TAMIL NADU NATIONAL LAW UNIVERSITY

(A STATE UNIVERSITY ESTABLISHED BY ACT NO.9 OF2012)

Navalurkuttapattu, Srirangam (TK), Tiruchirappalli - 620009, Tamil Nadu

PROJECT ON :-

CONSTITUTIONAL VALIDITY OF SECTION 377

SUBMITTED TO PROF. AMRISHA TRIPATHI

By

Sonali Priyadarsani

Reg No. BA0190048

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CONTENTS

1. INTRODUCTION……………………………………………………………………03
2. METHODOLOGY…………………………………………………………………...04
A. RESEARCH OBJECTIVES………………………………………………...…04
B. RESEARCH METHODOLOGY……………………………………………...04
C. HYPOTHESIS………………………………………………………………….04
D. RESEARCH QUESTIONS……………………………………………………04
E. STATEMENT OF PROBLEM……………………………………………….05
3. BODY OF THE PROJECT…………………………………………………………06
A. HISTORICAL BACKGROUND AND SCOPE AND ESSENTIALS OF
SECTION 377……………………………………………………………………06
B. JUDICIAL INTERPRETATIONS OF SECTION 377………………………08
C. CONSTITUTIONAL VALIDITY OF SECTION 377………………………10
4. CONCLUSION……………………………………………………………………13
5. BIBLIOGRAPHY…………………………………………………………………14

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 INTRODUCTION

Human dignity is at the heart of the human being, irrespective of their sexual orientation.

Every human being is entitled to some inalienable rights irrespective of his identity and sexual
orientation. LGBTQ people are painted as a stigma in the society and therefore, they are denied
inalienable rights like “ right to life, right to live with dignity and right to equality’ etc. These
inalienable rights of the LGBTQ community are jeopardized since a long time due to the
provision of “Section 377 of Indian Penal Code”.

Origin of “Section 377 of Indian Penal Code” can be traced from the Buggery Act of England.
The Act made sexual relations with men punishable by death. Section 377 incorporates the same
principle. It speaks about unnatural offences, and it makes punishable those acts wherein the
person indulges in carnal intercourse against the order of nature with any men, women or animal.
This provision thus also covers criminalization of sexual activities of homosexuals. The
provision is based on Victorian ideology, that is, sex is for procreation and sex with the same sex
is to be considered against the order of the nature. This ideology was adopted in the form of
“Section 377 of Indian Penal Code”. Thus this section by criminalizing certain performances
based on sexual orientation violates the Constitutional provisions of the country, namely, Article
14, 15, 19 & 21.

India being a country which enshrines values like equality, justice and Right to Life(which also
includes Right to Privacy) in its Constitution, it has been a tough call for the judiciary to decide
the Constitutional validity of this provision from time to time. The legal fight against the
provision has been a long and tedious one. This section was struck down and declared
unconstitutional in the “Naj Foundation Case”, but the decision was overturned in the Suresh
Koushal Case by the Supreme Court in 2013. Eventually, in the year 2018, the Supreme Court,
in the case of “Navtej Singh Johar v. Union of India” case declared the law unconstitutional ”in
so far as it criminalizes consensual sexual conduct between adults of the same sex”. The decision
was held as a milestone establishment of the LGBTQ community in our country.

METHODOLOGY

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RESEARCH OBJECTIVES

1. To study the historical background and scope and essentials of Section 377 of Indian
Penal Code.
2. To study the changing trends in judicial interpretation of Section 377 of Indian Penal
Code.
3. To study the section critically and present contentions regarding the validity of the same.

RESEARCH METHODOLOGY

The methodology followed by the researcher while researching upon the project is doctrinal in
nature. The research is descriptive and analytical. Relevant information have been collected from
the primary and secondary sources.

HYPOTHESIS

The study depends on the speculation that Section 377 of Indian Penal Code was against the soul
of the Constitution of India and it disregarded the principal privileges of a person which can be
portrayed as right to life, right to freedom, right to uniformity and right against discrimination.

RESEARCH QUESTION

Whether the mere decriminalization of the provision will be justified as a remedy for the decades
of unjust discrimination against the LGBTQ community.

STATEMENT OF PROBLEM

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The researcher addresses the problem of the interpretation of Section 377 which has been held
unconstitutional by the Indian Judiciary. Even after the declaration by the Supreme Court of
India, the job of changing the social stigma associated with it is quite challenging.

BODY OF THE PROJECT

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 1. Historical background, scope and essentials of this
provision.
The Buggery Act of United Kingdom rebuffs people for buggery/unnatural offenses
which is considered as an unnatural sexual offense against the desire of God and man.
Later on this arrangement was canceled in UK yet this arrangement discovered its place
in the Indian Penal Code under Section 377. In India, it was drafted by Thomas Macaulay
around 1838 yet came into spotlight through “Sepoy Mutiny( First War of Independence
1857)”. The English Law considered such acts like homosexuality which alludes to the
constitution of an unnatural offense. Sodomy as per American Jurisprudence refers to:
“ Sodomy appears originally as a part of the Herbriac law,taking its name from the practices
reputedly indulged in by the inhabitants of the cities of Sodom and Gomorah, but unfortunately,
the Biblical text is not explicit about the various types of conduct for which these cities were
visited with fire and brimstone, although other portions of the Old testament prohibit sexual
congress between man and man in general terms.”1
Now, there are many countries who held sodomy laws as unconstitutional. But still there
are 72 countries who continue to criminalize and consider sodomy as an unnatural
offence.
In India, this provision was stated in the “Section 377 of the Indian Penal Code “–
“ Unnatural Offences- Whoever voluntarily has carnal inter-course 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.”2
Sodomy, buggery and bestiality are the offences which are covered under this provision.
To comprise an offense under this area the arrangements are:

1. Accused engaged in sexual relations with man, lady (thinking about the sex of the
denounced) or creature,
2. Act was against the request for the nature,

1
R A Nelson, Indian Penal Code, (11th ed., vol 3, Lexis Nexis, 2016) p. 3242.
2
Indian Penal Code, 1860, s. 377.

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 3. Act was done willfully by denounced,
4. Penetration had happened.

In the case of “State of Kerela v. Kundumkura Govindan 3”, the court held that when the
accused has just inserted male organ in between the thighs kept together and tight, it
amounts to carnal intercourse against the order of nature. Where after to constitute an
offence under this section, penetration is also an important criterion, though the entire act
is not an essential ingredient of the offence, but where there is no penetration attempted
or intended then this section will not be attracted and the person will be liable under
section 354. Such offence can also be tried in a single trial along with the charges of sec.
376.

In the case of “ Pooran Ram v. State of Rajasthan” 4, it was held by the court that any act
that results in sexual offence leads to either homosexuality or commission of rape.

Section 377 likewise included consensual sexual demonstrations of grown-ups, for

example, oral and anal-centric sex in private which were treated as unnatural and
culpable. It criminalized and restricted the sexual actions of an individual in his own
capacity. It included all those sexual phenomenon which were against the order of nature
and unnatural such as homosexual sex and bestiality. The provision/section considered all
those acts as unconstitutional, irrational, indefensible, manifestly arbitrary and illegal. In
simple words, it criminalized the consensual sexual acts between people of same sex.

Therefore, to put forth that an act is covered under section 377, it had to be proved that
there had been an act of sex with the consensus of both indulging individuals which
caused penetration that is considered as against the order of the nature.

2. JUDICIAL INTERPRETATIONS OF SECTION 377

3
State of Kerela v. Kundumkura Govindan (1969) Cr LJ 818 (Ker.) (India).
4
Pooran Ram v. State of Rajasthan 2001 CriLJ 91 (India).

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 The established legitimacy of this area was tested on account of Naz Foundation v.
Government of NCT of Delhi 5by a Public Interest Litigation recorded by the NGO 'Naz
Foundation' working for HIV/AIDS exploited people. The request depended on the
conflict that the area condemns the consensual sexual relations of gay people which
expressly encroaches their fundamental rights as cherished in the Constitution in
particular Article 14, 15, 19 and 21.
The foundation got the movement the open excitement in light of the way that it deals
with battling the spread of HIV/AIDS was being hampered by mistreatment against the
gay system. This segregation, the solicitors submitted, brought about the forswearing of
essential human rights, misuse, badgering and ambush by open specialists, consequently
driving the gay network underground and exposing them to more prominent helplessness
infringing upon their principal rights.
The Court held the choice on the side of the applicant and held that Section 377 was
unlawful. To begin with, the Court imagined that it ignored the privilege to privacy and
protection by alluding to the “Universal Declaration of Human Rights and European
Court of Human Rights” and furthermore the occurrence of Francis Coralie Mullin in
which the Indian Constitutional Court described respect as requiring satisfactory safe
house, nourishment, dress just as the capacity to mingle uninhibitedly. Next, the Court
held that under “Article 12 of the ICESCR” and “Article 21 of the Indian Constitution”,
the state must fulfill "everyone's qualification to get to the most raised practical standard
of prosperity" as a significant part of the benefit to life. The Court agreed that
criminalization of homosexuality pushes gay individuals into separation and squares
access to adequate information for expectation of HIV/AIDS.
The Court additionally referred to the “General Comment 14 to the ICESCR” in
characterizing the privilege to satisfactory wellbeing as including the privilege to control
one's wellbeing and body, including sexual regenerative opportunity, the privilege to be
free from obstruction, and above all non-separation and equivalent treatment with respect
to social insurance. 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

5
Naz Foundation v. Government of NCT of Delhi (2010) Cri LJ 94 (India).

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 understandings of sexual orientation, the Court found section 377 to be an
unconstitutional infringement on fundamental rights. 
The decision of the High Court was later overruled in the Suresh Koushal Case 6 wherein
the court upheld the Constitutional validity of this section.

FACTS OF NAVTEJ SINGH JOHAR CASE

The Petitioner in the present case, Navtej Singh Johar, a dancer who identified as part of
the LGBT community, filed a Writ Petition in the Supreme Court in 2016 seeking
recognition of the right to sexuality, right to sexual autonomy and right to choice of a
sexual partner to be part of the right to life guaranteed by “Article 21 of the Constitution
of India”. Furthermore, he sought a declaration that Section 377 was unconstitutional.
The Petitioner also argued that Section 377 was violative of Art. 14 of the Constitution
(Right to Equality Before the Law) because it was vague in the sense that it did not define
“carnal intercourse against the order of nature”. There was no intelligible differentia or
reasonable classification between natural and unnatural consensual sex. Among other
things, the Petitioner further argued that (i) Section 377 was violative of Art. 15 of the
Constitution (Protection from Discrimination) since it discriminated on the basis of the
sex of a person’s sexual partner, (ii) Section 377 had a “chilling effect” on Article 19
(Freedom of Expression) since it denied the right to express one’s sexual identity through
speech and choice of romantic/sexual partner, and (iii) Section 377 violated the right to
privacy as it subjected LGBT people to the fear that they would be humiliated or shunned
because of “a certain choice or manner of living.”
The Respondent in the case was the Union of India. Along with the Petitioner and
Respondent, certain non-governmental organizations, religious bodies and other
representative bodies also filed applications to intervene in the case.
The Supreme Court of India collectively held that Section 377 of the Indian Penal Code,
1860, which condemned 'carnal intercourse against the order of nature', was illegal to the
extent that it condemned consensual sexual actions between grown-ups of a similar sex.
It was established in the Navtej Singh Johar case that the Section 377 of the IPC was
against the fundamental rights of the citizens i.e. “right to privacy, freedom of expression,

6
Suresh Kumar Koushal v. Naz Foundation and ors. Civil Appeal No. 10972 OF 2013.

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 fairness, human equality and protection from discrimination”. The way this section made
the homosexuals or such queer people feel estranged or alienated was against the spirit of
the Indian Constitution in terms of the benefit of uniformity among Indian citizens. The
denunciation of the assented sex between adults as a part of their private life was
condemning the privilege of equality, and supporting that sexual orientation constructs
and gives idea of a large part of the character of an individual, the equivalent will violate
the right to life. The court asserted the fact that such indispensable rights cannot be
violated on the ground that such queer people form a very small part of the society.

3. CONSTITUTIONAL VALIDITY OF SEC 377

Constitution of India enshrines certain rights and values like right to equality, freedom of
speech and expression, right to life etc. The section is a blot on the values enshrined in
the Constitution as it infringes the fundamental rights of the homosexuals. It is contended
by many and was also observed in the cases mentioned above that this section violates
the “fundamental right of equality(Article 14), right against discrimination(Article 15),
and right to life and personal liberty (Article 21)” of the LGBTQ community. Further, it
has been observed in various case laws like “Anuj Garg v. Hostel Association of India
and ors7”that pre-constitutional laws do not owe the presumption of constitutionality and
thus can be challenged.
According to the researcher, Section 377 is arbitrary as there is no intelligible differentia
between the heterosexuals and homosexuals. Regardless of whether one guesses that the
differentia on premise of sex is unequivocal at that point there is no sensible nexus with
the item to be accomplished from this differentia. Further, singular freedom can be
undermined in light of a legitimate concern for the public order or security, there are two
significant admonitions
a. that the risk to public order must be founded on proof,
b. it must be founded on thinking satisfactory to all.

7
Anuj Garg v. Hostel Association of India and ors. Civil Appeal No. 12781 (2006).

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 Therefore, majority moral convictions cannot be treated as valid public interests in the
absence of consequential threat to public order that is over and above immorality. Thus, section
377 is not based on a reasonable classification and is in violation of Article 14.

The Court in the Naz Foundation case held that sexual inclination is a ground practically
equivalent to sex and segregation based on sex isn't passable by Article 15. Though the same
argument was contended in the Singapore court when the constitutional validity of a similar
provision was challenged and it was proposed that “Article 12(2) of Singapore Constitution”
restricts segregation on the specified grounds “only of religion, race, descent or place of birth”.
Judges are not enabled to discover 'closely resembling' grounds restricting separation. To be sure,
any further increments must be presented by established change after thorough discussion in
Parliament. Also the Indian Supreme Court in the “Suresh Koushal Case” failed to address on
point whether Article 15 include sexual orientation within its ambit or not. Thus, the section 377
which punishes even consensual sex privately done between same sex partners is against the
spirit of the fundamental rights to life of an individual.

The international stance on this issue also support the same that is an individual is entitled to
Right to Privacy as his or her basic right. In the case of “Tonnen v. Australia “8, the “Human
Rights Commission of the International Covenant of Civil and Political Rights (ICCPR)”
considered areas 122(a), 122(c), 123 of the "Tasmanian Criminal Code" that condemned
different types of sexual contacts between men, including all types of sexual contact between
men, including all types of sexual contacts between consenting grown-up gay men in private and
whether this added up to the infringement of "Article 17 of the ICCPR" ensuring the privilege to
security and the privilege to assurance by law from impedance into one's private life, it was held
that segments disregard the essential opportunity of a person. Though, even after such cases there
comes the argument that whether prohibition against segregation on the grounds of sexual
inclination comes within the ambit of customary international law, it has been contended that due
to lack of evidence of opinion juris and state practice it cannot be covered under the same.
Therefore, until the countries do not take a proper stance on the position of anti-sodomy laws it is
hard to ensure the privileges of the LGBTQ Community.

8
Tonnen v. Australia (1994).

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Thus, it can be inferred that Constitutional values stand above any law and public morality.
Section 377 is contended to be against the golden triangle (Article 14, 19 and 21) and “Article 15
of the Constitution”. It was properly held in the Naz Foundation Case that there is no reasonable
classification and there is prohibition in terms of sexual inclination that is against the spirit of
Article 14 and Article 15 respectively. Also, there right to freedom of speech and expression and
right to privacy are also hampered, of which, the latter has been declared as the fundamental
right after the Puttaswamy judgement. Therefore, the Supreme Court has to take call with respect
to this provision as it is against the spirit of the Constitution and is being misused by the
agencies, if declared unconstitutional it will instill a sense of self-acceptance and comfort in the
LGBT community.

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 CONCLUSION
Section 377 legitimizes the disgrace related with sexual orientation and its demeanor something
which is fundamental and the Supreme Court has rejected Section 377 of the IPC,
decriminalizing the 158-year-old frontier law which condemns consensual gay. But, complete
change won't occur so rapidly. Be that as it may, there are surely positive changes on the ground.
Segregation is still there yet there is a social acknowledgment of sexual orientation and gender
equality rights. Due to the solid judgment, individuals do need to acknowledge that sex character
or sexual direction might be unique yet the Constitution ensures it. In this way, at one level
transparency is there in discussing these issues and a constructive reaction by individuals.

Something that the Section 377 judgment has done lamentably, is that it has divided the eccentric
development. Since it was something that the different characters inside the strange network
could revitalize behind. Since the law has been perused down, individuals, who are on the more
favored end, would prefer not to take part in any of the battles on sex and sexuality.

Be that as it may, a great deal should be done at the socio-social level. The judgment has
limitedly helped transgender individuals and those focused by the police, however familial and
social acknowledgment is as yet a far-fetched dream for some. It keeps on being hard to be open
at work environments and many are as yet constrained into hetero relationships or are shunned.

There stays a vast expanse of socio-lawful advantages accessible to hetero cis-gendered

individuals that is distant for the rest. As far as lawful rights, beggary and medicinal laws,
arrangements around sex personality and therapeutic welfare are the obvious issue at hand. One
must take a gander at family law: legacy, selection, and parental rights. Marriage and separation
are some different areas that strange individuals have no degree to genuinely get to.

With respect to where we go from here, there are a great deal of different rights, for example,
marriage and reception that become possibly the most important factor. Despite the fact that it is
currently lawful, there are a great deal of miles to cover before it arrives at social authorization.
The social mindfulness and exchange needs to proceed.

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 BIBLIOGRAPHY
Books:

 MP Jain, Indian Constitutional Law, (6th ed., 2012) Lexis Nexis Butterworths Wadhwa.
 V. N. Shukla, Constitution of India, (13th ed., 2017) EBC Publishing (p) Ltd.
 DD Basu, Introduction to Constitution of India, 22nd Edition.

Articles:

 Alok Gupta, ’Section 377 and its effect on the Indian Homosexuals’, (2006) EPW.
 Clarice B. Rabinowitz, ‘Proposals for Progress: Sodomy Laws and the European
Convention on Human Rights’, (1995) 21 Brook J. International p. 425.
 M. P. Singh, ‘Constitutionality of Section 377, Indian Penal Code- A Case of misplaced
hopes in Courts’ (2013) 6 NUJS L Rev. 331

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