classification must have
been founded on an 'intelligible differentia' that distinguished members grouped together from
members excluded; and (ii) the differentia must have had a rational relation to the objective
sought to be achieved by the law in question (Section 377). The Court reiterated the judgment in
Budhan Choudhry v. State of Bihar 24 and stated that it was imperative that there be causal
connection between the basis of the classification and the objective of the law. Another important
factor about classification in the context of Article 14 is that it cannot be arbitrary. If a
classification made by a law was arbitrary, then the law automatically infringed upon Article 14;
when a law was arbitrary, it was inherently unequal. 25 In Deepak Sibal v. Punjab University,26the
Court stated that when the objective of a law was irrational and unreasonable, it followed
logically that the classification made by the law was also arbitrary and unreasonable. Section 377
criminalised private conduct of a consensual nature between adults without promoting public
health or public morality. Thus, the sole objective of this law was to criminalise conduct which
'does not conform to the moral or religious views of a section of society'. Such an objective
affected the dignity of homosexuals and other sexual minorities, and resulted in a denial of their
rights. Therefore, the Court stated that the objective of Section 377 was arbitrary as well as
unreasonable. Addressing the respondents' claim that Section 377 penalised only acts and not
people, the Court found that while the section may be neutral on its face, it unfairly targeted a
specific class of people in practice. The discrimination that resulted from this section was seen to
be unreasonable, and the Court found that Section 377 violated Article 14 of the Indian
Constitution.

24 AIR 1955 SC 191

25 Ajay Hasia v. Khalid Mujib Sehravardi, (1981) 1 SCC 722

26 (1989) 2 SCC 145

29
Final Judgment
The Court said that the one underlying theme of the Indian Constitution was 'inclusiveness,' a
trait that had been deeply ingrained and reflected throughout Indian society. When a society
displays inclusiveness, such persons within it are assured a life of dignity and non-
discrimination. In the Court's view, constitutional law could not permit statutory criminal law to
be governed by stereotypes and misconceptions regarding the identity of homosexuals and other
sexual minorities. Therefore, the Court declared Section 377, as far as it criminalises consensual
sexual acts of adults in private, to violate Articles 14, 15 and 21 of the Indian Constitution. The
provision would continue to apply to non-consensual penile non-vaginal sex and penal non-
vaginal sex involving minors. This clarification, the Court held, would hold until the Parliament
decides to amend the law.

Conclusion
This study concludes that the decriminalisation of homosexuality will ensure that sexual
minorities in India are one step closer to living with dignity. It will ensure greater self-confidence
among the LGBT community leading to a gradual but steady acceptance of sexual minorities by
their families and society as a whole. The findings of this study are in line with the results of
Professor Goodman in his study of the impact of sodomy laws in South Africa. He stated that
even if sodomy laws in a particular jurisdiction only reflected the moral beliefs and sentiments of
a small minority of the population, their presence in the law books would give the impression
that criminalisation of homosexuality represented the sentiments of society as a whole. This
representation results in the laws having a 'far-reaching' and 'self-reinforcing' effect. 27 According
to Professor Goodman, sodomy laws have a variety of impacts. First, sodomy laws influence the
attitudes of society towards the state with members of the LGBT community fearing state
authorities. Second, sodomy laws change peoples' relationships with public spaces; since these
individuals are not awarded an equal level of protection by the law, they acquire a more
vulnerable status and have a less active relationship with public space in the society. Third,

27 Ryan Goodman, Beyond the Enforcement Principle: Sodomy Laws, Social Norms and SocialPanoptics, 89(3) California Law
Review (2001), last visited on 27.10.2013

30
sodomy laws impact the boundaries of what constitutes a civic community. Laws that criminalise
specific communities lead to exclusion, marginalisation and victimisation. Since sodomy laws
have such a strong influence on social norms and can successfully transform them, the justice
they bring must be analysed in this social context.

One important conclusion of this study is that there has been a definite increase in confidence
and self-acceptance among LGBT community members. All the respondents interviewed
unanimously agreed that even if decriminalisation did not change attitudes of the police and
people in general, it did result in an improvement in their own self-confidence. This is in keeping
with the results of prior studies, which have found that jurisdictions criminalising homosexuality
have been home to individuals from sexual minorities with low levels of self-esteem and self-
worth. But jurisdictions that decriminalized homosexuality have been associated with gay
citizens who demonstrate greater levels of self-acceptance.
Police harassment has definitely reduced after the judgment, though it seems to be more
prevalent in some areas of Delhi than others. Acceptance by society as well as by families has
increased slowly, but there is still much work to be done. Apart from the law, the media and
movies have also played their part in effecting a change in societal perception of the LGBT
community. Decriminalisation can remove much of the stigma associated with homosexuality,
and can help homosexuals feel more accepted in society as well as within their own families.
Decriminalisation has also been seen to be associated with more self- acceptance as well as
psychological and emotional security among homosexuals and other sexual minority groups.
Such qualities help homosexuals form healthy relationships and build and strengthen familial
ties. In fact, it is encouraging to note that parents of several homosexual children have filed
interventions in the Supreme Court praying for decriminalisation of homosexuality. Even though
family acceptance of LGBT people still seems to be bleak, this situation will improve if the
Supreme Court upholds the High Court judgment on Section 377.

31
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