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A Co-traveler in the long road to

decriminalisation: Upendra Baxi’s
engagement with the queer
movement in India
Siddharth Narrain, 1✉
Email siddharth.narrain@gmail.com
1 Lawyer and legal researcher, Delhi, India

Abstract
Upendra Baxi is one of the few legal scholars of his generation to have
consistently engaged with the queer movement and the legal struggle
for decriminalisation of homosexuality in India. In this article, I
outline three key moments in Baxi’s engagement with queer politics—
his foreword to the groundbreaking 2003 PUCL-K report on human
rights violations against the transgender community in Karnataka, his
public responses to the Delhi High Court’s Naz Foundation decision in
2009 and its overruling by the Supreme Court in the Koushal judgment
in 2013. I conclude by selecting parts of the Supreme Court’s recent
decision in Navtej Singh Johar overturning Koushal, that resonate
strongly with Baxi’s writing on this theme.

Keywords
Section
377 IPC
Queer movement
Right to dignity
Constitutional morality
Transformative constitutionalism

Siddharth Narrain—lawyer and legal researcher, Delhi . Visiting Fellow,

the Sarai Programme-CSDS.

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1. Introduction
Upendra Baxi is one of the few Indian legal scholars of his generation
who has engaged closely with the queer movement in India over the last
15 years. In this aricle I will focus on Baxi’s engagement through his
writing at three key moments in the struggle for LGBT rights in India –
his preface to the groundbreaking report by the Peoples’ Union for Civil
Liberties, Karnataka (PUCL-K) on Human Rights Violations against the
1
Transgender Community published in 2003, and his public responses to
2
the Delhi High Court’s Naz Foundation judgment in 2009 (Naz-1) and
the Supreme Court’s reversal of the Delhi High Court judgment in 2013
3
in Suresh Kumar Koushal (Naz-2). I will conclude by highlighting parts
of the Supreme Court’s recent overruling of its 2013 decision in Navtej
4
Singh Johar (Naz-3) that resonate strongly with Baxi’s writing.

2. PUCL-K Report
The PUCL-K Report, published in 2003, is one of the first attempts to
systematically document the range of human rights violations faced by
transgender persons. It followed another report published by PUCL-K in
2001, which focused on discrimination faced by sexual minorities in the
realms of the law, police, family, medical establishment and popular
5
culture. The 2003 report continues to be cited widely and finds a
6
mention in Justice Chandrachud’s decision in Naz-3. These reports were
a first for PUCL, an organization that had until then focused on more
mainstream civil liberties issues – illegal arrest, detention, custodial
deaths, torture etc. It was a rare moment where a non ‘sexuality’ focused
Indian organization addressed the issue of violation of rights of LGBT
persons in the country.

In the preface to the PUCL-K report, Baxi situated LGBT rights in India
(which he terms lesbigay and transgender movements) as the new frontier
of universal human rights. He draws upon Nancy Fraser’s work to
underscore the potential of queer struggles to destabilize fixed sexual
identities and “to sustain a sexual field of multiple, debinarised, fluid,
7
ever shifting difference”.

Responding to the debate around the potential of the rights discourse,

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Baxi states that the rights discourse has the capacity to both regulate and
emancipate. He argues that the juridicalisation of identity movements is a
necessary development given that the law is a site of the production of
despised sexualities. Baxi situates the PUCL-K report as being an
example of the mission of human rights by contesting discrimination
against this marginalized community.

3. Naz foundation cases

Baxi continues with his close engagement with the struggle for LGBT
rights with his responses to the different phases in the constitutional
challenge of the sodomy law in India, section 377 of the Indian Penal
Code. Section 377 was challenged through a PIL in the Delhi High Court
by the Naz Foundation, a sexuality rights organization in 2001. After a
long journey through the court, dismissed in 2004 saying the petitioner
had not demonstrated a cause of action, and reinstated by the Supreme
Court in 2006, the case finally made its way for arguments before a
8
Division Bench of Chief Justice A.P. Shah and Justice S. Muralidhar.

The Delhi High Court’s decision in 2009 read down the sodomy law, thus
effectively decriminalizing homosexuality, drew almost universal praise
from legal scholars in India. While some legal scholars pointed out
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specific issues of concern in the judgment, the overall tenor of almost
every academic response was largely positive. In the parade of tributes,
one naysaying response stood out. This was a lead paper by Professor
M.P. Singh, one of India’s leading constitutional law scholars, and then
Vice Chancellor of West Bengal National University of Juridical
Sciences (WBNUJS), in a special issue on sexual orientation and the law
10
published by the NUJS Law Review.

In his paper, Mahendra Pal Singh argued that the judges in Naz-1 had
misconstrued the line of precedents in the cases relied on, and that the
court’s line of reasoning, especially around their interpretation of the
right to privacy and dignity, went against decisions by larger benches of
the Supreme Court thus violating established rules of precedent. Prof.
Singh argued that the Naz-1 decision violated the principle of
presumption of constitutionality, which puts the burden or onus on those
challenging an established law rather than those defending it. Singh also

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argued that by reading down the law, the Delhi High Court had disturbed
the constitutional balance of power between the legislature and the
judiciary. The Delhi High Court, by reading down the criminal law, Singh
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argued, had overstepped its jurisdiction. He argued that the farthest that
the court could have gone should have been to ask Parliament to re-
examine Section 377.

Baxi has challenged these arguments on at least two occasions. The first
was at a public talk in 2010 in Bangalore on the occasion of the
12
Alternative Law Forum’s tenth anniversary. The second is in an article
that has been published in Law Like Love: Queer Perspectives on the
Law, an edited volume published in 2011. Baxi responding to Singh’s
arguments, states that these kind of arguments are an example of the
failure to distinguish between an everyday adjudicative moment and an
exceptional one. Naz-1, he argues is an exceptional moment by
scrutinising a pre-colonial penal law with the standards set by the
13
Constitution.

Baxi argues that the judges in Naz-1 were breaking new ground, there
being no precedent directly on the adjudication of the rights of LGBT
persons in India. Further, he argues, that the right to privacy as an aspect
of dignity is a judicially invented constitutional right, and is therefore a
work in progress, and cannot be judged on the same basis as other
constitutional rights.

Baxi points to the potential impact that the Naz-1 judgment could have
on other practices of stigmatization – caste and gender based
discrimination, disability based exclusions, the marginalisation of
‘menial’ workers, and the political stigma faced by those who dare
14
dissent against the state. Baxi reads the Naz-1 judgment as interpreting
the constitutional idea of dignity to include the right to full personhood,
15
the right to be different, and the right to choose one’s core identity. He
reads dignity in Naz-1 to mean that the State and law shall not reinforce
social and cultural prejudice and practices of discrimination directed
16
against these.

Baxi goes further, asking just how far these ideas of dignity can be taken.
In arguments that link to his writings such as his book, The Future of

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Human Rights, Baxi asks what these limits of dignity are – would it be
willing to encompass the dignity of animals, and other species, of
wildlife and the environment. He defends the right to dignity against
critics who argues dignity is a vague and vacuous concept. Baxi says that
18
the ambiguity of dignity claims is not reason enough to dismiss these.

In a powerful rebuttal, Baxi, drawing on the works of other scholars,

describes two kinds of dignity arguments – the narrower dignity as
constraint and the wider dignity as empowerment argument. The latter he
argues would allow for the recognition of one’s capacity to make free
choices, respect for these choices, and respect for the context of these
choices. Baxi goes on to state that the Delhi High Court’s wording of ‘in
private’ in its declaration reading down section 377 does not satisfy the
19
dignity as empowerment condition.

Significantly, seven years after Baxi’s piece was published, Justice

Chandrachud, in his concurring decision in Naz-3, expressly states that
the right to dignity of LGBT persons cannot be limited spatially.
Responding to a very similar line of critique from other legal scholars,
Justice Chandrachud quotes the Puttaswamy judgment (right to
20
privacy) to re-assert that privacy attaches to the person and not to the
21
place where it is associated. Remarkably, and fully satisfying Baxi’s
‘dignity as empowerment’ condition, Justice Chandrachud recognizes
that LGBT persons are often harassed in public spaces. In his judgment
he says:

The right to sexual privacy, founded on the right to

autonomy of a free individual must capture the right of
persons of the community to navigate public places on
22
their own terms, free from state interference

Baxi contrasts the powerful notion of dignity with the idea of ‘disgust’,
which he states is a way of taking away this dignity. He further states that
the review petitions that were filed against Naz-1, were animated by the
argument of fear. He goes on to make an acute observation on what has
animated those opposing the Naz petition in court, and at times, the
government’s response, the argument that societal values will
disintegrate and that the argument portraying sexual acts between adults

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of the same sex not just as unnatural, but also as disgusting. In his
concurring decision in Naz-3, Justice Chandrachud makes a similar
observation. Drawing upon a Human Rights Watch Report on the origins
23
of sodomy laws in British colonialism, he states that section 377
reveals only the hatred, revulsion and disgust of the draftsmen towards
certain intimate choices of fellow human beings. The criminalisation of
acts in section 377 is not based on a legally valid distinction, but on
broad moral proclamations that certain kinds of people, singled out by
24
their private choices are less than citizens, or less than human.

In his writing, Baxi has consistently flagged the possibility of an Article

25 or right to religious belief and freedom of conscience argument posed
against the rights of LGBT persons.

In his 2014 article in the Economic and Political Weekly (EPW), Baxi
launches a scathing attack on the Supreme Court’s reversal of Naz-1,
Baxi begins by saying that while the Supreme Court judgment did not
make constitutional sense, at least it did not go into the realm of Article
25 and argue the fundamental right to conscience and freedom of
25
religious beliefs. Interestingly, in Naz-3 the only mention of Article 25
was from one of the intervenors supporting the petitioners, who argued
that the freedom of conscience in Article 25 should be read to mean to
protect the beliefs of LGBT persons related to their sexual identity, thus
reading Article 25 in a wide manner, not tethered to religious freedom
26
and beliefs. However, the court did not pick up on this argument.

In this EPW article, Baxi goes on to demolish Naz-2 systematically. In

the absence of legislative action, he argued, when the executive infringes
on the rights of LGBT persons, it is the duty of courts to intervene.
Significantly, Baxi argues that the validity of pre-constitutional laws
must be decided by a bench of more than two judges of the Supreme
Court, and that this is especially important when LGBT persons have
27
little or no overt representation in legislatures or the bureaucracy. This
28
is a view that has been put forward by other legal scholars post Naz-2,
and has been vindicated by the constitution of the five judge
constitutional bench to hear Naz-3.

In the EPW article, addressing the reasoning in Naz-2 justifying the

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validity of Section 377 on the basis of reasonable classification test, Baxi

draws on John Rawls to argue that what is rational is not always
reasonable. He argued that a classification that renders people rightless
may count as rational but just by virtue of being rational it cannot also be
called reasonable and constitutional. These arguments are echoed
powerfully in Justice Chandrachud’s concurring decision in Naz-3, where
the court holds that the test of reasonable classification cannot be
reduced to a mere mantra, and to do so would entail legal formalism,
29
which “buries the life-giving forces of the Constitution”.

Baxi, in the EPW article, argues that just because certain kinds of sexual
positions are adopted by a majority of people it does not mean that it
becomes natural, a sentiment that has also been echoes powerfully by the
judges in Naz-3. He ends this article by arguing that judicial disgust
30
cannot be the basis of constitutional decisions, a powerful position that
reflects the contrition and pains that the judges in Naz-3 have gone to, in
distancing themselves from Naz-2. Justice Indu Malhotra has gone as far
as saying that history owes an apology to LGBT persons and their
parents for the delay in providing redressal for the ignominy and
31
ostracism that they have suffered through the centuries.”

In 2013, Baxi co-edited a book on transformative constitutionalism that

32
looked at the apex courts in Brazil, India and South Africa. In his
chapter in the book, he connects the issue of the rights of LGBT persons
to transformative constitutionalism in Brazil, South Africa and India,
stating that at the normative level, the South African Constitution
recognized these rights most directly. He also states that the Indian
Constitution, by assailing untouchability and challenging established
religious norms, is an example of transformative constitutionalism.
Baxi’s observations in this article resonate with the direction taken by the
Constitutional Bench of the Supreme Court in Naz-3. In Naz-3, the
judgment by Chief Justices Dipak Misra and Justice A.M. Khanwilkar go
to great lengths in underlining the transformative nature of the Indian
Constitution. Both the judgment by Chief Justice Misra and Justice
Khanwilkar, as well as Justice Chandrachud’s concurring opinion also
stress on the role of the Indian Constitution in envisaging a more
egalitarian democracy, and in developing a constitutional culture that
protects the rights of individuals, promotes a more inclusive society,

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accommodates more plural ways of life, and helps resolve polarities of

sex and binaries of gender. In doing this, they rely heavily on judgments
33
by the South African Supreme Court, and the United States,
juxtaposing the struggle for racial equality in the United States and South
Africa, with the Indian experience of struggles against caste-based
oppression, and the larger fight for equality.

4. Conclusion
Reading Baxi’s interventions around sexuality rights, his engagement
with the queer movement in India and the legal struggle for
decriminalisation together, one can piece together a remarkable journey –
that of a co-traveler in the long road to decriminalization, and the
continuing struggle for LGBT rights in India.
1
People’s Union for Civil Liberties – Karnataka, Human Rights Violations against the
Transgender Community: A Study of Kothi and Hijra Sexworkers in Bangalore, (2003),
PUCL.
2
Naz Foundation v. Government of NCT of Delhi & Ors., (2009) 111 DRJ 1.
3
Suresh Kumar Koushal & Anr v. Naz Foundation & Ors., (2014) 1 SCC 1.
4
Navtej Singh Johar & Ors. v. Union of India Thr. Secretary Ministry of Law and Justice,
Writ Petition (Criminal) No. 76 of 2016 delivered on 6 September 2018.
5
People’s Union for Civil Liberties – Karnataka, Human Rights Violations against
Sexuality Minorities in India: A PUCL-K Fact Finding Report about Bangalore, (2001),
PUCL.
6
Navtej Singh Johar, supra note 5 ¶ 23, Justice Chandrachud’s concurring opinion.
7
PUCL, supra note 2 at 5.
8
Siddharth Narrain, The Queer Case of Section 377, in SARAI READER 2005: BARE ACTS,
466-469.
9
See for example contributions in the Special Issue: Sexual Orientation and the Law, 2(3)
NUJS L. REV. (2009).
10
Mahendra P. Singh, Decriminalising of Homosexuality and the Constitution,2 NUJS L.
REV., 361-380, .
11
Id. at 378.
12
Upendra Baxi, Courage, Craft and Contention: Human Rights and the Judicial
TH
Imagination, ALTERNATIVE LAW FORUM 10 ANNIVERSARY TALK, 2010.
13
Upendra Baxi, Dignity In and With Naz, in LAW LIKE LOVE: QUEER PERSPECTIVES ON

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LAW 245-246 (Arvind Narrain & Alok Gupta (eds.), 2011).

14
Id. at 231.
15
Id. at 233-234.
16
Id. at 234.
17
UPENDRA BAXI, THE FUTURE OF HUMAN RIGHTS, (2012).
18
Id. at 237.
19
Naz Foundation, supra note 3 ¶ 132. The declaration read as follows: “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.
20
K.S. Puttaswamy & Anr. v. Union of India & Ors., (2017) 10 SCC 1.
21
Navtej Singh Johar, supra note 5 at ¶ 6.
22
Id. at ¶¶ 76-77.
23
This Alien Legacy: The Origins of “Sodomy” Laws in British Colonialism, Dec. 2008,
HUMAN RIGHTS WATCH.
24
Navtej Singh Johar, supra note 5 at ¶30.
25
Upendra Baxi, Naz 2: A Critique, 44 ECON. AND POL. WEEKLY (2014).
26
Written Submissions of Senior Advocate Krishnan Venugopal on behalf of Professor
Nivedita Menon & Ors., ¶¶43-47.
27
Upendra Baxi, supra note 26 at 14.
28
See for example, Nick Robinson, Bigger Bench Please, THE INDIAN EXPRESS, June 8,
2012.
29
Navtej Singh Johar, supra note 5 at ¶ 27, Justice Chandrachud’s concurring opinion.
30
Upendra Baxi, supra note 26 at 14.
31
Navtej Singh Johar, supra note 5 at ¶ 20, Justice Indu Malhotra’s concurring opinion.
32
OSCAR VILHENA, UPENDRA BAXI, & FRANS VILJOEN, TRANSFORMATIVE
CONSTITUTIONALISM: COMPARING THE APEX COURTS OF BRAZIL, INDIA AND SOUTH
AFRICA, PRETORIA UNIVERSITY (2013).
33
Navtej Singh Johar, supra note 5 at ¶¶ 99–104.

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