DR.

RAM MANOHAR LOHIYA NATIONAL LAW UNIVERSITY

LUCKNOW

2018-19

BASICS OF LEGISLATION
TOPIC -:

HOMOSEXUALITY: A CRITIQUE OF THE ATTITUDE OF

LEGISLATION AND JUDICIARY IN INDIA
SUBMITTED BY- SUBMITTED TO-:

SONAL VERMA Dr. SHASHANK SHEKHAR

1st SEMESTER ASSISTANT PROFESSOR

180101138 RMLNLU, LUCK

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 DECLARATION
I, Sonal Verma, hereby declare that the project titled “Homosexuality: A Critique of the

attitude of Legislative and Judiciary in India” made under the guidance of Dr. Shashank

Shekhar, is an original work. This projected has been submitted as the end-term project for

the subject of Basics of Legislation for the first semester of B.A. LL.B (Hons.) course. All the

opinions presented are mine and mine alone. All the information and data that has been

analysed and used from various sources has been duly cited and accredited.

Date: 2-11-2018

Signature:

(Sonal Verma)

1st semester, 1st year

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 ACKNOWLEDGEMENT
I would like to use this opportunity to extend my heartiest gratitude to all the people who

have helped me develop this project.

First and foremost, I would to thank my Basics of Legislation professor, Dr. Shashank

Shekhar, who has been constantly supporting me, guiding me and helping me with all my

queries and difficulties regarding this project since its fledgling stage. Without his

enthusiasm, inspiration, and efforts to explain even the toughest of jargons in the most lucid

manner, the successful inception of this project would have been a Herculean task. Next, I

would like thank the librarians of Dr. Madhu Limaye library for helping me find the correct

resources for my research and for helping me enrich my knowledge. Finally, I would like to

extend my gratitude to my batch mates and seniors for providing me some unique ideas and

insights which helped me make this project even better. I know that despite my sincerest

efforts some discrepancies might have crept in, I hope and believe that I would be pardoned

for the same.

Thanking You

Sonal Verma

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 TABLE OF CONTENT
LIST OF ABBREVATION………………………………………………………….5

LIST OF CASES…………………………………………………………………….6

PREFACE……………………………………………………………………………7

CHAPTERIZATION……………………………………………………………….9

 WHAT IS HOMOSEXUALITY…………………………………………...9
 HOMOSEXUALITY IN INDIA……………………………………………10
 WHAT IS SECTION 377 OF INDIAN PENAL CODE……………….….12
 CONSEQUENCES OF SECTION 377 ON HOMOSEXUALITY…………14
 DECRIMINALISATION OF SECTION 377……………………………….17
 CONCLUSION………………………………………………………………23

BIBLIOGRAPHY……………………………………………………………………24

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 LIST OF ABBREVIATIONS

1. ADM – Additional District Magistrate

2. AIR – All India Reporters

3. Art. – Art.

4. HC – High Court

5. J. - Justice

6. SC – Supreme Court

7. Sec – Sec.

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 LIST OF CASES

Govindarajalu In re

Jayalakshmi v State of Tamil Nadu

Khanu v Emperor

Lohana Vasantlal Devchand v State

S. Krishnan and Ors. v. The State of Madras

State of Kerala v Kundumkar 69

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 PREFACE
Homosexuality can be defined as sexual attraction or the tendency to direct sexual desire
toward another of the same sex. Homosexuality is legal in most countries but in some
countries (including India), it is illegal. But, just because homosexuality is not legal and
widely practiced in India does not mean it is not normal. Just because it is not common does
not mean it should be condemned. India is a developing country and what will boost the
growth and development in the country? The introduction of progressive laws will.
Homosexuality will remain a taboo as long as people are willing to shove it under the carpet
of oblivion.

The shift in the understanding of homosexuality from sin, crime and pathology to a normal
variant of human sexuality occurred in the late 20th century.1 The American Psychiatric
Association, in 1973, and the World Health Organization, in 1992, officially accepted its
normal variant status. Many countries have since decriminalized homosexual behavior and
some have recognized same-sex civil unions and marriage.

The new understanding was based on studies that documented a high prevalence of same-sex
feelings and behavior in men and women, its prevalence across cultures and among almost all
non-human primate species.2 Investigations using psychological tests could not differentiate
heterosexual from homosexual orientation. Research also demonstrated that people with
homosexual orientation did not have any objective psychological dysfunction or impairments
in judgement, stability and vocational capabilities. Psychiatric, psychoanalytic, medical and
mental health professionals now consider homosexuality as a normal variation of human
sexuality. Human sexuality is complex. The acceptance of the distinction between desire,
behavior and identity acknowledges the multidimensional nature of sexuality. The fact that
these dimensions may not always be congruent in individuals suggests complexity of the
issues. Bisexuality, both sequential and concurrent, and discordance between biological sex
and gender role and identity add to the issues. Medicine and psychiatry employ terms like
homosexuality, heterosexuality, bisexuality and trans-sexuality to encompass all relate

issues, while current social usage argues for lesbian, gay, bisexual and transgender (LGBT),
which focuses on identities
1
VA Sadock, Kaplan.and Sadock's Comprehensive Textbook of Psychiatry (BJ Sadock, VA Sadock & P Ruiz ed,
9th edn Philadelphia: Lippincott Williams & Wilkins, 2009) 2027–59.
2
2 J Drescher, Kaplan and Sadock's Comprehensive Textbook of Psychiatry (BJ Sadock, VA Sadock & P Ruiz ed,
9th edn, Philadelphia: Lippincott Williams & Wilkins, 2009) 2060–89.

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CHAPTERISATION

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WHAT IS HOMOSEXUALITY?
Homosexuality is romantic attraction, sexual attraction or sexual behavior between members
of the same sex or gender. As a sexual orientation, homosexuality is "an enduring pattern of
emotional, romantic, and/or sexual attractions" to people of the same sex. It "also refers to a
person's sense of identity based on those attractions, related behaviors, and membership in a
community of others who share those attractions."

Along with bisexuality and heterosexuality, homosexuality is one of the three main categories
of sexual orientation within the heterosexual–homosexual continuum. Scientists do not know
what determines an individual's sexual orientation, but they theorize that it is caused by a
complex interplay of genetic, hormonal, and environmental influences, and do not view it as
a choice. They favor biologically-based theories, which point to genetic factors, the early
uterine environment, both, or the inclusion of genetic and social factors. Hypotheses for the
impact of the post-natal social environment on sexual orientation, however, are weak,
especially for males. There is no substantive evidence which suggests parenting or early
childhood experiences play a role with regard to sexual orientation. While some people
believe that homosexual activity is unnatural, scientific research has shown that
homosexuality is a normal and natural variation in human sexuality and is not in and of itself
a source of negative psychological effects. There is insufficient evidence to support the use of
psychological interventions to change sexual orientation.

The most common terms for homosexual people are lesbian for females and gay for males,
but gay also commonly refers to both homosexual females and males. The percentage of
people who are gay or lesbian and the proportion of people who are in same-sex romantic
relationships or have had same-sex sexual experiences are difficult for researchers to estimate
reliably for a variety of reasons, including many gay and lesbian people not openly
identifying as such due to prejudice or discrimination such as homophobia and heterosexism.
Homosexual behavior has also been documented in many non-human animal species.

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Many gay and lesbian people are in committed same-sex relationships, though only in the
2010s have census forms and political conditions facilitated their visibility and enumeration.
These relationships are equivalent to heterosexual relationships in essential psychological
respects. Homosexual relationships and acts have been admired, as well as condemned,
throughout recorded history, depending on the form they took and the culture in which they
occurred. Since the end of the 19th century, there has been a global movement towards
freedom and equality for gay people, including the introduction of anti-bullying legislation to
protect gay children at school, legislation ensuring non-discrimination, equal ability to serve
in the military, equal access to health care, equal ability to adopt and parent, and the
establishment of marriage equality.

HOMOSEXUALITY IN INDIA
Homosexuality, often called the third sex, has an unsettled legal and social status in India.
While, we see rallies and public protests against the oppression of homosexuals in the
society, we also see the homosexuals being looked down upon by a large number of members
of the society. The Indian society appears ambivalent, being tugged between popular views
and the call of their own conscience. These societal and legal perspectives in turn, have a
plausible psychological impact on the members of the homosexual community, also called
the LGBT (lesbians, Gays, Bisexuals, transgenders) community in the local jargon.3

The prevalence of homosexuality is difficult to estimate for many reasons, including the
associated stigma and social repression, the unrepresentative samples surveyed and the failure
to distinguish desire, behaviour and identity. The figures vary between age groups, regions
and cultures.

Medicine and science continue to debate the relative contributions of nature and nurture,
biological and psychosocial factors, to sexuality. Essentialist constructs argue for biology and
dismiss personal and social meanings of sexual desire and relationships. On the other hand,
constructivists support the role of culture and history. While essentialism and
constructionism, on the surface appear contradictory, they may mediate orientation and
identity, respectively.

3
Ankita Sen, ‘Homosexuality and the Law in India’, (IPLEADERS, 15th October 2015)
<https://blog.ipleaders.in/homosexuality-law-in-india/ > accessed 15th October 2017

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Anthropologists have documented significant variations in the organisation and meaning of
same-sex practices across cultures and changes within particular societies over time. The
universality of same-sex expression coexists with variations in its meaning and practice
across culture. Cross-cultural studies highlight the limits of any single explanation of
homosexuality within a particular society.

Classical theories of psychological development hypothesize the origins of adult sexual

orientation in childhood experience. However, recent research argues that psychological and
interpersonal events throughout the life cycle explain sexual orientation. It is unlikely that a
unique set of characteristics or a single pathway will explain all adult homosexuality.

The argument that homosexuality is a stable phenomenon is based on the consistency of

same-sex attractions, the failure of attempts to change and the lack of success with treatments
to alter orientation. There is a growing realisation that homosexuality is not a single
phenomenon and that there may be multiple phenomena within the construct of
homosexuality.

Anti-homosexual attitudes, once considered the norm, have changed over time in many social
and institutional settings in the west. However, heterosexism, which idealises heterosexuality,
considers it the norm, denigrates and stigmatises all non-heterosexual forms of behavior,
identity, relationships and communities, is also common.

In addition to the challenges of living in a predominantly heterosexual world, the diversity

within people with homosexual orientation results in many different kinds of issues. Sex,
gender, age, ethnicity and religion add to the complexity of issues faced. The stages of the
life cycle (childhood, adolescence, middle and old age), family and relationships present
diverse concerns. In most circumstances, the psychiatric issues facing gay, lesbian and
bisexual people are similar to those of the general population. However, the complexities in
these identities require tolerance, respect and a nuanced understanding of sexual matters.
Clinical assessments should be detailed and go beyond routine labelling and assess different
issues related to lifestyle choices, identity, relationships and social supports. Helping people
understand their sexuality and providing support for living in a predominantly heterosexual
world is mandatory. People with homosexual orientation face many hurdles including the
conflicts in acknowledging their homosexual feelings, the meaning of disclosure and the
problems faced in coming out.

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Perhaps no postcolonial nationalist myth on sexuality is more pervasive than the belief that
homosexuality is alien to India (read as: Hinduism) and is the outcome of Mughal invasions
and westernizations. Religion has played a role in shaping Indian customs and traditions.
While homosexuality has not been explicitly mentioned in the religious texts central to
Hinduism, it has taken various positions, ranging from positive to neutral or antagonistic.

Rigveda one of the four canonical sacred texts of Hinduism says Vikriti Evam Prakriti (what
seems unnatural is also natural), which some scholars believe recognises the cyclical
constancy of homosexual/transsexual dimension of human life, like all forms of human
diversity.

WHAT IS SECTION 377 OF INDIAN PENAL CODE

“377. Unnatural offences—Whoever voluntarily has carnal intercourse against the order of
nature with any man, woman or animal, shall be punished with imprisonment for life, or with
imprisonment of either description for a term which may extend to ten years, and shall also
be liable to fine. Explanation — Penetration is sufficient to constitute the carnal intercourse
necessary to the offence described in this section.” z

“Coined around 1050 by St. Peter Damian to denote sexual activity between men, “sodomy”
is a shortened form of “the sin of Sodom,” referring to the Genesis account of the men of
Sodom who tried to have intercourse with two angels and were smitten with blindness.”4 The
very famous scholar, William Blacksmith had always held a very abominable approach
towards sodomy. His ideas had a marked influence on the development of anti sodomy laws
in many parts of the world, including the Americas and the British colonies. Section 377 in
the Indian Penal Code, drafted by Lord Macaulay is also an offshoot of such historical as well
as popular conservative religious beliefs.

The Buggery Act of 1533 This Section was drafted by Thomas Macaulay around 1838 but
was only brought into effect in 1860 in light of the Sepoy Mutiny (First War of
Independence) 1857. This law in British India was modelled on the Buggery Act 1533 which
was enacted under the reign of King Henry VIII. This law defined ‘buggery’ as an unnatural
sexual act against the will of God and man. Thus, this criminalised anal penetration,

4
Dipika Jain, Impact of the Naz Foundation Judgement on The Gay, Bisexual and Transgender People in
Delhi:An Empirical Investigation, 2 Centre for Health Law, Ethics and Technology, Jindal Global Law
School(2012)

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bestiality and in a broader sense homosexuality.5 Offences against the Person Act 1861 In
1828, the Act was repealed and replaced by the Offences against the Person Act 1828. This
Act broadened the definition of unnatural sexual acts, and allowed for easier prosecution of
rapists, but also homosexuals. This Act is what is considered to be the inspiration for Section
377 of the Indian Penal Code. In years to come this Act would be repealed by the British and
replaced by the Offences against the Person Act 1861 and finally homosexuality was
decriminalised by the Sexual Offences Act 1967. It is interesting to note that while the
British government has now made same-sex marriage legal, the Indian government still
follows this archaic law written in the 1830s and enacted in 1860 .

Section 377 is rooted in the legacies of the British colonial state and interlaced colonial
anxieties of national, socio-sexual and racial purity at home and colonies. King Henry VIII
in1533 made sodomy a secular rather than an ecclesiastical crime. In 1860 the punishment for
sodomy was reduced to ten years’ imprisonment, but its introduction in the subcontinent a
year later served to institutionalize what was in pre-colonial India a minor strand of
homophobia. Along with the introduction of anti sodomy law, the Britishers also suppressed
Rekhti (Urdu poetry representing sexual intimacy amongst women) and the
heterosexualization of the Ghazals (which apparently imbibed passion amongst men). The
Criminalization of same sex sexual practices regardless of age and consent was symbolic of
the gradual suppression and partial erosion of rich and varied traditions of same sexeroticism,
sexual practices and representation within the subcontinent (Bhaskaran 2001).

The language of „against the order of nature‟ in section 377 provides little indication that it is
directed towards particular sexual subjects. The commentary attached to section 377 indicates
that the law is meant to punish sodomy, buggery and bestiality; in other words, targeting
sexual practices rather than sexual subjects who come to embody socially constituted
perversities in the form of homosexual. Increasingly the state became sites to give new ideas
and, truths about sexuality.

There is a nagging inconsistency between seeing section 377 as a node in the production of
state power and arguing that it is a prevalent site for the legal regulation of same sex sexual
subjects. Section 377 case law suggests that few cases of same sex adult sexual activity are
5
Chaitanya Kediyal, ‘Tracing the History of Section 377’ (FACTLY, 28th January 2016)
<https://factly.in/tracing-the-history-of-ipc-section-377/> accessed 4th October 2017.

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prosecuted in the higher courts. But what is certain is that section 377 is wielded as a threat
against sexual minorities. The question which the Indian Judiciary has been trying to deal
with since 1860 is to determine what exactly constitutes „carnal intercourse against the order
of nature‟. The meaning of section 377 in 1884 was restricted to anal sex, by 1935 it was
broadened to include oral sex and the judgements in contemporary India have broadened it to
include thigh sex. The lack of a consent-based distinction in the offence has made
homosexual sex synonymous to rape and equated homosexuality with sexual perversity. If we
are to search for a principle which holds together all these sexual acts can be found as early as
in 1935. In the Khanu vs Emperor6 case, the court laid down that “the natural object of sexual
intercourse is the conception of human beings which in the case of coitus per os (oral
intercourse) is impossible”.

The idea of sex without the possibility of conception has been used for the last 140 years to
characterize homosexuality as a perversion, as an abhorrent crime, results of a perverted mind
etc. The judicial understanding of section 377 only legitimises and reinforces state power to
persecute and harass those of an alternative sexual identity. The real danger of section 377
lies in the fact that it permeates different social settings including the medical establishment,
media, family and the state. Thus, it becomes a part of the ordinary conversations and
ultimately of the overall social fabric. This creates an environment where violence against
queer people acquires a legal sanctity. Section 377expresses deep social repugnance towards
queer people and provides the fig leaf of legitimacy for the harassment of queer people by
friends, family as well as other societal and governmental institutions. The criminalization of
homosexuality, by condemning into perpetuity an entire class of people forces them to live
their lives in a shadow of harassment, humiliation, and degrading treatment at the hands of
the law enforcement machinery, further denying them the right to a full moral citizenship.

CONSEQUENCES OF SECTION 377 ON HOMOSEXUALITY

Even, Legislation of India hasn’t been the kindest towards LGBT community. Section 377
was introduced during the British Rule in India and still haunts us. While the Congress-led
government had pledged to repeal the part of the section 377 which criminalizes

6
AIR 1932 Cal 437.

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Homosexuality, if it came to power again, but it was crushed by Bhartiya Janta Party in 2014
general election.

Challenges to Section 377 criminalizing Homosexuality

The barbaric section 377 which criminalizes homosexuality, a very natural orientation, can be
considered inhumane at the least, framed to protect the sexuality, relationships, family and
ultimately society. But in spite of same sex orientation being a hush hush topic and
section377 being defended on the ground of being a guarantee against rape of women and
child sexual abuse, it has been challenged. The main reasons for the emergence of the
challenge areas follows-

a) In Foucaldian terms, the lesbian and the gay communities asserted themselves
paradoxically because of the operation of section 377 of the IPC since after all power elicits
its own resistance.

b) The Marxists have stated that the gay and lesbian identities emerged because of the spread
of capitalism, since capitalism allows for the breakdown of traditional structures.

c) The emergence of the discourse of Universal Human rights contributed to the emergence
of LGBT activism on the grounds to be given equal rights and opportunities as being human.

d) The emergence of new social movements. The move started with the birth of feminism.

e) At a more pragmatic level, the HIV/AIDS pandemic and the consequent identification of
high-risk groups such as MSM has greatly opened up spaces for discussion and work around
sexuality.

Whatever the complex reasons for the emergence of the queer movement in the Indian
context, its institutional history is very short, spanning activism of a little over two decades.
As network of groups began to form, the collective nature of assertion emerged as the
0community started responding to issues of direct concern through public protests against
extortion and violence as well as questioning unjust colonial laws.

Shashi Tharoor introduced a Private members’ Bill in Lok Sabha in order to decriminalize
Homosexuality by amending Section 377. The introduction of the bill which sought
amendment to the IPC by seeking to “substitute a new section for section 377 of the IPC”
was objected to by BJP member Nishikant Dubey. Dubey said he was opposing the bill not

15
because of any religion, vedas or ‘puranas’ but because of the Supreme Court judgement. The
Supreme Court in December 2013 overturned a verdict of the Delhi High Court that had set
aside Section 377 of the IPC asking the government to take a view on the controversial
subject of decriminalising homosexuality. The Delhi High Court in 2009 ruled that Section
377 was unconsti0tutional. Tharoor, however, insisted on going ahead with the introduction
of the Bill arguing that Dubey was quoting only “partially” from the Supreme Court
judgement. Tharoor was supported by BJD’s Tathagata Satpathy. However, in order to take
the sense of the House, Deputy Speaker M Thambidurai put the motion to vote. Tharoor
pressed for division of votes in which the motion was negated by 71 ‘Noes’ against 24 ‘yes’.
There was one abstention. Commenting on the development, Satpathy remarked “it is a very
sad day”.10 In a series of tweets later, Tharoor said he would make another attempt to
introduce the bill. “Intro of Pvt. Member’s Bill 2 decriminalize consensual sex between
consenting adults defeated in LS 71-24. Surprising to see such intolerance. “Notice of intent
to oppose introducn of Bill came so late there was no time 2 rally support. Will try again in
future. We shall overcome!” he said. Again, in March 2016, he introduced a Private
members’ bill for the same. As Tharoor sought the leave of the House to introduce the Bill,
Nishikant Dubey, BJP member from Godda (Jharkhand), demanded a division. As Speaker
Sumitra Mahajan put Tharoor’s motion to vote, it was defeated by 58 to 14. Of the 73 people
present, one abstained. Tharoor later blamed the BJP for using its “brute majority” in the Lok
Sabha to thwart his attempt. The Kerala MP called it “religious bigotry” of the ruling party
that had disallowed discussion on his private Bill to amend the “colonial era” Section 377 of
the IPC, adding that Parliament was a place for open deliberations on all issues. He used the
opportunity to voice his anguish while moving another Bill on the Rights of Transgender
Persons when the House was transacting Private Members’ Business. On the rejection of his
Bill at the introduction stage, Tharoor said it was “a low in the proud annals of Indian
democracy” where “brute majority prevailed over the rights of a member” to bring the
measure. He regretted that the House was not allowed to deliberate on a law which was
framed by the British rulers. In its 172nd report, the Law Commission, chaired by Justice
Jeevan Reddy(retd.), recommended the deletion of section 377 in the context of a redefined
law on sexual assault to replace the old law on rape. In the new definition, sexual assault
included oral, anal, vaginal and other forms of penetrative intercourse, including insertion of
objects without consent between men and men, women and women and men and women
within the ambit of the criminal law. The proposed law also took onboard the concerns of the
child rights movement by defining child sexual abuse as an offence for the first time. It was

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in the context of the redefined and broadened definition of sexual assault that the report
recommended the deletion of section 377.

DECRIMINALISATION OF SECTION 377 INDIA

CONSTITUIONAL CHALLENGES TO SECTION 377 OF IPC

What is significant about the last twenty years is the emergence of queer activism in the legal
discourse. In 1994, the AIDS Bhedbhav Virodhi Andolan (ABVA), a human rights activist
group, filed a Public Interest Litigation (PIL) in the Delhi High Court. The petition
challenged the constitutional validity of section 377 of the IPC. It also advocated the supply
of condoms to jail inmates, with a plea to restrain the authorities from segregating or isolating
prisoners with homosexual orientation or those suffering from HIV/AIDS. In 2001, the NAZ
Foundation (an NGO working with HIV/AIDS related issues) approached the Delhi High
Court to read down section 377 to exclude acts of private consensual acts between adults, as
opposed to asking section 377 to be struck down as a whole.

Mobilization against section 377 had deepened and widened across India since these two
petitions were filed. Many groups started emerging which were very vocal in their opposition
to section 377. Voices Against Section 377 was forged out of a coalition of Delhi based
groups, including women and feminists’ groups and individuals united in their s truggle to
change the law. The Million Voices Campaign was also underway to gather and document
one million voices opposed to the law. These are among the vivid examples of the widening
circles of the struggle to change or repel the law and in effect to decriminalize same sex
sexuality.

GROUNDS OF CHALLENGE

The section 377 of IPC was challenged on a number of grounds, mostly on the basis of the
violation of the fundamental human rights. +The ABVA filed the petition against 377 on the
ground that it violated Articles 14-15(right to protection against discrimination), Article
19(right to freedom of speech and expression) and Article 21(the right to life and liberty
which encompasses the right to privacy) of the Constitution of India. Sexual relations are
among the most private aspects of a person’s life and selfhood, which, according to the PIL,
this law continually jeopardises even when no harm is done to others. The PIL also stated that

17
the law promotes homophobia and discriminates against homosexuals. Article 377 is also
noted to be inconsistent with International Law-Article 12 of the UDHR and Article 8 of the
European Convention for the Protection of Human Rights and Fundamental Freedoms by
which India abides.

JUDICIAL AND STATE RESPONSE

On 2 September 2004, the Delhi High Court ruled against the PIL Filed by NAZ India
Foundation on the grounds that it did not have the locus standi to file the PIL since it was not
directly affected by the law, contrary to the point that a PIL may be filed by anyone,
including those not directly impacted. On 6 September 2003, after significant delay and
repeated injunctions from the Delhi High Court, the government filed a reply to the NAZ
India’s petition on behalf of the Union of India and its various subsidiaries. The statement
filed by the Judicial Division of the Ministry of Home Affairs, highlighted that section 377 is
not arbitrarily used, it isused to complement gaps in child rape laws, that the social
disapproval of homosexuality in India is strong enough to criminalize it, that the law does not
distinguish between procreative and non-procreative sex. Plus, it emphasises on the point that
homosexuality is not accepted in India.

The Delhi High Court Judgement that legalized homosexuality in India

“In a landmark judgment, the Delhi High Court on Thursday struck down the provision of
Section 377 of the Indian Penal Code which criminalised consensual sexual acts of adults in
private, holding that it violated the fundamental right of life and liberty and the right to
equality as guaranteed in the Constitution…”

The petitioner, The Naz Foundation pleaded that Section 377 of the Indian Penal Code be
declared unconstitutional on grounds that it clearly violates the sacrosanct Fundamental
Rights enshrined in Part III of the Indian Constitution. They contended that the right to
equality under Article 14 was being grossly violated by the discrimination against these
sexual minorities. It was also contended that, sexual relations were a very private issue of an
individual’s life. State interference in such a sensitive issue was a clear violation of the right
to privacy, implicit in the right to life guaranteed under Article 21 of the Constitution. Such
discrimination against the LGBT community on grounds of an aberrant sexual orientation had
another impact too. It showed a clear violation of the fundamental right under Article 15(1),
which eliminates ‘sex’ as a ground of state discrimination. The petitioners also contended that

18
there was violation of the fundamental rights under Article 19 because, the victims were not
being given the right to freely express their sexual preferences and also move at their own
free will in order to get involved in any kind of homosexual behaviour.

“Limiting their plea, the petitioners submit that Section 377 should apply only to
nonconsensual penile non-vaginal sex and penile non-vaginal sex involving minors.”

In the case of Govindarajalu in re,7 the Court had held that oral sex would not fall under the
umbrella of Section 377. This identical view was reprised in a later case, Khanu v Emperor,8
where, “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.” However, a gradual shift in views and ideas was seen in cases later. In the
1968 case of Lohana Vasantlal Devchand v State,9 “the issue was whether oral sex amounted
to an offence under Section 377 IPC. It was held that the orifice of the mouth is not,
according to nature, meant for sexual or carnal intercourse.” Thus, oral sex was an offence
under Section 377. Emphasis now shifted to the words “against the order of nature”,

instead of the emphasis earlier given to the words, “carnal intercourse”, that was interpreted
as only such sexual activity that can result in procreation. The same trend as in the Lohana
case was followed in subsequent cases. In the 1969 case of State of Kerala v Kundumkar, the
Kerala High Court came up with the ruling, “committing intercourse between the thighs of
another is carnal intercourse against the order of nature and the act fell within the ambit of
Section 377.” In the 1992 case of Calvin Francis v Orissa,10 oral sex was considered to fall
under Section 377 and was thus considered an offence. However, a new concept of ‘sexual
perversity’ came up in this case and in the case of Fazal Rab Choudhary v State of
Bihar.11Any activity that would help in deriving sexual satisfaction that was abnormal would
come within Section 377 and would be considered an offence. “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.”

7
AIR 1941 MAD 352
8
AIR 1932 Cal 487.
9
AIR 1968 Guj 252
10
AIR 1925 Sind 286
11
AIR 1983 SC 323.

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After such extensive study regarding the interpretation of Section 377, came the much-lauded
Delhi High Court judgement. The Court sensitised on the issue of harassment of the
homosexuals in the society and declared Section 377 as violative of Articles 14, 15, 19 and
21 of the Constitution, so far as it tries to criminalize the private sexual activities of
consenting adults. The Court also realized that so far Section 377 has only been used to
protect the victims from any kind of unnatural forced sexual activity. Thus, using it to
criminalize sexual relations and activities between consenting homosexual adults, would be a
misutilization of the Section. However, the Court held that “The provisions of Section 377
IPC will continue to apply to non-consensual penile non-vaginal sex and penal non-vaginal
sex involving minors.”

2nd July 2009 is considered to be a gay day for India. It is because on this day, the Delhi
High Court passed the historic judgement, decriminalizing homosexuality in India. The bench
was headed by Chief Justice A.P Shah and Justice S. Muralidhar.

“Section 377 of IPC in its application to sexual acts of consenting „adults in privacy‟, the
court said, “discriminates a section of people, solely on the ground of their sexual orientation
which is analogous to prohibited grounds of sex”.

In the judgement, UN Human Rights framework was adopted that had three categories-

a) Non-discrimination

b) Protection of private rights

.c) The ensuring of general human rights protection to all, regardless of sexual orientation or
gender identity

A significant contribution made by the judgement is the enhancement of the concept of

privacy in a society which is highly intrusive. The court said that the sphere of privacy allows
persons to develop human relations without interference from the outside community or from
the state. “Section 377 denies a person’s dignity and criminalizes his or her core identity,
solely on account of his or her sexuality and thus violates Article 21 of the constitution.”

The final nail in the coffin was the health ministry’s submission that section 377 was serving
as impediment to promoting HIV/AIDS prevention measures. The court acknowledged that
there was unanimous medical and psychiatric opinion that homosexuality is not a disease or a
disorder and is just another expression of human sexuality.

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The Supreme Court Judgement that struck down a Delhi High Court judgment to make
homosexuality illegal in India again

“The Supreme Court on Wednesday reinstated a colonial-era ban on gay sex that enables the
jailing of homosexuals in a major setback for rights campaigners in the country.”

After the landmark judgement by the Delhi High Court, Suresh Kumar Koushal, an Indian
citizen who felt it important to protect the moral values embedded in the society, sent a
petition to the Supreme Court of India, challenging the High Court judgement.

In the views of the petitioners scrapping down Section 377 was irrefutably baseless. It was
argued that no constitutional right validates any act which has the tendency to cause harm to
oneself and to others, intercourse between homosexuals being one such high risk activity.
The petitioners brought in the concept of the code of nature- every organ in the human body
have been assigned discrete functions by nature and man should not violate such naturally set
norms. Thus, accepting the Delhi High Court Order might inimically perturb marriage as an
institution itself and might tempt the youth towards homosexual activities.

The respondents showed through various cases, how Section 377 IPC was being used to
harass people from the homosexual community. One such case was that of Jayalakshmi v
State of Tamil Nadu. In this case, concerning sexual abuse of eunuchs by the police, Section
377 was used by the Metroplitan Magistrate to penalise two women. This was grossly
unreasonable because, the Explanation to Section 377 IPC mentions penetration as a
requirement. The respondents argued on the archaic and obsolete nature of Section 377 IPC.

Repelling the moral stand taken by the petitioners, Shri F.S Nariman fighting on behalf of the
respondents pointed out, Section 377 IPC falls under Chapter XVI, “Of Offences affecting
the Human Body” (and not under Chapter XIV). Thus, Section 377 should not be used to
classify against the LGBT community morally.

The respondents also paid attention to the commonly debated question, whether Section 377
should apply to the sphere of homes. They argued that Section 377 IPC should not apply to
the private activities of the homosexuals because the difference between amoral and depraved
acts in the public and private spheres has been recognized statutorily by Section 294 IPC. It
was argued that, the right of the homosexuals to enter into any personal relation of their
choice, cannot be denied, by shedding an umbrella of criminality over same sex relationships.
The respondents considered important, the view given by Justice Vivian Bose in S. Krishnan

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and Ors. v. The State of Madras,16 “…when there is ambiguity or doubt the construction of
any clause in the chapter on Fundamental Rights, it is our duty to resolve it in favour of the
freedoms so solemnly stressed.”

Today’s india supreme court decriminalizes homosexuality in India. Tens of millions of

LGBT people will no longer will live in fear of arrest and life imprisonment. Given the huge
size of the Indian population – over 1.3 billion people – this reform is arguably the biggest,
most impactful gay law reform in human history. It is unprecedented and puts in the shade
recent similar decriminalisations in Belize, Seychelles, Mozambique and Trinidad and
Tobago. Ending the Indian ban on homosexuality is, of course, just a start. There are still
huge challenges to end the stigma, discrimination and hate crime that LGBT people suffer in
India. Although more liberal attitudes are growing in the major cities, in rural and small-town
India, where most of the population live, there still much ignorance and prejudice. LGBT
Muslims are at particular risk of so-called ‘honour killing’ by their families.

Sadly, Hindu nationalists, as well as many Indian religious leaders – Hindu, Muslim and
Christian – are mostly very hostile to this reform and some have vowed to fight it. Following
the Supreme Court’s decision, Indian LGBT citizens now revert to the legal status of non-
criminalisation that existed prior to the British colonisers imposing the homophobic section
377 of the criminal code in the 19th century.

CONCLUSION

After the innumerable attempts to determine the status of homosexuality in India, I would
like to look at the problem from a personalized perspective. First, we need to understand the
primary point of conflict regarding the issue of homosexuality. People primarily raise

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opposition to the proposal of widely accepting the third sex and their right to lead a private
life, on moral grounds. However, it is important to note that, sexual orientation being a
biological function cannot act as a strong influencer on moral grounds. One who is not
biologically homosexual, cannot get involved in homosexual activities simply on the basis of
societal influence. Instead, if we as a society maintain a liberal outlook, we will be able to
respect the rights of the LGBTs. This should not mean that we transform our way of living,
but only nurture and develop ourselves into responsible citizens, who are able to space out
their lives, thus allowing every right-thinking member of the society to lead an undisturbed
life. It depends on the strength of human personality. We should be able to place our own
morals at the apex, without casting a shadow of contempt on the diverse individuals in the
society. We should allow ourselves to respect the human diversity that might come up in the
form of variant cultures, festivals, food cuisines, and more recently in the form of a variant
sexual orientation. Whether or not, we imbibe such variant in ourselves depends on our
biological matrix, supported by the strength of our character. However, just as we get the
right to absorb or abject this variant, the LGBT community should have the same right too.
What the society considers normal, might as well be a variant to them. So criminalizing
homosexuality is no solution. Homosexuality does not destroy the honour of the family, but
homophobia destroys the honour of the individual.

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 BIBLIOGRAPHY
1. VA Sadock, Kaplan and Sadock's Comprehensive Textbook of Psychiatry (BJ Sadock, VA
Sadock & P Ruiz ed, 9th edn Philadelphia: Lippincott Williams & Wilkins, 2009) 2027–59.

2. J Drescher, Kaplan and Sadock's Comprehensive Textbook of Psychiatry (BJ Sadock, VA

Sadock & P Ruiz ed, 9th edn, Philadelphia: Lippincott Williams & Wilkins, 2009) 2060–89.

3. Ankita Sen, ‘Homosexuality and the Law in India’, (IPLEADERS, 15th October 2015)
<https://blog.ipleaders.in/homosexuality-law-in-india/ > accessed 15th October 2017

4. Aditya Karkera, ‘Why is India not yet ready for Gay Marriage’, (HUFFPOST, 7th July
2015) <http://www.huffingtonpost.in/aditya-karkera/why-india-is-not-
yetread_b_7681830.html> accessed 22nd September 2017.

5. Dipika Jain, Impact of the Naz Foundation Judgement on The Gay, Bisexual and
Transgender People in Delhi:An Empirical Investigation, 2 Centre for Health Law, Ethics and
Technology, Jindal Global Law School(2012).

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