JUVENILE JUSTICE

SODOMY

INTRODUCTION
Human dignity is at the heart of the human being, irrespective of their sexual orientation

Every human being is entitled to some inalienable rights irrespective of his identity and
sexual orientation. LGBT people are painted as a stigma in the society and therefore, they are
denied inalienable rights like the right to life, right to live with dignity and right to equality
etc. These inalienable rights of the LGBT community are jeopardized since a long time due to
the provision of S.377 of Indian Penal Code.

Origin of S.377 of Indian Penal Code can be traced from the Buggery Act of England. The
Act made sexual relations with men punishable by death. S. 377 incorporate the same
principle, it speaks about unnatural offences, and it makes punishable those acts wherein the
person indulges in carnal intercourse against the order of nature with any men, women or
animal. This provision thus also covers criminalization of sexual activities between
homosexuals. The provision is based on the old and Victorian ideology that sex is for
procreation and sex with the same sex is to be considered against the order of the nature. This
ideology was adopted in the form of s.377 of Indian Penal Code, thus this section by
criminalizing certain acts based on sexual orientation violates the Constitutional provisions of
the country namely Article 14, 15, 19 and 21. 1

India being a Country which enshrines values like equality, justice and right to life (which
also includes right to privacy) in its Constitution, it has been a tough call for the Judiciary to
decide the Constitutional validity of the provision from time to time. The legal fight against
the provision has been a long and tedious one. This Section was struck down and declared as
unconstitutional by Delhi High Court in Naz foundation case, but the decision was overturned
in Suresh Koushal case by Supreme Court in 2013. Supreme Court of India is currently
hearing the case regarding the Constitutional validity of the section.

Through this project the researcher will analyze the S.377 in the light of various
Constitutional provisions and will moot upon the constitutional validity of the same.

HISTORICAL BACKGROUND, SCOPE AND ESSENTIALS

Buggery Act2 of UK punished unnatural offences/ buggery that is an unnatural sexual act
against the will of God and man. Though this provision was repealed later in UK but this
provision found place in the Indian Penal Code in the form of S.377. Under English Law such
Acts were synonymous to sodomy that is to constitute an unnatural offence the act must be in
that part where sodomy is usually committed.3

Sodomy as per the American Jurisprudence is

“Sodomy appears originally part of the Herbriac law, taking its name from the
practices reputedly indulged in by the inhabitants of the cities of Sodom and
Gomorrah, but unfortunately, the Biblical text is not explicit about the various types
of conduct for which these cities were visited with fire and brimstone, although other
portions of the Old testament prohibit sexual congress between man and man in
general terms”.4

1
Constitution of India , Article 14, 15, 19 and 21.
2
Buggery Act 1553.
3
R A Nelson, Indian Penal Code, (11th ed., vol.3, lexis nexis, 2016) p. 3242.
4
Ibid.
Anti Sodomy law (U.S.) was tested in various cases, for instance the anti sodomy law of
Georgia was upheld by the Court in Bowers v. Hardwick 5wherein the court ruled that even
consensual sex between homosexuals will be punishable and it did not infringe the
fundamental right of an individual and the law is constitutional if it has a legitimate
government purpose. However, in Lawrence v. Texas6 the Court declared the anti sodomy
law to be unconstitutional.

In Roman Europe, male-male sexual relations entailed criminal sanctions. 7 Further during
Middle Ages, in Christian Europe the government back then, condemned the homosexual
activity with the enactment of sodomy laws in many European countries. 8 In UK, after the
enactment of Sexual Offences Act9 sodomy was penalized, though with the suggestion by
Wolfenden Report private consensual sex between homosexuals was decriminalized. Further,
the Constitutional Court of South in National Coalition for gay and lesbian equality v. South
African Human Right Commission10 case, J. Ackermann held that

“I find the offence of sodomy to be unconstitutional because it breaches the rights of equality,
dignity and privacy”.11

Though many countries have held sodomy laws as unconstitutional but there are around 72
countries which still criminalize same sex relationships.12

1.1 Scope and Essentials of the S.377

Indian provision, S.377 of Indian Penal Code states that –

Unnatural offences.—Whoever voluntarily has carnal intercourse against the order of

nature with any man, woman or animal, shall be punished with 1[imprisonment for
life], or with imprisonment of either description for a term which may extend to ten

5
Bowers v. Hardwick 478 U.S. 186 [1986].
6
Lawrence v. Texas 539 U.S. 558 [2003].
7
Clarice B. Rabinowitz, Proposals for Progress: Sodomy Laws and the European Convention on Human Rights,
(1995) 21 Brook. J. Int'l L. 425.
8
Ibid.
9
Sexual Offences Act, 1996.
10
National Coalition for gay and lesbian equality v. South African Human Right Commission [1999] ZACC 17
11
Ibid.
12
Pamela Duncan, Gay Relationships are still criminalized in 72 countries, report finds, (The Guardian,27th July
2017) https://www.theguardian.com/world/2017/jul/27/gay-relationships-still-criminalised-countries-report, last
accessed on 30th July 2018.
 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.13

The offences that are covered under this provision include sodomy, buggery and bestiality.
The acts of sexual perverse which can be covered under the section were discussed in Brother
John Anthony v. The State14 the case enlisted certain acts namely sodomy, bestiality,
tribadism, sadism, masochism, fetichism and exhibitionism, and further concluded that only
sodomy, buggery and bestiality are covered. A woman has filed a petition recently, in the
Supreme Court contending that apart from sodomy, buggery and bestiality, oral sex
committed on women should also be covered under S.377 and thus the approach laid in the
above case must be relaxed to include the same.

To constitute offence under this Section the essentials are –

1. Accused had sex with man, woman or animal,

2. Against the order of nature,

3. Act was done voluntarily by accused,

4. There was penetration.

The same was reiterated in Brother John Anthony v. The State 15 The Unnatural sex will
constitute all the forms of sex other than penile vaginal i.e. it will include coitus in anum and
coitus in os16. The key terms in the provision like Carnal intercourse and penetration are not
defined in Indian Penal Code, but the Courts through various judgments have tried to define
the same. In Khanu v. Emperor17Court tried to define the word intercourse, the meaning of
the word was construed to be as –

By a metaphor the word intercourse, like the word commerce, is applied to the
relations of the sexes. Here also, there is the temporary visitation of the organism by a
member of the other organization, for certain clearly defined and limited objects. The
primary object of the visiting organization is to obtain euphoria by means of a detent
of the nerves consequent on the sexual crisis but there is no intercourse unless the
13
Indian Penal Code, 1860, s. 377.
14
Brother John Anthony v. The State 1992 CriLJ 1352.
15
Brother John Anthony v. The State 1992 CriLJ 1352.
16
After the case of Khanu v. Emperor AIR 1925 Sind 286 and Calvin Francis v. State of Orissa (1992) 2 Crimes
455 (Ori) { putting sex organ in the mouth of the victim (coitus in os) also constitutes as unnatural sex against
the order of nature}.
17
Khanu v. Emperor AIR 1925 Sind 286.
 visiting member if enveloped at least partially by the visited organism, for intercourse
connotes reciprocity.18

The same meaning was construed in State of Kerala v. Kundumkara Govindan19 wherein the
court held that even inserting male organ between the thighs kept together and tight amounts
to ‘carnal intercourse against the order of nature’20 Further to constitute offence under this
section it is necessary to prove penetration, though full act of intercourse is not an essential
ingredient of the offence, but where there is no penetration attempted or intended then this
section will not be attracted, the offence will be covered under s.354. 21 The offence can also
be tried in a single trial along with the charges of s.376. 22 In Pooran Ram v. State of
Rajasthan23 it was held by the Court that perversity that results in sexual offence will either
result in homosexuality or in commission of rape.

Further having carnal intercourse with the animal is also considered as carnal intercourse
against the order of nature it was reiterated in Khandu v. Emperor24 wherein Khandu was
seen inserting his penis in the nostril of the bullock.25

CONSTITUTIONAL VALIDITY OF S.377

NAZ FOUNDATION V. GOVERNMENT OF NCT OF DELHI

Constitutional validity of the S.377 was challenged in Naz Foundation v. Government of NCT
of Delhi26 by a PIL filed by the NGO ‘Naz foundation’ working for HIV/AIDS victims. The
plea was based on the contention that the section criminalizes the consensual sexual relations
of homosexuals which explicitly infringes their fundamental rights as enshrined in the
Constitution namely Article 14, 15, 19 and 21. 27 Parties in the case were, the petitioner was
NGO Naz foundation and respondents were Union of India, NACO, Delhi state Aids control
society and ors.

18
Ibid.
19
State of Kerala v. Kundumkara Govindan (1969) Cr LJ 818 (Ker).
20
PSA Pillai, Criminal Law, (13th ed.,lexis nexis, 2017) p.841.
21
Indian Penal Code,1860, s. 354.
22
Kailash Laxman Khamkar v. State of Maharashtra criminal appeal no. 159 of 2004 Bombay HC, 2004.
(Though in this it was stated that both the offences are different and according to the evidences put forth the
case is to be adjudged).
23
Pooran Ram v. State of Rajasthan 2001 CriLJ 91.
24
Khandu vs Emperor AIR 1934 Lahore 261.
25
Alok Gupta, ‘Section 377 and the of the Indian Homosexuals’,(2006) EPW,
<https://www.outrightinternational.org/sites/default/files/15-1.pdf> accessed on 30 th July 2018.
26
Naz Foundation v. Government of NCT of Delhi (2010) Cri LJ 94.
27
Constitution of India, Article 14,15,19 and 21.
The NGO Naz foundation primarily works for the victims of HIV/AIDS and thus their work
entails them with vulnerable section of society like homosexuals, who are extremely
vulnerable to HIV/AIDS infection. There petition was on the grounds that HIV/AIDS
prevention efforts and drive is extremely effected because of the discriminated treatment
towards homosexuals by the state agencies under the blanket of S.377.

Constitution of India enshrines certain rights and values like right to equality, freedom of
speech and expression, right to life etc. The Section is a blot on the values enshrined in the
Constitution as it infringes the fundamental rights of the homosexuals. It is contended by
many and was also observed in Naz foundation v. Government of NCT of Delhi28that the
section violates the fundamental right of equality (Article 14), right against discrimination
(Article 15) and right to life and personal liberty (Article 21) of the LGBT community.
Further, it has been observed in various case laws like Anuj Garg v. Hostel Association of
India and ors.29 that pre constitutional laws do not owed the presumption of constitutionality
and thus can be challenged.30

The Naz Foundation judgment was overturned by the Supreme Court of India in Suresh
Kumar Koushal & Anr v Naz Foundation & Others ((2014) 1 SCC 1) (Suresh Kumar
Koushal). A two-judge bench amongst other things stated that the LGBT community
comprised only a "minuscule fraction of the total population" and that the mere fact that the
powers under Section 377 were misused by the police were not a reflection of the
constitutional validity of the Section. Further, it was held that Section 377 IPC applied
irrespective of age and consent and that it did not criminalize a particular person or identity or
orientation. Section 377 only identified certain acts which, when committed, would constitute
an offence. The Bench further observed that such a prohibition regulated sexual conduct
regardless of gender identity and orientation.

The aftermath of Suresh Kumar Koushal

 The retrograde reversal by the Supreme Court of the Naz Foundation judgment
created an uproar in civil society, liberal circles, large sections of the media (as well
as international agencies) leading to a demand for the reconsideration of the two
Judge Bench decision by a larger Supreme Court Bench.
28
Naz Foundation v. Government of NCT of Delhi (2010) Cri LJ 94.
29
Anuj Garg v. Hostel Association of India and ors. Appeal (civil) 5657 of 2007.
30
Tarunabh Khaitan, ‘On presumption of constitutionality of pre constitutional laws’, ICLAP, 11th July 2018,
https://indconlawphil.wordpress.com/2018/07/11/guest-post-on-the-presumption-of-constitutionality-for-pre-
constitutional-laws/, accessed on 2nd July 2018.
  In 2017, a 9 judge bench of the Supreme Court in K.S. Puttaswamy v Union of India
(2017) 10 SCC 641, ruled that the Constitution established a fundamental right to
privacy creating a zone of personal autonomy within which the State cannot intrude.
Some of the judges openly doubted the correctness of the Suresh Kumar Koushal
judgment. The judges led by Justice Chandrachud who stated that the right to privacy
and the "protection of sexual orientation lie at the core of the fundamental rights
guaranteed by Articles 14, 15 and 21 of the Constitution" laid the jurisprudential
foundation for the Navtej Singh Case.

 A writ petition challenging the Suresh Kumar Koushal judgment was referred to a
larger constitution 5 judge bench which unanimously overruled Suresh Kumar
Koushal judgment. The Supreme Court pronounced 4 separate judgments –

o first by the Chief Justice of India writing for himself and A.M. Khanwilkar

o second by Justice Rohinton Nariman

o third by Justice Dhananjay Chandrachud

o fourth by Justice Indu Malhotra

While the primary effect of the Navtej Singh Case was to overrule Suresh Kumar Koushal
and uphold the reading down of Section 377 by the Delhi High Court in the Naz Foundation
case there are several strong observations to be found in all the 4 judgments which amount to
a firm rebuke to an overbearing state which seeks to regulate consensual activities between
adult citizens.

Specific findings in Navtej Singh judgement:

 Violation of Article 14: Section 377 of IPC lacked a reasonable nexus with the object
of protecting women and children, as the non-consensual acts which have been
criminalized by virtue of Section 377 of IPC have already been designated as penal
offences under Section 375 of IPC and under the POCSO Act. On the contrary, the
presence of Section 377 of IPC in its present form has resulted in a distasteful and
objectionable collateral effect whereby even 'consensual acts', which are neither
harmful to children nor women and are performed by a certain class of people
 (LGBTs) owning to some inherent characteristics defined by their identity and
individuality, have been wrongfully targeted. This discrimination and unequal
treatment meted out to the LGBT community as a separate class of citizens is
unconstitutional for being violative of Article 14 of the Constitution.

 Violation of Article 15(1): Section 377 of IPC imposed discrimination grounded on

the basis of sexuality on an entire class of persons (LGBT). This was a clear
contravention of Article 15(1) of the Constitution.

 Violation of Article 19: Public order, decency and morality as grounds to limit the
fundamental right of expression including choice cannot be accepted as reasonable
restrictions to uphold the validity of Section 377 of IPC. Section 377 of IPC takes
within its fold private acts of adults including the LGBT community which are not
only consensual but are also innocent, as such acts neither cause disturbance to the
public order nor are they injurious to public decency or morality. Further, any display
of affection amongst the members of the LGBT community towards their partners in
the public so long as it does not amount to indecency or has the potentiality to disturb
public order cannot be bogged down by majority perception. Section 377 of IPC
amounted to an unreasonable restriction as it made carnal intercourse between
consenting adults within their private space, a criminal offence. This was held to be
manifestly overboard and vague but also had a chilling effect on an individual's
freedom of choice. Therefore, the restriction imposed by Section 377 is unreasonable
and does not meet the criteria of proportionality and is violative of the fundamental
right of freedom of expression including the right to choose a sexual partner.

 Violation of Article 21: Section 377 abridges both human dignity as well as the
newly articulated fundamental right to privacy. As sexual orientation is an essential
and innate facet of privacy, the right to privacy takes within its sweep, the right of
every individual including that of LGBT to express their choices in terms of sexual
inclination without fear of prosecution or criminal prosecution. Section 377 IPC, in its
present form, is violative of the right to dignity and the right to privacy under Article
21 of the Constitution.

 The expression "against the order of nature" has neither been defined in Section 377
IPC nor in any other provision of the IPC. The connotation given to the expression by
various judicial pronouncements includes all sexual acts which are not intended for
 the purpose of procreation. The court held that sexual intercourse that was not
performed for procreation could not per se be held to be "against the order of nature".

 The choice of whom to partner with, the ability to find fulfilment in sexual intimacy
and the right to not be subjected to discriminatory behaviour are intrinsic to the
constitutional protection of sexual orientation. The LGBT community in India are
entitled to the equal protection of laws and are entitled to be treated in society as
human beings without any stigma being attached to any of them.

 The Supreme Court has directed the Union of India to take all measures to ensure that
this judgment is given wide publicity through the public media, which includes
television, radio, print and online media at regular intervals, and initiate programs to
reduce and finally eliminate the stigma associated with such persons. In the light of
the observations contained in this judgment, the Union of India has also been directed
to provide sensitization and awareness training to all government officials, especially
police officials in respect of the plight of such persons.

COMMENT

The LGBT community has historically been vulnerable to violence, harassment,

discrimination, exclusion, stigmatisation and prejudice both in society at large and at the
workplace. The Navtej Singh Case is a great win for the LGBT community in that
homosexual acts have now been decriminalised. Employers, especially MNCs will now
have the option of adopting anti-discrimination policies in line with their global norms.
However, it is worth noting the Navtej Singh amounts to only decriminalisation and does
not recognize 'same sex relationships'.

As a same sex couple does not have legal recognition in the manner of a married
heterosexual couple, the ability for even willing employers to provide provident fund,
pension and gratuity and other benefits that cover spouses or partners of LGBT
employees will have to analysed on a case by case basis. Extending such benefits to a
same sex partner nominated by an employee will also depend on third party service
providers such as insurers, pension and provident fund authorities etc. This includes the
treatment of expatriate same sex couples who have been duly married or entered into
'civil unions' abroad and conflict of law questions that may arise in the context of
adoption, maintenance, succession and inheritance. It is only the legally recognised
relatives (such as children, parents) of LGBT employees who will be eligible for benefits.
The recognition of same sex relationship as valid and having the same footing as a
heterosexual marriage is likely to require an appropriate legislation which is still some
years away. It will also require a great societal transformation and a more liberal and
progressive outlook by the ruling dispensations. Till such time this happens, the LGBT
community will continue to be at a disadvantage despite the eloquent rhetoric and strong
language used by the learned Justices. As the verdict does not validate or legalise same
sex relationships, further guidance by the courts and positive action by the Government of
India may be helpful in clarifying the obligations and duties of businesses towards their
employees.