1.

Introduction:

1.1. Introduction:
Can sexual orientation of an individual be a ground for inflicting punishment? The
Constitution of India nowhere indicates sexual orientation as a basis of making discriminatio n.
It is not an offence to have a sexual orientation which is different from others. This is the high
time the World should start recognizing those who have orientation different from others which
are collectively called “Queer Community”. This community includes Lesbian, Gay, Bisexua l,
Transgender and altogether called as queer community. Earlier it was only confined to LGBT.
Queer is an umbrella term which has been provided for sexual and gender minorities who are
not heterosexual. Earlier somewhere in 19 th century this term Queer was used against those
who had same-sex desires or relationship with the same sex.

If we take a glance on UDHR, it says, All human beings are born free and equal in dignity
and rights. They are endowed with reason and conscience and should act towards one another
in a spirit of brotherhood.1 Further, Everyone is entitled to all the rights and freedoms set forth
in this Declaration, without distinction of any kind, such as race, colour, sex, language, religio n,
political or other opinion, national or social origin, property, birth or other status.2 No one shall
be subjected to torture or to cruel, inhuman or degrading treatment or punishment. 3 Everyone
has the right to recognition everywhere as a person before the law.4 All are equal before the
law and are entitled without any discrimination to equal protection of the law. All are entitled
to equal protection against any discrimination in violation of this Declaration and against any
incitement to such discrimination.5 No one shall be subjected to arbitrary interference with his
privacy, family, home or correspondence, nor to attacks upon his honour and reputation.
Everyone has the right to the protection of the law against such interference or attacks. 6

All persons are equal before the law and are entitled without any discrimination to equal
protection of the law. In this respect, the law shall prohibit discrimination and guarantee to all
persons equal and effective protection against discrimination on any ground such as race,
colour, sex, language, religion, political or other opinion, national or social origin, property,

1 Article 1 of United declaration of Human rights

2 Ibid Article 2
3 Ibid Article 5
4 Ibid Article 6
5 Ibid Article 7
6 Ibid Article 12

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birth or other status.7 The States Parties to the present Covenant undertake to guarantee that the
rights enunciated in the present Covenant will be exercised without discrimination of any kind
as to race, color, sex, language, religion, political or other opinion, national or social origin,
property, birth or other status8 . Coming down to the Constitution of India, the Preamble clearly
indicates “equality of status and opportunity”. It signifies that each and every individual must
get an opportunity to develop themselves. Apart from it Art 14, Art 15, Art 16 are there which
give a crystal clear concept of equality.

As we can see that there are so many laws, principles which make us understand about equality
and human rights. But they are only applicable to the people like us and not for the sexual
minorities. The constitution, being the mandate focuses on the upliftment of the vulnerable or
weaker section of the society. Nevertheless, it has no place for Queer community. Not only the
Constitution, but also the above mentioned declaration and conventions do not recognize them.
The Word Equality is just on papers, and not being implemented in a practical way. What is
the use of such type of law which works at the whims and fancies of the legislators? The main
objective of the constitution is to bring weaker and vulnerable class on similar circumsta nces
as to those who are already living in a respectable and in a dignified society. But in case of
sexual minorities it is a failure. Instead of recognizing it, there are laws making the
homosexuals activities penalized. Indian penal code under section 377 prohibits unnatura l
offences. However, what is constituted as unnatural in sec 377 may not be unnatural for the
sexual minorities. It has been vehemently contested in sec.377 of IPC that whoever has
intercourse “against the order of the nature” shall be punished. This provision of sec 377 of
IPC is curbing the right to equality as well as liberty and privacy of the Queer community.
However, the Indian Judiciary has initiated recognizing the rights of sexual minorities but till
today this is a burning subject. In Naz foundation case 9 , the Delhi High Court declared that
Section 377 IPC, insofar it criminalises consensual sexual acts of adults in private, is violative
of Articles 21, 14 and 15 of the Constitution, was nonetheless struck down by the Supreme
Court of India.

“Homosexuality has been a taboo in India since ages. Although the homosexuality has been
described in Kamasutra as ‘Tritriya- Pakriti’, third sex, however, the very mention of
homosexuality has led some people to reject its authenticity. Some people are so uncomfortab le

7 Article 26 of the International Covenant on Civil and political rights, 1966.

8 Article 2 (2) of International Covenant on Economic, Social and Cultural Rights, 1966.
9 2010 CriLJ 94

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with homosexuality, transgender, and gender sex that they refuse to believe that such people
were ever mentioned or studied in past”. 10 There is a need of change in the perspectives of the
society so that the sexual minorities could also join the main stream of the society and develop
themselves.

1.2. Rational Significance:

This research mainly focuses upon the framing of some substantial law regarding the Lgbt
community. The world has not recognized the Queer community till today. We are in 21 st
century still it is considered as a taboo. The researcher through its research will try to prove
that it is nothing like a taboo and there should be stringent laws protecting LGBT. This research
will also make a some critical analysis of privacy judgment11 .

Since there are several conventions which enshrine equality is the most important attribute
of an individual, the same is not being implemented. So, this research will put a light on the
implementation of the same. Furthermore, the preamble as well as several Articles of the
Constitution do talk about equality, privacy and so on and so forth but there is again lack of
execution. Last but not the least this research paper will discuss about the Sec.377 on a differe nt
footing.

1.3. Aims And Objectives:

The aims and objectives of this Research paper has been laid down as follow:

1. Recognition of the Queer community in India.

2. Comparative analysis of Indian legal system with American Legal System.
3. Critical Analysis of Right to privacy Judgment.
4. To ascertain the meaning of “order of nature.”
5. To come up with a solution offering the Queer Community a respectable standard of
living.

1.4. Literature Review:

1. Penal Law of India by Dr. Sir Hari Singh Gaur in which the author has gone through
the Sec. 377. The section criminalizes intercourse which is against the order of nature.
Here, the author is of the view that, what may be the order of nature for an individual

10 Sonia B Nagarale, Rendering Rights To The Invisible A Call For Recognition Of Sexual Minorities In India,
Orient Journal of Law and Social Sciences, pg. no. 30, vol. V, Issue 6, May 2011
11 Justice K.S. Puttaswamy (Retd.) And Anr. Vs. Union Of India And Ors., AIR2012

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 may not be for other individual. Sec. 377 has been framed by keeping procreation in
mind and not the pleasure of individuals. And the same infringes the rights of persons
who have special kind of sexual orientation.
2. Section 377 of Indian Penal Code, 1860.
3. The case of Naz foundation vs. Government of N.C.T Delhi in which for the very first
time the rights of sexual minorities were recognized by the Delhi High Court by
declaring sec. 377 of the IPC unconstitutional and violative of Articles 14, 15 and 21
and allowed consensual sexual activity between two homosexuals above 18 years of
age. This was like a ray to those communities but their happiness was for only few days
and the same was struck down in the case of Suresh kumar koushal vs Naz Foundation
case. Several other cases have also been taken into consideration in this paper.
4. Author has also read the paper by “Prof. Sonia B Nagarale” which was published in
“Oriental Journal Of Law and Social Sciences”. After analyzing each and every
provisions related to equality, privacy, the paper comprises of a robust platform for
giving rights for the community.
5. Conventions of ICCPR and ICESR.
6. A book of India’s Constitution Origins And evolution by Samaraditya Pal, Vol. I,
preamble to Article 18 has also been referred by the author for understanding the
concept of Articles talk about equality. This book gives a wide and clear understand ing
of the same with recent case laws.
7. The author has also referred M.P Jain, Indian Constitution Law with Constitutio na l
Documents. This book extensively discusses the constituent assembly debates in detail
of every Article of the Constitution. Hence, a reader would come to know about the
clear intention and history about that particular Article.

1.5. Research Question:

Whether Section 377 of IPC is in accordance with fundamental rights of Constitution.

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 1.6. Research Models:

Critical Model:
The critical model will be applied by the researcher because the law is not in accordance
with the fundamental rights. Also, it discriminates a certain class of people which are
vulnerable in nature. Even the judicial decision in contradiction with itself.

COMPARITIVE MODEL:

A comparative legal research carries significance as Legislators, it has been said, imitate
each other and try to learn from each other’s experience. 12 Schlesinger has observed:

Legal practitioner and scholars in ever – increasing members have intuitively discovered a
simple but significant fact: that when confronted with the same problem, decision – makers,
though independent of each other and widely separated by time and space, more often than not
will respond in a similar way.13 By applying this method researcher will be comparing the
national law with the laws of United State of America.

1.7. Research Method:

Doctrinal Method:

Doctrinal legal research, as conceived in the legal research domain, is research ‘about’
what the prevailing state of legal doctrine, legal rule, or legal principles is. 14

In this method the researcher will read statute, judicial decision, commissions report and
then the inference will be drawn. Researcher during her research may talk or prepare a
questionnaire for the sake of knowing the situation of sexual minorities.

Primary Sources: In Primary sources the author will be using Bare Act of Constitution of
India, 1950, Bare Act of Indian Penal Code, 1860, Law commission Reports, Judgments.

Secondary Sources:

In Secondary sources, the author will be gathering data from Books, commentaries, Journals,
Articles. These data, though are not direct but are of great importance.

12 Prof.(Dr) Kushal Vibhute & Filipos Aynalem, Legal Research Methods, 107, (2009)
13 Schlesinger, the Common Core of Legal Systems- an Emerging Subject of Comparative Study, in Tune,
Comparative Law, Peace and Justice (1961)
14 Prof.(Dr) Kushal Vibhute & Filipos Aynalem, Legal Research Methods, 71 (2009)

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 2. Existence Of Homosexuality In Various Religions:

2.1. Introduction:
Homosexuality, as it is evident from the very term, means attraction to people of one’s own
sex. The word homosexuals literally means as ‘of the same sex, being a hybrid of the Greek
prefix homo meaning ‘same’ and Latin root meaning ‘sex’15 . Sexual identity of an individ ua l
means about his or her identity which he or she adapt for themselves, based upon whether they
are attracted to people of the same gender, a different gender or to more than one gender, and
they are classified as homosexual, heterosexual or bisexual respectively. Sexual behaviour, on
the other hand, refers to sexual activities individuals engage in and may vary from their sexual
identity.

Homosexuality has an ancient history in India. Ancient scriptures like Rig-Veda which dates
back around 1500 BC and sculptures and vestiges depict sexual acts between women as
revelations of a feminine world where sexuality was based on pleasure and fertility. The
description of homosexual acts in the Kamasutra, the Harems of young boys kept by Muslim
Nawabs and Hindu Aristocrats, male homosexuality in the medieval Muslim history, evidences
of sodomy in the Tantric rituals are some historical evidences of same sex relationship.16

Deviations from this norm may often result in discrimination, stigmatization, abuse and
ridicule. Different terminologies exist around the globe in different cultures and communities
to denote different sexual and gender identities since the beginning of human civilization. In
Indian society too, these are witnessed and were recognized since ancient times as evident from
some characters with sex or gender identity problems mentioned in the epics- Ramayana and
Mahabharata. Apart from these epics, various paintings on Khajuraho, an individual can easily
acknowledge a woman erotically embracing the other and so does the man. So the fact that
homosexuality is unnatural in today’s 21 st century, one should acquire a substantial and a deep
knowledge about the history of India. Today there are so many different terms which have been
used to denote for acknowledging these genders : Gay, Lesbian, homosexual, heterosexua l,
Hijra, intersex, transsexual, Queer etc. These terms are constantly being discussed and
examined nowadays and therefore their meanings and how they are used to denote identities
change over time.

15 Older words for homosexuality, such as homophobian & inversion have fallen into disuse. Less frequently
used terms are queer, homo, fag or faggot & dyke.
16 Homosexuality - Conceptual And Theoretical Analysis, chapter I, p. 14.

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 Queer community was always present in our society. They were not only present but also
being recognised. It is very much evident in the Ancient text of Kamasutra. The Kamasutra has
dealt with all kinds of desires which in Hindu thought is one of the four normative and spiritua l
goals of life. The Kamasutra is the earlier extent and most important work in the Kamasutra
tradition of the Sanskrit literature. It was compiled by the philosopher Vatsyayana around the
fourth century, from earlier texts, described homosexual practice in several places as well as
sex / gender types.17

2.2. Homosexuality In Various Mythology:

2.2.1. Hindu Mythology:

Under Hindu Mythology, there is one form where God ‘Shiva’ and the Goddess ‘Parvati’,
together known as ‘Ardhnarishvara18 . There is an incidence in Ramayana, when Lord Rama
was on the way to his exile, a huge mob of his subject with the intention to stop him followed
Lord Rama. Seeing such a huge quantity of his devotees, he requested all of men and women
to go back and also told them not to get in sorrow. Later on, when Lord Rama returned after
14th he found hijra, being ‘neither men nor woman’ had not moved from the place where he
had addressed them. By seeing this gesture of them, Rama got overwhelmed and granted hijras
the boon to confer blessings on people during auspicious occasions like childbirth and
weddings. This boon is the origin of badhai in which hijras sing, dance, and give blessings. 19
Apart from it Mahabharata has also instance, wherein, Arjuna remained as eunuch for one year
during exile of Pandavas. During this one year he spent his life at Virata’s Matsya kingdom
and became the master of singing and dancing for the princess, Uttara. 20

2.2.2. Traces Of Homosexuality In Islamic Mythology:

Scholars seeking to argue that the Quran does not effectively condemn homosexuality per
se have developed a two-pronged attack on traditional Qur'anic exegesis. On the one hand, the
argument is that references to the Biblical story of the sins and destruction of Sodom are
nothing more than an illustration of God's awesome power, not an injunction against

17 Sonia B Nagarale, Rendering Rights To The Invisible A Call For Recognition Of Sexual Minorities In India,
Orient Journal of Law and Social Sciences, pg. no. 30, vol. V, Issue 6, May 2011
18 Venkat Vidya (2008), From the Shadows, Frontline (the Hindu Group) 25 (4, 16 – 29 feb) Ardhanari.
19 Many if not mosy, translations of Valmiki’s Ramayana do not co ntain this reference.Joseph T. Bockrath,
“Bharat Hijro Ka Dharama”: The Code of India’s Hijra” Legal studies Forum 83 (2003)
20 Verma, retold & edited by T.R Bhanot; Art Work by K.L (1990), the Mahabharata, New Delhi, Dreamland
Publiction. P.19 ISBN-9788173010453. Brihannla.

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homosexual practices. On the other hand, the argument is also made that because the Quran
lacks recommendations of specific punishments for homosexual acts, it is not truly condemning
the practice.21

2.2.3. Instances In Chinese Mythology:

The stories in Chinese mythology has been several instances, approving the homose xua l
activities. Tu Er Shen is a deity in Chinese folklore who manages the love and sex between
homosexual men. His name literally means "rabbit deity". According to "The Tale of the Rabbit
God" in the Zi Bu Yu, Tu Er Shen was originally a man called Hu Tianbao, who fell in love
with a handsome young imperial inspector of the Fujian Province. One day Hu Tianbao was
caught peeping on the inspector, at which point he confessed his reluctant affections for the
other man. The imperial inspector had Hu Tianbao sentenced to death by beating. Since his
crime was one of love, other officials decided to right the injustice by delegating Hu Tianbao
as the god and safe guarder of homosexual affections.22 In order to cater to the needs of modern
homosexuals, worship of the Rabbit God has been resuscitated in Taiwan and a temple was
founded in Yonghe City by a gay, Taoist priest.23

2.3. Conclusion:
It is very crystal clear from the above writings that the homosexuality in India is present
since ancient days. There is no need of proving their existence in ancient India as there were
significantly present in the society. We have also seen that; it was not only their presence but
also involved in various respectable work. As Arjuna was appointed as a teacher of music and
dance and so forth. Hence, the history of queer community in India is pretty much strong. It
has a deep root in ancient India. The customs, traditions, texts, scriptures prevailed in the then
Ancient India is always taken for the reference by the judiciary while delivering the landmark
judgments today. However, the judiciary is not recognising the concept of homosexuality,
though it held a very significant place in India.

21 Warren J. Blumenfeld and Diane Raymond, Looking at Gay and Lesbian Life, rev. ed. (Boston: Beacon Press,
1988) 185, The Role of Homosexuality in Classical Islam, Stefanie Lee Martin, University of Tennessee -
Knoxvill
22 Szongui, Michael, The Cult Of Hu Tiambo & The Eighteenth – Century Discourse Of Homosexuality. Late

Imperial China – Vol 19, Number 1, June 1998. Pp. 1 – 25, The Johns Hopkins University Press.
23 Taoist Homosexual Turn to the Rabbit God : The Rabbit Temple in Younghe Ens hrines a Deity Based On An

Historic Figure That is Believed to Take Care Of Homosexuals.” By Ho Yi Staff Reporter, Taipei Times,
Sunday, October 21, 2007, P.17

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 3. International Perspective As Regard To Sexual Minorities:
Coming to the International perspective as to the sexual minorities, there are various
conventions or covenants adopted by UN General Assembly safeguarding human rights of
every individual irrespective of sex and sexual orientation. Not only the conventions, but also
there are various international organisations, vehemently criticising any type of discriminatio n.
Some of them are being discussed here:

3.1. United Declaration Of Human Rights:

United Declaration of Human Rights is of great importance. The very first Article of United
Declaration of Human rights i.e. All human beings are born free and equal in dignity and
rights.24 Not only this Article but also the last paragraph of the preamble which reads as “Now,
Therefore The General Assembly proclaims This Universal Declaration Of Human Rights as a
common standard of achievement for all peoples and all nations, to the end that every individ ua l
and every organ of society, keeping this Declaration constantly in mind, shall strive by teaching
and education to promote respect for these rights and freedoms and by progressive measures,
national and international, to secure their universal and effective recognition and observance,
both among the peoples of Member States themselves and among the peoples of territories
under their jurisdiction.”25 Apart from these, there are several Articles enshrined under the
UDHR talking about the equality, dignity, no discrimination on the grounds of sex, security
and so on.

3.2. International Covenant On Civil & Political Rights:

ICCPR was adopted by General Assembly in 1966 and came into force in the year of 1976.
This treaty provides a wide range for protection of civil and political Rights of every individ ua l.
It is obligatory on each State Parties to comply with the principles and protect the basic human
rights of an individual. The ICCPR, together with the Universal Declaration of Human Rights
and the International Covenant on Economic Social and Cultural Rights, are considered the
International Bill of Human Rights. 26

It has been clearly mentioned in the Treaty that, Each State Party to the present Covenant
undertakes to respect and to ensure to all individuals within its territory and subject to its
jurisdiction the rights recognized in the present Covenant, without distinction of any kind, such

24 Article 1, United Declaration Of Human Rights, 1948.

25 Preamble of United Declaration of human Rights, 1948
26 https://www.aclu.org/other/faq-covenant-civil-political-rights-iccpr

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as race, colour, sex, language, religion, political or other opinion, national or social origin,
property, birth or other status.27 Further, it also indicates clearly that, All persons are equal
before the law and are entitled without any discrimination to the equal protection of the law. In
this respect, the law shall prohibit any discrimination and guarantee to all persons equal and
effective protection against discrimination on any ground such as race, colour, sex, langua ge,
religion, political or other opinion, national or social origin, property, birth or other status.28

The Human Rights Committee in the case of Toonen v Australia 29, while giving the
reference to ‘sex’ under article 2 and the right to privacy under article 17 of ICCPR held that
these both include sexual orientation also. Again, the Committee in Young v Australia30 held
that distinctions made between same sex couples and opposite sex couples in relation to
veterans entitlements were discriminatory, in breach of article 26 of the ICCPR. This can be
witnessed easily by the interpretation of these cases that how the trends and concepts regarding
queer community are changing.

3.3. The Yogyakarta Principles on the Application of International

Human Rights Law in relation to Sexual Orientation and Gender
Identity 2007:
In November 2006, a group of 29 international human rights experts, including a former
United Nations High Commissioner for Human Rights, UN independent experts, current and
former members of human rights treaty bodies, judges, academics and human rights defenders,
met in Yogyakarta, Indonesia, and affirmed a set of principles drawing on legally binding
international human rights law to address the application of a broad range of internatio na l
human rights standards to issues of sexual orientation and gender identity. 31

These Principles of Yogyakarta were laid down for the protection of sexual minorities.
This principle works as a universal guide for the International Human Rights laws when it

27 Article 2(1) of ICCPR.

28 Article 26 of ICCPR
29 Human Rights Committee, Toonen v Australia, Communication No. 488/1992, UN Doc CCPR/C/50/ D/488/ 92

(1992), About, https://www.humanrights.gov.au/publications/section -4-human-rights-and-discrimination-basis-

sexual-orientation-or-gender-identity#fn12, last seen on 14th November, 2017
30 Human Rights Committee, Young v Australia, Communication No. 941/2000, UN Doc CCPR/C/78/D/ 941/2 0 00

(2003). Manfred Nowak, UN Covenant on Civil and Political Rights: CCPR Commentary (2005), p 623, ),
About,https://www.humanrights.gov.au/publications/section -4-human-rights-and-discrimination-basis-sexual-
orientation-or-gender-identity#fn12, last seen on 14th November, 2017
31 About, https://www.amnestyusa.org/pdfs/YogyakartaPrinciples.pdf last seen on 14th November, 2017.

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comes to safeguarding of queer community from various types of inflictions of torture and
abuses.

3.4. Council of Europe:

The European Convention for the protection of human Rights 32 , under Articles 833 & 1434
do not expressly mention about the sexual orientation. However, it prohibits discrimina tio n
based on various grounds such as sex, race, colour, language, religion, political or other
opinion, national or social origin, association with a national minority, property, birth or other
status.

The European Court Of Human Rights, in the cases of ; Dudgeon v UK 35 , Norris v

Ireland36 , Modinos v Cypru37 , found that discrimination in the criminal law regarding
consenting relations between adults in private is contrary to the right to respect for private
life.38

3.5. Conclusion:
So, we can see that how the rights of Queer community have been recognised by various
conventions as a basic human rights. In many of the covenants or conventions do not explicitly
mention for the rights of queer community but their interpretations are such, as the said cannot
be neglected. it is true that unless any law or regulation in black and white text, its
implementation is not possible. Keeping this thing in mind, human Rights experts of 29
countries met in Yogyakarta, Indonesia and establish a set of principles for the queer
community which is called as “Human Rights Law in relation to Sexual Orientation and Gender
Identity”. The concept of homosexuality is being accepted by various countries with open
arms. This acceptability shows a positive sign for the promotion and protection of homosexua l
and has paved a way towards a comfortable and respectable environment for sexual minorities.

32 http://www.echr.coe.int/Documents/Convention, last seen on 14th November, 2017

33 Everyone has the right to respect for his private and family life, his home and his correspondence.
34 34 The enjoyment of the rights and freedoms set forth in this Convention shall be secured without

discrimination on any ground such as sex, race, colour, language, religion, political or other opinion, national or
social origin, association with a national minority, property, birth or other status.
35 App No 7525/76, [1981] ECHR 5, (1982) 4 EHRR 149, IHRL 31 (ECHR 1981), 22nd October 1981,
36 Application no. 10581/83, Council of Europe: European Court of Human Rights , 26 October 1988, About,

council of Europe, available at http://www.refworld.org/cases,ECHR,48abd5a2d.ht ml, last seen on 13

November 2017.
37 Council of Europe: European Court of Human Rights, 23 March 1993, About,

http://www.refworld.org/cases,ECHR,402a21a04.ht ml last seen on 13 November 2017

38 http://hrlibrary.umn.edu/edumat/studyguides/sexualorientation.html, last seen on 13th November, 2017

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 4. Laws In Conflict With Sexual Minorities:
“I often wonder whether we do not rest our hopes too much upon constitutions, upon laws,
and upon courts. These are false hopes; believe me, these are false hopes. Liberty lies in the
hearts of men and women; when it dies there, no constitution, no law, no court can save it; no
constitution, no law, no court can even do much to help it. While it lies there, it needs no
constitution, no law, no court to save it."

-Judge Learned Hand, The Spirit of Liberty39

4.1. Introduction:
Sexual minorities, as we know are not being recognised by the law of the land. The
Constitution of India enshrines in itself different features which are indeed for the welfare of
the country. The United Declaration of Human Rights, for the very first time adopted by the
Indian Constitution which vehemently promotes the rights of all human beings. Following the
principle of UDHR, the only idea of the Constitution of India is the embodiment of those laws
which serve the intention of framers of the constitution. And the intention of the framers of the
Constitution is very much evident from the Preamble of the Indian Constitution itself.

Dr. Sarvappali Radhakrishnan, the first speaker after the election of the permanent chairman
of the Assembly, said in simple terms:

“A constitution is the fundamental law of nation. It should embody and express the dreams and
passion, the ideals & aspirations of the people, it must be based on the consent of all, and
respect the rights of all people who belong to this great land.40 ”

It can be seen that how wonderfully Dr. Radhakrishnan has emphasises on the people centric
laws. The constitution of India should be in pursuance of the dreams and passions, ideals and
aspirations as well as the consent of all. Having said this, the laws which are prohibiting the
goings-on of homosexuality, cannot be said to be framed with the consent of all people. The
Indian Penal Code, 1860 criminalises homosexual activities by the virtue of Section 377. It
means that the queer community is not being included within the word ‘people.’ Since the
consent of queer community in framing of section 377 is not at all present.

39 Judge Learned Hand, The 'Spirit of Liberty' Speech presented during the annual 'I am an American Day'
event (May 21, 1944).
40 Samaraditya Pal, India’s Constitution Origins And Evolution, VOL. 1, Preamble to Articles 18, p.xviii.

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 Architect of Indian Constitution Dr. B.R. Ambedkar, has looked after the cause of weaker
sex and of all vulnerable section of society and the same philosophy is reflected in part III and
IV of the Indian Constitution.41

4.2. Queer Community And The Constitution of India:

The Constitution of India envisages in its preamble the ideals and goals which the makers
of the constitution intend to achieve through that constitution. 42 This is the reason the Hon’ble
Supreme Court in Re Berubari Union43 held that, the preamble is also regarded as “ ‘a key to
open the mind of the makers’ of the constitution which may show the general purposes for
which they made several provisions in the Constitution”. Social, Economic and Political Justice
have been contemplated in the preamble of the constitution. Social justice is one of the most
important requisites to maintain equality in the society.

As John Rawls propounded in his “Theory of Justice” that social and economic inequalities
are to be arranged to the greatest benefits of the least advantaged person.44 And the same has
been reflected through various Articles of the Constitution. Article 14, 15, 16, 21, all these
articles promote social justice and equality. However, it is not being witnessed in the case of
homosexuals.

Inequality is the basis of equality. Article 14 guarantees to every person, including non-
citizens and transgenders45 , the right to equality before the law or equal protection of the laws.
Transgender has been recognised by the Judiciary but not the lgbq community. Here the
Judiciary itself seems to be contradicting the fundamental law of the land. Lesbians, gays,
bisexuals are also the part of our society itself. In the ancient Indian context, as much as in
Christianity and Islam, even if we are produced from different parts of the body of that first
person or God, we are all its (God’s) product. 46 Hence all are equal including homosexua ls
also.

41 Dr. Sonia Nagarale, Rendering Rights To The Invisible A Call For Recognition Of Sexual Minorities In India ,
Orient Journal of Law and Social Sciences, vol V, Issue 6, May 2011, p.34.
42 The preamble contains in a nutshell its ideals and its aspirations, per Subba Rao CJ in Golak Nath v. State of

Punjab, AIR 1967 SC 1643, 1655: (1967) 2 SCR 762.

43 AIR 1960 SC 845: (1960) 3 SCR 250.
44 Dr. Sonia Nagarale, Rendering Rights To The Invisible A Call For Recognition Of Sexual Minorities In India ,

Orient Journal of Law and Social Sciences, vol V, Issue 6, May 2011, p.34.
45 National Legal Service Authority v. Union of India, (2014) 5 SCC 438, 487.
46 ibid

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 The equality before law or equal protection of the laws 47 does not mean the same treatment
to everyone. Since no two human beings are similarly circumstanced in every respect. If the
same treatment is being provided to everyone, it will lead to inequality. Therefore, for the
practical applicability of this Article 14, there has to be classification between those who are
equal and those who are different. The classification must be based on intelligible differe ntia
having nexus to the object sought to be achieved. 48 However, this principle does not seem to
be applied for the upliftment of the queer community.

Moving to Article 15 of the Constitution of India, advancing the “prohibition of

discrimination on the grounds of religion, race, caste, sex or place of birth”. Again the law of
the land is in contradiction with its own provision. It has been clearly mentioned in the Article
that the State shall not discriminate on the ground of sex. Having said that, the lesbians, gays
bisexuals and overall the queer community are not at all recognised in India. The insertion of
this word sex was done with a view to form an egalitarian society which subsequently results
into public welfare; the ultimate goal of the Constitution and the makers of the Constitutio n.
The queer community is being discriminated on the ground of their sexual orientation which is
hits the very spirit of the Indian Constitutio n. Only Recognising of Transgenders by the State
will not suffice the intention of maintaining equality in the Indian Legal System.

Article 16. provides for “Equality of opportunity in matter of public employment” which make
crystal clear that the State will not discriminated any citizen in the matter of work in the public
employment. The word citizen also includes the queer community. Again only the recognitio n
of transgenders49 will not fulfil the criteria of non – discrimination by the State in public
employment. And therefore the sexual minorities must be given their right in the public
employment irrespective of their sexual orientation as the Constitution of India also prohibits
the same.

Article 21 signifies that “no person shall be deprived of his life or personal liberty except
the procedure established by law”. The right to life is not easy to define but it does not mean
mere an animal existence. In Munn v. Illinois50 , Field J spoke of the right to life51 “something
more is meant than mere animal existence. The inhibition against its deprivation extends to all

47 Article 14 of Constitution Of India, 1950

48 The test was expressed by Das J in State of W.B v. Anwar Ali Sarkar, AIR 1952 SC 75.
49 The Rights of Transgender Persons Bill, 2015.
50 24 L Ed 77: 94 US 113 (1877).
51 With reference to a corresponding provision in the 5th and 14th Amendments of the U.S Constitution, which

says that no person shall be deprived of his life, liberty, or property, without due process of law.

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those limbs and faculties by which life is enjoyed. The provision equally prohibits the
mutilation of the body by the amputation of an arm or leg, or the putting out of an eye, or the
destruction of any other organ of the body through which the soul communicates with the outer
world.”

The word “personal liberty” for the first time came to be interpreted in the case of: Kharak
Singh v. State of U.P52 , Subba Rao J held for that the right to privacy “is an essential ingredie nt
of personal liberty” and the right to personal liberty is “a right of an individual to be free from
restrictions or encroachments on his person, whether those restrictions or encroachments are
directly imposed or indirectly brought about by calculated measures.”53

In spite of wide interpretation of article 21, the lesbians, gays, bisexuals are not being given
a respectable life. Even the judiciary does not seem keen to take any steps for those vulnerab le
groups. Almost after 68 years of independence of country, queer community has not left free
to lead their life as they want. This totally hits the very soul of the constitution which guarantees
all the basic fundamental rights to every its citizens.

Indian legal system even in the 21st century criminalises the identity of homosexuals. The
sexual orientation of an individual has become a matter of scrutiny. There is a kind of check
on the sexual identity of persons. If a man is found to get attracted towards a man or if the same
case is with any female, there is no place for them in this society. This homophobia becomes
more strong and gets it root very deep in the society with the implementation of Section 377.

Law in relation to homosexuality was adopted from the British penal code in Indian Legal
system. Section 377 states:

“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.”

It should be taken into consideration that ‘Buggary’ is the term used for ‘unnatural offences’
under common law and the punishment was as harsh as death sentence. But the Sexual
offenders Act, 1967 making consensual buggery (sodomy) i.e., homosexual act or gross
indecency with another man in private between those who had attained the age of 21 beyond
the purview of law. Later the age has been reduced to 18 years by section 143 of the Crimina l

52 52 AIR 1963 SC 1295: (1964) 1 SCR 332.

53 53 Ibid (AIR) 1306.

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Justice and Public Order Act, 1994.54 The consent is immaterial when it comes to Indian Legal
System. Here, even a third party can sue the couples who are having homosexual activities with
their own consent. So, there is no acceptance for the people who possess sexual identity
different from others. Being vulnerable class of people they are subjected to torture, violence,
humiliation or inhumane condition. Section 377 of IPC, is against the soul of the Indian
Constitution. The essence of equality, life, liberty, orientation of sex all were eclipsed because
of this said section.

A public interest litigation was filed by an N.G.O. named, Naz Foundation against the
National Capital Territory of Delhi And Ors. 55 the Delhi High Court in a well written judgment
through Chief Justice Shah and Dr. Justice Muralidhar on July 2, 2009 decided that "Section
377 of Indian Penal Code, insofar it criminalizes consensual sexual acts of adults in private, is
violative of Articles 21, 14 and 15 of the Constitution." The Court added: "By adult we mean
everyone who is 18 years of age and above."56

Validity of section 377 of IPC by the court with reference to Article 21 in the light of
diseases such as HIV/ AIDS as the said section violated the right to health by obstructing the
efforts of agencies from reaching to the community of homosexuals. This section just puts
unreasonable restrictions on homosexual activities within the tag of public morality. The Court
further adjudge that the said questioned law is arbitrary in character and there is absence of
nexus between Article 14 and Section 377. Considering the fact that, The Court has reiterated
time and again and stood by the two principles of reasonable classification, that is, (i) the
intelligible differentia and (ii) nexus between the differentia and the object to be achieved 57 .
The legislature has no doubt made a classification, however, there is no nexus between the law
and object sought to be achieved. Since the goal of the Article 14 to bring those vulnerab le
class of people on an equal footing but the said section 377 in spite of making an egalitar ia n
society, making an arbitrary classification. Considering the validity of Section 377 with
reference to Article 15 the Court held: "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 our view,

54 K.D. Gaur, Textbook on Indian Penal Code, p. 734 (6th ed.).

55 Naz Foundation v. Government of NCT of Delhi, (2009) 160 DLT 277; W.P. (C) No. 7455/2001.
56 Idid,
57 Mahendra P. Singh, Decriminalisation Of Homosexuality And The Constitution, NUJS Kolkata - The NUJS

Law Review 2009, p.7.

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discrimination on the ground of sexual orientation is impermissible even on the horizonta l
application of the right enshrined under Article 15”58 .

The Hon’ble Delhi High Court further held that: “The sphere of privacy allows persons to
develop human relations without interference from the outside community or from the State.
The exercise of autonomy enables an individual to attain fulfilment, grow in self-esteem, build
relationships of his or her choice and fulfil all legitimate goals that he or she may set. In the
Indian Constitution, the right to live with dignity and the right of privacy both are recognised
as dimensions of Article 21.”59 The historic judgment delivered by the Delhi High Court
provided a sense of security amongst the citizens. This judgment successfully maintained the
intention of the framers of Constitution.

Having said this, the fate of decisions is ultimately being decided by the apex Court of the
land. The above judgment was overruled by the Hon’ble Supreme Court of India in: “Suresh
Kumar Koushal v. NAZ foundation60 ; the Supreme Court found some faults and contended the
followings:

“The Division Bench of the High Court overlooked that a miniscule fraction of the country's
population constitutes lesbians, gays, bisexuals or transgenders and in last more than 150 years
less than 200 persons have been prosecuted (as per the reported orders) for committing offence
under Section 377 IPC and this cannot be made sound basis for declaring that section ultra
vires the provisions of Articles 14, 15 and 21 of the Constitution.”61

The privacy and dignity based challenge was repelled with the following observations:

“In its anxiety to protect the so-called rights of LGBT persons and to declare that Section
377 IPC violates the right to privacy, autonomy and dignity, the High Court has extensive ly
relied upon the judgments of other jurisdictions. Though these judgments shed considerable
light on various aspects of this right and are informative in relation to the plight of sexual
minorities, we feel that they cannot be applied blindfolded for deciding the constitutionality of
the law enacted by the Indian Legislature.”62

58 Naz Foundation v. Government of NCT of Delhi, (2009) 160 DLT 277; W.P. (C) No. 7455/200
59 ibid, p. 110, para 48.
60 Suresh Kumar Koushal v. NAZ foundation (2014) 1 SCC 1
61 Ibid, at page 69-70 (para 66).
62 Ibid, at page 78 (para 77).

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 Even though efforts were taken by the Delhi High Court, it went in vain and the apex Court
has embodied their rights as “so called rights of the LGBT” by striking down the earlier
judgment of the Delhi High Court. However, the right of privacy and various such issues
herein, appeared before the Supreme Court of India in the recent case of:

Justice K S Puttaswamy (Retd.), v. Union Of India And Ors. 63 ; the Hon’ble Supreme Court,
this time opined rationally and with deep conscious by keeping the situation of homosexua ls
in mind that: “The rights of the lesbian, gay, bisexual and transgender population cannot be
construed to be “so-called rights”. The expression “so-called” seems to suggest the exercise
of a liberty in the garb of a right which is illusory. This is an inappropriate construction of the
privacy based claims of the LGBT population. Their rights are not “so-called” but are real
rights founded on sound constitutional doctrine. They inhere in the right to life. They dwell in
privacy and dignity. They constitute the essence of liberty and freedom. Sexual orientation is
an essential component of identity. Equal protection demands protection of the identity of every
individual without discrimination.”64

4.3. Conclusion:
Thus, we have seen that how the rights of queer community are in question till date. The Law
of the land i.e. the constitution of India denies the fundamental right to the homosexua ls.
Section 377 of the Indian Penal Code, 1860 makes homosexual activities punishable. The
acceptance of these queer communities is only possible after the recognition by the legal system
of the country. The Indian Constitution gives a sense of security, however, sexual minorities
are excluded by this sense of security. Only mentioning about the right of sexual minorities in
judgment is not enough. Now, it’s the time to ignore all the taboos and frame a robust law for
the protection of sexual minorities.

63 W.P.(CIVIL) NO.220/2015
64 Ibid, at p. 124, para- 127

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 5. Conclusion And Suggestions:
The constitution of India cannot ignore an indispensable part of the society merely on the
whims and fancies of the conservative society. They are forced to changed their individuality.
The country must accept how they are. How they want to be. After all, they have also right to
privacy, equality and dignity. Why there cannot be privacy in their life? On one side, where
the Constitution of India guarantees every citizen of India the right to equality, privacy
irrespective of their sex, on the other hand it is contradicting itself by enacting laws like section
377 of IPC. It is like giving by one hand and taking with the other.

Section 377 punishes unnatural carnal intercourse which is against the ‘order of nature’.
Now, who is to define the term order of nature. When two consenting individuals having sexual
activities with their own wish, how that can be against the order of nature. One thing must be
noted down here, how the legal system will acknowledge that certain group of individ ua l
perform sexual activities against the order of nature? Because a heterosexual couple may also
have indulged in activities which does not define order of nature. So the author here vehemently
wants to put forth this contention of defining the ‘order of nature’. The explanation which has
been provided under the criminal law appears to be illusory.

The sexual minorities to be treated with the standards of human rights as being mentioned
in various International Convention. It is better to frame laws in spite of maintaining this
conflicting stand of legislature. Also, the makers of the constitution were always having the
intention of an egalitarian society.

They ostracisation of queer community should be stop and accepting gesture should be
shown towards them. And the process of acceptance can be initiated from the very first level
of the society i.e., by the family itself.

There should be proper health facilities to be made accessible to these community and also
various awareness programmes should be held which will be beneficial for them.

They need proper education so that they can make maximum participation in a civilised
society. There is reservation for trangenders in jobs, however, unless they get preliminar y
education, they will not be able to cope with their post. So along with the transgenders,
homosexuals should also get education for leading their with dignity. Section 377 of IPC should
be struck down and provide queer community a respectable identity.

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 6. Bibliography:
BOOKS:

1) Dr. Hari Singh Gour, Penal Law of India.

2) K.D. Gaur, Textbook on Indian Penal Code, (5th Ed, 2016)
3) Mp Jain, Indian Constitutional Law (7th Ed., 2014)
4) M.P Jain Indian Constitutional Law with Constitutional Documents, Volume 1(6th
Ed.)
5) Samaraditya Pal, India’s Constitution Origins And Evolution, Volume 1, Preamble to
Article 18.
6) V.N. Shulka’s Constituition Of India (M.P. Singh 13th Ed., 2015)

ACTS:

1) The Indian Penal Code, (45 Of 1860)

2) The Constitution Of India, (1950)

RESEARCH PAPER:

1) Anuradha Parasar, Homosexuality In India – The Invisible Conflict

2) Bina Fernandez, A Resource Book On Lesbian, Gay & Bisexual Rights In India.
3) Deepanjali Medhi, Rahul Mathur, Anil Kumar, Sex and Gender Identity Phenomenon-
World Vs Indian View, IOSR Journal of Dental and Medical Sciences (IOSR-JDMS) e-ISSN:
2279-0853, p-ISSN: 2279-0861.Volume 15, Issue 2 Ver. V (Feb. 2016), PP 33-38.
4) Dr. Sonia B Nagarale, Rendering Rights To The Invisible A Call For Recognition Of
Sexual Minorities In India, Orient Journal of Law and Social Sciences, pg. no. 30, vol.
V, Issue 6, May 2011.
5) Gary J. Gates, Marriage and Family: LGBT Individuals and Same-Sex Couples, VOL.
25 / NO. 2 / FALL 2015 67.
6) Mahendra P. Singh, Decriminalisation Of Homosexuality And The Constitution, The
NUJS Law Review, 2009 M.P. Singh, Constitutionality Of Section 377, Indian Penal
Code - A Case Of Misplaced Hope In Courts, The NUJS Law Review 2013.
7) Pritam Baruah, Logic And Coherence In Naz Foundation: The Arguments Of Non-
Discrimination, Privacy, And Dignity, The NUJS Law Review, 2009.
8) Rohit K Dasgupta Queer Sexuality: A Cultural Narrative Of India’s Historical Achieve,
Rupkatha Journal on Interdisciplinary Studies in Humanities (ISSN 0975—2935),
Vol.3 No.4, 2011.

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 9) Robert Wintemute, Same-Sex Love And Indian Penal Code 377: An Important Human
Rights Issue For India, NUJS Kolkata - The NUJS Law Review 2011.
10) Shamnad Basheer, Sroyon Mukherjee, Karthy Nair, Section 377 And The 'Order Of
Nature: Nurturing 'Indeterminacy' In The Law? The NUJS Law Review, 2009.
11) Vikram Raghavan, Navigating The Noteworthyand Nebulous In Naz Foundation, The
NUJS Law Review, 2009.

E-SOURCES:

1) https://www.ncbi.nlm.nih.gov/pubmed/17589766
2) http://www.legalserviceindia.com/articles/homo.htm
3) https://www.ncbi.nlm.nih.gov/pmc/articles/PMC3705691/#ref1
4) https://login.westlawindia.com
5) http://www.jstor.org
6) URL: http://www.jstor.org/stable/43581973 Accessed: 20-09-2017

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