1

IN THE SUPREME COURTOF INDIA

(CIVIL APPELLATE JURISDICTION)

Special Leave Petition (Civil) No. 15436 of 2009

(And other connected Special Leave Petitions)

IN THE MATTER OF

Suresh Kumar Koushal & Ors. … Petitioners

Versus

Naz Foundation & Ors … Respondents

WRITTEN SUBMISSIONS BY ANAND GROVER, SR. ADVOCATE FOR

NAZ FOUNDATION (INDIA) TRUST, RESPONDENT NO.1 IN ALL SLPs

I. INTRODUCTION

1. The present case concerns the criminalisation of certain sexual acts,

covered by the expression, ―carnal intercourse against the order of

nature‖, between consenting adults in private. The expression ―carnal

intercourse against the order of nature‖ has been interpreted to imply

penile-non vaginal sex. Though facially neutral and applicable to all,

including heterosexual persons, it is homosexual men, whose sexual

practices are identified and perceived by the broader society as

penile non-vaginal.

2. Sexual practices covered by Section 377 are an expression of the

core sexual personality of homosexual men. By criminalizing such

acts, Section 377 makes them out to be criminals with several

deleterious consequences on their lives, thereby impairing their

human dignity.

3. Article 21 gives liberty to a person to enter into intimate relationships

with another in the privacy of their homes and their private lives and

still retain dignity as free persons. It protects intrusion into that zone
 2
of privacy. Section 377 therefore violates the right to privacy of all

individuals, particularly of homosexual men.

4. The question is therefore not whether one has a fundamental right to

engage in ―carnal intercourse against the order of nature.‖ The

question is whether that protection of the zone of privacy is available

to those consenting adult persons who may have ―carnal intercourse

against the order of nature‖.

5. Section 377 also does not pass the test of being a fair, just and

reasonable law in substance, that is substantive due process, now

interpreted to be part of Article 21.

6. Criminalisation also impairs access to health services for gay men

who go underground, thereby infringing their right to health under

Article 21.

7. Section 377 is in violation of Article 14 as it is vague. The

classification introduced by it is not based on rational criteria. The

object that it seeks to advance is not a legitimate State interest.

8. Once the expression ―sex‖ in Article 15 is read to include sexual

orientation, it violates Article 15, as the Section 377 predominately

impacts homosexual men.

II. BRIEF BACKGROUND OF THE PETITIONER AND THE PETITION

9. The Petition was filed in the Delhi High Court by the Respondent No.

1, which is a Non-Governmental Organization (hereinafter ―NGO‖)

registered under the Indian Trusts Act, 1882. It works in the field of

HIV/AIDS intervention and prevention, which involves interacting with

specific populations that are most vulnerable to contracting

HIV/AIDS, including homosexual men and Men who have Sex with
 3
Men (MSM). While working with these populations, the Respondent

No. 1 realised the importance of ‗Integrationist Policy‘, that is

premised on the fact that promoting, respecting and protecting the

rights of those who are most vulnerable to HIV transmission is the

most effective way to prevent its spread and halt the epidemic. [paras

2-3 of the Writ Petition (Civil) No. 4755 of 2001 (hereinafter ―Writ

Petition‖)]

10. In the experience of the Respondent No.1, its HIV/AIDS prevention

efforts have been severely impaired by discriminatory attitudes

exhibited by various State agencies. This has resulted in the denial of

the basic fundamental human rights of the sexual minorities. [para 5

of the Writ Petition].

11. This Writ Petition was filed in 2001 to challenge the constitutional

vires of Section 377, Indian Penal Code (IPC) that criminalises

certain consensual sexual acts between adults in private. The

impugned section was challenged on the grounds of violation of right

to privacy, dignity and health under Article 21, equal protection of law

and non-discrimination under Articles 14 and 15 and freedom of

expression under Article 19 of the Constitution. [para 13 of the Writ

Petition]. The Petitioner therein contended that:

a. criminalizing adult consensual acts violates the right to privacy

of all, including homosexual men, since protection of personal

relations and sexual intimacies with in the protected zone of

privacy is guaranteed by our constitutional order under Article

21. The State cannot intrude into the private zone of

individuals without a compelling interest of paramount

importance. No such interest has been shown by the State.

[para 54 A and B of the Writ Petition]

 4
b. penalizing certain sexual acts that are usually engaged by the

homosexual men amounts to demeaning and degrading the

dignity of an entire class of people. It also interferes with the

public health interventions on HIV prevention, since it is

difficult to reach out to homosexual persons, who go

underground on account of fear of prosecution and stay away

from health services, thereby violating their right to health

under Article 21. [Para 54A and F of the Writ Petition]

c. Section 377, being overbroad and vague in its ambit by

covering acts ranging from anal sex to oral sex to acts

deemed to be sexually perverse or imitative, is arbitrary and

violative of Article 14. It creates an unreasonable classification

between carnal intercourse within the order of nature (penile-

vaginal) and carnal intercourse against the order of nature

(penile non-vaginal sex) that is not based on any rational

criteria. Penalizing penile-non-vaginal sexual acts, in effect,

disproportionately impacts the homosexual men as these

constitute their primary manifestation of sexual expression,

thereby violating Article 14. [para 54 C of the Writ Petition]

d. Section 377 is violative of Article 15 of the Constitution, since

the constitutional protection against sex discrimination

includes the prohibition of discrimination on the basis of sexual

orientation. [Para 54 D of the Writ Petition]

e. Section 377 violates Article 19 by restricting freedom of

speech, expression and association of homosexual persons.

[Para 54 E of the Writ Petition]

12. This Petition brought to light core human values of equality, respect

for privacy and dignity of all, particularly homosexual persons, which

till now have been denied to them due to criminalisation under

Section 377.
 5
13. This Petition has a long and chequered history. It was filed in 2001 in

the Hon‘ble High Court of Delhi [Writ Petition (Civil) No. 4755 of

2001] and notice was issued to the Union of India in 2002, wherein

the Attorney General of India was asked to appear. On 02.09.2004,

the Writ Petition was dismissed by the Hon‘ble High Court for lack of

cause of action as no prosecution was pending against the

Petitioner. The Petitioner filed a review petition (RP 384/2004) in the

Hon‘ble High Court against the order of dismissal but that too was

dismissed on 03.11.2004. Aggrieved by the same, the Petitioner filed

a Special Leave to Appeal (C.N. 7217-18/2005) in this Hon‘ble Court

in 2005. On 03.02.2006, this Hon‘ble Court held that ―the matter does

require consideration and is not of a nature which could have been

dismissed on the ground afore-stated‖. Remitting the matter back to

the High Court of Delhi to be decided on merits, this Hon‘ble Court

set aside the said order of the High Court.

14. On 02.07.2009, the Hon‘ble High Court of Delhi struck down Section

377 insofar it criminalises consensual sexual acts of adults in private,

to be violative of Articles 21, 14 and 15 of the Constitution. The

Hon‘ble High Court upheld the contentions of the Petitioner on the

basis of reasons and materials provided and all these are

sustainable. The Hon‘ble High Court of Delhi held the following:

a. Section 377 grossly violates the right to privacy and liberty

embodied in Article 21 insofar as it criminalises consensual

sexual acts between adults in private. [para 52 of the High

Court judgment]

b. Section 377 denies a person's dignity and criminalises his or

her core identity solely on account of his or her sexuality and

thus violates Article 21 of the Constitution. It denies a gay

person a right to full personhood, which is implicit in notion of

life under Article 21 of the Constitution. [para 48 of the High

Court judgment]
 6
c. Section 377 pushes gays and MSM underground, leaves them

vulnerable to police harassment and renders them unable to

access HIV/AIDS prevention material and treatment, thereby

violating right to health under Article 21. [para 71 of the High

Court judgment]

d. Section 377 was not enacted to deal with child sexual abuse

or to fill in lacunae in rape law but to enforce particular

concept of sexual morality. Public morals cannot be basis of

invading privacy of citizens or regulating conduct of citizens. In

the absence of any serious harm, the objective of

criminalisation of private sexual relations between consenting

adults is arbitrary and unreasonable and thus violates Article

14 of the Constitution. [para 92 of the High Court judgment]

e. Though facially neutral and applicable to acts and not

identities, section 377 operates unfairly against a particular

class, i.e. homosexual men. It disproportionately impacts

homosexual persons by perceiving them as criminals, marking

the whole gay and lesbian community as deviant and perverse

and subjecting them to extensive prejudice. [para 94 of the

High Court judgment]

f. Sexual orientation is a ground analogous to sex and

discrimination on the basis of sexual orientation is not

permitted by Article 15. [para 104 of the High Court judgment]

III. PRELIMINARY SUBMISSIONS ON THE ISSUE OF LOCUS STANDI

15. Although the question of locus standi does not arise in the instant writ

petition in light of the Supreme Court order dated 03.02.2006, by

which the High Court was directed to hear the writ petition on merits.

However, the Hon‘ble Supreme Court has raised the issue of locus

standi on that whether an NGO can approach the court for a

 7
declaration that a statute is unconstitutional. The Respondent No.1

humbly submits in the affirmative as follows:

NGOs, acting bona fide, can file a PIL for enforcing fundamental rights

of a person or class of persons who cannot approach the court

themselves

16. It is submitted that where a person or class of persons have suffered

legal injury or to whom legal injury is threatened, is unable to

approach the Court for reasons not practicable for her/him to move

the Court for some sufficient reason, some other person or body can

invoke assistance of the Court for the purpose of judicial redress to

the person or class of persons wronged. The Hon‘ble Supreme Court

has time and again emphasized the importance of bona fide petitions

having sufficient interest filed pro bono publico for vindication of

rights of vulnerable and marginalized sections of society.

a. The case of Janata Dal v. H.S. Chowdhary, (1992) 4

SCC 305 at paras 61-97, discusses the expansion of the

rule of standing in public interest litigation. In para 64, the

Supreme Court observed that in public interest litigation:

―the strict rule of locus standi applicable to

private litigation is relaxed and a broad rule is
evolved which gives the right of locus standi to
any member of the public acting bona fide and
having sufficient interest in instituting an action
for redressal of public wrong or public injury, but
who is not a mere busybody or a meddlesome
interloper; since the dominant object of public
interest litigation is to ensure observance of the
provisions of the Constitution which can be best
achieved to advance the cause of communities
or disadvantaged group and individuals by
permitting any person, having no personal gain
or private interest in maintaining an action for
judicial redress for public injury to put the judicial
machinery in motion.‖
 8

b. In the landmark case of S.P. Gupta v. UOI, 1981 Supp

SCC 87 at para no. 17, it was held that:

―It may therefore now be taken as well

established that where a legal wrong or legal
injury is caused to a person or to a determinate
class of persons by reasons of violation of any
constitutional or legal right or any burden is
imposed in contravention of any constitutional or
legal provision or without authority of law or any
such legal wrong or legal injury or illegal burden
is threatened and such person or determinate
class of persons is by reasons of poverty,
helplessness or disability or socially or
economically disadvantaged position, unable to
approach the court for relief, any member of the
public can maintain an application for an
appropriate direction, order or writ in the High
Court under Article 226 and in case of breach of
any fundamental right of such person or
determinate class of persons, in this Court under
Article 32 seeking judicial redress for the legal
wrong or legal injury caused to such person or
determinate class of persons.‖

c. In People’s Union for Democratic Rights v. Union of

India, (1982) 3 SCC 235 at para 9, this Hon‘ble Court

followed S.P. Gupta’s case and took the view that it is

necessary to evolve a new strategy by relaxing the

traditional rule of standing in order then justice may

become easily available to the vulnerable and the

marginalised sections of society. It was held that:

―where a person or class of persons to whom

legal injury is caused…is by reasons of poverty,
disability or socially or economically
disadvantaged position not able to approach the
court for judicial redress, any member of the
public acting bona fide and not out of extraneous
motivation may move the court for judicial
 9
redress of the legal injury suffered by such
person or class of persons…‖

d. In Delhi Jal Board v. National Campaign for Dignity and

Rights of Sewerage & Allied Workers & Ors., (2011) 8

SCC 568 at paras 3 and 19–33, on the issue of PILs filed

by NGOs on behalf of people who, for socio-economic

reasons, cannot approach the Courts themselves, this

Hon‘ble Court held that:

―at the threshold we deem it necessary to erase

the impression and misgivings of some people
that by entertaining petitions filed by social
action groups/activists/workers and NGOs for
espousing the cause of those who, on account of
poverty, illiteracy and/or ignorance and similar
other handicaps, cannot seek protection and
vindication of their constitutional and/or legal
rights and silently suffer due to actions and/or
omissions of the State apparatus and/or
agencies/instrumentalities of the State or even
private individuals, the superior courts exceed
the unwritten boundaries of their jurisdictions.‖
The Supreme Court further held that ―we may
add that the superior courts will be failing in their
constitutional duty if they decline to entertain
petitions filed by genuine social groups, NGOs
and social workers for espousing the cause of
those who are deprived of the basic rights
available to every human being, what to say of
fundamental rights guaranteed under the
Constitution. It is the duty of the judicial
constituent of the State like its political and
executive constituents to protect the rights of
every citizen and every individual and ensure
that everyone is able to live with dignity.‖

17. It is therefore, submitted that the rules of standing in public

interest litigation have been relaxed in the interest of justice and

permit NGOs, acting bona fide, having sufficient interest, to

 10
approach the court for enforcing the fundamental rights of class of

persons who for reasons of socio-economic vulnerabilities etc.

are unable to approach the Court themselves.

18. There have been instances where writ petitions/public interest

litigation filed by NGOs acting bona fide and having sufficient

interest, seeking a declaration that a statute is unconstitutional

have been entertained by this Hon‘ble Court.

a. In People Union for Civil Liberties (PUCL) v. Union

of India, (2003) 4 SCC 399, an organisation filed a

petition in the Supreme Court to challenge the

constitutional validity of Section 33-B as inserted by the

Representation of the People (Third Amendment) Act,

2002. The said amendment act was held to be

unconstitutional by this Hon‘ble Court.

b. In Common Cause, A Registered Society v. Union

of India, (2002) 1 SCC 88, Common Cause, a

Registered Society, filed a writ petition under Article 32

to challenge the constitutionality of Section 8A in the

Salaries, Allowances and Pension of Members of

Parliament Act, 1954. A five judge bench of this Hon‘ble

Court dismissed the petition as devoid of merit but did

not raise any issue as to the locus of a society to

challenge the constitutionality of a statute.

c. In D.C. Wadhwa and Ors. v. State of Bihar and Ors,

(1987) 1 SCC 378 at para 2, one of the Petitioners in

the case, a professor of Political Science, filed a writ

petition against the State of Bihar alleging the misuse of

ordinance power, and challenged the Constitutional

validity of three ordinances issued by the Governor of

 11
Bihar. This Hon‘ble Court admitted the petition treating

it as PIL and struck down the ordinance (The Bihar

Intermediate Education Council Ordinance, 1985).

Relying on S.P. Gupta’s case, this Hon‘ble Court

rejected the contention that the Petitioner had no

standing as he was an outsider and not personally

aggrieved. The Court held that the:

―Petitioner no.1 is a Professor of Political

Science and deeply interested in the

ensuring proper implementation of the

constitutional provisions. He has sufficient

interest to maintain the writ petition as a

member of the public…‖

In extraordinary circumstances a PIL challenging the

constitutional validity of a statue filed by NGOs bona fide and

having sufficient interest will be entertained by the Courts

19. This Hon‘ble Court has, in some cases, laid down broad

guidelines for PILs. In all such cases, the Court has said that

there can be no hard and fast rules or ‗rigid litmus test‘ for

assessing locus standi to govern all cases under all

circumstances. [See: Janata Dal v. H.S. Chowdhary at para 61

and 68]. Determining standing of a petitioner in a public interest

litigation has necessarily to be left to the discretion of the Court in

each individual case [See S.P. Gupta v. Union of India at para

20]. In Guruvayoor Devaswom Managing Committee & Anr. v.

C.K Rajan & Ors., (2003) 7 SCC 546 at paras 50 and 55, this

Hon‘ble Court, laid down broad guidelines for entertaining PILs. It

said therein, that ―Ordinarily, the High Court should not entertain a

writ petition by way of public interest litigation questioning the

constitutionality or validity of a statue or a statutory rule.‖

 12
However, the judgment also clarifies that ―We do not intend to lay

down any strict rule as to the scope and extent of public interest

litigation, as each case has to be judged on its own merits.

Furthermore, different problems may have to be dealt with

differently.‖ It is pertinent to note that this Hon‘ble Court did not

bar PILs challenging constitutional validity as the word used is

‗ordinarily‘. If extraordinary/peculiar situation exists then such

PILs would be maintainable. Further, the judgment clarifies that

the guidelines are not strict rules and each PIL will be judged on

its own merits and facts and circumstances.

Naz Foundation (India) Trust is sufficiently interested and has

bona fide filed the PIL challenging the constitutional vires of

Section 377 on behalf of a directly aggrieved class of persons

who for sufficient reasons could not approach the Court

themselves

20. It is submitted that Naz Foundation (India) Trust has the locus to

file the writ petition challenging constitutional vires of Section 377

on behalf of vulnerable and marginalised class of homosexual

men. Naz Foundation carried out HIV prevention interventions

with homosexual men and in its experience, homosexual men

were reluctant to come forward to access education and

information about HIV prevention and tools for safer sexual

practices for fear of being identified as homosexual and

prosecution under Section 377 and/or discrimination by society

[See paras 2-5 at pages 3-4 of the Writ Petition]. Many HIV

prevention outreach workers from the community of homosexual

men faced severe harassment by the police and were threatened

to be booked under Section 377 as they viewed distribution of

condoms for male-male sex as aiding the offence under Section

377. In 2001, in Lucknow, HIV prevention outreach workers

 13
working with homosexual men were arrested and booked for

conspiracy to commit offence under Section 377 [See para 53 at

page 19 of the Writ Petition]. This at an individual level of

homosexual men violated their right to health by impeding their

access to information and tools by which they could protect

themselves against HIV and at a larger level, it hampered

preventing the spread of HIV in broader society and adversely

impacted public health.

21. Further, through its intimate association with homosexual

persons, Naz Foundation became aware of the disproportionate

and invidious impact of Section 377 on the rights and lives of

homosexual persons. The socio-legal climate in and around the

year 2001, when the petition was filed, was repressive and

inimical towards homosexual persons. There were numerous

incidents of harassment, entrapment, blackmail, extortion,

violence and brutality against homosexual persons by State as

well as non-State actors. Besides, the understanding of

alternative sexual orientations was very low in society which

looked down upon homosexuality with disapproval and disgust.

This manifested in denial, rejection and violence at home to

discrimination at workplaces and public spaces. The large scale

stigma and discrimination created and perpetuated a culture of

silence around the issue of alternative sexualities and forced

homosexual persons to suffer in silence. [See paras 32 – 35 at

pages 12 – 13 of the Writ Petition]

22. In the given peculiar circumstances, homosexual persons could

not move the Court on their own for fear of being identified and

prosecuted by law enforcement authorities or for fear of

harassment, ridicule, rejection and discrimination by society at

large.
 14
23. Hence, Naz Foundation (India) Trust filed the writ petition on their

behalf for challenging the constitutionality of Sec 377. In doing so,

Naz Foundation (India) Trust has acted bona fide and without any

extraneous or oblique motivation.

IV. HISTORY OF SECTION 377

A. Tracing the Developments in England

24. It is submitted that both the historical context from which 377
owes its origins and its religious underpinnings are relevant to
identifying its underlying assumptions and purposes.

LIST OF DATES
DATE EVENT
1290 The first records of sodomy as a crime can be found
in the Fleta, the text categorically prescribed for the
burning alive of the sodomite
1300 Records of sodomy as a crime also found in the
Britton, the text also prescribed for the burning of
the sodomite
1377 A Petition of the English Parliament banished
foreign artisans and traders who were accused of
having introduced ― the too horrible vice which is not
to be named‖
1533-34 Passing of the Buggary Act of 1533 which penalised
acts of sodomy by hanging.
British criminal laws covering homosexual acts in
the reign of Henry VIII prohibited the abominable
Vice of Buggery (A term which was associated with
―sodomy‖ by the thirteenth century) committed with
mankind or beast.
Buggery was described as a ―vice.‖ The term
buggery traces back to ―bougre,‖ or heretic in old
French, and to the Latin Bulgarus for Bulgaria (seen
as a place with heretics). By the thirteenth century,
the term had become associated with sodomy that
is anal sexual intercourse. The 1534 statute took
over the offence of buggery from ecclesiastical law.
The word ―abominable‖ was taken from Leviticus
(18:22 and 20:13).
 15
The religious character of the provision is thus
unmistakable.
1535 Henry VIII, polices and religious morals and the
programme encompassed execution of diehard
English Catholics including Sir Thomas More
1536, The Buggary Act of 1533 was renewed three times
1539 and
1540

1548 A new version of the Act was passed (2 & 3 Edward

VI. C.29) [See pages 1 to 5 in Compilation - Volume
1]
1563 When Henry‘s daughter Mary succeeded her
brother and restored England‘s papal allegiance, all
these Protestant Acts were repealed. But when
Henry‘s daughter Elizabeth became queen, a new
version of the Act (5 Elizabeth, c.17) was passed in
1563
From 1563, it continued as a non-ecclesiastical
criminal law. The penalty was death, a common
penalty in the period for most offences. It remained
a capital offence until 1861.
The law was originally enacted one year after
Parliament ended Papal jurisdiction over the English
Church. Catholic courts had been unsympathetic to
Henry VIII‘s divorce case. The buggery law was
part of a widening campaign against Catholics,
which led to the expropriation of the monasteries, a
campaign that began in earnest in 1536.
1644 The crime was described by Sir Edward Coke as a
―detestable and abominable sin, amongst Christians
not to be named, committed by carnal knowledge
against the ordinance of the Creator, and order of
nature, by mankind, or with brute beast, or by
womankind with brute beast.‖ [See pages 6 – 13 in
Compilation - Volume 1]
1661 The 1661 Articles of War, governing the navy, as
revised in 1749, prohibited ―the unnatural and
detestable Sin of Buggery or Sodomy with Man or
Beast…‖
Pre 1720s Law was barely enforced
 16
1749 The revised Articles of war governing the navy
prohibited the unnatural and detestable sin of
sodomy with Man or Beast
1767 Sir William Blackstone in his Commentaries on the
Laws of England referred to the 1534 law as
prohibiting the ―infamous crime against nature‖. No
exact definition of ―buggery‖ or ―sodomy‖ was
provided [See pages 14 – 16 in Compilation Volume
- No. 1]
1780 The number of men arrested began to rise due to
changes in structure of criminal justice
1835 Two men were the last to be executed in Britain for
sodomy
Post 1850 Prosecutions shifted to charges of ―indecent
assault‖ which was apparently easier to prove
1870 In a famous case, two men were charged with
conspiracy to commit buggery and soliciting others
to do so by cross-dressing in streets and theatre
1806- 8,921 men were indicted for sodomy, gross
1900 indecency and ―unnatural misdemeanours‖. Most of
the men convicted were imprisoned but between
1806 and 1861, 404 men were sentenced to death
1957 Report on the Committee on Homosexual Offences
and Prostitution, which enumerated the problems
faced by homosexuals and provided for a deeper
understanding of the issue.
The said report can be construed as a stepping
stone for the modern understandings of sexual
relations [See pages 17 – 44 of Compilation -
Volume 1]
1967 The English law was reformed in Britain by the
Sexual Offences Act of 1967, which decriminalized
homosexuality and acts of sodomy between
consenting adults. [See pages 45 - 48 of
Compilation - Volume 1]
 17
B. Tracing the developments in India

Tracing the position on homosexuality in India

(Ancient India)

25. It is submitted that homosexuality has been widely prevalent and

recognised and tolerated in all its forms during ancient and
medieval Indian history. The various texts and works illustrate the
same

MANUSMRITI

The Manusmriti scorns female homosexuals. It states, "If a girl

does it (has sex) to another girl, she should be fined two hundred
(pennies), be made to pay double (the girl's) bride-price, and
receive ten whip (lashes). But if a (mature) woman does it to a
girl, her head should be shaved immediately or two of her fingers
should be cut off, and she should be made to ride on a donkey."
And: "If a man has shed his semen in non-human females, in a
man, in a menstruating woman, in something other than a
vagina, or in water, he should carry out the 'Painful Heating'
vow." Further: "If a twice-born man unites sexually with a man or
a woman in a cart pulled by a cow, or in water, or by day, he
should bathe with his clothes on." The 'Painful Heating' vow is
traditionally said to consist of cow's urine, cow dung, milk,
yogurt, melted butter, water infused with sacrificial grass, and a
fast of one night.
Compared to the treatment of female homosexuals, the
treatment of male homosexuals is relatively mild. Modern
commentators misread the Manusmriti‘s severe punishment of a
woman‘s manual penetration of a virgin (8.369-70) as anti-
lesbian bias. In fact, the punishment is exactly the same for
either a man (8.367) or a woman who does this act, and is
related not to the partners‘ genders but to the virgin‘s loss of
virginity and marriageable status. The Manusmriti does not
mention a woman penetrating a non-virgin woman.
Note that there are no threats of 'eternal' damnation. There is
nothing permanent in the Hindu world. There is always another
life, another chance.
It is thus clear that in ancient India, there was no criminalisation
of male homosexual penetrative sexual acts.
[See pages 49 – 54 of Compilation - Volume 1]
 18
KAMASUTRA

In the Kamasutra, there is a reference to male masseurs who

indulge in oral sex (auparashtika).

According to the Hindu sage Vatsayana, author of the renowned

treatise on love, the Kamasutra, homosexual practice is allowed
by the holy writ (Dharmasutras) with just a few exceptions.
Indeed, the Kamasutra devotes an entire chapter to Auparistaka
- homosexual intercourse. [See pages 58-61 of Compilation –
Volume 1]

Kama Sutra, emphasizes pleasure as the aim of intercourse. It

categorizes men who desire other men as a ―third nature,‖
further subdivides them into masculine and feminine types, and
describes their lives and occupations (such as flower sellers,
masseurs and hairdressers). It provides a detailed description of
oral sex between men, and also refers to long-term unions
between men.

In the Kama Sutra sex acts involving homosexuality are

regarded in some castes permissible while not in other castes.
[See pages 55 - 61 of Compilation - Volume 1]

C. The History of “Unnatural Offences” “against the order of

nature” in India

During the Moghul Rule in India

26. The discretionary punishments (Tazeer) which were inflicted at

the discretion of the judge as there were no fixed rules to

prescribe such punishment, included the following : Offences that

were not serious or of a heinous nature and were left to be

punished according to the discretion of the judge. The number of

such offences was very large e.g. use of abusive language,

forgery of deed or letters with a fraudulent design, bestiality,

sodomy, offences against human life, property, public peace and

tranquility, decency, morals, religion etc.. [See M.P.Jain ―Outlines

 19
of Legal History‖ 5th Edition 1990, page 61C, second column, in

Compilation - Volume 1]

27. It is important to note that the entire Muslim criminal law was

based on the principle of Tazeer because the Hadd or Kisa or

Diya had been prescribed for very limited offences. [See M.P.Jain

at pages 61A – 61C in Compilation - Volume 1]

During the British Rule in India

28. The British Raj introduced the law relating to unnatural sex in

India in 1861 through Section 377 of the Indian Penal Code.

Similar laws were introduced by the British, in other countries

during their colonial rule.

29. On October 14, 1837, the all British ―Indian Law Commission‖

(consisting of Macaulay, Macleod, Anderson and Millet) submitted

its draft Penal Code to Lord Auckland, the British Governor-

General of India. In this draft, buggery has been replaced by two

crimes under the heading of ―unnatural offences‖

―Of Unnatural Offences

361. Whoever, intending to gratify unnatural lust,

touches, for that purpose, any person, or any animal, or
is by his own consent touched by any person, for the
purpose of gratifying unnatural lust, shall be punished
with imprisonment of either description for a term which
may extend to fourteen years and must not be less than
two years, and shall also be liable to fine.

362. Whoever, intending to gratify unnatural lust,

touché for that purpose any person without that
person‘s free and intelligent consent, shall be punished
with imprisonment of either description for a term which
may extend to life and must not be less than seven
years, and shall also be liable to fine.‖ [page 64 of
Compilation - Volume 1]
 20
As opposed to penile – anal sex, it criminalized mere intentional

touching for purpose of gratifying unnatural lust. However, it

removed death penalty and prescribed two different terms of

imprisonment depending on whether or not there was consent.

30. In the introductory report of Lord Macaulay, it was stated as

hereunder:

―Clause 361 and 362 relate to an odious class of

offences respecting which it is desirable that as little
as possible be said. We leave without comment to the
judgement of his Lordship in Council the two Clauses
which we have provided for these offences. We are
unwilling to insert, either in the text, or in the notes,
anything which could give rise to public discussion on
this revolting subject; as we are decidedly of opinion
that the injury which would be done to the morals of
the community by such discussion would far more
than compensate for any benefit which be derived
from legislative measures framed with the greatest
precision.‖ [page 65 of Compilation - Volume 1]

31. The Special Report of the Indian Law Commissioners, 1847 –

1848 at pages 65A – 65D of Compilation – Volume 1, on the

Indian Penal Code, reads as hereunder:

―451. The Law Commissioners observe that Clauses

361 and 362 relate to an odious class of offences,
respecting which it is desirable that as little as possible
should be said. They therefore leave the provisions
proposed therein without comment to the judgement of
the Governor-General in Council. Mr. A.D. Campbell in
concurrence with Mr. Blane, censures the false delicacy
which has in their opinion caused a most improper
ambiguity in these clauses, leaving it uncertain whether
they apply to the mere indecent liberties, or extend to
the actual commission of an offence of the nature
indicated.
 21
452. It appears to us clear enough, that it was meant to
strike at the root of the offence by making the first act
tending to it liable to the same punishment, if the judge
shall deem it proper, as the offence actually
accomplished. This is a new principle, and it would
have been better if the commissioners had explained
for what reason they adopted it, in respect to the
offences here contemplated in particular. We conceive
that there is a very weighty objection to the clauses in
question, in the opening which they will afford to
calumny, if for an act so slight as may come within the
meaning of the word ―touches‖, a man may be exposed
to such a revolting charge and suffer the ignominy of a
public trial upon it.

453. Colonel Sleeman advises the omission of both

these clauses, deeming it most expedient to leave
offences against nature silently to the odium of society.
It may give weight to this suggestion to remark that the
existing law on this subject is almost a dead letter, as
appears from the fact that in three years only sex cases
came before the Nizamut Adawlut at Calcutta, although
it is but too true, we fear that the frequency of the
abominable offence in question ―remains‖, as Mr. A.D.
Campbell expresses it, a ―horrid stain upon the land‖

454. Mr. Livingstone, we observe, makes no mention of

offences of this nature in his code for Louisiana, and
they are omitted in the revised Statutes of
Massachusetts, of which the Chapter ―of offences
against the Lives and Persons of Individuals‖ is
appended to the 2nd Report of the English Criminal Law
Commissioners. By the French Penal Code, Offences
of this description do not come within the scope of the
law, unless they are effected or attempted by violence,
except the sufferer be under the age of ten years.‖
[pages 65C-65D of Compilation - Volume 1]

32. The Indian Penal Code became an Act of the (British) Governor-

General in (his all British Legislative) Council on October 6, 1860.

The final version of Section 377 retained the caption ―Unnatural

 22
offences‖, but merged the two offences in the 1837 draft

(presumably because consent was later deemed irrelevant) into a

different offence of ―carnal intercourse against the order of

nature‖. This offence was different than the 1837 draft, because it

required some form of penetration, as opposed to mere

―touching‖. Compared with the 1828 offence of ―buggery‖, Section

377 was potentially broader depending on what interpretation the

Courts would give to ―carnal intercourse against the order of

nature‖.

33. This provision was based upon traditional Judeo-Christian moral

and ethical standards, which conceived of sex in purely functional

terms, that is, only for the purpose of procreation. Any carnal sex

involving a penile penetration but which was non-procreative was

abhorred, viewed as a sin and being ―against the order of nature‖.

Since only penile-vaginal sexual activity is procreative, all penile

penetrative sexual activity, other than penile-vaginal, between

both man and man; man and woman and between man/woman

and an animal, is considered to be ―against the order of nature‖

and thus criminally proscribed under Section 377.

34. Prior to the British rule in India, there was no law criminalizing

sexual practices per se. Indian society has all along been more

tolerant than others, including on the issue of sexuality.

Criminalisation is in fact a western import. Ironically, although the

English law was reformed in Britain by the Sexual Offences Act of

1967, Section 377 still remains on the statute books in India and

is now seen by some as part of Indian values and mores.

35. As Section 377 was left undefined as ―carnal intercourse against

the order of nature‖, it later led to the expansion in the meaning of

the term way beyond the common law understanding.

 23

V. INTERPRETATION OF SECTION 377

A. Textual Reading

36. Section 377 of the Indian Penal Code, 1860 (hereinafter

referred to as ―IPC‖) is placed in Chapter XVI of the IPC. It

reads as follows:

―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.‖

37. It is important to advert to two other provisions of the IPC,

viz. Sections 375 and 497, IPC.

38. The relevant portion of Section 375 of the IPC reads as

follows:

―375. Rape.—A man is said to commit ―rape‖ who,

except in the cases hereinafter excepted, has sexual
intercourse with a woman under circumstances falling
under any of the six following descriptions:—

……

Explanation.—Penetration is sufficient to constitute the

sexual intercourse necessary to the offence of rape.

Exception.—Sexual intercourse by a man with his own

wife, the wife not being under fifteen years of age, is
not rape.‖

39. Section 497 of the IPC reads as follows:

―497. Adultery.—Whoever has sexual intercourse with

a person who is and whom he knows or has reason to
believe to be wife of another man, without the consent
 24
or connivance of that man, such sexual intercourse not
amounting to the offence of rape, is guilty of the offence
of adultery, and shall be punished with imprisonment of
either description for a term which may extend to five
years, or with fine, or with both. In such case the wife
shall not be punishable as an abettor.

40. The key elements of Section 377 are analysed below:

“Unnatural offences”:

(a) The marginal note refers to the acts proscribed as

―unnatural offences‖. This expression, however, is
not used in the text of section 377.

(b) The expression ―whoever‖ in Section 377 can be a

man or a woman. It cannot be an animal as
voluntariness has to be associated with the human,
covered by the expression ―whoever‖.

(c) The expression ―whoever‖ in Section 377 refers not

only to a penetrating person, but also to the person
who is penetrated.

(d) The expression ―man, woman or animal‖ that

appears later, means that the carnal intercourse
could be had with any man, woman or animal.

(e) On the other hand, Section 376 IPC makes it

explicitly clear that the offence of rape can only be
committed by a man on a woman.

(f) The expression ―whoever‖ in Section 497 IPC

necessarily refers only to man.

“Voluntarily”:

(a) The expression ―voluntarily‖ is used as opposed to

the term ―consent‖.

(b) ―Voluntarily‖ denotes willingness. A person, e.g. a

child, may be willing but is unable statutorily to
consent.

(c) A voluntary act by a person requires only one

person. On the other hand, where the term
 25
―consent‖ is used, at least two persons are required.
However, consent is irrelevant for Section 377. So,
even if both parties consent, they could be
convicted.

(d) In light of judicial precedents, it will be shown that in

some cases, the passive partner is convicted as an
abettor. Contrarily, Section 497 of the IPC clearly
stipulates that the wife (the passive partner, whether
willing or unwilling) shall not be punishable as an
abettor.

(e) If a person is coerced, it takes away the element of

―voluntariness‖ and therefore the person cannot be
convicted.

(f) ―Voluntarily‖ would also denote the element of mens

rea for the offence.

“Carnal”:

(a) According to the Concise Oxford Dictionary (Ninth

edition 1995), the term ―carnal‖ means ―of the body
or flesh; worldly‖ and ―sensual, sexual‖.

(b) The expression ―carnal intercourse‖ is used in

Section 377, IPC as distinct from the expression
―sexual intercourse‖, which appears in Sections
375 and 497, IPC. The expression, ―carnal
intercourse‖ is broader than ―sexual intercourse‖.

(c) All the three sections presuppose that act of carnal

intercourse that ―penetration is sufficient to
constitute carnal intercourse.‖ This is in contrast to
the full act of sexual or carnal intercourse, which
would mean the discharge of semen. This would
imply that the penetration contemplated in all the
three sections is that of the penis and even that
partial penetration would be sufficient. Non-penile
penetration does not come within the purview of
―penetration‖ in 375 or 377 or 497, IPC.

(d) Section 375 and 497, IPC on the one hand and
Section 377, IPC on the other operate in different
fields. Section 375, IPC explicitly applies only to
intercourse between a man and a woman.
 26
Therefore, the expression ―sexual intercourse‖ is
―penile-vaginal sex‖.

(e) The expression ―carnal intercourse‖ is all sexual

acts other than penile vaginal. This is further
evident from the expression ―against the order of
nature‖ used in Section 377, IPC.

(f) ―Against the order of nature‖: The expression

―carnal intercourse against the order of nature‖
refers to penile- non-vaginal sexual acts that do not
result in procreation.

“Explanation”: The explanation stipulates that penetration is

sufficient to constitute carnal intercourse. As has been judicially

interpreted, and also in the context of Section 375, IPC,

penetration, as opposed to the full act of sex coupled with seminal

discharge, is required for the offence to be committed. Even

partial penetration would do.

41. Section 377 also proscribes carnal intercourse [consent being

irrelevant] with a woman and penalises it with imprisonment of up

to 10 years or life imprisonment. No exception is carved out.

Therefore, a husband can also be punished for carnal

intercourse, against the order of nature, with his wife.

42. Section 375 suggests that a husband can have sexual intercourse

with his wife who is 15 years and above. Section 497 proscribes

sexual intercourse with a married woman and penalises it with

imprisonment up to 5 years. The only exception to Section 497 is

where sexual intercourse is with husband‘s consent or

connivance. A husband can only consent to sexual intercourse by

someone with his wife. There is no question of consent to carnal

intercourse with his wife (which he himself cannot engage with his

wife).
 27
VI. JUDICIAL INTERPRETATION OF SECTION 377

43. The acts covered under Section 377:

a. Initially oral sex was held not to be covered by Section 377

[Govt. v. Bapoji Bhatt 1884 (7) Mysore LR 280, para nos.

281 and 282 at page 66 – 70 of Compilation - Volume 1]

b. Later, however, oral sex was included within the ambit of

Section 377 [Khanu v. Emperor 1925 Sind 286, para 2 at

page 286]. Therefore, in addition to anal sex, oral sex came

to be covered under Section 377.

c. Subsequently, several other acts were held to be covered

under Section 377:

i) Coitus per nose of a bullock [Khandu v. Emperor AIR

1934 Lahore 261 at page 262]

ii) Intercourse between the thighs of another (intra crural)

[State of Kerala v. Kundumkara Govindam 1969 Cri LJ

818 at paras 18 – 22]

iii) Acts of mutual masturbation [Brother John Antony v.

State 1992 Cri LJ 1352 at paras 18, 20 – 24]

iv) Penetration into any orifice of anyone‘s body except the

vaginal opening of a female [State of Gujarat v.

Bachmiya Musamiya 1998 (3) Guj L.R. 2456 at para 48].

44. The underlying rationale for holding acts as covered under

Section 377 has also undergone change over the years:

a. Initially a procreative test was used, whereby acts which do

not have the possibility of conception of human beings were

sought to be covered. [Khanu v. Emperor at para 2; Lohana

Vasanthlal v. State, AIR 1968 Guj 352 at para 9]

b. Subsequently, an imitative test was formulated, that is, when

acts of oral and anal sex become imitative of and replace the
 28
desire of sexual intercourse. [Lohana Vasanthlal v. State at

para 6-9]

c. Even later, a test of sexual perversity/ immorality/ depravation

of mind was sought to be used. [Fazal Rab Choudhary v. St.

of Bihar, AIR 1983 SC 323 at para 3; Mihir @ Bhikari

Charan Sahu v. St. of Orissa, 1991 Cri LJ 488 at paras 6

and 9; Khandu v. Emperor at page 262]

45. Similarly, even in cases of orifices, whereas earlier the natural

orifices of a human body, excluding the vagina, that is the anus

and the mouth, were considered necessary to be penetrated for

the purpose of attracting Section 377, in later judgments, the

orifice could be created artificially by the human body such as

thighs joined together, the palm folded etc.

46. Penetration has to be by the human penis. Penetration is enough

to constitute the offence. Completion of the act, or seminal

discharge is not necessary. [Noshirwan Irani v. Emperor AIR

1934 Sind 206 at page 208; Lohana Vasanthlal v. State at para

6]

47. As submitted herein above, consent is immaterial under Section

377.

48. Though facially neutral and ostensibly applying to both

heterosexual persons and homosexual men, an analysis of

judgments on Section 377 shows that over the years,

heterosexual couples have been practically excluded from the

ambit of Section 377 while primarily targeting homosexual men

on the basis of their ‗association‘ with proscribed acts.

 29
49. As noted before, the interpretation of ‗carnal intercourse against

the order of nature‘ in India has become very uncertain and wide,

due to lack of any precise legal definition. In this regard, a

comparative perspective might be helpful. In Malaysia, Section

377A of the Penal Code, 1936 provides that:

―377A. Any person who has sexual connection with

another person by the introduction of the penis into the
anus or mouth of the other person is said to commit
carnal intercourse against the order of nature.

Explanation—Penetration is sufficient to constitute the

sexual connection necessary to the offence described
in this section.

50. Most hitherto colonies under British rule also have a provision

prohibiting acts of gross indecency between males or between

persons. In Saint Lucia, Section 132 (4) of the Criminal Code

defines ―gross indecency‖ as:

―an act other than sexual intercourse (whether natural

or unnatural) by a person involving the use of the
genital organs for the purpose of arousing or gratifying
sexual desire.‖

51. In contrast to carnal intercourse against the order of nature that

covers anal sex and oral sex, acts of gross decency are broader

in scope. Most sodomy laws are the legacy of the colonial British

rule, especially the laws on buggery (The Punishment of the Vice

of Buggery, 1533), carnal intercourse against the order of nature

(Offences against the Person Act, 1861) and acts of gross

indecency (The Criminal Law Amendment Act, 1885).

52. Below is the summary of some key cases decided under Section

377 IPC:
 30
S.
Citation Held
No.
1 Govt. v. Bapoji Bhatt Oral sex did not constitute the offence under
1884 (7) Mysore LR 280 Section 377.
2 Queen Empress v. A habitual sodomite cannot be prosecuted
Khairati under Section 377 without proving that he
1884 ILR 6 ALL 204 committed the acts covered under Section 377.
3 Khanu v. Emperor 1925 Oral sex is covered under Section 377 because
Sind 286 there is no possibility of conception of human
beings and hence is an act against the order of
nature.
4 Khandu v. Emperor Followed reasoning in Khanu‘s case and held
AIR 1934 Lahore 261 that Coitus per nose of a bullock is covered
under Section 377. Observations that it was a
depraved act and a degrading example of
sexual immorality.
5 Nowshirwan Irani v. Penetration, however little should be proved
Emperor strictly. A mere preparation to commit sodomy
AIR 1934 Sind 206 should not be seen as an attempt
6 D.P. Minwalla v. Before a conviction under Section 114 and
Emperor Section 377 can be recorded, it must be
AIR 1935 Sind 78 proved, both that the offence was committed
and abettor was present. If, however, the
magistrate‘s conclusion is that accused is guilty
of no more than an attempt, the conviction of
abettor who is present should be under Section
377 read with Section 116 IPC.
7 Lohana Vasanthlal Mere penetration is enough, seminal discharge
Devchand & Ors. v. The is not necessary.
State, Oral sex is against the order of nature as there
AIR 1968 Guj 352 is no possibility of conception of human beings
and is covered by Section 377
When cunnilinctus or fellatio is used as a
prelude to sexual intercourse then it would not
be covered by Section 377. However when
they become imitative of and replace the desire
of sexual intercourse it becomes a ‗perversion‘
and punishable under Section 377
8 St. of Kerala v. Intercourse between the thighs of another is
Kundumkara Govindan carnal intercourse against the order of nature
& Anr, 1969 Cri LJ 818 covered by Section 377
 31
9 Grace Jayamani v. E.P. Husband would be guilty of committing sodomy
Peter against his wife if she is not a consenting party
AIR 1982 Karnataka 46 and the wife would be entitled to divorce
10 Fazal Rab Choudhary v. The offence (oral sex) is one under Section 377
St. of Bihar, AIR 1983 which implies sexual perversity
323
11 Mihir @ Bhikari Charan The offence of anal sex is one relating to
Sahu v. St. of Orissa, perversity and depravation of mind and
1991 Cri LJ 488 covered by Section 377.
12 Brother John Antony v. Acts fall into two categories of sexual
The State perversions a) oral sex and b) manipulation
1992 Cri LJ 1352 and movement of penis of accused whilst being
held by victims in such a away as to create an
orifice like thing for making manipulated
movement of insertion and withdrawal till
ejaculation of semen – both categories fall
under Section 377.
13 Calvin Francis v. St. of Oral sex is covered under Section 377. Orifice
Orissa of the mouth is not according to nature, meant
1992 (2) Crimes 455 for sexual or carnal intercourse.
14 Biren Lal v. St of Bihar Preparation to commit offence not covered by
1992 (2) Crimes 286 Section 377. There is no allegation of
penetration.
15 St of Gujarat v. Since Section 377 does not specify any
Bachmiya Musamiya particular opening to which penetration can be
1998 (3) Guj L.R. 2456 made, penetration into any orifice of one‘s body
except the vaginal opening of a female is
sufficient for establishment of the crime.
16 Azadi Bachao Andolan Homosexuality is sexual perversity and
v. All India Radio & Ors. repulsive sex. The programme encourages and
13/10/97, Metropolitan propagates homosexuality. The law calls it a
Magistrate Delhi crime and horrified condemnation and
psychiatry calls it sickness….it may be carried
out clandestinely and in privacy by few but
cannot be permitted to get encouragement and
public support.

The full list of cases decided by the Courts under Section 377 is at
pages 81 – 90 of Compilation – Volume 1.
 32
VII. THE IMPACT OF SECTION 377

53. The criminalisation under Section 377 has far reaching

consequences. The impact is invidious at a deep level, severely

restricting the right to dignity, personhood and identity, privacy,

equality and right to health of homosexual men. The restriction

imposed by Section 377 imposes an unequal burden on

homosexual men and impacts homosexual persons as a class.

Section 377 criminalises all forms of sexual intercourse between

homosexual men as opposed to some forms of sexual intercourse

between heterosexual persons and therefore, impacts homosexual

men disproportionately as a class

54. It is submitted that it is clear from the historical underpinnings and

judicial interpretation of Section 377 that it proscribes all sexual

acts which are penile-non-vaginal. As penetrative sexual acts

between men are essentially penile-non-vaginal, in effect, Section

377 criminalises all forms of sexual acts of homosexual men.

Homosexual orientation is an innate and immutable characteristic

of homosexual persons but the expression of that sexuality is

criminalized by Section 377.

Section 377 is associated with homosexuals and extends from

criminalizing “acts” to criminalizing “identity”

55. It is further submitted that although, technically, Section 377

criminalises the ‗act‘ and not the ‗identity‘, it ends up criminalizing

the ‗identity‘ as well since it is predominantly

homosexual/transgender persons who are associated with the

sexual practices proscribed under Section 377. In broader

society, heterosexuals are not associated with such sexual

practices. For this reason, Section 377 is largely applied to

homosexuals. Once ‗acts‘ proscribed are associated with an

 33
‗identity‘, the threat of criminalisation extends to the ‗identity‘ as

well.

In the case of National Coalition for Gay and Lesbian Equality

v. the Minister of Justice & Ors.,1998 (12) BCLR 1517 (CC),

the Constitutional Court of South Africa while holding that

criminalisation of sodomy violates, inter alia, the dignity of

homosexual men, observed that:

― The common law prohibition on sodomy

criminalises all sexual intercourse per anum between
men: regardless of the relationship of the couple who
engage therein, of the age of such couple, of the
place where it occurs, or indeed of any other
circumstances whatsoever. In so doing, it punishes a
form of sexual conduct, which is identified by our
broader society with homosexuals. Its symbolic
effect is to state that in the eyes of our legal system
all gay men are criminals. The stigma thus attached
to a significant proportion of our population is
manifest. But the harm imposed by the criminal law
is far more than symbolic. As a result of the criminal
offence, gay men are at risk of arrest, prosecution
and conviction of the offence of sodomy because
they seek to engage in sexual conduct, which is part
of their experience of being human. Just as
apartheid legislation rendered the lives of couples of
different racial groups perpetually at risk, the sodomy
offence builds insecurity and vulnerability into the
daily lives of gay men. There can be no doubt that
the existence of a law which punishes a form of
sexual expression for gay men degrades and
devalues gay men in our broader society. As such it
is a palpable invasion of their dignity…‖ [para 28 at
page 295 of Compilation – Volume 6]

56. As can be shown from the below mentioned cases, Section 377 is

used against not only men who are actually caught in the act, but

also those who give the appearance of being homosexual and

 34
therefore likely to commit the act. This has legitimised the manner

of police harassment and abuse of homosexual men.

a. In Queen Empress v. Khairati 1884 ILR 6 ALL 204, a

transgender person was arrested and prosecuted under

Section 377 on the suspicion that he was a habitual

catamite.

b. In Noshirwan v. Emperor, having seen two young

men, both adults, walking into the house of one of

them, Solomon, the neighbour, peeped ―through a

chink in the door panels‖ and noticed that the two were

attempting to commit sodomy. He walked into the

house and forced them both to the police station. The

two accused were released and their conviction set

aside as the act of the sodomy was never completed,

although the judge did reprimand one of the men,

Ratansi, as a ―despicable‖ specimen of humanity for

being addicted to the ―vice of a catamite‖ on his own

admission. Here once again we come to association of

the person – a catamite, with the act, rather than the

act in isolation.

57. The privacy of heterosexual relationships especially marriage, are

clothed with a veil of legitimacy while homosexual intimacies

invite societal disapproval and are subjected to scrutiny. Further,

Section 377 has been interpreted in a way to limit its application

only to same sex sexual intimacies and to exclude heterosexual

adult consensual sexual intimacies from its purview.

a. In the case of Govindrajulu, in re, (1886) 1 Weir 382,

the Court held that oral sex between a man and a

woman is not covered by Section 377.

 35
b. Further in Grace Jayamani v. E. Peter, AIR 1982,

Karnataka 46, in a divorce petition of the wife against

the husband on the ground of non-consensual oral and

anal sex, the Court held that if the wife consented to

oral and anal sex then the husband will not be guilty of

sodomy. Thereby, bringing in the element of consent

under Section 377 for heterosexual couples, which is

otherwise absent for male-male sex.

c. Also, the imitative test laid down in Lohana Vasantlal

Devchand v. State, AIR 1968 Guj 252, which opines

that acts of oral sex done as a prelude to sexual

intercourse will not be covered under Section 377 is

designed to keep heterosexual sexual relationships out

of Section 377, as the reasoning flows from the

assumption that after oral sex as a prelude, a couple

will engage in penile-vaginal sexual intercourse, which

is not possible in male-male sex.

Section 377 denies a fundamental human experience to

homosexual men

58. Sexual intimacy is a core aspect of human experience and is

important to mental health, psychological well being and social

adjustment. By criminalising sexual acts engaged in by

homosexual persons, Section 377 denies them the very

opportunity to participate in a profound and fundamental aspect of

human experience. The effect is that homosexual persons either

deny themselves a basic human experience to avoid committing a

―crime‖ or otherwise engage in sexual acts and become liable for

prosecution under Section 377. It, therefore, denies them the right
 36
to form private intimate sexual relationships, which is otherwise

available to heterosexuals.

Section 377 exposes homosexual persons to disproportionate risk

of prosecution and harassment by police

59. The paradigm which associates Section 377 with homosexuals

has been set by the judicial interpretation and is applied by State

machinery of law enforcement, the police.

60. Section 377 has been used to harass, intimidate, blackmail, rape

and torture homosexual men in India. There have been numerous

reported instances of harassment against homosexual men by

the law enforcement and private non-state actors. The police

harassment takes the form of extortion, entrapment, illegal

detention, abuse and outing the identity of homosexual men. [See

A PUCL-K fact finding report about Bangalore: Human Rights

Violation against sexuality minorities in India, 2001at page 13 in

Compilation – Volume 5; ―Structural Violence Against Kothi-

Identified Men Who Have Sex With Men in Chennai, India‖: A

Qualitative Investigation, Venkatesh Chakrapani et al., 2007, at

pages 30 -48 in Compilation – Volume 4; A Survey of MSM HIV

Prevention Outreach Workers in Chennai, India, Steven A. Safren

et al, 2006, at pages 19 - 21 in Compilation - Volume 4].

61. Some specific incidents of police harassment are listed herein

below:

a. Lucknow 2001

On 07.07.2001, an FIR was filed in the Hazratganj Police

Station, by one Mr. Rajesh complaining that he had been

sexually assaulted by an unknown individual [See FIR dated

7.07.2001 at pages 45-46.in Compilation - Volume 5]. On the

 37
basis of this FIR, the Lucknow police raided a park, which was

frequented by homosexual persons and arrested some

people. One amongst the arrested was an outreach worker

from an NGO called the Bharosa Trust. Thereafter, the Police

raided the offices of two NGOs, Bharosa Trust and Naz

Foundation International (NFI). Bharosa Trust works in the

field of HIV/AIDS intervention with homosexual persons in

Lucknow. While NFI is a UK based International agency that

has its South Asia Liaison office in Lucknow to provide

technical support for development of projects addressing HIV

issues with reference to homosexual persons. The police

arrested four outreach workers and staff working with Bharosa

Trust and NFI, beat them up in the police station and sealed

the office of NFI. They also seized literature and materials

used for educating homosexual persons on ‗prevention of risk

of acquiring / transmitting HIV‘.

The arrested staff members were charged with criminal

conspiracy (Section 120B) to commit unnatural offences under

Section 377, abetment (Section 109), sale of obscene books

(Section 292) etc. the police failed to produce any evidence to

support the charge of criminal conspiracy to commit unnatural

offence (Section 377) against the arrested outreach workers.

Even the medical report disclosed by the police clearly stated

that no clear case of sodomy has been made out. Despite lack

of evidence, Chief Judicial Magistrate and the Sessions Court

denied them bail on the ground that they were a ‗curse on

society‘ [See Order of Court of Sessions and order of Chief

Judicial Magistrate denying bail at pages 47-48 and 49-50

respectively in Compilation – Volume 5]. The outreach

workers were incarcerated for a total of 45 days.

 38
It is pertinent to point out that both the NGOs were functioning

within the policy of NACO and the Ministry of Heath and

Family Welfare (MoHFW) on HIV prevention programmes with

high-risk groups like, homosexual men. [See Epidemic of

Abuse: Police Harassment of HIV/AIDS Outreach Workers in

India, Human Rights Watch, July 2002, at pages 56 - 58.of

Compilation - Volume 5].

b. Lucknow 2006

On 04.01.2006, the national and regional newspapers

reported that four homosexual men were caught allegedly

having sex in public in Lucknow and arrested under Section

377. As per an FIR lodged by the Lucknow police at Gudamba

police station on 4 January 2006 at 12.40 am, they arrested 4

men, Nihal Naqvi, Pramit Bailey, Ashutosh Khanna and

Pankaj Gupta, on charges of violation of Section 377. The four

men were supposedly engaging in `unnatural sex' in a picnic

spot and were arrested. However, a fact finding conducted by

the National Coalition for Sexuality Rights (NCSR), noted that

‗it was clear that none of the men arrested engaged in public

sex and were not even present at the spot of the alleged

crime.‘ The fact finding team arrived at this conclusion by

talking to various parties concerned. There was no

independent witness and no medical evidence to prove that

such an act had indeed been committed. The fact gathered

revealed that the police arrested one man on 3rd January at

his home. The police then forcibly obtained from him names

and numbers of other men mentioned in the FIR. On the

following day, he was forced to call the other men and request

them to meet him at one restaurant. The men were arrested

by the police when they turned up in the restaurant. This was

 39
a clear case of entrapment. A point to note is that the FIR was

lodged a full 10 hours before the men were arrested due to

entrapment. All the four men were beaten in custody and

made to sign blank papers. [see A Preliminary Report of the

Fact Finding Team on the Arrest of Four Men in Lucknow

Under Section IPC 377, at pages 62-69 .in Compilation -

Volume 5].

Criminalisation under Section 377 creates a culture of silence

and intolerance in society and perpetuates stigma and

discrimination against homosexual persons

62. Criminalisation under law radiates out into society translated as

stigma and discrimination in the public and private sphere and

perpetuates the social perception that homosexuality is illegal and

abnormal. In the culture of heteronormativity, there is no space for

homosexual persons in society beginning from their homes.

Studies have documented that homosexual persons are reluctant

to reveal their sexuality to their parents and family for the fear that

they will not be accepted. In some cases, where they have

confided in their parents/family, they have faced denial, shock

and rejection. Some have even been beaten, locked up and

pressurized to ‗change‘ their sexuality to conform to

heteronormativity. Sometimes parents forcefully get their children

married in a bid to cure their ‗abnormal‘ sexuality. [See A PUCL-K

fact finding report about Bangalore: Human Rights Violation

against sexuality minorities in India, para no. 3.1 at pages.18 -19

in Compilation – Volume 5]
 40
Criminalisation under Section 377 and the concomitant social

prejudice results in homosexual persons being subjected to

forced conversion therapies

63. It is submitted that criminalisation under Section 377 coupled with

the social opprobrium that it perpetuates have resulted in several

homosexual persons being forced to submit to conversion

therapies in a bid to change their sexual orientation. In several

instances, homosexual persons have been forcibly taken to

mental health professionals by parents to change the sexual

orientation of their homosexual children as they regard

homosexuality as a disorder, which can be ‗cured‘.

64. It is pertinent to point out that homosexuality is no longer

considered a disease or mental disorder and is instead

recognised as an alternative variant of human sexuality and an

immutable characteristic which cannot be changed. The American

Psychiatric Association (APA) removed homosexuality from its list

of disorders in Diagnostic and Statistics Manual IV (DSM – IV) in

1973. The Resolution stated that ―homosexuality per se implies

no impairment in judgment, stability, reliability or general social or

vocational capabilities.‖ [See position statement of APA,

Homosexuality and Civil Rights, December 1973 at page 70 in

Compilation - Volume 5]. Similarly, the World Health Organisation

also removed homosexuality as a disorder from International

Classification of Diseases (ICD-10) in 1992. The ICD-10 reads,

―disorders of sexual preference are clearly differentiated from

disorders of gender identity, and homosexuality in itself is no

longer included as a category‖ [See relevant extract of ICD – 10

at second paragraph at page 72 in Compilation - Volume 5]. Both

these systems of classification are followed internationally and in

India as well.
 41

65. In addition to removing homosexuality from the list of disorders,

the American Psychiatric Association has issued additional

position statements opposing criminalisation of adult consensual

same–sex relations [See APA position statement on

homosexuality, December 1992 and reaffirmed in July 2011 at

page 73 in Compilation - Volume 5] and opposing any psychiatric

treatment, such as ―reparative‖ or conversion therapy, which is

based on the assumption that a patient should change her/his

sexual homosexual orientation [See APA Position Statement:

Therapies Focused on Attempts to Change Sexual Orientation

(Reparative or Conversion Therapies), May 2000, at pages 74-75

in Compilation Volume 5].

66. The American Psychological Association (APA) has also issued

position statements endorsing the stand of the American

Psychiatric Association on removing homosexuality as a mental

disorder in 1973 [See Resolution of American Psychological

Association dated 24 – 26 January 1975 at page 76 in

Compilation - Volume 5]. It has also issued resolution on

appropriate and affirmative therapeutic responses to sexual

orientation [See Appropriate Affirmative Responses to Sexual

Orientation Distress and Change Efforts, 5 August 2009, at pages

77 – 81 in Compilation - Volume 5].

67. The American Psychiatry Association and the American

Psychological Association had together filed an amicus brief in

Lawrence v. Texas, 539 US 558. [See Amicus brief in Lawrence

v. Texas at pages 82 – 116 in Compilation - Volume 5]. The amici

submitted the brief to describe the empirical research from the

social and behavioural sciences pertaining to sexuality, sexual

 42
orientation and the social psychology of prejudice. The research

demonstrated the harm from and the groundless assumptions

behind laws criminalizing same-sex sexual acts. The main points

of their submission can be summarized as herein below:

a. Homosexuality is a normal form of human sexuality;

b. An individual‘s sexual orientation appears to emerge between

middle childhood and early adolescence;

c. Sexual orientation is an immutable characteristic and cannot

be changed;

d. Suppressing sexual intimacy among same-sex partners would

deprive gay men and lesbians of the opportunity to participate

in fundamental aspects of human experience;

e. Criminalisation reinforces prejudice, discrimination and

violence against gay men and lesbians;

f. Criminalisation causes concealment of orientation, self-denial

and psychological distress;

g. Criminalisation discourages homosexuals from seeking legal

redress, which will require disclosing their sexual orientation.

68. Homosexual persons are still treated by some doctors in India as

persons with disease and at times are subject to Electro-

Convulsive Therapy (ECT) without consent because of parental

pressure.

69. An Indian study, Medical Response to Male same – sex Sexuality

in Western India: An exploration of ‗Conversion Treatments for

Homosexuality, reveals that many young homosexual persons

are forced to submit to ‗conversion/reparative‘ therapies and that

many mental health professionals attempt a ‗conversion‘ therapy

due to pressure from families and society. The study shows that

some mental health professionals in India still consider

 43
homosexuality to be a disease and attempt to change it, while

some who earlier did ‗conversion‘ therapies discontinued with it

because they had reservation about its efficacy and did not think

it right to treat homosexuality per se. [See at page 117-150 of

Compilation - Volume 5].

70. It is submitted that there is an irreconcilable contradiction in

treatment of homosexual sexual acts by medical science and by

legal provision of Section 377. On one hand, medical science

treats homosexuality as a positive variant of human sexuality and

manifestation of that sexuality in oral and anal sex, as normal. On

the other, Section 377 criminalises oral and anal sex between

men. If homosexual sexual orientation is recognized as normal

then its expression in only ways possible, i.e. oral and anal sex

cannot be continued to be criminalized.

Effect of Criminalisation in the area of Employment

71. Criminalisation driven stigmatisation and discrimination against

homosexual persons is witnessed in the area of employment as

well. A person convicted for engaging in adult private consensual

sexual acts, will be ineligible for several government jobs that

disqualify persons who have been convicted for an offence

involving moral turpitude.

a. One incident that drives home the invidious

discrimination against homosexuals is that of late Prof.

Shrinivas Ramchandra Siras, Reader and Chair of the

Department of Modern Indian Languages at Aligarh

Muslim University (AMU), who identified as

homosexual. On 08.02.2010, three persons claiming to

be television reporters broke into the deceased

Professor‘s home and photographed him with a male

 44
partner. Prof. Siras was suspended on grounds of

alleged immoral sexual conduct, which undermined ―the

pious image of the teacher community and tarnished

the image of the University.‖ Subsequently, the

Allahabad High Court stayed the suspension. [See Dr.

Shrinivas Ramchandra Siras & Ors. v. The Aligarh

Muslim University & Ors, Civil Misc. Writ Petition

No.17549 of 2010, Order dated 01.04.2010 at page 151

– 156 in Compilation - Volume 5]. Prof Siras however,

died under mysterious circumstances two days after the

Court‘s order.

b. In the case of Jamil Ahmed Qureshi v. Municipal

Council Katangi & Ors, 1991 Supp (1) SCC 302 at

para 6, a person who had been convicted and

sentenced under Section 377 had not disclosed this

fact while applying for a job. When the employer found

out later, he was dismissed from his service. The Court

held, that ―appellant having been convicted for offence

involving moral turpitude was ineligible under the Rules

for being appointed in the service.‖

Section 377 impacts the right to health of homosexual persons

psychological harm

72. Section 377 and the resultant stigma and discrimination causes

severe mental and psychological health issues with homosexual

persons. The tag of criminality associated with homosexuality

causes distress and confusion among homosexual persons.

Many homosexuals live in self denial or conceal their sexual

orientation. The attempt to conceal or deny their sexuality causes

immense psychological distress. The rejection by family, forced

conversion therapies and prejudice in society, reinforces the

 45
―shame‖ and ―abnormality‖ associated with homosexuality and

can often result in psychological problems and self-destructive

behavior. [See PUCL Report, 2001, para 4 at page 26 in

Compilation - Volume 5; APA amicus brief in Lawrence v. Texas

at pages 111-112 in Compilation - Volume 5],

In the case of National Gay & Lesbian Coalition, [para 23 at

page 292 in Compilation – Volume 6], Ackermann J. observes

that:

―The European Court of Human Rights has

correctly, in my view recognized the often serious
psychological harm for gays which results from
such discriminatory provisions‖.

Ackerman J further quoted with approval from Norris v. Republic

of Ireland (1991) 13 ECHR 186 at para 21 [See Norris v. Ireland,

para 21 at page 50 in Compilation – Volume 6]:

―one of the effects of criminal sanctions against

homosexual acts is to reinforce the
misapprehension and general prejudice of the
public and increase the anxiety and guilt feelings of
homosexuals leading, on occasions, to depression
and the serious consequences which can follow…‖

Sachs J. further observes in para 127 that [at page 390 in

Compilation - Volume 6]:

―in the case of gays, history and experience teach

us that the scarring comes not from poverty or
powerlessness, but from invisibility. It is the tainting
of desire, it is the attribution of perversity and
shame to spontaneous bodily affection. It is the
prohibition of the expression of love. It is the denial
of full moral citizenship in society because you are
what you are, that impinges on the dignity and self-
worth of a group.‖
 46
In the case of Vriend v. Alberta, (1998) 1 S.C.R. 493, [para 102

at page 361 in Compilation – Volume 7], Cory J. observes that:

―Perhaps most important is the psychological harm

which may ensue from this state of affairs. Fear of
discrimination will logically lead to concealment of
true identity and this must be harmful to personal
confidence and self-esteem. Compounding that
effect is the implicit message conveyed by the
exclusion, that gays and lesbians, unlike other
individuals, are not worthy of protection…‖

Section 377 prevents sexual and reproductive health information

and services

73. Section 377 imposes a culture of silence and invisibility around

issues of homosexuality. Initiatives to spread awareness and

correct information about homosexual sexual practices and

initiatives to promote safer sex between them have been seen as

encouragement to the offence under Section 377.

a. Two education and awareness programmes on issues of

‗sexual and reproductive health‘ aired on the All India

Radio were seen as ‗obscene‘ and conflicting with Section

377 and were hence discontinued. Upon a complaint, the

Chief Metropolitan Magistrate, Delhi took cognizance of

an offence under Section 292, IPC. Among other

information, the programmes gave information on safer

sex practices for gay men in a non-judgmental manner.

The Magistrate observed that the talk encourages and

propagates homosexuality, which the society treats with

jest, supercilious denial and horrified condemnation. He

further observed that the law called it a crime and

psychiatry calls it sickness. He further observed that the

law has classified homosexual intercourse as a crime

under Section 377 so even when the broadcaster gives

 47
hygiene information about such illegal act, it amounts to

encouraging it. [See Order dated 23 October 1997, pages

157 – 185, in Azadi Bachao Andolan Delhi Unit v. All

India Radio & Ors., at paras 72 – 80 and pages 181-183

in Compilation - Volume 5].

b. An Organization, Aids Bhedbhav Virodhi Andolan, filed a

writ petition in the Delhi High Court challenging the

constitutionality of Section 377. The immediate given

reason for filing the WP was the refusal by the Inspector

General of Prisons to distribute condoms in Tihar jail, as it

would amount to encouraging homosexuality which is a

crime under Section 377 [See W.P. No. 1784 of 1994, at

pages 186-202, paras 3-4 at page 187 – 188 in

Compilation - Volume 5]. The Inspector General (Prisons)

Tihar Jail filed a counter affidavit stating that ―isolated

cases of homosexuality are reported and action is taken in

each case on merits.‖ On the issue of condom distribution

for HIV prevention, she stated ―there is no HIV+ prisoner

in the jail…doctors regularly check prisoners for

HIV…whenever any such case is brought to the notice of

the concerned authorities, the prisoners are separated. In

the circumstances, there is no justification and legality for

supply of condoms in the prison as it will promote

homosexuality.‖ [See counter affidavit filed by Inspector

General Prisons, dated 10.09.1994 at pages 203- 206 in

Compilation - Volume 5]. NACO field an affidavit stating

that there is a need to distribute condoms in jails in order

to prevent the transmission of HIV [See counter affidavit

fled by NACO dated 21.09.1994 at pages 207-210 in

Compilation - Volume 5].

 48
Section 377 impedes prevention of transmission of HIV and poses

a threat to public health

74. In their written submissions, titled ―Concerns of Ministry of

Health‖, at pages 212 – 216 of Compilation – Volume 5, NACO

submits that

―Reluctance to reveal same sex behavior has

rendered risky sexual practices to go unnoticed and
unaddressed in MSM. The fear of harassment by
law enforcement agencies mostly leads to sex
being hurried, particularly because these groups
lack ‗safe place‘ and they often utilize public places
for their indulgence. They do not have the option to
consider safe sex practices. The hidden nature of
such groups hampers interventions under NACP
which is aimed at prevention of AIDS. This makes a
large section of MSM invisible and unreachable.‖
[paras 7-9 at page 213]

75. It will be shown in greater detail below, that the threat of

prosecution under Section 377 and the stigma/discrimination

perpetuated by it pushes homosexual men and transgender

persons underground and hampers their access to HIV

prevention services and tools leaving them vulnerable to HIV and

thereby violates their right to health under Article 21. It further,

makes the public health programmes on prevention of HIV

ineffective. As many homosexual men are married and are a

bridge population, failure in reaching them with information and

tools on safer sex and HIV prevention impacts the health of the

whole society.

VIII. PRINCIPLES OF INTERPRETATION OF FUNDAMENTAL RIGHTS

76. It is an established position of law that the fundamental rights

under the Constitution are to be interpreted in an expansive and

purposive manner and not in a narrow and pedantic fashion. Such

 49
liberal interpretation would invest fundamental rights with

significance and vitality and enhance the dignity of the individual

and the worth of the human person. [Francis Coralie Mullin v.

Administrator, Union Territory of Delhi, (1981) 1 SCC 608 at

para 6]

77. The Constitution is not an ephemeral legal document but a living

document intended to endure for ages. It cannot get fossilised or

atrophied in its time but has to remain flexible enough to meet the

newly emerging problems and challenges and to anticipate and

take into account changing conditions and purposes. [M. Nagaraj

v. Union of India (2006) 8 SCC 212 at para 19]

78. Further, fundamental rights under Articles 14, 19 and 21 are not

distinct or mutually exclusive but they have to be read together.

Each freedom has different dimensions and each has to stand the

test of other guaranteed freedom. The right to equality, under

Article 14, and the rights to dignity and privacy, under Article 21,

are interlinked and each of these rights has to be fulfilled for the

other rights to be truly effectuated. [Maneka Gandhi v. Union of

India (1978) 1 SCC 248 at paras 4-7 and 202]

79. It is also an established position of law that international law can

be used to expand and give effect to the fundamental rights

guaranteed by our Constitution. [V/0 Tractor Export v. Tarapore

& Co.1969 (3) SCC 562 at para 15; Jolly George v. Bank of

Cochin (1980) 2 SCC 360 at para 10; Gramaphone Company

of Indian Ltd v. Birendra Bahadur Pandey, (1984) 2 SCC 534

at para 5; Vellore Citizens Welfare Forum v. Union of India,

(1996) 5 SCC 647 at para 15; Vishakha & Ors. v. State of

Rajasthan & Ors. (1997) 6 SCC 241 at paras 7 and 10; People’s

Union for Civil Liberties v. Union of India & Anr. (1997) 1 SCC

301 at paras 20-26; People’s Union for Civil Liberties v. Union

 50
of India & Anr. (1997) 3 SCC 433 at para 13; Apparel Export

Promotion Council v. A.K. Chopra (1999) 1 SCC 759, at para

26-27; Pratap Singh v. State of Jharkhand (2005) 3 SCC 551 at

para 63-64; People’s Union For Civil Liberties v. Union of

India & Anr. [(2005) 2 SCC 436); Entertainment Network

(India) Ltd. v. Super Cassette Industries, (2008) 13 SCC 10 at

para 70-76, Smt. Selvi v. State of Karnataka (2010) 7 SCC 263

at para 236]

80. The International conventions, Universal Declaration of Human

Rights [(hereinafter ‗UDHR‘) at page 1 of Compilation – Volume

2], International Convention on Economic, Social and Cultural

Rights [(hereinafter ‗ICESCR‘) at page 9 of Compilation – Volume

2] and the International Convention on Civil and Political Rights

[(hereinafter ‗ICCPR‘) at page 17 of Compilation – Volume 2]

have been ratified by India and can be used to aid the

construction of fundamental rights.

81. In particular, both ICCPR and ICESCR have been domesticated

in India, via Section 2 of The Protection of Human Rights Act,

1993 that clearly provides that human rights that are enforceable

in India include the rights contained in both ICESCR and ICCPR.

Thus, the Indian courts can, apart from incorporating human

rights under ICPPR and ICESR into Fundamental Rights while

interpreting the fundamental rights, enforce human rights under

ICPPR and ICESR directly.

IX. SECTION 377 VIOLATES ARTICLE 21 OF THE CONSTITUTION OF

INDIA

82. Article 21 of the Constitution guarantees the right to life and

personal liberty to all persons. It is based on the premise that all

 51
human beings are born with certain inalienable rights like life,

liberty and happiness, which are fundamental for the realisation of

their full personality. Article 21 has been interpreted to include

rights to privacy, substantive due process, dignity and health,

amongst others that have been deemed central to the concept of

civilised existence in a democratic society.

83. By making sexual acts between consenting adults in private an

offence, Section 377 violates the rights of privacy, dignity and

health guaranteed under Article 21 of all persons and, in

particular, those of homosexual men.

Section 377 Violates the Right to Privacy of everyone including

Homosexual Men

84. The right to privacy has been held to be an integral component of

right to life and personal liberty under Article 21. The Constitution

creates and protects a zone of privacy within the realm of

personal liberty of all persons, including heterosexual and

homosexual persons, where the State cannot intrude into without

showing a compelling interest. This does not only mean

protection from direct violation, like domiciliary visits, arbitrary

search and seizures, etc, but also those acts, like intimate sexual

conduct, which the zone of privacy protects from the intrusion by

State.

85. The jurisprudence on right to privacy, first developed in the United

States, was later followed by this Hon‘ble Court in interpreting

Article 21 of the Constitution.

86. Right to privacy is also an entrenched part of international human

rights law. Article 17 of International Covenant on Civil and

Political Rights (ICCPR), 1966 provides that:

 52
―no one shall be subjected to arbitrary or unlawful
interference with his privacy, family, or
correspondence, nor to unlawful attacks on his
honour and reputation‖ (at page 23 of Compilation-
Volume 1)

Similar provisions exists in Universal Declaration of Human

Rights (Article 12 at page 4 of Compilation - Volume 1) and

European Convention on Human Rights, 1950 (Article 8 at page

42 of Compilation -Volume 1). India has ratified the ICCPR and

also domesticated the same by enacting the Protection of Human

Rights Act.

87. The right to privacy first developed in the US has been accepted

by this Hon'ble Court.

88. The right to privacy has evolved in United States from Griswold

v. State of Connecticut [381 US 479 (1965) (prohibition on the

use of contraceptives by married women) at pages 5-6 of

Compilation - Volume 7] to Eisenstadt v. Baird [405 US 438

(1972) (prohibition on use of contraception by unmarried woman)

at page 43 of Compilation-Volume 7] to Roe v. Wade [410 US

113 (1973) (prohibition on abortion per se for both single and

married women) at page 79 of Compilation-Volume 7]. In these

cases, the United States Supreme Court struck down these

statutes as unconstitutional and held that the fundamental

constitutional guarantees have created penumbras of zones of

privacy, whereby ―the sanctity of a person‘s home and the

privacies of life‖, is protected from State intrusion. This protected

zone of privacy includes ―only those personal rights that can be

deemed ‗fundamental‘ or ‗implicit‘ in the concept of ‗ordered

liberty‖. These rights include marriage, procreation, contraception,

 53
family relationships, child rearing and education [Roe v. Wade

(supra) at page 79 of Compilation-Volume 7].

89. This line of reasoning has been accepted by this Hon‘ble Court in

a number of cases. In Kharak Singh v. State of Uttar Pradesh

[(1964) 1 SCR 332 at para 28], this Hon‘ble Court noted the

previous US cases pertaining to right to privacy and held that right

to privacy is an essential ingredient of personal liberty and

envisages the right of an individual to be free from restrictions or

encroachments on his person, whether those encroachments are

directly imposed or indirectly brought about by calculated

measures.

90. This was further developed in Gobind v. State of Madhya

Pradesh & Anr. [(1975) 2 SCC 148] wherein, while examining

the constitutional validity of regulations that permitted surveillance

of certain persons, this Hon‘ble Court relied on Griswold v.

Connecticut and Roe v. Wade. It noted that individual autonomy

is protected in part under our Constitution and held that ―privacy

primarily concerns the individual‖ [para 23]. It further held that

―any right to privacy must encompass and protect

the personal intimacies of the home, the family,
marriage, motherhood, procreation and child rearing
… the only suggestion that can be offered as a
unifying principle underlying the concept has been
the assertion that a claimed right must be a
fundamental right implicit in the concept of ordered
liberty‖ [para 24].

While enumerating certain facets that the right to privacy

encompasses, this Hon‘ble Court refrained from laying down an

exhaustive list and noted that the right to privacy would have to

go through a process of case-by-case development. [paras 24

and 28]. The Court also held that

 54
―[if] the court does find that a claimed right is entitled
to protection as a fundamental privacy right, a law
infringing it must satisfy the compelling State
interest test‖ [para 22].

91. In R. Rajagopal v. State of Tamil Nadu [(1994) 6 SCC 63 at

para 26], this Hon‘ble Court interpreted the right to privacy to

mean the ‗right to be let alone‘ and to safeguard the privacy of

one‘s intimate matters while in District Registrar and Collector,

Hyderabad v. Canara Bank [(2005) 1 SCC 496 at para 53], it

was held that ―the right to privacy deals with ‗persons and not

places‖. It is not limited to spatial privacy but encompasses the

sphere of private intimacy and autonomy that allows persons to

establish and nurture human relationships without State

interference.

92. In Smt. Selvi v. State of Karnataka (2010) 7 SCC 263 at paras

224–225, this Hon‘ble Court recognised the importance of

personal autonomy, in the context of right to remain silent, within

the ambit of right to privacy of one‘s mental processes.

93. It is submitted that this zone of privacy also includes intimate

sexual conduct. Protection of one‘s personal relations and sexual

intimacies lies at the heart of the right to privacy. The way in

which one gives expression to one‘s sexuality is at the core of the

area of private intimacy [See: National Coalition for Gay and

Lesbian Equality & Ors. v. Minister of Justice & Ors., at para

32 at page 298 of Compilation - Volume 6]. Though this right is

available to everyone and not to particular sections of society, it

becomes more significant when certain private adult consensual

sexual acts are proscribed by law, even when there is no

compelling State interest involved. This was explicitly recognized

 55
by the United Nations Human Rights Committee in Toonen v.

Australia [Communication No. 488/1992, decision dated

31/03/1994 at para 8.2 at pages 120-121 of Compilation –

Volume 6] that adult consensual sexual activity in private is

covered by the concept of privacy and the same is intruded upon

by the penal law criminalising sexual activity between consenting

adults in private.

94. In Lawrence v. Texas, the United States Supreme Court struck

down a Texas sodomy law that criminalised same sex intimate

sexual conduct between consenting male adults in private as

unconstitutional. Justice Kennedy noted that:

―liberty protects a person from unwarranted

government intrusions into dwelling or other private
places. In our tradition the State is not omnipresent
in the home. And there are other spheres of our
lives and existence, outside the home, where the
State should not be a dominant presence. Freedom
extends beyond spatial bounds. It presumes an
autonomy of self that includes freedom of thought,
belief, expression and certain intimate conduct.‖
(page 99 of Compilation–Volume 7).

The United States Supreme Court further held that:

―to say that the issue in Bowers was simply the

right to engage in certain sexual conduct demeans
the claim the individual put forward, just as it would
demean a married couple were it to be said
marriage is simply about the right to have sexual
intercourse. The laws involved in Bowers and here
are, to be sure, statutes that purport to do no more
than prohibit a particular sexual act. Their penalties
and purposes, though, have more far-reaching
consequences, touching upon the most private
human conduct, sexual behavior, and in the most
private of places, the home. The statutes do seek
to control a personal relationship that, whether or
 56
not entitled to formal recognition in the law, is within
the liberty of persons to choose without being
punished as criminals‖. (page 103 of Compilation–
Volume 7)

The United States Supreme Court further opined that liberty gives

protection to adult persons in deciding how to conduct their

private lives in matters pertaining to sex (at page 107 of

Compilation–Volume 7). It noted that

―the case does involve two adults who, with full and
mutual consent from each other, engaged in sexual
practices common to a homosexual lifestyle. The
petitioners are entitled to respect for their private
lives. The State cannot demean their existence or
control their destiny by making their private sexual
conduct a crime. Their right to liberty under the Due
Process Clause gives them the full right to engage
in their conduct without intervention of the
government. It is a promise of the Constitution that
there is a realm of personal liberty which the
government may not enter.‖ (at page 112 of
Compilation–Volume 7)

95. However, the protected zone of privacy can be intruded into by

the State if a compelling State interest is shown. While no

compelling State interest was found in earlier US cases, in Roe v.

Wade (at page 81 of Compilation–Volume 7), the Court

recognised that the State had a compelling interest, in protecting

the health of the pregnant woman, after the first trimester, and the

foetus, subsequent to ‗quickening‘ of the unborn child, and could

regulate abortion procedures to protect these interests.

Section 377 violates the right to privacy of persons as no compelling

State interest is shown

96. The very existence of Section 377 continuously and directly

affects the privacy of all persons, especially the homosexual men;

 57
either the homosexual men respect the law and refrain from

engaging in prohibited sexual acts (even in private with

consenting partners) or commit such acts and therefore become

liable to criminal prosecution. (Dudgeon v. United Kingdom

[(1982) 4 EHRR 149 at para 41 at page 16 of Compilation-

Volume 6, Norris v. Ireland (1991) 13 EHRR 149 at paras 35, 36

and 38 at pages 53-54 of Compilation-Volume 6, Modinos v.

Cyprus (1993) 16 EHHR 186 at paras 20, 23 and 24 at page 67

of Compilation-Volume 6, Leung T C William Roy v. Secretary

for Justice, Civil Appeal No. 317 of 2005, date of decision 20 th

September, 2006, High Court of the Hong Kong Special

Administrative Region at para 29 at page 249 of Compilation-

Volume 6]

97. The burden is entirely on the State to show that invasion into the

private sphere of the individual is necessary and compelling and

not just related to the accomplishment of a permissible State

policy.

98. The compelling State interest in keeping Section 377, as argued

by the Union of India, through the Ministry of Home Affairs, before

the Delhi High Court was that the law is primarily used to prevent

child sexual abuse and fill the lacunae in the rape laws. [Counter

Affidavit dated 06.09.2003 filed by Ministry of Home Affairs in the

Delhi High Court at internal page 6, page 11 of Additional

Documents filed by Respondent No. 1]

99. The Petitioner was mindful of this concern and therefore sought to

read down Section 377 and not strike it down in its entirety. The

High Court correctly read down the section and made it applicable

only to minors and non-consensual sex and therefore it took into

 58
account the objection of the Union of India through Ministry of

Home Affairs and accommodated it.

100. NACO affidavit further shows that there is State interest to

remove Section 377 from the statute on the ground of public

health, i.e., it impedes delivery of health services. [Reply Affidavit

on behalf of NACO and MoHFW before the Delhi High Court at

para 5 at page 5 of Additional Documents filed by the Respondent

No. 1]

101. The admission by the Ministry of Home Affairs that Section 377 is

rarely used in cases of consensual private sexual acts shows that

no compelling State interest exists. If a penal law is hardly

enforced, then the State has no compelling interest to keep it on

the statute book. But the stigma associated with a criminal

offence is not trivial. It disproportionately impacts the dignity of

same sex desiring individuals. The criminalisation of certain

sexual acts between consenting adult males or females in private

is a severe restriction on a citizen‘s right to build relationships with

dignity and free of State intervention and cannot be justified as

necessary. [Dhirendra Nadan & Anr. V. State, Criminal Appeal

Case Nos.: HAA 85 & 86 OF 2005, High Court of Fiji, decision

dated 26th August, 2005 at page 176 of Compilation-Volume 6]

102. Further, the fact that Union of India has not appealed against the

impugned judgment also shows that there is no compelling State

interest involved. In fact, the Government of India has filed an

affidavit, through Mr. R.K. Singh, Home Secretary, Ministry of

Home Affairs, in this Hon‘ble Court accepting the correctness of

the judgment of the High Court of Delhi and the same having no

legal error in its opinion. Consequently, the Government has not

appealed against this judgment. Thus, there is no question of

them pleading or justifying any compelling State interest. [Affidavit

 59
filed on behalf of the Union of India through the Ministry of Home

Affairs in this Hon‘ble Court on 1st March, 2012 at para 3]

103. Only the State can defend the constitutionality of statute. If the

State is not challenging the Delhi High Court judgment, then it is

not open to third parties to show ‗compelling State interest‘ in

invading the protected zone of privacy including that of sexual

conduct. [See Diamond and Williams v. Charles 476 U.S. 54.

(1986) at pages 148-149 of Compilation-Volume 7]. In any event,

the petitioners in the Special Leave Petitions in this Hon‘ble Court

have not attempted, much less to show any compelling State

interest.

104. One of the other reasons advanced by the State in the High Court

to justify the invasion of privacy is the enforcement of public

morality. Moral disapproval, without any other compelling State

interest, cannot be the rationale under the Constitution to justify a

law intruding into private sphere. Although some people may be

shocked or offended by the commission of private homosexual

acts by others, this alone cannot warrant the application of penal

law in case of consenting adults. [Dudgeon v. United Kingdom,

at para 60 at pages 21-22 of Compilation-Volume 6, Norris v.

Ireland at para 46 at page 56 of Compilation-Volume 6]

105. Intimate sexual conduct is not a question of public morality but

that of private morality. It is not the role of criminal law to intrude

into the zone of private morality when individuals consent to have

sexual relations in private without intending causing harm to each

other or others. The Report of the Committee on Homosexual

Offences and Prostitution, 1957 (Wolfenden Committee) that

recommended decriminalization of homosexuality in England in

1957 regarded the function of criminal law as:

 60
―to preserve public order and decency, to protect the
citizen from what is offensive or injurious, and to
provide sufficient safeguards against exploitation and
corruption of others, particularly those who are specially
vulnerable because they are young, weak in body or
mind, inexperienced, or in a state of special physical,
official, or economic dependence,

but not to intervene in the private lives of citizens, or to

seek to enforce any particular pattern of behaviour,
further than is necessary to carry out the purposes we
have outlined.‖
[paras 13 and 14 at pages 24-25 of Compilation-
Volume1]

106. Further, enforcement of private moral views of a section of

society, which could be prejudicial, cannot be deemed to be

legitimate State interest. [See: National Coalition for Gay and

Lesbian Equality & Ors. v. Minister of Justice & Ors., at para

37 at page 303 of Compilation-Volume 6; Dhirendra Nadan &

Anr. V. State, at pages 170-171 of Compilation-Volume 6;

Toonen v. Australia at para 8.6 at pages 121-122; R. M. (C.),

Ontario Court of Appeal 41 C.R. (4th) 134 (1995) at para 34 at

page 298 of Compilation-Volume 7]

107. The notions of social morality are inherently subjective and the

criminal law cannot be used as a means to unduly interfere with

the domain of personal autonomy. Morality and criminality are not

co-extensive [S. Khushboo v. Kanniammal and Anr. (2010) 5

SCC 600 at para 46].

108. Thus, there is no compelling State interest shown in prohibiting

sexual practices engaged by consenting adults in private and

without intending to harm each other.

 61
109. The question is not whether one has a fundamental right to

engage in carnal intercourse against the order of nature but

whether the Constitution protects a zone of privacy including that

of sexual intimacies, which should be outside the ambit of State

intrusion. The High Court had correctly found Section 377 to be

violative of right to privacy under Article 21 for criminalizing

private consensual sexual acts between adults.

Section 377 fails the criteria of Substantive Due Process under

Article 21

110. Substantive Due process has been incorporated into the Indian

jurisprudence in the last few years. After Maneka Gandhi v.

Union of India (1978) 1 SCC 248 at para 7, the concept of

procedural due process was brought in relation to cases of laws

affecting life and liberty of persons. This Hon‘ble Court held that

the procedure established by law in Article 21 has to be just, fair

and reasonable and tested on the grounds of Article 14 and

Article 19 of the Constitution. It noted that:

―The principle of reasonableness which legally as

well as philosophically, is an essential element of
equality or non-arbitrariness pervades Article 14
like a brooding omnipresence and the procedure
contemplated by Article 21 must answer the test of
reasonableness in order to be in conformity with
Article 14‖

111. Substantive due process has now gradually developed into a fully

separate judicial enquiry wherein this Hon‘ble Court has looked

into the substance of the law and decide whether the law itself is

just, fair and reasonable, apart from looking into the issue of

procedural fairness. This is called the ‗substantive due process

enquiry‘. This Hon‘ble Court in Mithu v. State of Punjab (1983) 2

SCC 277 at para 25, while striking down Section 303, Indian
 62
Penal Code as unconstitutional that provided mandatory death

penalty as punishment for murder by life-convicts, held that:

―no law that provides for mandatory death penalty

without involvement of judicial mind can be said to
be fair, just and reasonable. Such a law must
necessarily be stigmatized as arbitrary and
oppressive.‖

112. Though this Hon'ble Court did not expressly refer to the doctrine

of substantive due process, it was precisely this doctrine that was

applied.

113. Substantive due process has become the standard in examining

the validity of State action that infringes upon the realm of

personal liberty under Article 21 [Smt. Selvi v. State of

Karnataka (2010) 7 SCC 263 at para 191]

114. In Smt. Selvi v. State of Karnataka (2010) 7 SCC 263 at para

263, this Hon‘ble Court held that involuntary administration of

scientific techniques like narcoanalysis, brain mapping etc

amounted to testimonial compulsion, thereby violating the

standard of substantive due process that is required for

restraining personal liberty. This was reiterated by this Hon‘ble

Court in State of Punjab v. Dalbir Singh, 2012 (2) SCALE 126

at para 94, while striking down the mandatory death penalty in the

Arms Act as unconstitutional and held that the concepts of ‗due

process‘ and the concept of a just, fair and reasonable law have

been read into the guarantees of Article 21 and Article 14 of the

Constitution.

115. Substantive Due Process has primarily originated in the U.S.

cases relating to privacy and personal spheres, since the U.S.

Constitution has a ‗due process clause‘ in the Fifth and

Fourteenth Amendments (―[N]or shall any person . . . be deprived

 63
of life, liberty or property, without due process of law . . . . ). It has

been interpreted to mean recognition of unspecified substantive

rights as a limit to State power. The Constitution guarantees a

realm of personal liberty into which the government cannot enter

[Lawrence v. Texas at page 112 of Compilation-Volume 7]

116. In other countries, like Canada and South Africa, though

substantive due process does not find explicit mention in their

Constitutions, the Constitutional Courts in these countries have

applied the substantive due process enquiry in deciding questions

of fundamental importance. The Supreme Court of Canada in In

the Matter of the Reference re Section 94(2) of the Motor

Vehicles Act, 1979 [(1985) 2 S.C.R. 486], while interpreting the

phrase ‗principles of fundamental justice‘, was faced with a

question whether the term has a substantive or merely procedural

content (para 17 at page 491 of Compilation-Volume 7). The

Court noted that ―the task of the Court is not to choose between

substantive or procedural content per se but to secure for persons

"the full benefit of the Charter's protection" (para 21 at page 493

of Compilation-Volume 7).

117. In South Africa, the Constitutional Court of South Africa in

Douglas Michael De Lange v. Francois J. Smuts (Case CCT

26/97, decided on 28.05.1998) observed that ‗section 12 (1), in

entrenching the right to freedom and security of the person,

entrenches the two different aspects of the right to freedom. The

first can be described as the substantive aspect of the protection

of freedom, which protects individuals against deprivation of

freedom ―arbitrarily or without just cause‖. The other is the

procedural aspect of the protection of freedom (para 22 at page

552 of Compilation–Volume 7). The notions of procedural and

substantive fairness are based on the fundamental premise that

 64
decisions affecting paramount human interests be made for good

reason and in a fair manner (para 129 at page 642 of

Compilation-Volume 7).

118. It is submitted that substantive due process is now part of Indian

law. In Rajesh Kumar v. State through Government of NCT of

Delhi [(2011) 11 SCALE 182 at para 79], the Supreme Court held

that:

―‗law‘ as interpreted under Article 21 is more than

mere ‗lex‘. It implies a due process, both
procedurally and substantively‖.

119. Substantive due process has to be interpreted in case by case

development by looking at the nature of the right that is sought to

be infringed by the State. In India, it can cover laws, ranging from

the ones which intrude into the private spheres of individuals

where the State has no compelling interest to enter or which are

patently unjust or which violate the basic structure of the

Constitution.

120. Section 377 fails the substantive due process enquiry under

Article 21, since it infringes upon the most private sphere of

individuals by making their intimate consensual sexual conduct a

crime, which is not permissible.

Section 377 violates the Dignity of all Persons and of Homosexual Men

in Particular

Section 377 violates the dignity of all persons

121. The right to life, guaranteed by Article 21, means more than a

guarantee of mere physical survival or a bare animal existence.

Instead it includes a guarantee to the right to live with human

dignity. [Francis Coralie Mullin v. Administrator, Union

Territory of Delhi, at paras 7 and 8].

 65

122. The guarantee of human dignity forms a part of our constitutional

culture. The Preamble of the Constitution was designed to assure

the dignity of a human being as a means to ensure the full

development and evolution of persons. [See: Prem Shankar

Shukla v. Delhi Administration, (1980) 3 SCC 526 at para 1;

Maharashtra University of Health Sciences and Ors. v.

Satchikitsa Prasarak Mandal and Ors., (2010) 3 SCC 786 at

para 37 and Kharak Singh v. State of Uttar Pradesh, at para

13].

123. A dignified life includes the right to carry on functions and

activities that constitute the bare minimum of expression of the

human-self. This includes expressing oneself in diverse forms

and comingling with fellow human beings. In Francis Coralie

Mullin, this Hon‘ble Court held:

―… We think that the right to life includes the right to

live with human dignity and all that goes along with
it, namely, the bare necessaries of life such as
adequate nutrition, clothing and shelter and facilities
for reading, writing and expressing oneself in
diverse forms, freely moving about and mixing and
commingling with fellow human beings. Of course,
the magnitude and content of the components
would depend upon the extent of the economic
development of the country, but it must, in any view
of the matter, include the rights to the basic
necessities of life and also the right to carry on such
functions and activities as constitute the bare
minimum expression of the human-self. Every act
which offends against or impairs human dignity
would constitute deprivation pro tanto of this right to
live and it would have to be in accordance with
reasonable, fair and just procedure established by
law which stands the test of other fundamental
rights. ‖ [paras 7 and 8]
 66
124. In Noise Pollution (V), In re, (2005) 5 SCC 733 at para 9, this

Hon‘ble Court held that human life has its charm and should be

enjoyed along with all its permissible pleasures. A life with human

dignity includes all those aspects of life which go to make a

person‘s life meaningful, complete and worth living.

125. This Hon‘ble Court, while according the guarantee of dignity great

significance in a civilised society, in the case of D.K. Basu v.

State of West Bengal, (1997) 1 SCC 416 at para 11, held in the

context of custodial violence:

―… ―Custodial torture‖ is a naked violation of human

dignity and degradation which destroys, to a very
large extent, the individual personality. It is a
calculated assault on human dignity and whenever
human dignity is wounded, civilization takes a step
backward – flag of humanity must on each such
occasion fly half-mast. ‖

126. Acts which degrade or destroy a person‘s personality or have the

effect of dehumanizing him and violating his personhood impair a

person‘s dignity. [See: D.K. Basu v. State of West Bengal, at

para 11; Prem Shankar Shukla v. Delhi Administration, (1980)

3 SCC 526 at para 1].

127. The right to live with dignity is intimately related to the right to

privacy. Privacy-dignity claims deserve to be examined with care

and denied only when there is a countervailing State interest.

[See: Gobind v. State of Madhya Pradesh, at para 22]

128. Dignity is therefore concerned with the rights of an individual and

is linked to personal self-realisation and autonomy. If the respect

for human dignity is intrinsically linked to the right to privacy, then

 67
the right to dignity must be considered an individual right,

accruing to a person wherever he may be.

129. As submitted herein above, personal intimacies, including sexual

relations, are an important part of the bare expression of one‘s

human self and form a core part of the fundamental experience of

a human being. The conduct of sexual relations in private should

be respected as part of the respect for a person‘s expression of a

part of his or her personality. Section 377 makes certain types of

sexual relations offences and in doing so, degrades a person‘s

personality.

130. Further, sexual expression within a private sphere is protected

from intrusion from the State. As Section 377 invades the sphere

of privacy and prohibits certain private consensual sexual acts

between consenting adults, it impairs the right to dignity.

131. This Hon‘ble Court has held that the respect of a person‘s right to

privacy, dignity and bodily integrity requires that there be no

restriction whatsoever on a person‘s decision to participate or not

to participate in sexual activity. In Suchita Srivastava v.

Chandigarh Administration, at para 22, this Hon‘ble Court held:

―…It is important to recognise that reproductive

choices can be exercised to procreate as well as to
abstain from procreating. The crucial consideration
is that a woman‘s right to privacy, dignity and bodily
integrity should be respected. This means that there
should be no restrictions whatsoever on the
exercise of reproductive choices such as a woman‘s
right to refuse participation in sexual activity or
alternatively the insistence on use of contraceptive
methods. Furthermore, women are also free to
choose birth control methods such as sterilisation
procedures…‖
 68
132. By making a particular type of sexual conduct between

consenting adults an offence, Section 377, by its very existence,

irrespective of whether it is enforced against consent adults or

not, demeans and degrades people as it impairs a part of their

personality. Instead of respecting the choices of persons with

regard to sexual relations, Section 377 imposes an examination

and scrutiny of the types of sexual intercourse consenting adults

have with each other.

133. Therefore, Section 377, by making consensual sex between

adults an offence, violates the dignity of all persons irrespective of

them being heterosexual, homosexual or bisexual.

Section 377 violates the dignity of homosexual men specifically

134. Sexual expression, as submitted herein above, is an essential

element of a person‘s personality and is a fundamental aspect of

the experience of a human being. Section 377 denies this

experience to homosexual men. Consensual penetrative sexual

acts between two men cannot be penile-vaginal and therefore

homosexual men do not have a choice of entering into such

sexual relations. In effect, Section 377 prohibits all forms of

penetrative penile sexual intercourse between consenting males.

It denies to them an aspect at the very core of their person and

criminalises the expression, core to their sexual being.

135. As a result of Section 377, virtually all sexual penile penetrative

acts between homosexual men are offences. Further, broader

society identifies acts covered by Section 377 majorly with

homosexual men. As a result, each homosexual man becomes a

person suspected of committing an offence. An element of

 69
criminality is associated with the daily lives of homosexual men as

the law implies that all homosexual men are criminals.

136. Instead of respecting the sexual expression of homosexual men

which takes place in private, as guaranteed by the right to privacy

and dignity, Section 377 causes intense scrutiny homosexual

men, as all penetrative sexual acts between them are offences.

137. The Canadian Supreme Court has held that dignity is at the very

heart of individual rights and is violated when a person is

demeaned, degraded or treated as a second-class citizen. Egan

v. Canada, [1995] 2 SCR 513:

―… Equality, as that concept is enshrined as a

fundamental human right within s. 15 of the Charter,
means nothing if it does not represent a
commitment to recognising each person‘s equal
worth as a human being, regardless of individual
differences. Equality means that our society cannot
tolerate legislative distinctions that treat certain
people as second-class citizens, that demean them,
that treat them as less capable for no good reason,
or that otherwise offend fundamental human
dignity.‖ (para 36 at page 194 of Compilation –
Volume 7)

138. In Law v. Canada (Minister of Employment and Immigration),

[1999] 1 S.C.R. 497, the Supreme Court of Canada held in the

context of a law that was challenged on the basis that it

discriminated on the basis of age:

―…Human dignity means that an individual or group

feels self respect or self worth. It is concerned with
physical and psychological integrity and
empowerment. Human dignity is harmed by unfair
treatment premised upon personal traits or
circumstances which do not relate to individual
needs, capacities, and merits of different individuals,
taking into account the context underlying their
differences. Human dignity is harmed when
 70
individuals and groups are marginalised, ignored, or
devalued, and is enhanced when laws recognise the
full place of all individuals and groups within
Canadian society. Human dignity within the
meaning of the equality guarantee does not relate to
the status or position of an individual in society per
se, but rather concerns the manner in which a
person legitimately feels when confronted with a
particular law. Does the law treat him or her unfairly,
taking into account all of the circumstances
regarding the individuals affected and excluded by
the law.‖ (para 53 at page 439 of Compilation –
Volume 7)

139. The US Supreme Court, in Lawrence v. Texas, held that adults

may choose to enter a relationship with a person of the same sex

in their private lives and still retain the dignity of being free and

not being treated as criminals, as follows:

―This, as a general rule, should counsel against

attempts by the State, or a court, to define the
meaning of a relationship or to set its boundaries
absent injury to a person or abuse of an institution
the law protects. It suffices for us to acknowledge
that adults may choose to enter upon this
relationship in the confines of their own homes and
their own private lives and still retain their dignity as
free persons. When sexuality finds overt expression
in intimate conduct with another person, the conduct
can be but one element in a personal bond that is
more enduring. The liberty protected by the
Constitution allows homosexual persons the right to
make this choice.‖ (page 103 of Compilation –
Volume 7)

140. The South African Constitutional Court, while considering the

constitutional validity of the common law offence of sodomy in

National Coalition for Gay and Lesbian Equality & Ors. v.

Minister of Justice & Ors., at paras 28 at page 295 and para 36

at page 303, held that dignity, while being a difficult concept to

 71
capture in precise terms, requires, in the least the

acknowledgement of the value and worth of all individuals as

members of our society. It was further held:

[36]. The criminalization of sodomy in private

between consenting males is a severe limitation of a
gay man‘s right to equality in relation to sexual
orientation, because it hits at one of the ways in
which gays give expression to their sexual
orientation. It is at the same time a severe limitation
of the gay man‘s right to privacy, dignity and
freedom. The harm cause by the provision can, and
often does, affect his ability to achieve self-
identification and self-fulfillment. The harm also
radiates out into society generally and gives rise to
a wide variety of other discriminations, which
collectively unfairly prevent a fair distribution of
social good and services and the award of social
opportunities for gays‖ (para 36 at page 303 of
Compilation – Volume 6)

141. It is pertinent to point out that in South Africa, decisions of the

High Court which hold a legislation to be unconstitutional are

required to be confirmed by the Constitutional Court of South

Africa. While doing so, the Constitutional Court is not bound by

the scope of enquiry of the High Court and may give any order

which is ―just and equitable‖ [See: Article 172 of the Constitution

of the Republic of South Africa, 1996]

142. It is also pertinent to point out that it has been erroneously

submitted, on behalf of the Petitioners, that this Hon‘ble Court has

previously refused to consider the case cited above, that is,

National Coalition for Gay and Lesbian Equality & Ors. v.

Minister of Justice & Ors., 1998 (12) BCLR 1517 (CC) in

Sakshi v. Union of India (2004) 5 SCC 518. However, the case

cited in Sakshi, was a different case, that is, National Coalition

 72
for Gay and Lesbian Equality v. Minister of Home Affairs,

Case CCT 20 of 1999.

143. Section 377 associates criminal law with the everyday lives of

homosexual men. First, it creates the fear, and vulnerability, that

at any time, the police can barge into the bedroom and arrest

them for the commission of an offence. Second, in effect the law

implies that every homosexual man is a criminal. It demeans and

degrades them and treats them like second class citizens by

prohibiting the expression of the core sexual being of homosexual

men.

144. It may be argued that the stigma faced by homosexual men is a

result of the perception of society, for which the law has little or no

role to play. However, it is submitted that this is incorrect. Section

377 prescribes a normative paradigm, which criminalises intimate

sexual conduct between consenting adults in private. The broader

society identifies sexual acts proscribed by Section 377 with

homosexual men. Criminalisation by 377 only reinforces the

stigma faced by homosexual men. As submitted herein above,

Section 377 has the effect of stating that all homosexual men are

criminals in the eyes of the law. Therefore, the law, far from being

removed from societal perception, reinforces and fuels stigma

against gay men.

145. Section 377, by making all forms of penetrative sex with two

consenting men in private, impairs the dignity of homosexual

men. It denies to homosexual men a fundamental experience of

being human and the expression of the core of their sexual being.

Further, Section 377 associates criminal law with the daily lives of

homosexual men. In doing so, it demeans them and treats them

like second class citizens. Therefore, Section 377 violates the

dignity of homosexual men in particular.

 73

146. As will be shown below, Section 377 is not reasonable, fair or just

law. Further, it does not stand the test of other fundamental rights.

147. Section 377, by criminalising intimate sexual conduct between

consenting adults in private, offends and impairs the expression

of the human self of all persons including sexuality minorities,

more particularly homosexual men and further demeans and

degrades them. Section 377 thus violates the right to live with

dignity of all persons and particularly of homosexual men.

Section 377 Violates the Right to Health of Men who have Sex with

Men

The State is obliged to respect, protect and fulfil the right to health.

148. The right to health is an inherent part of the fundamental right to

life, guaranteed under Article 21. [See: Vincent Panikurlangara

v. Union of India, (1987) 2 SCC 165, at para 16; Consumer

Education & Research Centre v. Union of India, (1995) 3 SCC

42 at paras 24; Paschim Banga Khet Mazdoor Samity v. State

of West Bengal, (1996) 3 SCC 37 at paras 9 and 16; Surjit

Singh v. State of Punjab, (1996) 2 SCC 336 at para 11; Dr

Ashok v. Union of India, (1997) 5 SCC 10, at paras 4–5; State

of Punjab and Others v. Ram Lubhaya Bagga, (1998) 4 SCC

117 at paras 5, 6 and 30,]

149. The ICESCR recognises the right to health for all persons. The

ICESCR has been interpreted by the Committee on Economic,

Social and Cultural Rights (CESCR), the body in charge of

monitoring the implementation of the ICESCR, through General

Comments, so as to promote and assist to implementation of the

ICESCR. [Article 12, ICESCR, 993 UNTS 3 at page 12 of

Compilation – Volume 2; Human Rights Instruments, Compilation

 74
of General Comments and General Recommendations Adopted

by Human Rights Treaty Bodies, HRI/GEN/1/Rev. (Vol. 1), 27 th

May 2008 at paras 1-3 on page 202 of Compilation – Volume 2]

150. Article 12 of the ICESCR has been interpreted in General

Comment No. 14. The right to health, as interpreted by General

Comment No. 14, requires States to take measures to respect,

protect and fulfill the health of all persons. States are obliged to

ensure the availability and accessibility of health related

information, education, facilities, goods and services, without

discrimination, especially for vulnerable and marginalised

sections of the populations. [See: General Comment No. 14 to

Article 12 ICESCR, at para 33 on page 102 of Compilation –

Volume 2]

151. THE ICESCR has been domesticated in India vide Section 2 of

the Protection of Human Rights Act, 1993 whereby human rights

under the ICCPR and ICESCR are enforceable by Indian Courts.

This implies that the State has ensure that the right of everyone to

highest attainable standard physical and mental health as

enshrined in Article 12 of the ICESCR has to be realised for all.

152. The Government has committed to addressing the needs of those

at greatest risk of HIV including Men who have Sex with Men and

transgendered persons. [See: United Nations General Assembly

Declaration of Commitment on HIV/AIDS, 2001, A/Res/S-26/2 at

para 37 on page 6 and para 58 on page 9 of Compilation –

Volume 3; United Nations General Assembly Political Declaration

on HIV/AIDS, 2006, A/Res/60/262 at para 14 on page 18 and

para 29 on page 19 of Compilation – Volume 3; National AIDS

Control Organisation (NACO), Ministry of Health and Family

Welfare (MoHFW), National AIDS Control Programme Phase III

 75
[2007-2012] Strategy and Implementation Plan, November 2006,

at pages 104-105 of Compilation – Volume 3].

Men who have Sex with Men are at Higher Risk of Contracting HIV

153. Men who have Sex with Men, including homosexual men, are at a

higher risk of HIV transmission. The risk of transmission of HIV is

greater through unprotected penile-anal sexual intercourse than

unprotected penile-vaginal intercourse. Men who have Sex with

Men are therefore in urgent need of HIV related prevention and

care services. [See: Reply Affidavit on behalf of NACO and

MoHFW before the Delhi High Court at paras 3 and 4, pages 2

and 3 of Additional Documents filed by the Respondent No. 1;

UNAIDS, Policy Brief, HIV and Sex between Men, 2006 at pages

24-27 of Compilation – Volume 3].

154. It is estimated that, with a prevalence of 0.31, there are 23.9 lakh

people living with HIV in India. Between April 2010 – June 2011,

there were 3,99,378 new HIV/AIDS infections detected in India.

[See: NACO, Annual Report 2010-2011, at pages 124-125 of

Compilation – Volume 4; Answers of the Hon‘ble Health Minister

to Starred Question No. 93 on 05.08.2011 in the Lok Sabha,

Unstarred Question no. 3035 on 7.12.2010 in the Rajya Sabha

and Unstarred Question No. 1552 on 22.08.2007 in the Lok

Sabha at pages 1-9 of Compilation – Volume 4).

155. HIV prevalence amongst Men who have Sex with Men is

disproportionately higher than the general adult prevalence. HIV

prevalence amongst Men who have Sex with Men is 7.3% in India

as opposed to less than 0.5% in adults in general. [See: NACO,

Annual Report 2010-2011, at page 124-126 of Compilation –

Volume 4; Written Submissions on behalf of the Ministry of Health

 76
and Family Welfare before this Hon‘ble Court titled ‗Concerns of

the Health Ministry‘ at para 4]

156. Evidence shows that HIV prevalence in Men who have Sex with

Men continues to rise in many states of India. [See: National

AIDS Control Organisation, Annual Report 2010-2011, at page

124-126 of Compilation – Volume 4 and NACO, MoHFW, HIV

Sentinel Surveillance and HIV Estimation in India 2007 – A

Technical Brief at pages 143-145 and 148-149 of Compilation –

Volume 4].

157. It is submitted that higher prevalence of HIV amongst Men who

have Sex with Men is due to this population being stigmatized

and not being provided with sexual health services, including

prevention services such as condom promotion, which results in

low condom usage.

158. Additionally social stigma and discrimination have resulted in

many Men who have Sex with Men also getting married to

women. Men who have Sex with Men in India therefore act as a

‗bridge population‘ for the transmission of HIV. It is therefore

essential to have HIV related interventions with Men who have

Sex with Men. [See: Commission on AIDS in Asia, Redefining

AIDS in Asia—Crafting an Effective Response, Report of the

Commission on AIDS in Asia, 2008, Oxford University Press, New

Delhi, India at pages 90-97 of Compilation – Volume 3; and

Submissions on behalf of the Ministry of Health and Family

Welfare before this Hon‘ble Court titled ‗Concerns of the Health

Ministry‘, at para 6 at page 213 of Compilation – Volume 5]

159. Criminal law increases stigma and discrimination against Men

who have Sex with Men, which in turn fuels the HIV epidemic and

is a barrier to HIV prevention programmes [See: Report of the

 77
Commission on AIDS in Asia at pages 90-97 of Compilation –

Volume 3]

160. The absence of safe spaces leads to risky sex, that is, sex

without using condoms, increasing chances of HIV transmission

among Men who have Sex with Men [See: Affidavit in Reply on

behalf of NACO and MoHFW before the Delhi High Court in W.P.

7455 of 2001, dated 17 July 2006 at para 5, page 4 of Additional

Documents filed by the Respondent No. 1].

161. India has had some success in reducing the rate of new HIV

infections. This can be attributed to successful HIV prevention

programmes with female sex workers. The interventions with

female sex workers could take place partly because they could be

accessed in brothel settings. [See: Rajesh Kumar, Trends in HIV-

1 in young adults in South India from 2000 to 2004: a prevalence

study, Lancet, 2006; 367:1164-72 at pages 10, 17-18 of

Compilation – Volume 4]. However, Men who have Sex with Men

and particularly homosexual men are difficult to access because

of criminal law, that is Section 377, as well as the stigma that it

perpetuates. They are therefore prevented from accessing basic

health services, which violates their right to health.

Section 377 Restricts the Right to Health of Men who have Sex with

Men.

162. Criminalisation of same sex activity impedes the State from

delivering essential health services to men who have sex with

men in the following manner:

a. Section 377 prevents collection of HIV data, as fear of law

enforcement leads to under-reporting of male to male

transmission of HIV, which results in the provision of

insufficient health services. [See: UNAIDS, Men who have sex

 78
with men, The Missing Piece in National Responses to AIDS

in Asia and the Pacific, at pages 55-58 and 61 of Compilation

– Volume 3; Monitoring the AIDS Pandemic (MAP), Male-male

sex and HIV/AIDS in Asia, Report 2005, at page 33-35 and

37-42 of Compilation – Volume 3]

b. Section 377 prevents the dissemination of information on the

risk of HIV transmission during male to male sex [See: Azadi

Bachao Andolan Delhi Unit v. All India Radio and Others,

Order of the CMM, Delhi, dated 23 October, 1997, at paras

61– 62, 65–66, 79–80 and 85 at pages 179, 180, 183 and 184

of Compilation – Volume 5].

c. Organisations, through which anti HIV interventions are

implemented, are subjected to threats, closure and

prosecution under Section 377. Further, as a result of Section

377, outreach workers, implementing the interventions, face

harassment and violence. This severely limits their ability to

provide HIV services. [See: Human Rights Watch, ―Epidemic

of Abuse: Police Harassment of HIV/AIDS Outreach Workers

in India‖, July 2002, at pages 56-60 of Compilation – Volume

5; SA Safren, A survey of HIV prevention outreach workers in

Chennai, India, AIDS Educ Prev. 2006 Aug;18(4):323-332 at

page 26 of Compilation – Volume 4].

d. The supply of condoms in prisons is perceived to ‗aid‘ the

commission of offences under Section 377. [See: Aids

Bhedbhav Virodhi Andolan v. Union of India & Ors, Civil Writ

Petition No. 1784 of 1994, dismissed for non-prosecution by

an order of the Delhi High Court dated 22 January 2001 at

pages 186 - 211 of Compilation – Volume 5]

e. The denial of information and limited access to services has

led to a lower or no risk perception about male-male sex [See

Dandona L, et al, ―Sex behaviour of men who have sex with

 79
men and risk of HIV in Andhra Pradesh, India‖, AIDS, 2005,

Vol. 19, No.6, 611–619 at page 138 of Compilation – Volume

3 and Thomas B, HIV Prevention Interventions in Chennai,

India: Are Men Who Have Sex with Men Being Reached?,

AIDS Patient Care STDS. 2009 November; 23 (11): 981–986

at pages 59-60 of Compilation – Volume 4].

163. Section 377 drives men who have sex with men underground,

hampering HIV prevention, treatment and care services

a. Men who have sex with men face stigma, discrimination,

violence and harassment in multiple settings, from the police,

thugs, the community, family and health care settings. A legal

system that criminalises sex between consenting men enables

discrimination, stigmatisation, disempowerment and

marginalization of men who have sex with men. Fear of

identification, arrest and prosecution under Section 377 drives

same sex activity underground, and causes men who have

sex with men to sever contact with the health system. [See:

―Structural Violence Against Kothi-Identified Men Who Have

Sex With Men in Chennai, India‖: A Qualitative Investigation,

Venkatesh Chakrapani et al., AIDS Education and Prevention,

19(4), 346-364, 2007 at pages 35-47 of Compilation – Volume

4; Thomas B, HIV Prevention Interventions in Chennai, India:

Are Men Who Have Sex with Men Being Reached? at pages

59-60 of Compilation – Volume 4 ; Poteat T, et al, HIV risk

among in Senegal: a qualitative rapid assessment of the

impact of enforcing laws that criminalize same sex practices,

PLoS One, 2011; 6 (12) at pages 84-85 of Compilation –

Volume 4]
 80
b. Where Men who have Sex with Men remain hidden because

their behaviour is illegal, the HIV epidemic amongst them is

expected to continue. [See: Chris Beyer, HIV Epidemic

Update and Transmission Factors: Risks and Risk Contexts –

16th International AIDS Conference Epidemiology Plenary,

Clinical Infectious Diseases 44:981-7, 2007 at pages 49,

51and 54].

c. Where there is contact with the health system, Men who have

Sex with Men avoid disclosing symptoms which could lead to

being reported to enforcement authorities, making them more

vulnerable to contracting HIV. The presence of prior sexually

transmitted infections is strongly associated with HIV

infections in Men who have Sex with men. [See: Steve W

Cole, et al, ―Elevated Physical Health Risk among Gay Men

who conceal their homosexual identity‖, Health Psychology,

1996, Vol 15, No.4, 243–251 at page 111 of Compilation –

Volume 3 and Setia Maninder Singh, et. al, ―Men who have

sex with men and transgenders in Mumbai India: an emerging

risk group for STIs and HIV‖, Indian Journal of Dermatology,

Venereology and Leprology, Vol. 72, No. 6, Nov-Dec, 2006,

425–431 at page 91 of Compilation – Volume 4].

d. Criminalisation causes stigma, fear and prejudice against

sexuality minorities which has an adverse impact on health.

[Thomas B, HIV in Indian MSM: Reasons for a concentrated

epidemic & strategies for prevention, Indian J Med Res., 2011

Dec;134(6):920-9 at pages 72–73 and 75 of Compilation –

Volume 4]

e. Section 377 results in violence against Men who have Sex

with Men, especially from the police and thugs, including,

verbal and physical harassment, sexual assault and rape,

blackmail and extortion, arrest on false allegations and refusal

 81
of protection. Increased sexual violence is linked with an

increased risk of contracting HIV. [See: ―Structural Violence

Against Kothi-Identified Men Who Have Sex With Men in

Chennai, India: A Qualitative Investigation‖, Venkatesh

Chakrapani et al., AIDS Education and Prevention, 19(4), 346-

364, 2007 at pages 35-47 of Compilation – Volume 4; R

Chellan, et. al, The Relationship between Sexual Violence and

Symptoms of STI among the Self-Identified Kothis - Men Who

Have Sex With Men In Tamil Nadu, India, International Journal

of Development Research, August, 2011, Vol. 1, Issue, 5, pp.

43-49 at pages 64-64 of Compilation – Volume 4]

f. Section 377 results in a high burden of disease among Men

who have Sex with Men. A study in Chennai showed HIV

prevalence of 6.5% among men who have sex with men as

compared to 0.9% among other men. [See Go V.F, et al, ―High

HIV Prevalence and Risk Behaviours in Men Who Have Sex

With Men in Chennai, India‖, J. Acquir Immune Defic Syndr,

Vol 35, Number 3, March 1 2004, 314–319, at page 127-128

of Compilation – Volume 3]. Nationally, as mentioned above,

HIV prevalence amongst Men who have Sex with Men is

disproportionately higher than the general adult prevalence.

HIV prevalence amongst Men who have Sex with Men is 7.3%

in India as opposed to less than 0.5% in adults in general.

g. Where Men who have Sex with Men are provided services,

risky sexual practices have reduced [See: Amfar, Treat Asia,

MSM and HIV/AIDS Risk in Asia, 2006, at pages 77-89 of

Compilation – Volume 3].

h. The WHO has recognised that criminalisation plays a role in

creating vulnerability of Men who have Sex with Men and acts

as a barrier to the provision of health services and further

stresses the need for laws which are protective and which
 82
respect the rights of Men who have Sex with Men. [WHO,

Prevention and Treatment of HIV and other Sexually

Transmitted Infections Amongst Men and Transgender

People, Recommendations for a public health approach, 2011

at pages 102 and 118-120 of Compilation – Volume 4]

i. Studies show that there are little, if any, negative

consequences of decriminalisation of homosexual consensual

sexual activities in private and a number of positive

consequences including the reduction in sexually transmitted

diseases and increased psychological adjustment, amongst

others. [See: Geis G, Wright R, Garrett T, Wilson PR,

Reported consequences of decriminalization of consensual

adult homosexuality in seven American states, J Homosex.

1976;1(4):419-26 at pages 141-148B of Compilation – Volume

3; Sinclair and Ross, ―Consequences of Decriminalisation of

Homosexuality: A study of two Australian States‖ Journal of

Homosexuality, Vol. 12 (1), Fall, 1985 at pages 149 – 157A of

Compilation – Volume 3]

164. It is therefore submitted that for all the aforesaid reasons, Section

377 violates the Right to Health of homosexual men.

X. SECTION 377 VIOLATES ARTICLE 14 OF THE CONSTITUTION

165. Article 14 of the Indian Constitution guarantees equality before

law and the equal protection of law to all persons. Article 14

forbids discrimination and is a safeguard against vague, arbitrary

and unjust State action.

 83
Section 377 is vague and arbitrary

166. It is a cardinal principle of legal jurisprudence that a penal law is

void for vagueness if its prohibitions are not clearly defined.

Citizens must know with certainty where lawful conduct ends and

unlawful conduct begins. A person cannot be deprived of his

liberty by a law which is nebulous and uncertain in its definition

and application. [A.K. Roy v. Union of India (1982) 1 SCC 271

at para 61]

167. In Kartar Singh v. State of Punjab (1994) 3 SCC 569 at para

130, this Hon‘ble Court held that

―vague laws offend several important values. It is

insisted or emphasised that laws should give the
person of ordinary intelligence a reasonable
opportunity to know what is prohibited, so that he
may act accordingly. Vague laws may trap the
innocent by not providing fair warning. Such a law
impermissibly delegates basic policy matters to
policemen and also judges for resolution on an ad
hoc and subjective basis, with the attendant
dangers of arbitrary and discriminatory application.‖

168. It is submitted that where a law does not offer a clear construction

and the persons applying it are in a boundless sea of uncertainty

and the law prima facie takes away a guaranteed freedom, the

law must be held to offend the Constitution. [K.A. Abbas v. The

Union of India and Anr., (1970) 2 SCC 760 at para 46]. If a

penal statute suffers from vagueness and fails to clearly indicate

the prohibitions so that persons affected know the true intention

then it amounts to violation of Article 14 of the Constitution.

[Harish Chandra Gupta v. State of Uttar Pradesh, AIR 1960 All

650 at para 12]

 84
169. Further, in Subhash Chandra and Anr v. Delhi Subordinate

Services Selection Board (2009) 15 SCC 458 at para 89, this

Hon‘ble Court held that the more inarticulate the State action, the

greater would be the intensity of the scrutiny by the Courts under

Article 14 of the Constitution.

170. It is submitted that Section 377 criminalises any person who

voluntarily has carnal intercourse against the order of nature with

a man, woman or animal. It is applicable to both heterosexual and

homosexual persons. The expression ―carnal intercourse against

the order of nature‖ is not defined anywhere in the statute.

Section 377 also does not provide any indication as to what

constitutes carnal intercourse against the order of nature or what

acts are proscribed therein.

171. In the absence of legislative guidance, Courts are left to decide

which sexual acts are proscribed and which are not. The judicial

interpretation of Section 377 over the last almost 150 years

shows that its application has become inconsistent and highly

varied. While initially Courts excluded oral sex from the ambit of

Section 377, later it was held to cover both anal sex and oral sex.

Subsequently, Courts extended its interpretation to include penile

penetration of other artificial orifices like between the thighs or

folded palm, by terming them imitative acts or acts of sexual

perversity.

172. This indicates that the scope of Section 377 has been broadened

so much that no person has any reasonable idea of the nature of

the acts that are prohibited except the fact that it excludes penile-

vaginal sex. Any penetrative sexual act outside penile-vaginal

ambit can be said to be proscribed. This results in arbitrariness in

the application of the law as well as in imposition of punishment

under its penal provisions. It is an established principle in law that

 85
equality is antithetic to arbitrariness. Where a law is arbitrary, it is

unequal both according to political logic and constitutional law

and is therefore violative of Article 14. [E.P. Royappa v. State of

Tamil Nadu (1974) 2 SCR 348 at para 85]

173. Section 377 is vague in its proscriptions and thus void for

vagueness and the attendant arbitrariness and violates Article 14

of the Constitution.

Section 377 rests on a classification which is unintelligible

174. It is a well-established position of law that while Article 14 forbids

class legislation, it does not forbid reasonable classification for

the purposes of legislation. In order, however, to pass the test of

permissible classification two conditions must be fulfilled, namely

(i) that the classification must be found on an intelligible differentia

which distinguishes persons or things that are grouped together

from others left out of the group, and (ii) that that differentia must

have a rational relation to the object sought to be achieved by the

statute in question. What is necessary is that there must be a

nexus between the basis of classification and the object of the Act

under consideration. [D.S. Nakara v. Union of India (1983) 1

SCC 305 at para 11]

175. In Kartar Singh v State of Punjab at para 219, this Hon‘ble

Court held that classification must not be arbitrary but scientific,

and rest upon real and substantial distinction between those

covered and those left out. In M. Nagaraj v Union of India at

para 118, this Hon‘ble Court held that the concept of equality

allows differential treatment but prevents distinctions that are not

properly justified. In Anuj Garg v Hotel Association of India

[(2008) 3 SCC 1 at para 26], this Hon‘ble Court reiterated that

when discrimination is sought to be made on the purported

 86
ground of classification, the classification must be founded on a

rational criteria.

176. It is submitted that Section 377 criminalises carnal intercourse

against the order of nature but not carnal intercourse within the

order of nature. The basis of distinction between sexual acts

covered under Section 377 and acts excluded from it is ‗the order

of nature‘, which is vague and unintelligible. Due to lack of

legislative clarity, Courts have evolved their own standards to

determine what constitutes carnal intercourse against the order of

nature and what does not. The test applied has shifted from ‗acts

without the possibility of conception‘ to ‗imitative acts‘ and then to

‗acts amounting to sexual perversity‘. These parameters, prima

facie, are subjective in nature and cannot be discerned on an

objective basis.

177. The classification between carnal intercourse against the order of

nature and carnal intercourse which is not against the order of

nature under Section 377 is arbitrary and unreasonable and not

based on rational criteria, thereby violative of Article 14 of the

Constitution.

The Object of Classification under Section 377 itself is

Unreasonable

178. In considering the reasonableness of classification under Article

14, Courts also have to consider the object for such classification.

If the object is illogical, unfair and unjust, necessarily the

classification will have to be held unreasonable. [Deepak Sibal v.

Punjab University (1989) 2 SCC 145, at para 20)]

179. It is submitted that the purported legislative object Section 377

was to enforce Victorian notions of sexual morality, which

 87
associated sex with procreation alone. At the time of its

enactment in 1861, Section 377 intended to penalise all non-

procreative sexual acts and contained an implicit disdain for male

homosexual conduct.

180. Condemnation of non-procreative sex is outmoded and cannot be

sustained as a legitimate State object in the present times. Today,

the State itself promotes the use of birth control measures among

heterosexual couples as part of family planning as well as

propagating use of condoms to prevent sexually transmitted

diseases and HIV transmission. Further, this Hon‘ble Court has

held the right to use contraceptives as a dimension of personal

liberty under Article 21 [Suchita Srivastava v. Chandigarh

Administration at para 22]

181. Another legislative object that was advanced was to enforce a

particular concept of sexual morality or public morality. It is

submitted that morality is inherently subjective and cannot inform

penal intrusions into personal autonomy. [S. Khushboo v

Kanniamal and Another at para 46] The State cannot use

criminal law as an instrument to impose private morality. [See

Wolfenden Report, at paras 13 and 14 at pages 24-25 of

Compilation-Volume 1; Lawrence v Texas at page 106 of

Compilation-Volume 7; National Coalition for Gay and Lesbian

Equality & Ors. v. Minister of Justice & Ors., at para 37 at

page 303 of Compilation-Volume 6; Leung T C William Roy v.

Minister for Justice, HCAL 160/2004 (2005) at para 145 at

pages 230-231 of Compilation-Volume 6; Dhirendra Nadan and

Another v. State, at pages 170-171 of Compilation-Volume 6].

182. In enforcing majoritarian views on sexual morality, the law does

not serve any legitimate purpose and cannot be termed as a valid

object of classification, thereby violating Article 14.

 88

Unreasonableness is Pronounced with Passage of Time

183. In assessing constitutional validity, Courts may take into

consideration subsequent events and circumstances which were

non-existent at the time that the law was enacted. The law

although may be constitutional when enacted but with passage of

time, the same may be held to be unconstitutional in view of the

changed conditions. [John Vallamattom v Union of India (2003)

6 SCC 611 at paras 33, 34, 35 and 36, Anuj Garg v Hotel

Association of India at paras 8-9]

184. In Satyawati Sharma v Union of India [(2008) 5 SCC 287 at

para 32], this Hon‘ble Court, while underscoring the principle that

reason is the soul of the law, and when the reason of any

particular law ceases, so does the law itself (at para 34), held that

―legislation which may be quite reasonable and

rationale at the time of its enactment may with the
lapse of time and/or due to change of circumstances
become arbitrary, unreasonable and violative of the
doctrine of equality and even if the validity of such
legislation may have been upheld at a given point of
time, the Court may, in subsequent litigation, strike
down the same if it is found that the rationale of
classification has become non-existent.‖

185. Assuming without admitting that Section 377 legitimately

proscribed sexual acts against the order of nature back in 1861,

that justification no longer holds valid today to sustain the

constitutional validity of the law.

186. It is further submitted that while interpreting a restrictive law like

Section 377, one may consider not only the past history of the

legislation concerned but the manner in which the same has been

dealt with by the legislature of its origin. [John Vallamattom v

 89
Union of India at para 28]. Section 377 enacted by the British

colonial regime in India in 1861 was similar to the offence of

buggery as part of unnatural offences in the English law of

Offences against the Person Act, 1861. In 1967, the English law

was reformed in Britain by the Sexual Offences Act that

decriminalised homosexuality and acts of sodomy between

consenting adults in private.

187. An overview of the current international human rights law

jurisprudence tilt overwhelmingly towards protection and

promotion of rights of equality and non-discrimination of sexual

minorities. Non-discrimination on the ground of sexual orientation

has become part of international customary and human rights

law. The United Nations High Commissioner on Human Rights,

Ms. Navanethem Pillay, in her report in November, 2011 has

recommended the Member States to repeal laws used to

criminalize individuals for engaging in consensual same-sex

sexual conduct. [Report of the United Nations High Commissioner

for Human Rights, ―Discriminatory laws and practices and acts of

violence against individuals based on their sexual orientation and

gender identity‖, A/HRC/19/41, 17th November, 2011 at para 84 at

pages 148-149 of Compilation-Volume 2]

188. Passage of time, legislative reforms in England and

developments in international law make it evident that Section

377 is completely outmoded and arbitrary in the present times.

Section 377 treats Dissimilar Acts alike, which is Impermissible

189. It is well-settled that equals cannot be treated unequally under

Article 14 of the Constitution. It is also an established position of

law that unequals cannot be treated equally. Treating of unequals

as equals would offend the doctrine of equality enshrined in

 90
Article 14. [Uttar Pradesh Power Corporation Limited v.

Ayodhya Prasad Mishra and Anr. (2008) 10 SCC 139 at para

40]

190. It is submitted that Section 377 clubs together disparate sexual

acts. It makes no distinction between:

a. consensual and non-consensual acts,

b. between acts engaged in by adults and acts, where at

least one of the parties is a minor,

c. between acts engaged in private and acts engaged in

public,

d. acts that cause harm and acts that do not cause harm.

191. All these are valid distinctions in law otherwise. In liberal,

constitutional democracy like ours, it is the presence or absence

of harm which constitutes the dividing line between State

interference and respect for the zone of privacy. By negating

these distinctions, Section 377 violates Article 14 by treating

disparate acts (‗unequals‘) equally.

Section 377 is Disproportionate and Discriminatory in its Impact on

Homosexuals

192. It is an established position in law that when scrutinising the

constitutional validity of a provision, the effect or impact of a law

must also be looked into. Legislation should not only be assessed

on its proposed aims but also on its implications and effects.

[Anuj Garg v Hotel Association of India at para 46]

193. In Peerless General Finance Investment Co. Ltd. v. Reserve

Bank of India (1992) 2 SCC 343 at para 48, this Hon‘ble Court

held that:
 91
―wherever a statute is challenged as violative of the
fundamental rights, its real effect or operation on the
fundamental rights is of primary importance. When a
law has imposed restrictions on the fundamental
rights, what the court has to examine is the
substance of the legislation without being beguiled
by the mere appearance of the legislation. The
Legislature cannot disobey the constitutional
mandate by employing an indirect method. The
court must consider not merely the purpose of the
law but also the means how it is sought to be
secured or how it is to be administered. The court
must lift the veil of the form and appearance to
discover the true character and the nature of the
legislation, and every endeavour should be made to
have the efficacy of fundamental right maintained
and the legislature is not invested with unbounded
power. The court has, therefore, always to guard
against the gradual encroachments and strike down
a restriction as soon as it reaches that magnitude of
total annihilation of the right.‖

194. It is submitted that though facially neutral, Section 377

predominantly outlaws sexual activity between men, which by its

very nature is penile-non-vaginal, and therefore non-procreative.

While heterosexual persons may, and indeed do, engage in anal

and oral sex, their sexual conduct does not attract scrutiny,

except where the woman is unwilling or underage and makes a

complaint contemplated under law. Social acceptance and the

veil of legitimacy around heterosexual relations prevent penal

intrusion where a man and woman engage in ―unnatural sex‖. In

fact, courts have excluded married heterosexual persons from the

ambit of Section 377 if there is consent [Grace Jayamani v. E.P.

Peter at para 11].

195. Section 377 disproportionately targets a class of persons, namely

homosexual men, based on their sexual expression and identity.

 92
Sexuality of homosexual men finds expression in acts that are

criminalised under Section 377 that forbids homosexual men from

engaging in penetrative sex. What is contemplated to be within

the order of nature and thus lawful, i.e., penile-vaginal sex, cannot

be applicable in case of homosexual men. While heterosexual

couples have the option of engaging in penile-vaginal sex, that

option is not available to homosexual men.

196. By prohibiting penile-non vaginal sexual acts, Section 377

discriminates against homosexual men. When homosexual

conduct is made criminal by the law of the State, that declaration

in and of itself is an invitation to subject homosexual persons to

discrimination both in the public and in the private spheres.

[Lawrence v. Texas at page 109 of Compilation-Volume 7]

197. It is further submitted that the discriminatory prohibitions on

homosexual acts reinforce existing societal prejudices and bias

result in added discrimination against homosexual persons in

fields of employment, etc (already mentioned in the impact

section of the submissions). The impact of criminalisation is

severe on homosexual men, affecting their dignity, personhood

and identity at a deep level. They are at risk of arrest, prosecution

and conviction simply because they seek to engage in sexual

conduct which is part of their experience as human. [National

Coalition for Gay and Lesbian Equality & Ors. v. Minister of

Justice & Ors., at para 23 and 28 at pages 291-296 of

Compilation-Volume 6]

198. Section 377 thus disproportionately impacts the lives of

homosexual men. Though technically neutral, it is applied

unequally since it is primarily used against homosexuals.

[Dhirendra Nadan & Anr. V. State, at pages 170-171 of

Compilation-Volume 6]. This disproportionate burden is

 93
evidenced from the fact that almost all studies among men having

sex with men enumerate fear of prosecution under Section 377 as

a factor inhibiting access to services. Surveys among

heterosexual populations, including female sex workers and their

clients do not allude to such a finding.

199. Criminalisation of innate and intimate aspects of gay persons‘

lives is dehumanizing and offensive to their human worth and

dignity. [Egan v Canada at para 36 at page 194 of Compilation-

Volume 7]

200. The objective of Section 377 is grounded in discriminatory

attitudes concerning homosexuality. Section 377 suffers from

incurable fixations of stereotype of sexual morality and conception

of sexuality, premised only on the sanctity of procreative sex. This

concept is outdated in content and stifling in means. [Anuj Garg v

Hotel Association of India at para 46]

201. Section 377 is unduly severe and damaging in its effects for

homosexual men, as compared to heterosexual persons. Section

377 infringes Article 14 because of its disproportionate and

discriminatory impact on gay men.

202. It is therefore submitted that for the reasons above, Section 377

violates Article 14 of the Constitution.

XI. SECTION 377 VIOLATES ARTICLE 15 OF THE CONSTITUTION

Article 15 (1) prohibits discrimination on the ground of „sex‟

203. Article 15(1) provides that the State shall not discriminate against

any citizen on grounds only of religion, race, caste, sex, place of

birth or any of them. The general purport of Article 15(1) is to

 94
prohibit discrimination against citizens on the basis of the grounds

enumerated therein.

204. The specific purpose of non-discrimination of citizens regarding

access to specific public places is provided for in Article 15(2).

Articles 15(3) to (5) make it clear that specific provisions for

women and children or for advancement of Schedule Caste and

Schedule Tribes are not hit by Article 15(1) or (2).

205. It has been contended that by reason of Article 15(3) using the

expression ‗women‘, the expression ‘sex‘ in Article 15(1) must

partake the same character.

206. It is submitted that Article 15(3) cannot control or limit the

application of Article 15(1). Therefore, the expression ‗sex‘ in

Article 15(1) cannot be reduced to binary norm of man and

woman only.

207. This becomes even clearer when Article 15(2) is applied to

transgender persons. Transgender persons who identify as third

gender are neither men nor women. However, they cannot be

discriminated in regard to access to public spaces specifically

enumerated in Article 15(2). This can only be achieved if the

expression ‗sex‘ in Article 15(1) is read to be broader than the

binary norm of biological sex, i.e. ‗man‘ or ‗woman‘. For instance,

the Government of India has introduced the option of ‗others‘ in

the sex column in the passport application form.

208. It is submitted that, the Constitution is a living document and new

life must be breathed into it, in light of requirements of changing

times. The content of rights is defined by the Courts. The final

word on the content of the right is that of the Court. [M. Nagraj v.

Union of India at paras 19-21]. This Hon‘ble Court has through

 95
purposive interpretation continually expanded the ambit of

Fundamental rights under Articles 21 and 19(1) of the

Constitution and have held many rights to be implicit in the right to

life and personal liberty under Article 21 and right to freedom of

speech and expression under Article 19(1) of the Constitution of

India, which were otherwise not enumerated under the respective

Articles.

209. It is further submitted that the general purpose of non-

discrimination cannot be fulfilled by a narrow reading of grounds

enumerated under Article 15(1) and requires a more purposive

interpretation of Article 15(1) keeping in line with International law

which recognizes that ‗sexual orientation‘ is implicit in the word

‗sex‘ and a prohibited ground of discrimination.

Prohibition of Discrimination on the ground of „Sex‟ includes

Prohibition of Discrimination on the ground of „Sexual Orientation‟

210. The expression ―sex‖ is a fluid and not a static concept. It cannot

be restricted to only the biological male and female sex, as even

this differentiation on biological factors is a limited one. Further, it

also includes gender, i.e. the differentiation of humans on the

basis of social factors.

211. The purpose underlying the fundamental right against sex

discrimination is to prevent behavior that treats people differently

for reason of not being in conformity with stereotypical

generalizations concerning ―normal‖ (or natural) sexual roles or

gender roles. [Anuj Garg v. Hotel Association of India at paras

41 and 46]

212. A prima facie reading of ―sex‖ as a prohibited ground of

discrimination reveals that sex-discrimination cannot be read as

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applying to gender simpliciter for several reasons. By prohibiting

discrimination on the basis of sex, Article 15 establishes that

there is no standard behavioural pattern attached to gender.

Understandings of sexual behaviour and sex-relations are

intricately related to gender stereotypes, since traditional gender

roles consider women to be the only appropriate sexual partners

for men, and men to be the only appropriate sexual partners for

women.

213. Accordingly, discrimination on the ground of sex necessarily

includes prohibiting discrimination on the basis of sexual

orientation, since alternative sexual orientations challenge

traditional conceptions of gender. ―Sexual orientation‖ is implicit in

the word ―sex‖.

214. Like gender- discrimination, discrimination on the basis of sexual

orientation is directed against an immutable and core

characteristic of human personality.

215. It is established position of law in international law jurisprudence

that prohibition of discrimination on the ground of ―sex‖ includes

prohibition of discrimination on the ground of ―sexual orientation‖.

The ICCPR imposes an obligation on State parties ―to respect

and to ensure to all individuals….the rights recognized in the

present Covenant, without distinction of any kind, such as race,

colour, sex, etc…‖ [See Article 2(1) of ICCPR at page no. 19 in

compilation-Volume 2]. It further recognises the right to equality

and states that ―the law shall prohibit any discrimination on any

ground such as race, colour, sex, language, religion, political or

other opinion, national or social origin, property, birth or other

status‖ [See article 26, ICCPR at page no. 25 in compilation-

Volume 2]. In Toonen v. Australia, at para 8.7, at page 122 of

Compilation-Volume 6], the Human Rights Committee, held that

 97
reference to ―sex‖ in articles 2 (1), and 26 [of the ICCPR] is to be

taken as including ―sexual orientation.‖ India has ratified ICCPR

and incorporated it domestically under the Human Rights Act.

This implies that the decision in Toonen holds more than

persuasive value in India.

216. Proceeding on the basis of analogous grounds, and taking into

consideration that the broad objective of non-discrimination

cannot be limited by grounds, the Canadian Supreme Court has

held that, ―sexual orientation‖ is a prohibited ground of

discrimination [Egan v. Canada at para 5 at page 177 of

Compilation-Volume 7; Vriend v. Alberta (1998) 1 S.C.R. 493, at

para 107 at page no. 363 of Compilation-Volume 7]

Section 377 violates Art 15(1) by Discriminating on the ground of

Sexual Orientation. Even though Facially Neutral, Section 377

treats Homosexual Men unequally compared to Heterosexuals and

imposes an Unequal Burden on Homosexual Men

217. As has been shown herein above, impact of the law is a test for

determining whether a law is discriminatory. If a law which is

facially neutral has a disproportionate impact on a class of

persons which is discriminatory, it will be held to violate the

equality clause.

218. The determination of the impact of legislation must be undertaken

in a contextual manner, taking into account the content of the law,

its purpose and the characteristics and circumstances of the

claimant. Hence, equality in Article 15(1) is a substantive concept.

Differential treatment, in a substantive sense, can be brought

about either by a formal legislative distinction, or by a failure to

take into account the underlying differences between individuals

in society. Section 377 does not take into account the differences
 98
in individuals in terms of their sexual orientation and makes

sexual practices relevant to and associated with class of

homosexual persons criminal thereby, militating against

homosexuals as a class.

219. Section 377 results in differential treatment as it fails to take into

account the different sexual orientations of individuals. It

criminalises certain sexual practices, which are normal sexual

expressions for persons of homosexual sexual orientation. In

such cases, it is the legislation‘s failure to take into account the

true characteristics of a disadvantaged group within society (i.e.

by treating all persons in a formally identical manner) and not the

express drawing of distinction, which triggers the equality

challenge.

220. Although Section 377 is facially neutral and applies to

homosexuals and heterosexuals alike, its impact on homosexual

persons as compared to heterosexuals is unequal and

disproportionate. While Section 377 proscribes penile non-vaginal

sexual practices for both heterosexuals and homosexuals, the

restriction imposed by it is only partial for heterosexuals but

complete for homosexuals. Section 377 restricts all forms of

penetrative sexual practices of homosexuals but not so of

heterosexuals. Homosexual sexual orientation is innate and core

part of personality of homosexual men, and the normal

expression of that orientation which manifests in sexual activity

which are non-penile vaginal is also innate and natural but is

prohibited by Section 377. Therefore, the prohibition imposed by

Section 377 operates as a restriction on the basis of sexual

orientation.

221. It is an established position of law that if the effect of a State

action is to infringe a fundamental right and that effect is brought

 99
about by a distinction based on a prohibited ground (e.g. sex,

race, etc), it would constitute discrimination on the prohibited

ground, however laudable the object of the State action may be

[Punjab Province v. Daulat Singh, AIR 1946 PC 66 at page 71,

and State of Bombay v. Bombay Education Society, (1955)

SCR 568 at page 584].

222. It is also an established position of law that it is not essential that

the group on which the law operates be a homogenous group

consisting only of members of the class who have been classified

on a prohibited ground. It is enough for a law to be struck down

as being discriminatory on a prohibited ground that the law

operates so that its effect in some cases is that some persons are

discriminated only on the basis of a prohibited ground [Punjab

Province v. Daulat Singh at page 71].

223. It is submitted that the effect of Section 377 is that it

disproportionately impacts homosexual men on the basis of their

sexual orientation. Therefore, Section 377 constitutes

discrimination on the ground of sexual orientation and therefore

on the ground of sex under Article 15(1), despite being couched

in facially neutral language

XII. The Hon‟ble High Court was correct in reading down Section 377

to exclude private adult consensual sexual activities from its

purview.

224. It is submitted that Courts have the power to examine

constitutionality of statutes [State of Madras v. V.G. Row (1952)

S.C.R. 597 at para 13; Supreme Court Advocates on Record

Association v. Union of India (1993) 4 SCC 441 at paras 328 –

331; Government of Andhra Pradesh & Ors. v. P. Laxmi Devi

(2008) 4 SCC, para 32 – 68].

 100

225. Article 13(1) states that all laws in force in the territory of India

immediately before the commencement of this Constitution, in so

far as they are inconsistent with the provisions of Part III of the

Constitution, shall, to the extent of such inconsistency, be void.

There is no presumption of constitutionality of a pre-constitution

statute. [John Vallamattom v. Union of India at paras 18, 28,

30, 32, 33 & 36; Anuj Garg v. Hotel Association of India at

paras 7 – 8]

226. It has been contended that since the Indian Penal Code was

amended in the year 1955 (Act 26 of 1955) by which the

punishment of ‗transportation for life‘ was substituted with ‗life

imprisonment‘ in Section 377, the provisions can no longer be

regarded as pre-constitutional statute. It is submitted that the

amendment Act 26 of 1955 had substituted punishment of

‗transportation for life‘ with ‗life imprisonment‘ not with particular

reference to Section 377 but across the Indian Penal Code for

thirty provisions, in a generic manner. The Parliament did not visit

Section 377 specifically and there was no application of mind as

to the provision in Section 377. Therefore, Section 377 continues

to remain a pre-constitutional statute.

227. As has already been shown, Section 377 violates fundamental

rights guaranteed under Articles 14, 15, and 21, in so much as it

denies adults the right to private consensual sexual activities.

228. Therefore, it is the case of the Respondent No. 1 that Section 377

ought to be struck down as being unconstitutional and therefore

void. However, Section 377, as it reads, also covers non

consensual penile-non-vaginal intercourse and penile-non-vaginal

intercourse where one of the parties is a minor. As there is no law

extant which would cover these crimes, it would therefore be

 101
undesirable to completely strike down the provision. It would be in

the fitness of things that Section 377 be limited to non-consensual

penile-non-vaginal sex and/or where one of the parties is a minor.

229. This Hon‘ble Court has, in a number of cases involving

constitutional validity of statutes, taken recourse to reading them

down to save them, instead of striking down the impugned

provisions. The expression ―reading down‖ is a compendious

expression and Courts can read down an impugned provision in

various ways, including by way of limiting its applicability to areas,

which would otherwise be constitutional.

230. In D. S. Nakara v. Union of India at paras 59–60, where

pensioners were classified on the basis of the date of retirement

specified in the memoranda to determine eligibility to receive

pension on the basis of the revised formula and this was

challenged as being violative of Article 14, this Hon‘ble Court

held:

―whenever classification is held to be impermissible

and the measure can be retained by removing the
unconstitutional portion of classification, by striking
down the words of limitation, the resultant effect may
be enlarging the class. In such a situation the Court
can strike down the words of limitation in an
enactment. That is what is called reading down a
measure.‖

231. In R. M. D. Chamarbaugwalla v. Union of India, 1957 SCR 930

at para 23, the Court, while determining the constitutional validity

of the definition of ―prize competition‖, examined whether the

definition ought to be restricted in its application to only those

competitions which involved the element of gambling in order to

save it from unconstitutionality. It laid down the principles of

severability and read down the definition of ―prize competition‖ by

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―severing (its) application to competitions in which success does

not depend to any substantial extent or skill‖

232. In Kedar Nath v. State of Bihar, 1962 SCR Supl. (2) 769 at

paras 26–27, while preferring a construction of section 124A of

the Indian Penal Code, which would save it from an infringement

of Article 19(1)(a), this Hon‘ble Court relied on R. M. D.

Chamarbaugwalla and held:

―if the impugned provisions of a law come within the

constitutional powers of the legislature by adopting
one view of the words of the section or Act, the Court
will take that view of the matter and limit its
application accordingly in preference of the view
which would make it unconstitutional on another view
of the interpretation of the words in question‖.

It construed the impugned provision so as to: ―limit their

application to acts involving intention or tendency to create

disorder, or disturbance of law and order, or incitement to

violence‖.

233. In K. A. Abbas v. Union of India at para 48, while discussing the

constitutional validity of section 5(b) of the Cinematograph Act,

1952, which was challenged on the grounds of being vague, the

Court held:

―if possible the Court instead of striking down the

law, may itself draw the line of demarcation where
possible but the effort should be sparingly made and
only in the clearest of cases‖.
However, in the facts of the case, the Court found that the

impugned law was not vague.

234. In Rt. Rev. Msgr. Mark Netto v. State of Kerala & Ors. (1979) 1

SCC 23 at para. 6, this Hon‘ble Court saved the constitutionality

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of Kerala Education Rules, 1959, Rule 12(iii), by reading it down.

The Court held that:

―the Rule, therefore must be interpreted narrowly

and is held to be inapplicable to a minority
educational institution in a situation of this kind with
which we are concerned in this case. We do not
think it necessary or advisable to strike down the
Rule as a whole but do restrict its operation and
make it inapplicable to a minority educational
institution.‖

235. In Kartar Singh v. State of Punjab at paras 130 - 134, where

there was an anomaly and vagueness in the imprecise definition

of the words ‗abet‘, ‗communication‘ and ‗association‘, this

Hon‘ble Court read in the requirement of mens rea and held that:

―‗actual knowledge or reason to believe‘ on the part

of a person to be roped in with the aid of the
definition should be read into it instead of reading it
down and clause (i) of the definition 2(1)(a) should
be read as meaning ‗the communication or
association with any person or class of persons with
the actual knowledge or having reason to believe
that such person or class of persons is engaged in
assisting in any manner terrorists or disruptionists‘
so that the object and the purpose of the clause
may not otherwise be defeated and frustrated.‖

236. So also in State of Andhra Pradesh v. National Thermal Power

Corporation, (2001) 5 SCC 203 at para 31, this Hon‘ble Court

examined the definition of ―consumer‖ under the State electricity

laws which extended its applicability of the laws to other states

and therefore violated Articles 286 and 269 of the Constitution.

This Hon‘ble Court, in order to save the impugned definition from

unconstitutionality, read down the definition and restricted its

applicability to those who receive electricity for consumption or

distribution for consumption within the State.

 104

237. In Bhim Singhji v. Union of India, (1981) 1 SCC 166 at para 17,

where limiting the wide import of section 23 of the Urban Land

Ceiling Act, Justice Krishna Iyer held ―the limitation on the wide

words of Section 23(1) is a matter of semantics and reading down

meaning of down with loose lexical amplitude is permissible as a

part of judicial process‖.

238. In Satyawati Sharma v. Union of India at paras 41-42, this

Hon‘ble Court held that Section 14(1) (e) of the Delhi Rent Control

Act, 1958 was violative of Article 14 of the Constitution. However,

instead of striking down the whole section, the Court saved it from

unconstitutionality by severing the offending portion from the

Section.

239. The principle of severability, including reading in and reading out,

has been followed internationally as well to save a provision from

unconstitutionality, as can be seen from the below mentioned

cases:

240. In Dhirendra Nadan & Anr. v. State, a provision in the Penal

Code of Fiji [Section 175 (a) and (c)] similar to section 377 of the

IPC, which the Fijian High Court held to be inconsistent with the

Constitution and invalid to the extent that it criminalises private

consensual sex. The Court held that:

―In the event that adults engage in consensual

sexual acts against the order of nature in private and
are prosecuted under section 175(a) and (c) of the
Penal Code applying general constitutional
principles, the relevant sections of the Penal Code
are invalid and the prosecutions a nullity.
Invalidity in this context does not mean that the
offending sections in the Penal Code ceased to exist
rather they are simply rendered inoperative to the
 105
extent of this inconsistency.‖ [page no. 180 of
Compilation-Volume 6]

241. In the case between Leung TC William Roy and Secy. for

Justice, In the Court of First Instance, HCAL 160/2004, certain

provisions of Hong Kong‘s criminal law contained in Part XII of the

Crimes Ordinance. The Court held that all the four sections of the

ordinance challenged, discriminated on the basis of sexual

orientation and struck down three ordinances as unconstitutional.

With reference to Section 118C of the Ordinance, the Court gave

a declaration:

―that Sec. 118C of the Ordinance, to the extent that it

applies to a man aged 16 or over and under 2, is
inconsistent with Articles 25 and 39 of the Basic Law
and Articles 14 and 22 of the Bill of Rights and is
unconstitutional‖. [para 47 at page no. 195; para
147 at page no. 231 and conclusion at para 152 at
page no. 233 of Compilation – Volume 6]

242. The order of the Court of First Instance was challenged In Civil

Appeal No. 317 of 2005 filed in the Court of Appeal. The Court of

Appeal affirmed the order of the Court of First Instance. [Between

Leung T.C. William Roy and Secy. for Justice, conclusion at

para 56 at page no. 265 in Compilation-Volume 6]

243. It is submitted that the Hon‘ble High Court of Delhi was correct in

its approach of reading down Section 377. The Delhi High Court,

in view of the fact that striking the provisions altogether would

also decriminalize non-consensual penile-non-vaginal sex and

penile-non vaginal sex involving minors, adopted the alternate

remedy of reading down Section 377 by limiting its application to

non-consensual penile-non-vaginal sex and penile-non vaginal

sex involving minors be taken recourse to, which would exclude

private, consensual intercourse between adults from the

 106
applicability of Section 377, which would have to be held

unconstitutional.

XIII. JURISPRUDENCE FROM OTHER COUNTRIES

244. It is submitted that Courts in other jurisdictions have struck down

similar laws that criminalise same-sex sexual conduct on the

grounds of either privacy or dignity or equality or all of them.

Courts have also struck down laws providing for discriminatory

age of consent for sexual activity between heterosexual persons

as compared to that for homosexual persons as well as laws

discriminating against homosexual persons on the ground of

sexual orientation. A list of such judgments is given below:

ECHR DECISIONS

1. Dudgeon v. United Kingdom, [1981] ECHR 5 (22 October 1981)

2. Norris v. Ireland, [1988] ECHR 22 (26 October 1988)

3. Modinos v. Cyprus, [1993] ECHR 19 (22 April 1993)

4. L & V v. Austria, Application Nos. 39392/98 and 39829/98, Eur.

Ct. H.R. (2003)
5. S.L. v. Austria, Application No. 45330/99, Eur. Ct. H.R. (2003)

UNHRC

6. Toonen v. Australia, No. 488/1992, CCPR/C/50/D/488/1992 (31

March 1994)
7. Young v. Australia, Communication No. 941/2000,
CCPR/C/78/D/941/2000 (date of decision 6th August 2003)
8. X v. Columbia, Communication No. 1361/2005,
CCRP/C/89/D/1361/2005 (date of decision 14th May 2007)
FIJI

9. Dhirendra Nadan and Another v. State, August 2005 (Fiji)

HONGKONG

10. Leung T C William Roy v. Minister for Justice, HCAL 160/2004

(2005)
11. Leung T C William Roy v. Minister for Justice,
CACV317/2005, High Court (2006)
SOUTH AFRICA
 107
12. National Coalition for Gay and Lesbian Equality and Another v.
The Minister of Justice and Others, 1999 (1) SA 6 (CC)

UNITED STATES

13. Lawrence v. Texas, 539 U.S. 558 (2003)

Drafted by:
Shivangi Rai, Advocate
Amritananda Chakravorty, Advocate
Mihir Samson, Advocate
Tripti Tandon, Advocate

Settled by:
Anand Grover, Senior Advocate

Filed by:

New Delhi
Date: 09.04.2012 Chanchal Kumar Ganguli
Advocate for Respondent No. 1