Vivekananda Institute of Professional Studies

Vivekananda School of Law and Legal Studies

2021

DECRIMINALIZATION
OF HOMOSEXUALITY

SUBMITTED TO:- SUBMITTED BY:-

MS. KANCHAN LAVANIA TEJAS RAI
1-N,BBA LL.B
 LIST OF ABBREVIATIONS

DSM-I Diagnostic and Statistical Manual of Mental Disorders-I

DSM-III Diagnostic and Statistical Manual of Mental Disorders-I

IPC Indian Penal Code

SC Supreme court

HC High Court

GOVT. Government

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Index

1. Introduction
2. What is Homosexuality?
Homosexuality and India
Homosexuality and Psychology
3. Criminalization of Homosexuality in India
4. Case Laws on Homosexuality in India
Naz Foundation v. Govt. Of NCT of Delhi
Suresh Kumar Koushal v. Naz Foundation
Navtej Singh Johar v. Union of India
5. Conclusion
6. Reference

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 INTRODUCTION

The concept of homosexuality is considered as a taboo topic even in todays time, the stigma
attached to it makes people think of it as some sort of disorder which can be cured through
proper treatment. Even after being in society since the beginning of mankind still some people
do not wish to accept it as part of society.

Numerous studies have debunked the belief of homosexuality being a disorder and proved that
it is compatible with normal mental health and social adjustment, the end of this journey of
making homosexuality socially acceptable is far but not unreachable.When the road ahead
seems too long, look back to see how far you’ve come.

WHAT IS HOMOSEXUALITY?

Homosexuality is part of almost every culture and historical period. Although homosexuality
has sometimes enjoyed social tolerance, or more rarely an elevated status, social hostility
sometimes to the point of brutal violence is the rule more than the exception 1. The word
homosexuality derived from a Greek word homos meaning “the same”. It is a sexual orientation
towards the person of same gender. A cisgender male being attracted towards another cisgender
male can be considered homosexual. Homosexual people prefer to refer themselves as:-

Gay: -a male who is attracted towards another male is considered gay.

Lesbian: -a female who is attracted towards another female is known as Lesbian. Or a number
of other terms.

HOMOSEXUALITY AND INDIA: -

Homosexuality has been prevalent in India since pre-colonial times and such can be proved
by looking into the various Hindu epics that have numerous mentions of homosexuality in
India. So, the argument that homosexuality is a gift of western culture and is not in accordance

1
Homosexuality, Societal Attitudes Toward available at
https://www.sciencedirect.com/topics/agricultural-and-biological-sciences/homosexuality (last visited on
Jan 09,2021)

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with the culture of India is completely vague. Ancient India exonerated the presence of varied
sexual orientation and the identity of transgender person. Looking back into the religious texts
and history, pre-colonial India seemed much more tolerant towards owning sexuality.

Queerness can be traced back to ancient India from scriptures to medieval prose, poetry, art
and architecture. A few mentions about homosexuality from ancient India are mentioned
below: -

1) Valmiki’s Ramayana states that when Lord Hanuman returned from Lanka after visiting
Goddess Sita, he saw rakshasa women kissing and embracing women2.
2) Even Hindu epic Mahabharatha has mentions of Shikhandi. He was born as female
called Shikandini to Drupada, the king of Panchala, and later transforms into a male. He
is the brother of Draupadi the female protagonist of the epic and common wife of the
Pandavas3.
3) Chapter nine of Kamasutra by Vatsyayana has mentions about oral sex which is termed as
Auparashtika i.e homosexuality and sexual activities among transgenders4.
4) Khajuraho temple has many sculptures which clearly depict homosexuality.
5) Even Babur in his book Baburnama wrote about his attraction towards a boy named Baburi
in Kabul5.

Thus, it can be clearly drawn that homosexuality has always been and will always be there in
our Indian society, we just need to change our mindset and look towards it from a different
prespective,

HOMOSEXUALITY AND PSYCHOLOGY:-

The field of psychology has studied homosexuality for so long to find out whether it can be
classified as something natural or not. The American psychiatric association which is the main
professional organization of psychiatrists and trainee psychiatrists in United States, and the
largest psychiatric organization in the world, listed homosexuality in (DSM-1)6in 1952 but

2
https://www.lawctopus.com/academike/history-of-homosexuality-in-india/ (last visited on Jan 09,2021)

3
Shikhandi available at https://en.wikipedia.org/wiki/Shikhandi (last visited on Jan 09,2021)
4
https://www.lawctopus.com/academike/history-of-homosexuality-in-india/ (last visited on Jan 09,2021)
5
https://archive.org/details/baburnamainengli01babuuoft/page/120/mode/2up?q=baburi&view=theater (last
visited on Jan 09,2021)
6
https://en.wikipedia.org/wiki/Diagnostic_and_Statistical_Manual_of_Mental_Disorders#DSM-1_(1952) (last
visited on Jan 09,2021)

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after close examination of the research, the research and studies related to it failed to provide
any empirical data regarding homosexuality that could classify homosexuality as an unnatural
sexual orientation. Hence, the American psychiatric association removed homosexuality from
DSM-III7 in 1773.It also called on all mental health professionals to take the lead in "removing
the stigma of mental illness that has long been associated" with homosexuality. The world
health organization also removed homosexuality from the ICD-108 on 17 may 1990.

Currently, there are enough studies which classify homosexuality as nothing more than normal
sexual orientation.

CRIMINALIZATION OF HOMOSEXUALITY IN INDIA

Homosexuality was criminalized under India during the British raj. Hence, we can say it was
impact of colonization that homosexuality is considered immoral in India. In India
homosexuality was criminalized under Section 377, it was criminalized to prosecute people
engaging in oral and anal sex along with homosexual activity.

SECTION 377: -

Unnatural offences: - Whoever voluntarily has carnal intercourse against the order of nature
with any man, woman or animal, shall be punished with 1[imprisonment for life], or with
imprisonment of either description for a term which may extend to ten years, and shall also be
liable to fine.

7
https://en.wikipedia.org/wiki/Diagnostic_and_Statistical_Manual_of_Mental_Disorders#DSM-III_(1980) (last
visited on Jan 09,2021)
8
https://en.wikipedia.org/wiki/ICD-10 (last visited on Jan 09,2021)

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 CASE LAWS ON HOMOSEXUALITY IN INDIA

Naz Foundation v. Govt. of NCT of Delhi

Court Delhi High Court

Decided 2 July 2009

Citation(s) 160 Delhi Law Times 277

Judge(s) sitting Chief Justice Ajit Prakash Shah and Justice S. Muralidhar

FACTS OF THE CASE

Naz Foundation(India),a non-government organization filed a lawsuit against Section 377 of

IPC which criminalizes “carnal intercourse against the order of nature”. The first petition
related to this matter was filed in 1994 by AIDS Bhedbhav Virodhi Andolan(ABVA) which
was the first HIV/AIDS activist movement in India and was founded in 1988 in New Delhi,
but this petition was rejected. Naz Foundation filed their petition in 2001 but in 2003 Delhi
High Court rejected the petition saying that the petitioner had no locus standi in the matter.
After this Naz Foundation appealed to the SC of India against the Decision of HC. The Supreme
Court decided that Naz Foundation had the standing to file a public interest lawsuit in this case,
and sent back the case to HC for reconsideration.

JUDGMENT

The judgment on this case was delivered on 2 July 2009.The court held that Section 377
violated Right to Dignity and privacy under Right to Life. The court also said that the Section
also violated Article 14 and discrimination based on certain characteristics, including sex.

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The court further said that the word “sex” under Article 15 not only includes biological sex but
sexual orientation also. The Court also noted that the right to life under Article 21 includes the
right to health, and concluded that Section 377 is an impediment to public health because it
hinders HIV-prevention efforts.

The court then declared the Section unconstitutional insofar it criminalises consensual sexual
acts of adults in private. The judgement keeps intact the provision insofar as it applies to non-
consensual non-vaginal intercourse and intercourse with minors. The court stated that the
judgement would hold until Parliament chose to amend the law.

Suresh Kumar Koushal v. Naz Foundation

Court Supreme Court of India

Decided 11 December 2013

Citation(s) Civil Appeal No. 10972 OF 2013

Judge(s) sitting G. S. Singhvi and Sudhansu Jyoti Mukhopadhaya

FACTS OF THE CASE

This case consisted of two judge bench and the main argument of this case was related to
Section 377 to look into the matter of Delhi High Court verdict in the case Naz Foundation v.
Govt. of NCT of Delhi

Judgment

The court in this case held that only a minute section of country’s population consisted of gay,
lesbian, bisexual and trans community and the decision given by Delhi HC was given according
to international precedents. The court in this case then set aside the Deli HC judgment stating
that judicial intervention was not required on this issue. The court said that Section 377 does
not suffer the vice of unconstitutionality and the declaration made by Delhi HC is

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unsustainable. Bench of justices upheld the constitutional validity of Section 377 of Indian
Penal Code that makes anal sex a punishable offense.

As a result of this judgment the central govt. lead by Indian National Congress filed a review
petition on 21 December 2013. In its review petition the Centre said: "The judgment suffers
from errors apparent on the face of the record, and is contrary to well-established principles of
law laid down by the apex Court enunciating the width and ambit of Fundamental Rights under
Articles 14, 15 and 21 of the Constitution." The IPC, when enacted in 1860, was justified; but
with the passage of time it had become arbitrary and unreasonable, the petition added. Naz
Foundation has also filed a review petition against the Supreme Court order on Section 377. On
28 January 20 SC dismissed the review Petition filed by Central govt., NGO Naz
Foundation and several others, against its 11 December verdict on Section 377 of IPC9.

Navtej Singh Johar v. Union of India

Court Supreme Court of India

Decided 6 September 2018

Citation AIR 2018 SC 4321

Judge(s) sitting Chief Justice Dipak Misra, Justice Rohinton Fali Nariman, Justice A.M
Khanwilkar, Justice D.Y Chandrachud and Justice Indu Malhotra

FACTS OF THE CASE

On 27 April 2016,five people filed a writ petition in the SC challenging the constitutionality
of Section 377 of IPC. The petitioners were dancer Navtej Singh Johar, journalist Sunil Mehra,
chef Ritu Dalmia, hoteliers Aman Nath and Keshav Suri, and businesswoman Ayesha Kapur.
This was the first petition on the matter in which the petitioner clamed that they were directly

9
https://www.thehindu.com/news/national/centre-moves-apex-court-for-review-of-section-377-
ruling/article5482511.ece (last visited on Jan 10,2022)

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aggrieved because of Section 377 and that it violated their Fundamental Rights. The opposition
to decriminalisation petitions was led by Apostolic Alliance of Churches, Utkal Christian
Council and Trust God Ministries.

Judgment

The court delivered it’s verdict on 6 September 2018 and said that portions of Section 377
relating to consensual sexual acts between adults were unconstitutional. The court overturned
it’s previous decision on Suresh kumar koushal v. naz foundation and others. However, other
portions of law relating to sex with minors, non-consensual sex and bestiality still remain in
force.The court said that the Section violated the Right to equality guaranteed by constitution
of India and also found "criminalising carnal intercourse" to be "irrational, arbitrary and
manifestly unconstitutional".

The court also held that "the choice of whom to partner, the ability to find fulfilment in sexual
intimacies and the right not to be subjected to discriminatory behaviour are intrinsic to the
constitutional protection of sexual orientation". The judgement also made note that LGBT
community is entitled to equal citizenship and protection under law, without discrimination.

CONCLUSION

The fundamental rights guaranteed under the constitution of India cannot be denied on the fact
that there is a minuscule fraction of the population which is affected. The concept of
majoritarian cannot be applied in case of Fundamental Rights at any cost and that is what the
court finally held after decriminalizing the British Era unconstitutional rule. This statement
applies in all cases no matter what the situation suggests.

The decriminalization of Article 377 was a big step taken by the Supreme Court and now the
societal acceptance of homosexuality is the remaining aim, the power to achieve this does not
remain in the hands of any court but instead it lies in the hands of society itself.

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 REFERENCE

●https://www.lawctopus.com/academike/history-of-homosexuality-in-india/

●https://en.wikipedia.org/wiki/Homosexuality_and_psychology

●https://en.wikipedia.org/wiki/Naz_Foundation_v._Govt._of_NCT_of_Delhi#:~:text=Naz%
20Foundation%20v.-,Govt.,rights%20protected%20by%20India's%20Constitution.

●https://en.wikipedia.org/wiki/Suresh_Kumar_Koushal_v._Naz_Foundation

●https://en.wikipedia.org/wiki/Navtej_Singh_Johar_v._Union_of_India

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