Article 377: A constant tussle between law, morality and privacy

Introduction
Understand that sexuality is as wide as the sea. Understand that your morality is not law.
Understand that we are you. Understand that if we decide to have sex whether safe, safer, or
unsafe, it is our decision and you have no rights in our lovemaking.

Derek Jarman

Elephants do it, penguins do it, and even butterflies do it. Ancient Greeks practised it freely, as
did ancient Indians. Current estimates of the occurrence of exclusive homosexuality range from
one to twenty percent of the population. Yet, in many societies down the ages, homosexual
behaviour has had to suffer the epithet unnatural. While some societies accepted homosexual
relations, others saw it as a sin, tried to repress it through law enforcement and judicial
mechanisms, and even proscribed it under penalty of death.1

An article titled India: End to Unnatural Exclusion2, had been published in The Hindustan
Times on July 2nd, 2009. In this article, the author had written about the Delhi High Court
Judgment that decriminalized non-heterosexual sex between consenting adults. It said that in an
eloquently argued judgment of 150 pages, the bench had struck down Section 377 of the Indian
Penal Code (IPC), a colonial legislation drafted by Lord Macaulay in 1860, that criminalized
carnal intercourse against the order of nature punishable by imprisonment extending up to ten
years. India was one of the few countries left in the world that criminalized and discriminated on
the basis of sexual orientation. The author opined that by overturning Section 377, the Delhi
High Court has fore grounded the importance of sexual rights, lent dignity to people of different
sexualities and upheld the Constitutional values of democracy and equality.

This is a view that seems to be shared by a multitude of the intelligentsia in the country. Judging
from the response that the Delhi High Courts ruling has received, it is becoming quite apparent
that the once traditional and culture-centric nation is opening its doors to possibilities of the
ethos evolving in a direction that was previously seen as appalling. The new wave of judicial

1
Shamnad Basheer, Sroyon Mukherjee and Kaarthy Nair Section 377 and the order of nature: Nurturing
indeterminacy in the law?, September 2009 NUJS Law Review, Rev. 433 (2009)
2
Prarathana, The 377 Debate, March 09, 2011 http://www.legalservicesindia.com/article/article/the-377-debate-581-
1.html (last accessed on 10 October, 2017)
activism that has been set forth in the past few decades, is pulling under its radar the plight of a
particular section of the population that was previously criminalized, but is now being
recognized as very much a part of the Indian people, which has rights and an identity of its own.

According to Faucault, an imminent jurist belonging to the Marxist School, the acquisition of
subjectivity implies both being a subject - an individual who is empowered to act, and being
subjected - an individual whose actions are defined for him or her by the terms of discourse from
which the individuals status as subject is derived. In accepting a new subject position, such as
the LGBTs, we are provided with a culturally meaningful way of experiencing ourselves and
our interactions within society.

Section 377 has always been under public discourse and discussion. Some activists have called it
a regressive and unjust law which curtails the fundamental rights of citizens.

Indian Penal Code Section would require the prosecutorial powers of the state to have access to
the bedrooms of gay people in this country, which, both as an impracticality and abomination
under Indian law, is next to invading the privacy of an individual under Article 21 of the Indian
Constitution.

The Supreme Court of India, on February 2nd 2016 decided to revisit the much controversial
section 377 of the Indian Penal Code, 1860.

To give a brief background about the issue, in the case of Naz Foundation vs. NCT of Delhi, the
Delhi High Court held that s.377 was unconstitutional and thereby decriminalized
homosexuality. However, the Supreme Court overruled the same later in 2013, thereby again
criminalizing homosexuality. In so doing Indias Court added to the lively and often contentious
debate surrounding gay rights both in India and abroad. While the decision is a setback for
Indias homosexual community, it may also illuminate the way to a more humane ruling in the
future.

To get a better understanding of the law it is necessary to trace its history, to understand exactly
how the law came to be.
 History of Section 377 of IPC
Section 377 was introduced by Lord Macaulay in 1860 as a part of the Indian Penal Code. A
plain reading of the section makes clear that it punishes 'carnal intercourse against the order of
nature' with either imprisonment of 10 years or life and fine. The provision reads, 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.

The question which the judiciary has struggled with since 1860 is to determine what exactly
'carnal intercourse against the order of nature' means. The meaning of Section 377 in 1884 was
restricted to anal sex, by 1935 it was broadened to include oral sex and the judgments in
contemporary India have broadened it to also include thigh sex. Section 377 is not merely a law
about anal sex alone, but applies to homosexuality in general. The lack of a consent-based
distinction in the offence has made homosexual sex synonymous to rape and equated
homosexuality with sexual perversity.3

If we are to search for a principle which holds together these various sex acts prohibited by
Section 377, it was laid down as early as 1935. The Court in Khanu vs Emperor laid down that,
the natural object of sexual intercourse is that there should be the possibility of conception of
human beings, which in the case of coitus per os (oral intercourse) is impossible. It then went
on to define sexual intercourse as the temporary visitation of one organism by a member of the
other organism, for certain clearly defined and limited objects.

The primary objective of the visiting organization is to obtain euphoria by means of a detent of
the nerves consequent on the sexual crisis. But there is no intercourse unless the visiting member
is enveloped at least partially by the visited organism, for intercourse connotes reciprocity.
Looking at the question in this way it would seem that the sin of Gomorrah is no less carnal
intercourse than the sin of Sodom.4

3
Prarathana, The 377 Debate, March 09, 2011 http://www.legalservicesindia.com/article/article/the-377-debate-581-
1.html (last accessed on 10 October, 2017)
4
The hated Section 377 of the Indian Penal Code, 4 February, 2008, International Humanist and Ethical Union,
https://globalgrind.cassiuslife.com/231513/the-hated-section-377-of-the-indian-penal-code/ (last accessed on 10
October, 2017)
This idea of sex without the possibility of conception has been used by the judiciary over the last
140 years to characterize homosexuality as a 'perversion', 'despicable specimen of humanity',
'abhorrent crime', 'result of a perverse mind' and 'abhorred by civilized society'. What judicial
interpretation did was to include both acts of consensual sex as well as acts of sexual assault
under its catch all category of 'carnal intercourse against the order of nature'. It is also important
to note that technically speaking, Section 377 does not prohibit homosexuality or criminalize
homosexuals as a class but targets instead sexual acts. However the fact that these sexual acts are
commonly (mistakenly) associated with only homosexuals has made homosexuals far more
vulnerable to prosecution under the law than heterosexuals.

The judicial understanding of Section 377 only legitimizes and reinforces state power to
persecute and harass those of an alternative sexual orientation or gender identity. This enormous
power in the hands of the state to enforce its vision of morality finds frightening expression in
the form of arbitrary and brutal state action.

Essentials of the Offence

Unnatural offences are dealt with under Section 377 of the Indian Penal Code, 1860. The section
reads as follows

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.

The first word that comes to prominence is voluntarily, which is defined in Sec.39 of the IPC
as intending to cause it, or by means which, at the time of employing those means, the person
knew or had reason to believe to be likely to cause. Applying this definition we deduce that the
act of committing an unnatural offence must be accompanied by intention. The words has
carnal intercourse suggest that this offence is punishable only if the act is committed, that is an
actus reaus followed by the mens rea must be present. Carnal intercourse leaves outside of its
ambit sexual intercourse in the normal sense between humans of opposite sex i.e. any sexual act
which is not of the usual penile-vaginal penetration of male-female sexual intercourse. Also,
carnal intercourse may not be done with a man, woman or animal. There are four different forms
of intercourse which are strictly prohibited by Sec. 377:

Penile-anal penetration

Finger-anal penetration

Finger-vaginal penetration

Object-vaginal penetration.

This establishes the rule criminalizing sodomy in India.

The explanation to the Section clarifies that penetration in any orifice is enough to constitute the
offence, and so the full act of intercourse or even the point of reaching climax is not required to
constitute the offence. The true meaning that emerges is that penetration per anum is only
punishable, but coitus per os, or the act of inserting the penis into anothers buccal cavity
(mouth) has also been read into this as an unnatural offence in cases like Khanu v. Emperor5
which was later reaffirmed in Lohana Vasantlal Devchand v. The State6. In the case of Calvin
Francis v. State of Orissa7, the High Court of Orissa was of the opinion that the act of placing the
male organ inside anothers mouth would amount to an unnatural offence because it would
amount to an initiative act of sexual intercourse for the purpose of his satisfying the sexual
appetite.

One important omission in Section 377 is of any respite for an unnatural offence committed with
the consent of the other. This is establishes that consent is immaterial in the commission of an
unnatural offence in India.8 That is to say, that even consensual sodomy is illegal, as given in the
case of Jagjir Singh v. State9.

5
Khanu v. Emperor , AIR 1925 Sind 286
6
Lohana Vasantlal Devchand v. The State, 1968 Cr LJ 1277
7
Calvin Francis v. State of Orissa 1992 (2) Crimes 455 (Ori).
8
K.D. Gaur, Commentary On The Indian Penal Code, 1st Edition, 2006
9
Jagjir Singh v. State, 1969 PLR 34 (SN)
Furthermore, the offence is cognisable, non-bailable, non-compoundable and triable by a
magistrate of first class. Mere intention to commit the crime is not enough to convict the
accused.10 In a trial of an accused under this Section, the prosecution must prove that the:

accused had carnal intercourse with a man, woman or an animal;

such intercourse was against the order of nature;

the act was done voluntarily by the accused; and

penetration had occurred.

Section 377 also recognises bestiality which is sexual intercourse either by man or woman with
an animal. Another definition is Sexual activity between a human and an animal. Some
authorities restrict the term to copulation between a human and an animal of the opposite sex.
Interestingly, the definition of sodomy also includes bestiality hence sodomy is not only sexual
intercourse between two humans of the same sex, but also a human and an animal of opposite
gender. The reason for including bestiality within the definition of unnatural offences as
contained in Section 377 is not clear. It may be inferred from the title of the Section that the
drafters of the Code intended to penalize all unnatural offences, whether carnal intercourse was
committed against a man, woman or an animal.

10
Y.V. Chandrachud (Rev.), The Indian Penal Code, Ratanlal & Dhirajlal, 29th Edition, 2nd Reprint, 2004
Morality
It is evident that Law and Morality serves to channel our behaviour. Law accomplishes these
primarily through threats of sanctions if we disobey legal rules. So too, on reflection morality
involves incentives of some sorts. Thus Law and Morality at times seem to be the different sides
of a single coin. On one face, it appears that law and morality are separated and miles apart, but
on the other side it seems and is understood that both, law and morality are inter-related and
actually go hand-in-hand with one another. Over time, with the evolution of the society it has
been observed that both have a role to play in the sustenance of and in nurturing each other.

It rather depends on the approach, one takes while looking at the two ideas, which helps in
determining the relationship between them. If some ethical approaches, such as certain Natural
law thinkers are to be observed, it is seen that morals have been reduced to a series of
imperatives, which are then comparable to the rules of law. If Positivists such as Bentham and
Austin are taken into regard, the idea that flows from their theories is that positive law is quite
distinct from and its validity depends in no way upon the morals. Although, the positivists such
as Bentham and Austin, strictly follow that law and morals are situated at the poles, but when
the functioning of the human society is considered, it has been observed over a period of time,
that moral sentiments on some matters have been mobilised and utilised so as to be translated
into law. 11

Oxford Dictionary defines morality as Principles concerning the distinction between right and
wrong or good and bad behaviour. against the order of nature and there are certain cultural and
social values that need to be protected as they from the foundation of our society. Our traditions
and values are a part of our identity and following them has been an old legacy. Our society has
always been against homosexuality and considers it to be unnatural and it is condemned by all
religions equally. Promoting this would destroy the basic moral values that our society has
imbibed since ages. Any act which causes harm to the values of society cant be justified on the
grounds of human dignity. Respect of rights for others sentiments and moral standards come
first. Hence homosexuality, which is against the order of nature and our moral norms, has no
place in the Indian culture.

11
Ankit Bhandari, Primary Function of Criminal law in India is to enforce Moral Principles, February 10, 2016
http://www.lawvedic.com/blog/primary-function-of-criminal-law-in-india-is-to-enforce-moral-principles-36/ (last
accessed on 10 October, 2017)
According to the Indian traditions and value system, gay marriages jeopardize the institution of
marriage. Gay marriages are against the religious morality that forbids us from marrying our
blood relatives. It offends the positive morality of the Indian society and is against the values that
we imbibe according to our culture. It is against the ancient concept of family and our cultural
richness and heritage. If they are forced to marry a person of opposite gender, they tend to be
untrue to them and often engage in extra marital affairs which in turn ruin the lives of their
marriage partners as well as that of other people involved. It would also promote some unethical
concepts like adultery, live-ins, male prostitution which are again against the morality that our
society upholds.

Morals and cultural norms need to be respected as they are the building blocks of a society and
they reflect the public opinion. But considering the whole argument, I feel that homosexuality is
a personal choice and it needs to be left to the individuals to decide. It is not a choice and we
need to respect each individual for what they are. It is an expression of ones sexuality and which
need not be change only because they are a bit unnatural or unconventional. The norms of the
society are susceptible to change and following them blindly can be harmful.

The colonial context of these laws, and the earlier as well as continuing manner of their
use, has often left the courts in a bind. Unwilling to go so far as to strike down parts of the IPC,
Courts have been forced into a number of unconvincing contortions to try and reconcile the
colonial law with the constitutional republic.

The intervention of state over an individuals body and mind can never find support in legal
jurisprudence. The individuals right to choice cannot be superseded by the state which is also a
challenge to the jurisprudential basis of Section 377 itself. The use of state power or criminal law
to enforce popular and majoritarian morality or subvert non-dominant conduct is irrational
and unreasonable in any democratic state. H.L.A. Hartv ehemently criticised the imposition of
universally shared moralityon the society uring the law versus morality debate. By this, he
negates legal enforcement of majoritarian morality on the sexual minority.

The language of the section, with use of carnal intercourse against the order of nature has
made criminals, all those who are homosexuals. Thus, starting of a debate as to what is natural
and what is unnatural. The very idea of natural and unnatural is social construct, and relying on
this very construct, and snatching away the rights of an individual, is a controversy, yet to be
solved. On grounds, that a certain act is considered immoral, which does not cause harm to
others, and declaring it as criminal conduct, seems to defy reasonability, as has been discussed
earlier. At times regarded as an anti-sodomy piece of law, but the true objective of Section 377
still remains unclear. In order to determine that what type of intercourse is regarded as unnatural,
courts have taken the stand that if a type of intercourse, makes it impossible of conception, and
thus is against the order of nature, as the order of nature requires that the intention of carnal
intercourse is conception. Thus making any type of oral or anal sex as an unnatural offence
since, it does not lead to conception of humans. Similarly, since the sexual intercourse amongst
the homosexuals does not lead to human conception, the definition of the Section 377 has been
widened to bring under its ambit the homosexuals as well and thus criminalizing homosexuality.
This idea of order of nature is what the majority thinks is morally correct, and an act of
homosexuality threatens to destruct the social institution of moral enforcements. Thus the law
declares, an act of sexual intercourse between homosexuals, as a criminal conduct, just to
enforce the so-called moral principles of the majority. In the Naz Foundation12 judgment, the
Delhi High Court had held that the Section 377 was unconstitutional on the grounds that it
violated the right to life with dignity under Article 21 of the Constitution, and privacy by
violating the Universal Declaration of Human Rights and European Court of Human Rights.

But, the Supreme Court of India, through the grant of special leave against the judgment given
by the Division Bench of the Delhi High Court, the court held that:

We declare that Section 377 IPC, insofar it criminalizes 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 2 Page 3 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.13

12
Naz Foundation v. Government of NCT and Ors., 2010 CriLJ 94
13
Suresh Kumar Koushal and Anr. v. Naz Foundation and Ors., AIR 2014 SC 563
While giving its judgment the Supreme Court iterated the fact that, it merely pronounced on the
judgment given by the Division Bench of the Delhi High Court regarding the alleged
constitutional infirmity, and the competent legislature can further decide on the efficacy of
deleting Section 377 of the IPC, 1860, or bring about any amendment that it may consider
appropriate.

The Supreme Court through its judgment did answer to the question as to whether the Judiciary
is right to get involved into constitutionality of any piece of legislation, that it is to be left in the
hands of the competent legislature to determine as to either do away with the provision or amend
it. But it further raises the question as to the intention of the judgment. The intention is quite
contentious as, it is debated that was the judgment based on Devlins argument that as long as the
majority of population in a given society considers an act to be immoral, irrespective of the fact
that it causes no harm to the society, such an act is fit enough to be termed as an offence under
criminal law. Thus, it is argued that is the judiciary, through its judgment on the principles of
Indian Penal Code, 1860 is enforcing those popular moral principles in the society or it is not.14

Many authors talk about the difference between the public morality and constitutional morality.
The essence of the distinction between public and constitutional morality is that public morality
is merely a reflection of the moral and normative values of the majority of the population (as
expressed by the legislature), while Constitutional morality not only reflects the majoritys
values, but also shapes and changes them as part of the social engineering aspect of our
Constitution. Thus formulated, it follows that public morality and constitutional morality are not
mutually exclusive, but only have significant departure points. An example of a point of
departure between the two can be seen as the prohibition of untouchability, or the more general
prohibition of discrimination on the ground of caste, religion, etc. On the other hand, the two can
be seen to converge in the treatment of gambling as res extra commercium.19 Viewed from this
perspective, the judgments referred to in Part II may be considered to be authorities on the
importance of public morality only in so far as it converges with constitutional morality. Or
simply put, as authorities for considering the particular aspect of public morality as being in
consonance with constitutional morality. This distinction between public and constitutional

14
Dr. Sophy Joseph, Imperial morality of the Apex Court over shines the Constitutional wisdom, December 12,
2013, http://www.livelaw.in/imperial-morality-of-the-apex-court-over-shines-the-constitutional-wisdom/ (last
accessed on 10 October, 2017)
morality, as vague as it may be, is still more scientific than the balancing act, which leaves you at
the mercy of the idiosyncrasies of the particular Judge, or the judgment of the legislature, which
acts more in terms of political considerations than on the basis of sound principles. And this is
precisely where the Constitutional importance of Naz Foundation lies.15

Naz Foundation is in fact a step in this direction of identifying a principled basis for
distinguishing between different kinds of morality. Nobody can argue that criminal law has no
role to play in regulating individual liberty in order to protect public morality. The IPC is replete
with offences that are fundamentally grounded in the protection of public morality. The offence
of bigamy, for instance, is rationalized as involving an outrage on public decency and
morals16. To treat Naz Foundations rejection of public morality as a violation of this principle
is to misunderstand the essence of Naz Foundation. Naz Foundations distinction between public
and constitutional morality is nothing but a distinction between morality that is in consonance
with the values of the Constitution, and morality that is not. The State action for protection of
public morality must show that it falls within the permitted sphere of activity of the State, which
the criminalization of homosexuality does not.

15
Rohit Sharma, The Public and Constitutional Morality Conundrum: A case note on the Naz Foundation Judgment,
NUJS Law Review, http://www.commonlii.org/in/journals/NUJSLawRw/2009/25.pdf (last accessed on 10 October,
2017)
16
Ibid
Invading the privacy
Invasion in right to privacy and life is justifiable in the interest of public safety, health and
morals (According to the submission in Union of India). Morals form an integral part of our lives
and in order to protect the common perceptions of our society, the law has a right to curb our
other rights. Right to privacy is not absolute and can be infringed upon in the interest of public
order, morality, state security etc. Article 19(2A) allows restrictions for the cause of decency and
morality. Even the right to dignity is a relative concept and it would in no world support that we
hurt the values and sentiments of our society and other people while exercising this right.
Respecting ones privacy is a relative concept. It depends on the situation and what we are
compromising in order to protect our privacy. In this case, morality and decency (forming the
foundation of a society) hold much more importance than ones privacy. An immoral act remains
immoral, whether it is done privately or publically.17

Invading the Bedroom

The very requirement of proving actual prosecution under 377 goes into the heart of the complex
nature in which this provision operates. A criminal case, we all know, begins by instituting or
lodging of the FIR, a first information report. A likely case in the enforcement of 377, would be,
the police as law enforcement agents of the state actually catch two men having sex in the
privacy of their bedroom, to the extent that the Naz petition is concerned.

To start with this would require that the reach of the prosecutor powers of the law go into the
previously sacred sphere of the home. Hart has argued that the right to undisturbed
performance of private consenting acts is more important than the immorality of the act.63
Indian courts have never recognised an absolute space for private immorality which does not
harm others, but they have scorned on unnecessary and unjustified police access to peoples
homes.18

Therefore any police intervention into the houses of homosexual men must establish legitimate
grounds of suspicion that certain homosexual activity is taking place, before entering the house

17
Priyal Motwani, An analysis of Section 377 Indian Penal Code, International Journal of Progressive Sciences and
Technologies (IJPSAT), ISSN: 2509-0119, Vol. 5 No. 1 June 2017
18
Alok Gupta, Section 377 and the Dignity of Indian Homosexuals, Economic and Political Weekly, Vol. 41, Issue
No. 46, November 18, 2006, http://www.epw.in/journal/2006/46/special-articles/section-377-and-dignity-indian-
homosexuals.html?0=ip_login_no_cache%3De5dc87cc1a9f80ecd6214e1d93ceee6c (last accessed on 10 October,
2017)
of that person. Essentially this would require that the police leave the everyday work of
providing safety to citizens from crimes that actually cause harm, to continuously establishing an
espionage network to inform them where homosexual men reside, and to master their libido
cycles to determine exactly when they may indulge in sex.

The reason I am saying this is because the Delhi High Court is not entirely wrong in its
dismissal. It is common practice for courts to strike unconstitutional, arbitrary and discriminatory
laws on the basis of test cases that conclusively show how people are actually harmed by the
operation of that law. But the elements of improbabilities involved in actually catching two
consenting adults having sex in private are so rare and far apart that it compels us to think out of
the box.

The Lucknow Incident(s)

Two recent cases under S 377, both in the city of Luck now, that have received much positive
and negative publicity are of relevance to this discussion to the extent that they highlight the new
trend in the use of S 377 the criminalisation of homosexuality on the basis of associated acts
such as the distribution of condoms for same-sex relations in 2001 and the attempt to meet other
gay men over internet chat rooms in 2006.

In July 2001, police in the city of Lucknow under the provocation that gay men were cruising in
a well-known public park and that NGOs were running condom distribution campaigns for
MSM, raided the offices of two NGOs. They arrested four activists under S 377 along with other
charges of criminal conspiracy, abetment, and obscenity. There was no evidence of sodomy.

Yet bail was still denied to the activists on the grounds that they are a curse to society because
they were encouraging homosexuality. According to Narrain the whole issue of releasing the
accused on bail became linked to the prejudice of the magistrate towards gay people. 19 Only after
45 days and a vigorous national and international campaign were the activists freed and charges
under S 377 dropped.20

In the second incident on January 3, 2006, once again the police in Lucknow arrested four men
under S 377 for allegedly having sex in a public park. News reports revealed pictures of all the

19
Supra 18
20
Government vs Bapoji Bhatt, 1884 (7) Mysore LR 280
four men with their names and home addresses.21 According to the FIR the police officer on duty
stated:

We got specific information by an informer that four people are involved in obscene condition
there in the picnic spot. [and] involved in unnatural sex, after few attempts they were arrested
at near about 8:30 pm in the evening. [and] told us that we share same sex relation amongst
us.22

However, a fact finding team of queer activists, feminists and lawyers who went and conducted
an independent investigation found that none of the men involved were having public sex
the story put out by the police in the FIR is a completely false one with the entire process being a
sex spectacle put on by the police.23

The police had arrested one of the men, Nihal, in the night from his house, having learned that he
was a homosexual, possibly through an internet website where Nihal had submitted his mobile
number for other gay men to contact him. By forcefully coercing him into giving contacts of
other men, the police staged an entrapment and arrested three other men:

On the following day (January 4) at 10.30 am he was forced to call the other men and request
them to meet him at Classic Restaurant, Mahanagar, Lucknow on pretexts such as ill-health and
the need to fix up a business appointment.24

All the four accused were released on bail after 12 days in jail by the Sessions Judge but the case
continues. There is no evidence, including witness statements to indicate that any sex actually
took place, either in private or public. The entire case is based on the foundation that these men
are gay, and should therefore be punished under S 377.

Even though both the Lucknow incidents can be termed as misapplications of S 377, they speak
of the extent that the police force will go to implement this law. In the first Lucknow case, by the
time the courts were convinced that the charge under S 377 was bad in law; the accused had
already spent 45 days in jail. S 377 was the only non-bailable charge. The second Lucknow case
proves that the police, despite the first Lucknow incident, and the strict and narrow requirement

21
Supra 18
22
Khanu vs Emperor 1925 Sind 286
23
Supra 18
24
Ibid
of actual sexual acts under the law, will go to the extent of fabricating false cases, and set up
entrapments, just to incarcerate men who they believe are homosexual, due to certain appearance
and actions, therefore likely to commit sodomy.

The Lucknow incidents show that the mere existence of S 377, even if it cannot and is not being
enforced in prosecuting sexual acts in private, adds a certain criminality to the daily lives of
homosexual men and puts them under the gaze of the law and a constant threat of moral
terrorism. Ryan Goodman in a path breaking study on the impact of anti-sodomy law on the
daily lives of South African gays and lesbian, despite its actual non-enforcement, argues that:

The states relationship to lesbian and gay individuals under a regime of sodomy laws
constructsa dispersed structure of observation and surveillance. The public is sensitive to the
visibility of lesbians and gays as socially and legally constructed miscreants.25

Goodman adapts the Foucauldian model of the state as the panoptic watchtower, constantly
watching and observing the lives of gays and lesbians causing apprehensions, fears and further
proximity to the closet a life of concealment. The biggest manifestation of this fear is the self-
identification as a criminal. This is best exemplified in repeated cases of blackmailing that
occur in most cities in India.

A local community group in Mumbai called GayBombay for the last couple of years has been
receiving numerous stories, experiences and complaints by gay men about their personal
experiences with blackmailers. These stories typically involve entrapments by the police, when
innocent gay men only hoping to meet another man for a social contact, are duped into giving out
a lot of money under threats of disclosure of their homosexuality.

Ironically enough under Sections 388 and 389 of the Indian Penal Code, 1860 if a person extorts
money by accusing another of committing sodomy; he can be punished for up to life.83 This
enhanced punishment recognizes the potential of abuse under S 377. Anti-sodomy laws have
been notoriously playgrounds for blackmailers in the UK the Labouchere Amendment 84 was
famously termed the blackmailers charter.

However, the psychological and emotionally challenging effects of antis-sodomy laws on the
personal lives of gay men can be debilitating. The reality is that most gay people are under-

25
National Coalition of Gay and Lesbian Equality vs Minister of Justice, 1999 (1) SA 6 (CC)
confident, silent, and completely closeted about the reality of their queer desires.85
Blackmailers in the police force are fully aware that gay men are too terrified and consumed by
the fear of the law to file a complaint against the erring policemen. A glaring fact that limits all
the efforts of GayBombay is that none of the victims of the crime have been able to come out
and file a complaint, out of fear that S 377 may, in some manner, become applicable to them.

Justice Ackermann writing in National Coalition of Gay and Lesbian Equality vs Minister of
Justice26 has articulated this link between the existence and imposition of anti-sodomy laws and
their impact on the dignity of gays and lesbians:

The common-law prohibition on sodomy criminalises all sexual intercourse per annum 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 simply 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.

26
Ibid
Unnatural Offence in UK
The Wolfenden Committee was set up on 24 August 1954 to consider UK law relating to
"homosexual offences"; the Report of the Departmental Committee on Homosexual Offences
and Prostitution (better known as the Wolfenden report) was published on 3 September 1957. It
recommended that "homosexual behaviour between consenting adults in private should no longer
be a criminal offence;" finding that "homosexuality cannot legitimately be regarded as a disease,
because in many cases it is the only symptom and is compatible with full mental health in other
respects."

In October 1957, the Archbishop of Canterbury, Geoffrey Fisher, spoke in support of the
Wolfenden Report, saying that "There is a sacred realm of privacy... into which the law,
generally speaking, must not intrude. This is a principle of the utmost importance for the
preservation of human freedom, self-respect, and responsibility." The first parliamentary debate
on the Wolfenden Report was initiated on 4 December 1957 by Lord Pakenham. Of the
seventeen peers who spoke in the debate, eight broadly supported the recommendations in the
Wolfenden Report. Maxwell Fyfe, by then ennobled as Lord Kilmuir and serving as Lord
Chancellor, speaking for the government, doubted that there would be much public support for
implementing the recommendations and stated that further research was required. The
Homosexual Law Reform Society was founded on 12 May 1958, mainly to campaign for the
implementation of the Wolfenden Committee's recommendations.27

Decriminalisation of homosexual acts

In 1965, Conservative peer Lord Arran proposed the decriminalisation of male homosexual acts
(lesbian acts had never been illegal) in the House of Lords. This was followed by Humphry
Berkeley in the House of Commons a year later, though Berkeley ascribed his defeat in the 1966
general election to the unpopularity of this action. However, in the newly elected Parliament,
Labour MP Leo Abse took up the issue and the Sexual Offences Bill was put before Parliament
in order to implement some of the Wolfenden Committee's recommendations after almost ten
years of campaigning.

27
Bates, Victoria, "The legacy of 1885: girls and the age of sexual consent". History & Policy. History & Policy. 8
September 2015, http://www.historyandpolicy.org/policy-papers/papers/the-legacy-of-1885-girls-and-the-age-of-
sexual-consent (last accessed on 10 October, 2017)
The Sexual Offences Act 1967 was accordingly passed and received Royal Assent on 27 July
1967 after an intense late night debate in the House of Commons. It maintained general
prohibitions on buggery and indecency between men, but provided for a limited
decriminalisation of homosexual acts where three conditions were fulfilled:

1) the act had to be consensual,

2) the act had to take place in private and

3) the act could involve only people that had attained the age of 21.

This was a higher age of consent than that for heterosexual acts, which was set at 16. Further, "in
private" limited participation in an act to two people. This condition was interpreted strictly by
the courts, which took it to exclude acts taking place in a room in a hotel, for example, and in
private homes where a third person was present (even if that person was in a different room).
These restrictions were overturned in the European Court of Human Rights in 2000.28

The 1967 Act extended only to England and Wales. Organisations such as the Campaign for
Homosexual Equality and the Gay Liberation Front therefore continued to campaign for the goal
of full equality in Scotland and Northern Ireland where all homosexual behaviour remained
illegal. Same-sex sexual activities were legalised in Scotland on the same basis as in the 1967
Act, by section 80 of the Criminal Justice (Scotland) Act 1980, which came into force on 1
February 198129. An analogous amendment was also made to the law of Northern Ireland,
following the determination of a case by the European Court of Human Rights; the relevant
legislation was an Order in Council, the Homosexual Offences (Northern Ireland) Order 1982,30
which came into force on 8 December 1982.

28
"The Criminal Justice System (Scotland) Act 1980 (Hansard, 17 December 1980)". hansard.millbanksystems.com.,
http://hansard.millbanksystems.com/written_answers/1980/dec/17/the-criminal-justice-scotlandact-1980 (last
accessed on 10 October, 2017)
29
The Homosexual Offences (Northern Ireland) Order 1982 (No. 1536 (N.I. 19))". The UK Statute Law Database.
Office of Public Sector Information. 27 October 1982,
https://web.archive.org/web/20100130103644/http://www.statutelaw.gov.uk/content.aspx?activeTextDocId=100745
5 (last accessed on 10 October, 2017)
30
Blair, Tony (1996). New Britain: my vision of a young country. Fourth Estate, ISBN 978-1-85702-436-4,
https://books.google.co.in/books?id=7k-IAAAAMAAJ&redir_esc=y&hl=en (last accessed on 10 October, 2017)
In 1994 the Criminal Justice and Public Order Act lowered the age of consent for gay men from
21 to 18, and in 2001 it was further lowered to 16.31

Regulating
31
sex and sexuality: the 20th century, http://www.parliament.uk/about/living-
heritage/transformingsociety/private-lives/relationships/overview/sexuality20thcentury/
Naz Foundation Case
The Honble Supreme Court of India in the case of Suresh Kumar Koushal & Anr. v. Naz
Foundation and Ors32 delivered a verdict that section 377 is not unconstitutional. The section
does not talk about the rights of LGBT as such. It merely punishes any sexual intercourse which
is believed to be against the order of nature such as anal or oral sex whether consensual or not.
Homosexuality had been made illegal more than 150 years ago when British colonial officials
deemed sexual relations between men to be carnal acts against the order of nature in section
377 of Indian Penal Code, 1860. It is based on Judeo-Christian moral and ethical standards
which conceive of sex on purely functional terms, that is, for procreation. Post-independence the
section remained on the statute books and is now seen as part of Indian values and morals.

Section 377 provides that 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. It is clear from the section that consent is no defence to an offence under section
377, IPC and no distinction regarding age is made in the section. It makes consensual anal or oral
punishable even done in private. Thus, it makes homosexuality punishable since the members of
LGBT community usually have oral or anal intercourse.

In the case Naz Foundation v. Government of India 33(decided on July 2, 2009) Delhi High Court
overturned the 150 year old section legalising consensual activities between adults. It was held
that the essence of the section goes against the fundamental rights of citizens.

In a 105-page judgment, a bench of Justice A.P Shah and Justice S. Muralidhar said that if no
amended, section 377 of IPC would violate Article 14 of the Indian Constitution, which states
that every citizen has equal opportunity of life and is equal before the law. The petitioner
contended that public morality is not a province of criminal law and section 377 IPC does not
have any legitimate purpose. Public animus and disgust towards a particular social group or
vulnerable minority is not a valid ground for classification under Article 14. Section 377 IPC
targets the homosexual community as a class and is motivated by an animus towards this
vulnerable class of people. As per Union of India, the stated object of section 377 is to protect

32
Suresh Kumar Koushal and Anr. v. Naz Foundation and Ors., AIR 2014 SC 563
33
Naz Foundation v. Government of NCT and Ors., 2010 CriLJ 94
women and children, prevent the spread of HIV/AIDS and enforce societal morality against
homosexuality. However, it was observed by the Delhi High Court that it is clear that section
377IPC, whatever is 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 and 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.The criminalisation of private sexual relations between
consenting adults absent any evidence of serious harm deems the provisions 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.Section 377 IPC is a facially neutral and it apparently targets not identities but
acts, but in its operation it does end up unfairly targeting a particular community. The fact is that
these sexual acts which are criminalised are associated more closely with one class of persons,
namely, the homosexuals as a class. Section 377 IPC has the effect of viewing all gay men as
criminals.

Further, petitioner argued that Article 15 prohibits discrimination on several enumerated

grounds, which include sex and sex under Article 15(1) must be read expansively to include a
prohibition of discrimination on ground of sexual orientation as the prohibited ground of sex-
discrimination. It was observed by the High Court that the purpose underlying the fundamental
right against sex discrimination is to prevent behaviour that treats people differently for reason of
not being in conformity with generalization concerning normal or natural gender roles.
Discrimination on the basis of sexual orientation is itself grounded in stereotypical judgments
and generalization about the conduct of either sex.

It was said by the High Court that we hold that sexual orientation is a ground analogous to sex
and that discrimination on the basis of sexual orientation is not permitted by Article 15. Further,
Article 15(2) incorporates the notion of horizontal application of rights. In other words, it even
prohibits discrimination of one citizen by another in matters of access of public spaces. In our
view, discrimination on the ground of sexual orientation is impermissible even in horizontal
application of the right enshrined under Article 15.
With regards to privacy, it was held that the way in which one gives expression to ones
sexuality is at the core of this area of private intimacy. If, in expressing ones sexuality, one acts
consensually and without harming the other, invasion of that precinct will be a breach of
privacy..For every individual, whether homosexual or not, the sense of gender and sexual
orientation of the person are so embedded in the individual that the individual carries this aspect
of his or her identity wherever he or she goes.The sphere of privacy allows persons to develop
human relations without interference from the outside community or from the State. The exercise
of autonomy enables an individual to attain fulfilment, grow in self-esteem, build relationships of
his or her choice and fulfil all legitimate goals that he or she may set. In the Indian Constitution,
the right to live with dignity and the right of privacy both are recognised as dimensions of Article
21. Section 377, IPC denies a persons dignity and criminalises his or her core identity solely on
account of his or her sexuality and thus, violates Article 21 of the Constitution. As it stands,
Section 377 IPC denies a gay person a right to full personhood which is implicit in notion of life
under Article 21 of the Constitution.

The Union Ministry of Home Affairs has opposed the petition claiming that section 377 IPC is a
justified interference by public authorities in the interest of public safety and protection of
health and morals. On the other hand, Union Ministry of Health and Family Welfare has
supported the petition and admitted that Section 377 IPC, by criminalising consensual sex
between adults of the sex, hampers HIV intervention efforts aimed at sexual minorities.
Moreover, it was pleaded by NACO that section 377 acts as a serious impediment to successful
public health interventions. According to NACO, those in the High Risk Group are mostly
reluctant to reveal same-sex behaviour due to fear of law enforcement agencies, keeping a large
section invisible and unreachable and thereby pushing the cases of infection underground making
it very difficult for the public health workers to even access them. It was observed by the High
Court that 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.if court does find that a
claimed right is entitled to protection as fundamental privacy right, the law infringing it must
satisfy the compelling state interest test. While it could be a compelling state interest to
regulate by law, the area for the protection of children and others incapable of giving a valid
consent or the area of non-consensual sex, enforcement of public morality does not amount to a
compelling state interest to justify invasion of the zone of privacy of adult homosexuals
engaged in consensual sex in private without intending to cause harm to each other or others.

Hence, it was declared by the High Court that 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.

Decision of Supreme Court: The bench of Justices Singhvi and S.J. Mukhopadhaya reversed the
Delhi High Courts 2009 verdict and held that the 150-year old section 377, criminalizing gay
sex, does not suffer from the vice of unconstitutionality. The judgment turned the clock back
and was being viewed in India and globally as a retrograde step. The possibility of police
harassment of homosexuals could no longer be ruled out.

Supreme Court while dealing with the issue relating to the scope of judicial review of legislation
said that since section 377 IPC is a pre-constitutional legislation, it has been adopted after
enactment of the Constitution, it will be useful to analyse the ambit and scope of the powers of
the superior Courts to declare such a provision as unconstitutionalA plain reading of these
Articles suggests that the High Court and this Court are empowered to declare as void any pre-
constitutional law to the extent of its inconsistency with the Constitution and ay law enacted post
the enactment of the Constitution to the extent that it takes away or abridges the rights conferred
by Part III of the Constitution. In fact a constitutional duty has been cast upon this Court to test
the laws of the land on the touchstone of the Constitution and provide appropriate remedy if and
when called upon to do so. Seen in this light the power of judicial review over legislations is
plenary. However, keeping in mind the importance of separation of powers and out of a sense of
deference to the value of democracy that parliamentary acts embody, self-restraint has been
exercised by the judiciary when dealing with challenges to the constitutionality of laws. This
form of restraint has manifested itself in the principle of presumption of
constitutionality..Every legislation enacted by Parliament or State Legislature carries with it a
presumption of constitutionality.There is nothing to suggest that this principle would not apply
to pre-Constitutional laws which have been adopted by the Parliament and used with or without
amendment.The doctrine of severability and the practice of reading down a statute both arise
out of principle of presumption of constitutionality and are specifically recognized in Article 13
which renders the law, which is pre-Constitutional to be void only to the extent of inconsistency
with the constitutionDeclaring the law unconstitutional is one of the last resorts taken by the
Courts. The Courts would preferably put into service the principle of reading down or reading
into the provision to make it effective, workable and ensure the attainment of the object of the
ActAfter the adoption of IPC in 1950, around 30 amendments have been made to the statute,
the most recent being in 2013 which specifically deals with sexual offences, a category to which
section 377 IPC belongs. The 172nd Law Commission Report specifically recommended
deletion of that section and the issue has repeatedly come up for debate. However, the
Legislature has chosen not to amend the law or revisit it. This shows that Parliament, which is
undisputedly the representative body of the people of India, has not thought it proper to delete
the provision. Such a conclusion is further strengthened by the fact that despite the decision of
the Union of India to not challenge in appeal the order of the Delhi High Court, the Parliament
has made any law. It is, therefore, apposite to say that unless a clear constitutional violation is
proved, this Court is not empowered to strike down a law merely by virtue of its falling into
disuse or the perception of the society having changed as regards the legitimacy of its purpose
and its need.

Further, it was observed by the Supreme Court that the IPC along with section 377 as it exists
today was passed by the Legislative Council and the Governor General assented to it on
6.10.1860. The understanding of acts which fall within the ambit of section 377 has changed
from non-procreative to imitative of sexual intercourse to sexual perversity.

While considering whether the High Court was justified in entertaining challenge to section 377
IPC despite the respondent No. 1 had not laid factual foundation to support its challenge;
Supreme Court observed that the writ petition filed by respondent No. 1 was singularly laconic
inasmuch as except giving brief detail of the work being done by it for HIV prevention targeting
MSM (males who have sex with males) community, it miserably failed to furnish the particulars
of the incidents of discriminatory attitude exhibited by the State agencies towards sexual
minorities and consequential denial of basic human rights to them. Respondent No. 1 has also
not furnished the particulars of the cases involving harassment and assault from public and
public authorities to sexual minorities.

Regarding unconstitutional classification, it was observed by the Supreme Court that those who
indulge in carnal intercourse in the ordinary course and those who indulge in carnal intercourse
against the order of nature constitute different classes and the people falling in the latter category
cannot claim that section 377 suffers from the vice of arbitrariness and irrational classification.
What section 377 does is merely to define the particular offence and prescribe punishment for
the same which can be awarded if in the trial conducted in accordance with the provisions of the
Code of Criminal Procedure and other statutes of the same family the person is found guilty.
Therefore, the High Court was not right in declaring section 377 IPC ultra vires Articles 14 and
15 of the Constitution. While reading down section 377 IPC, the Division Bench of the High
Court overlooked that a miniscule fraction of the Countrys population constitute lesbians, gays,
bisexuals or transgender and in last more than 150 years less than 200 persons have been
prosecuted (as per the reported orders) for committing offence under Section 377 IPC and this
cannot be made sound basis for declaring that section ultra vires the provisions of Articles 14, 15
and 21 of the Constitution.

Further Supreme Court observed that respondent No. 1 attacked section 377 on the ground that
the same has been used to perpetrate harassment, blackmail and torture on certain persons,
especially those belonging to the LGBT community. In our opinion, this treatment is neither
mandated by the section nor condoned by it and the mere fact that the section is misused by
police authorities and others is not a reflection of the vires of the section. In its anxiety to protect
the so-called rights of LGBT persons and to declare that section 377 IPC violates the right to
privacy, autonomy and dignity, the High has extensively relied upon the judgments of other
jurisdictions. Though these judgments shed considerable light on various aspects of this right and
are informative in relation to the plight of sexual minorities, we feel that they cannot be applied
blindfolded for the constitutionality of the law enacted by the Indian legislature.
The Bench said: In the light of plain meaning and legislative history of the section, we hold that
section 377 IPC would apply irrespective of age and consent. It added that the section does not
discriminate any group with a particular sexual preference, a stand that was diametrically
opposite to that by the Delhi High Court. Justice Singhvi Said, It is relevant to mention here that
section 377 IPC does not criminalise a particular people or identity or orientation. It merely
identifies acts, which if committed, would constitute an offence. Such prohibition regulates
sexual conduct regardless of gender identity and orientation Justice Mukhopadhaya added the
said section does not suffer from any constitutional infirmity. However, a clarification followed.
The Judges said, Notwithstanding this verdict, the competent legislature shall be free to
consider the desirability and propriety of deleting section 377 IPC from the statute or amend the
same as per the suggestion made by the Attorney General.

Law Commission Recommendation

As mentioned earlier, striking down Section 377 in its entirety owing to the indeterminacy of
order of nature would decriminalize problematic sexual activities such as pedophilia and
bestiality. And this fear may have promoted the Naz Foundation lawyers to adopt the strategy
that they did before judges who were far happier reading down Section 377, rather than
decapitating it by stripping it of its unnatural essence.

Unfortunately, the Courts decision still leaves us with the condemnation of homosexuality as
breaching the order of nature. Perhaps the optimal solution is to do what the Law Commission
recommends to abolish a vague and indeterminate Section 377 and to penalise paedophilia and
other problematic sexual activities through a separate provision (Section 376E)34. After all, it is
but logical to assume that the criminalisation of paedophilia does not need to hinge on its
problematic labeling as an unnatural sexual activity.

34
Shamnad Basheer, Sroyon Mukherjee and Kaarthy Nair Section 377 and the order of nature: Nurturing
indeterminacy in the law?, September 2009 NUJS Law Review, Rev. 433 (2009)
Future of Section 377 after Right to Privacy Judgment
On 24 August 2017, the Supreme Court of India in its landmark judgement held that Right to
Privacy is a fundamental right protected under Article 21 and Part III of the Indian constitution.
The Supreme Court judgement also found the mention of Section 377 as a discordant note. In the
judgement delivered by the 9-judge bench - Justice Chandrachud who authored for Justices
Khehar, Agarwal, Abdul Nazeer and himself held that the rationale behind Suresh Koushal (2013
Judgement) is incorrect.

The Supreme Court in its 547-page judgment35 on right to privacy refers to the 2013 judgment in
the Naz Foundation case on homosexuality, and says that sexual orientation is an essential
attribute of privacy.

The observations of the nine-judge Constitution bench are obiter dicta, in other words not legally
binding, but could have a significant impact when the court hears the curative petition
challenging Section 377.

Referring to the Suresh Kumar Koushal vs Naz Foundation36 case, wherein a two-judge bench of
the Supreme Court upheld Section 377 of the Indian Penal Code (IPC), in effect criminalising
homosexuality, the Supreme Court disagreed with some of the observations of the same court,
made in 2013. Justice Kaul agreeing with Justice Chandrachud's views in Para 80 states that the
right of privacy cannot be denied, even if there is a minuscule fraction of the population which is
affected. He further went on to state that the majoritarian concept does not apply to
Constitutional rights and the Courts are often called up on to take what may be categorized as a
non-majoritarian view, in the check and balance of power envisaged under the Constitution of
India. Ones sexual orientation is undoubtedly an attribute of privacy.

The Supreme Court, in its judgment on privacy, said that right to privacy and the protection of
sexual orientation lie at the core of the fundamental rights guaranteed by Articles 14, 15 and 21
of the Constitution.

The court noted that sexual orientation is an essential attribute of privacy, and discrimination
against an individual on the basis of sexual orientation is deeply offensive to the dignity and self-
worth of the individual. "Sexual orientation is an essential attribute of privacy. Discrimination

35
Justice K S Puttaswamy (Retd.), v. Union of India, MANU/SC/1044/2017
36
AIR 2014 SC 563
against an individual on the basis of sexual orientation is deeply offensive to the dignity and self-
worth of the individual. Equality demands that the sexual orientation of each individual in
society must be protected on an even platform. The right to privacy and the protection of sexual
orientation lie at the core of fundamental rights guaranteed by Articles 14, 15 and 21 of the
Constitution," Justice Dhananjay Y Chandrachud, who authored the lead judgment holding
privacy to be a fundamental right, said.

"That a minuscule fraction of the country's population constitutes lesbians, gays, bisexuals or
transgenders is not a sustainable basis to deny the right to privacy," the Supreme Court said in its
judgment.

"The purpose of elevating certain rights to the stature of guaranteed fundamental rights is to
insulate their exercise from the disdain of majorities, whether legislative or popular," the nine-
judge bench observed.

The judgement basically says that the aspects of life, dignity and morality are to be understood as
a part of liberty that we have. These restrictions, like in any other fundamental right, will have to
pass the test of law and reasonability. The judgement argues against arbitrariness.
 Conclusion
No charter of freedom will be worth looking at which does not ensure the same measure of
freedom for the minorities as for the majority. -Mahatama Gandhi

The state and the Indian court should not demean the existence of people with same sex desires
by makings their consensual private sexual conduct as a crime. S 377 with its broader shadow of
criminality is the biggest affront to the dignity and humanity of a substantial minority of Indian
citizens. The courts need to acknowledge that by decriminalising sodomy they will not permit a
mere sexual activity, but decriminalise the lives of actual citizens who are connected to that
sexual act.

The public benefits of this decriminalisation would start with a sense of self-acceptance, comfort,
confidence and evolving pride among gays, bisexuals, lesbians, transgenders, hijras all of
whom are in some way or the other caught within the broader meaning of 377.

The British who enacted the law got rid of it the 1960s in England. So many other countries have
got rid of such laws either by amendment of legislations or vide decisions of the court. Indian
now remains with countries which India would not like to be associated with otherwise.

At the same time we have to respect our constitution. We are a country of many religions. One
cannot impose his/her views on others. Thats the beauty of our Constitution.

So it is the right time that Section 377 has to be read in totality to safeguard the rights and dignity
of miniscule fraction of the countrys population.

Even the British who made these provisions are progressing in order to achieve human rights for
all. Then, why are we still retaining those century old provisions which are outdated and infringe
the very basic human rights of certain community? The Indian Legislature and court should not
wait for any case relating to the harassment of LGBT community people to come up and make a
law repealing this 150 year old section from the Indian Penal Code.
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p. 188. ISBN 978-1-85702-436-4, https://books.google.co.in/books?id=7k-
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15. Regulating sex and sexuality: the 20th century,
http://www.parliament.uk/about/living-heritage/transformingsociety/private-
lives/relationships/overview/sexuality20thcentury/