377 unnatural offence

 Appellants: Naz Foundation

Vs.
Respondent: Government of NCT and
Ors.
 2010CriLJ94
 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
HISTORY OF THE LEGISLATION


sex
Section 377 IPC criminalizes
other than heterosexual
penile-vaginal.
 the first records of sodomy as a crime at
Common Law in England were chronicled
in the Fleta, 1290, and later in the
Britton, 1300. Both texts prescribed that
sodomites should be burnt alive.

Acts of sodomy penalized by
hanging under the Buggery Act of
1533 which was re-enacted in 1563 by
Queen Elizabeth I, after which it became the
charter for the subsequent criminalisation
of sodomy in the British Colonies.

 Oral- genital sexual acts were later removed

from the definition of buggery in 1817. And
in 1861, the death penalty for buggery was
formally abolished in England and Wales.
However, sodomy or buggery remained as a
crime "not to be mentioned by Christians."
Judicial interpretation
 The marginal note refers to the acts proscribed as
"unnatural offences".
 This expression, however, is not used in the text of
Section 377 IPC.
 The expression "carnal intercourse" is used in
Section 377 IPC as distinct from the expression
"sexual intercourse", which appears in
ections 375 and 497 IPC.
 According to the Concise Oxford Dictionary (ninth
edition, 1995), the term "carnal" means "of the body
or flesh; worldly" and "sensual, sexual".
 Consent is no defence to an offence under
Section 377 IPC and no distinction regarding age is
made in the section.
Contd.,
 In Khanu v. Emperor (AIR 1925 Sind 286),
Kennedy A.J.C. held that "section 377 IPC
punishes certain persons who have carnal
intercourse against the order of nature with
inter alia human beings....
 In Fazal Rab Choudhary v. State of Bihar (1983
CriLJ 632) , it was observed that
Section 377 IPC implied "sexual
perversity".
 It is evident that the tests for attracting the
penal provisions have changed from the non-
procreative to imitative to sexual perversity.
 The English law was reformed in Britain
by the Sexual Offences Act, 1967, which
de-criminalised homosexuality and acts
of sodomy between consenting adults
pursuant to the report of Wolfenden
Committee.
Arguments

 The petitioner claims to have been impelled to bring

this litigation in public interest on the ground that
HIV/AIDS prevention efforts were found to be
severely impaired by discriminatory attitudes
exhibited by state agencies towards gay community,
MSM or trans-gendered individuals, under the cover
of enforcement of Section 377 IPC, as a result of
which basic fundamental human rights of such
individuals/groups (in minority) stood denied and
they were subjected to abuse, harassment, assault
from public and public authorities.
 According to the petitioner,
Section 377 IPC is based upon traditional
Judeo-Christian moral and ethical
standards, which conceive of sex in
purely functional terms, i.e., for the
purpose of procreation only. Any non-
procreative sexual activity is thus viewed
as being "against the order of nature".
 The submission is that the legislation
criminalising consensual oral and anal
sex is outdated and has no place in
modern society.
 The legislation criminalising consensual oral and anal sex is
outdated and has no place in modern society.
 Studies of Section 377 IPC jurisprudence reveal that lately it
has generally been employed in cases of child sexual assault
and abuse.
 By criminalising private, consensual same-sex conduct,
Section377 IPC serves as the weapon for police abuse;
 detaining and questioning, extortion, harassment,
forced sex, payment of hush money; and perpetuates
negative and discriminatory beliefs towards same-sex
relations and sexuality minorities; which consequently drive the
activities of gay men and MSM, as well as sexuality minorities
underground thereby crippling HIV/AIDS prevention efforts.

creates a class of
Section 377 IPC thus
vulnerable people that is continually victimised
and directly affected by the provision. It has been submitted
that the fields of psychiatry and psychology no longer treat
homosexuality as a disease and regard sexual orientation to be
a deeply held, core part of the identities of individuals

The petitioner submits that while right
to privacy is implicit in the right to life
and liberty and guaranteed to the citizens,
in order to be meaningful, the pursuit of
happiness encompassed within the
concepts of privacy, human dignity,
individual autonomy and the human need
for an intimate personal sphere require that
privacy - dignity claim concerning private,
consensual, sexual relations are also
afforded protection within the ambit of the
said fundamental right to life and liberty
given under Article 21
 The petitioner argues that criminalization
of predominantly homosexual activity
through Section 377 IPC is discriminatory
on the basis of sexual orientation and,
therefore, violative of Article 15.
Arguments from Union of India
 42nd report of the Law Commission : Indian society by
and large disapproved of homosexuality, which
disapproval was strong enough to justify it being
treated as a criminal offence even where the adults
indulge in it in private.
 law cannot run separately from the society since it only
reflects the perception of the society.
 the reforms in the nature of Sexual Offences Act, 1967
(whereby buggery between two consenting adults in
private ceased to be an offence in the United Kingdom)
had its own share of criticism on the ground that the
legislation had negatived the right of the state to
suppress 'social vices‘.
 Indian society is yet to demonstrate readiness or
willingness to show greater tolerance to
practices of homosexuality.
National Aids Control Organisation
(NACO)
 .In the reply affidavit filed on behalf of NACO, it has
been submitted that the report of the Expert Group
on Size Estimation of Population with High Risk
Behaviour for NACPIII Planning, January 2006
estimated that there are about 25 lakh MSM (Men
having sex with men).
 NACO states that the groups identified to be at
greater risk of acquiring and transmitting HIV
infection due to a high level of risky behaviour and
insufficient capacity or power for decision making
to protect themselves from infection, generally
described as 'High Risk Groups' (HRG), broadly
include men who have sex with men (MSM) and
female sex workers and injecting drug users.
Arguments from victims
 "Lucknow incident - 2002" : the police during
investigation of a complaint under Section 377 IPC
picked up some information about a local NGO
(Bharosa Trust) working in the area of HIV/AIDS
prevention and sexual health amongst MSMs raided
its office, seized safe sex advocacy and information
material and arrested four health care workers.
 in absence of any prima facie proof linking them to
the reported crime under Section 377 IPC, a
prosecution was launched against the said health
care workers on charges that included
Section 292 IPC treating the educational literature
as obscene material. The health workers remained
in custody for 47 days only because Section 377 IPC
is a non-bailable offence.
'Bangalore incident, 2004'
 The victim of the torture was a hijra
(eunuch) from Bangalore, who was at a
public place dressed in female clothing.
The person was subjected to gang rape,
forced to have oral and anal sex by a
group of hooligans.
 He was later taken to police station
where he was stripped naked,
handcuffed to the window, grossly
abused and tortured merely because of
his sexual identity.
Jayalakshmi v. The State of Tamil Nadu
(2007)4 MLJ 849 ,
 eunuch had committed suicide due to
the harassment and torture at the hands
of the police officers after he had been
picked up on the allegation of
involvement in a case of theft.
 during police custody he was subjected
to torture by a wooden stick being
inserted into his anus and some police
personnel forcing him to have oral sex
Criminalisation by identity
 During Colonial period in India, eunuchs (hijras)
were criminalised by virtue of their identity. The
Criminal Tribes Act, 1871 was enacted by the
British in an effort to police those tribes and
communities who 'were addicted to the systematic
commission of non-bailable offences.‘
 In 1897, this Act was amended to include eunuchs.
 According to the amendment the local government
was required to keep a register of the names and
residences of all eunuchs who are "reasonably
suspected of kidnapping or castrating children or of
committing offences under Section 377 IPC.
 While this Act has been repealed, the attachment
of criminality to the hijra community still continues.
Developments in International Law
 In 1967 in England and Wales and in 1980 in Scotland sodomy
between consenting adult males in private was de-criminalised.
 Northern Ireland the criminal law relating to sodomy remained
unchanged.
 In 1982, in pursuance of the decision of the ECHR in Dudgeon v.
United Kingdom sodomy between adult consenting males in
private was de-criminalised in Northern Ireland.
 The same conclusion was reached in 1988 in Norris v. Ireland
(supra) and Ireland repealed sodomy laws in 1993.
 Laws prohibiting homosexual activity between consenting adults
in private having eradicated within 23 member-states that had
joined the Council of Europe in 1989 and of the 10 European
countries that had joined since (as at 10th February, 1995), nine
had de-criminalised sodomy laws either before or shortly after
their membership applications were granted.
 In Australia, all the States with the exception of Tasmania, had by
1982 de-criminalised sexual acts in private between consenting
adults
 Contd.,

 Tasmania repealed offending sections in its Criminal

Code in 1997 in view of the decision of United Nations
Human Rights Committee in Toonen v. Australia.
 consensual sexual relations between adult males
have been de-criminalised in New Zealand.
 In Canada, consensual adult sodomy ("Buggery") and
so-called "gross indecency" were decriminalised by
statute in 1989 in respect of such acts committed in
private between 21 years and older which was
subsequently brought down to age of 18 years or
more.
 In United States of America though the challenge to
sodomy laws was turned down in Bowers v. Hardwick,
but subsequently in Lawrence [Link], the sodomy
laws insofar as between consenting adults in private
were struck down
 There is almost unanimous medical and
psychiatric opinion that homosexuality is not a
disease or a disorder and is just another
expression of human sexuality.
 Homosexuality was removed from the Diagnostic
and Statistical Manual of Mental Disorders (DSM)
in 1973 after reviewing evidence that
homosexuality is not a mental disorder.
 In 1992, the World Health Organisation removed
homosexuality from its list of mental illnesses in
the International Classification of Diseases (ICD
10). Guidelines of 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."
 2002 by the American Psychiatric
Association before the United States
Supreme Court in the case of Lawrence v.
Texas:
 According to current scientific and
professional understanding, however, the
core feelings and attractions that form the
basis for adult sexual orientation typically
emerge between middle childhood and
early adolescence.
 Thus, “homosexuality is not a disease or
mental illness that needs to be, or can be,
'cured' or 'altered', it is just another
expression of human sexuality.”
Judgment

 According to Union of India, the stated object of

Section 377 IPC is to protect women and
children, prevent the spread of HIV/AIDS and
enforce societal morality against homosexuality.
 It is clear that Section 377 IPC, whatever its
present pragmatic application, was not enacted
keeping in mind instances of child sexual abuse or
to fill the lacuna in a rape law.
 It was based on a conception of sexual morality
specific to Victorian era drawing on notions of
carnality and sinfulness.
 In any way, the legislative object of protecting
women and children has no bearing in regard to
consensual sexual acts between adults in private.
Judgment
 We declare that Section 377 IPC, insofar it criminalises
consensual sexual acts of adults in private, is violative of
Articles 21, 14 and 15 of the Constitution.
 The provisions of Section 377 IPC will continue to govern
non-consensual penile non-vaginal sex and penile non-
vaginal sex involving minors.
 By 'adult' we mean everyone who is 18 years of age and
above. A person below 18 would be presumed not to be
able to consent to a sexual act.
 This clarification will hold till, of course, Parliament
chooses to amend the law to effectuate the
recommendation of the Law Commission of India in its
172nd Report which we believe removes a great deal of
confusion.
 (Secondly, we clarify that our judgment will not result in
the re-opening of criminal cases involving Section 377 IPC
that have already attained finality.)
 The second legislative purpose
elucidated is that Section 377 IPC serves
the cause of public health by
criminalising the homosexual behaviour.
 As already held, this purported
legislative purpose is in complete
contrast to the averments in NACO's
affidavit.
 NACO has specifically stated that
enforcement of Section 377 IPC
adversely contributes to pushing the
infliction underground, make risky sexual
practices go unnoticed and unaddressed.
 Contd.
 It is not within the constitutional competence of
the State to invade the privacy of citizens lives
or regulate conduct to which the citizen alone is
concerned solely on the basis of public morals.
 The criminalisation of private sexual relations
between consenting adults absent any evidence
of serious harm deems the provision's objective
both arbitrary and unreasonable.
 The state interest "must be legitimate and
relevant" for the legislation to be non-arbitrary
and must be proportionate towards achieving
the state interest.
 If the objective is irrational, unjust and unfair,
necessarily classification will have to be held as
unreasonable..
 Contd.,

 The nature of the provision of

Section 377 IPC and its purpose is to
criminalise private conduct of consenting
adults which causes no harm to anyone
else.
 It has no other purpose than to criminalise
conduct which fails to conform with the
moral or religious views of a section of
society.
 The discrimination severely affects the
rights and interests of homosexuals
and deeply impairs their dignity