UNNATURAL OFFENCES
Section 377 of the IPC states Whoever voluntarily has carnal intercourse against the order
of nature with any man, woman or animal, shall be punished with imprisonment for life, or
with imprisonment of either description for a term which may extend to ten years, and shall
also be liable to fine.
Explanation- Penetration is sufficient to constitute the carnal intercourse necessary to the
offence described in this section.
Sodomy
(Anal
Intercourse)
Unnatural carnal intercourse
offences against the order
section 377 of the nature
Bestiality
(carnal
intercourse
with an
animal)
Naz Foundation v Government of NCT of Delhi, (2009) 160 DLT 277
(case summary sent separately)
“Section 377 criminalises the acts of sexual minorities, particularly men who have sex with men. It
disproportionately affects them solely on the basis of their sexual orientation. The provision runs
counter to the constitutional values and the notion of human dignity which is considered to be the
cornerstone of our Constitution”.
The Naz Foundation India, a non-governmental organization committed to HIV/AIDS
intervention and prevention, filed a public interest litigation in the Delhi High Court
challenging the constitutionality of Section 377 of the India Penal Code, which makes it illegal
to engage in any "unnatural" sexual act, defined as sex other than heterosexual intercourse. The
Delhi High Court dismissed the original writ of petition in 2004 for lack of a cause of action.
However, on civil appeal the Supreme Court of India set aside the dismissal and ordered the
Delhi High Court to hear the petition on the merits. The petitioner argued that Section 377
encouraged discriminatory attitudes, abuse, and harassment of the gay community, and
significantly impaired HIV/AIDS prevention efforts and access to treatment. The National
AIDS Control Organization (NACO) under the Ministry of Health supported the petitioners in
their response.
It was contended that section 377 violated the Articles 14 (equality before the law), 15 (non-
discrimination), 19(1)(a)-(d) (freedom of speech, assembly, association and movement) and 21
(right to life and personal liberty). The Naz Foundation argued that the law had a discriminatory
effect because it was predominantly used against homosexual conduct, thereby criminalising
activity practiced more often by homosexual men and women. This was said to jeopardise
HIV/AIDS prevention methods by driving homosexual men and other sexual minorities
underground. It was further argued that, as private consensual relations were protected under
Article 21 of the Constitution, Section 377 was invalid as there was no compelling state interest
to justify the curtailment of a fundamental freedom. The Naz Foundation also argued that
Section 377 violated Article 14 on two grounds: first, because it was unreasonable and arbitrary
to criminalise non-procreative sexual relations, and secondly, because the legislative objective
of penalising “unnatural” acts had no rational nexus with the classification between procreative
and non-procreative sexual acts.
The Court found in favour of the petitioner and held that Section 377 was unconstitutional.
First, the Court found it violated the right to dignity and privacy by citing the Universal
Declaration of Human Rights and European Court of Human Rights as well as the case of
Francis Coralie Mullin in which the Indian Constitutional Court defined dignity as requiring
adequate shelter, nutrition, clothing as well as the ability to freely socialize. Next, the Court
held that under Article 12 of the ICESCR and Article 21 of the Indian Constitution, the state
must fulfil "everyone's right to access the highest attainable standard of health" as part of the
right to life. The Court agreed that criminalization of homosexual conduct pushes homosexuals
into isolation and impedes access to adequate information for prevention of HIV/AIDS.
The Court also cited General Comment 14 to the ICESCR in defining the right to adequate
health as including the right to control one's health and body, including sexual reproductive
freedom, the right to be free from interference, and most importantly non-discrimination and
equal treatment with regards to accessing healthcare. Finally, the Court cited numerous other
international treaties and agreements to which India is a party that specifically declare a
commitment on the part of India to address the needs and rights of groups with a high-risk of
contracting HIV/AIDS. After engaging in an analysis of the purpose of the law and the interests
of state as weighed against the rights of the petitioners, the Court found no legitimate state
interest in upholding the statute and found the classification of homosexuals to be in violation
of the Constitution. Further, in light of the evolution of domestic and international law
regarding privacy, dignity, and the right to health as well as changing social attitudes and
understandings of sexual orientation, the Court found section 377 to be an unconstitutional
infringement on fundamental rights.
Suresh Kumar Koushal and another v NAZ Foundation and others (2014) 1 SCC 1
(case summary sent separately)
The Supreme Court reversed the Delhi High Court verdict in 2013 in Suresh Koushal judgment
and held that the decision of decriminalizing homosexuality can only be done by the Parliament
and not the Court. It also held that Section 377 criminalises certain acts and not any particular
class of people. It also alluded to the minuscule number of people who were members of the
LGBTI community and the fact that only a fraction amongst them had been prosecuted under
Section 377.
Navtej Singh Johar v Union of India, 2018
A five-judge Bench partially struck down section 377 of the IPC, decriminalising same-sex
relations between consenting adults. LGBT individuals are now legally allowed to engage in
consensual intercourse. The Court has upheld provisions in Section 377 that criminalise non-
consensual acts or sexual acts performed on animals.
They found that Section 377 discriminates against individuals on the basis of their sexual
orientation and/or gender identity, violating Articles 14 and 15 of the Constitution. Further,
they ruled that Section 377 violates the rights to life, dignity and autonomy of personal choice
under Article 21. Finally, they found that it inhibits an LGBT individual’s ability to fully realize
their identity, by violating the right to freedom of expression under Article 19(1)(a). They all
referred to Court’s recent judgements in NALSA (recognised transgender
identity) and Puttaswamy (recognised fundamental right to privacy).
In partially striking down Section 377, the Bench overruled Suresh Koushal 2013. In Suresh
Koushal the Court had upheld the constitutionality of Section 377. Not only did the Bench find
that Suresh Koushal failed to recognize how Section 377 violates fundamental rights, but
further that it relied on a constitutionally impermissible rationale. Suresh Koushal used the
miniscule minority rationale, which holds that since only a small minority of citizens are
negatively impacted by Section 377, the Court need not intervene. The Constitution guarantees
all citizens, independent of sexual orientation or gender identity, their fundamental rights. The
Court is concerned with safeguarding ‘constitutional morality’, not ‘popular morality’.
There were four concurring judgements:
CJI Misra wrote a judgment on behalf of himself and Justice Khanwilkar. In his judgement,
he emphasised an individual’s right self-determination. He stressed that the Section 377 fails
to recognize an individual’s ability to consent. He recognized that Section 377 not only
discriminates against individuals on the basis of inherent biological determinants, but also on
the basis of an individual's choices. Justice Misra emphasised that the Constitution protects an
individual’s sexual autonomy and intimate personal choices. He struck down Section 377 on
grounds of both ‘manifest arbitrariness’ and the failure to meet the ‘reasonable classification
test’.
Justice Chandrachud called Section 377 an "anachronistic colonial law" and added that it had
reduced a class of citizens to the margins. He said that non-recognition of the right to sexual
orientation also leads to a denial of privacy, a fundamental right recognised in Puttaswamy.
Regarding gender identity, he noted that human sexuality cannot categorise individuals using
a binary male/female construction. He remarked that the decriminalisation of Section 377 is
only a necessary first step in the path to guarantee LGBT individuals their constitutional rights
and that the Constitution envisages much more.
Justice Nariman emphasised the 2017 Mental Healthcare Act, which recognises that
homosexuality is not a disease. He used the Act to show that the distinction between natural
and unnatural in Section 377 is manifestly arbitrary and violates Article 14. Furthermore,
Justice Nariman stressed that LGBT individuals have the fundamental right to live with dignity
under Article 21. He requested that the Court’s judgement be highly publicizied, so that the
stigma against being LGBT is reduced. He requested the government to have its officials,
especially police-officials, undergo sensitization training.
Justice Malhotra spoke about the fundamental right to health, which flows from the right to
life in Article 21. She pointed out that the stigma associated with being LGBT forces LGBT
individuals to live closeted lives. This, in turn, denies LGBT individual access to adequate
healthcare. She expressed grave concern about the high incidence of HIV/AIDS and other
sexually transmitted diseases in LGBT communities across India.
