Basics of Legislation Hariank

Homosexuality: Review of the attitude of Legislative and Judiciary in India
Dr. RAM MANOHAR LOHIYA NATIONAL LAW

UNIVERSITY
2018-2019
BASICS OF LEGISLATION
Project on
HOMOSEXUALITY: REVIEW OF ATTITUDE OF
LEGISLATIVE AND JUDICIARY IN INDIA
SUBMITTED BY: UNDER THE GUIDANCE OF:
Hariank Gupta Dr. Shashank Shekhar
Enrolment No. 180101053 Assistant Professor
Sec: A Faculty of Law, RMLNLU
B.A. LL.B. (Hons.), Semester- I
i
ACKNOWLEDGEMENT
I would like to use this opportunity to extend my heartiest gratitude to all the people who
have helped me develop this project.
First and foremost, I would to thank my Basics of Legislation professor, Dr. Shashank
Shekhar, who has been constantly supporting me, guiding me and helping me with all my
queries and difficulties regarding this project since its fledgling stage. Without his
enthusiasm, inspiration, and efforts to explain even the toughest of jargons in the most lucid
manner, the successful inception of this project would have been a Herculean task.
Next, I would like thank the librarians of Dr. Madhu Limaye library for helping me find the
correct resources for my research and for helping me enrich my knowledge.
Finally, I would like to extend my gratitude to my batch mates and seniors for providing me
some unique ideas and insights which helped me make this project even better.
I know that despite my sincerest efforts some discrepancies might have crept in, I hope and
believe that I would be pardoned for the same.
Thanking You
Hariank Gupta
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PREFACE
Homosexuality can be defined as sexual attraction or the tendency to direct sexual

desire toward another of the same sex. Homosexuality is legal in most countries but
in some countries it is illegal. Just because it is not common does not mean it should be
condemned. India is a developing country and what will boost the growth and development in
the country? The introduction of progressive laws will. Homosexuality will remain a taboo as
long as people are willing to shove it under the carpet of oblivion.
The shift in the understanding of homosexuality from sin, crime and pathology to a normal
variant of human sexuality occurred in the late 20th century.1 The American Psychiatric
Association, in 1973, and the World Health Organisation, in 1992, officially accepted its
normal variant status. Many countries have since decriminalised homosexual behavior and
some have recognised same-sex civil unions and marriage. It was illegal in India till
06/07/2018 but became legal on this specific date by a constitutional bench of Hon’ble
Supreme court.
Psychoanalytic, psychiatric, medical and mental health professionals now consider

homosexuality as a normal variation of human sexuality. Investigations using psychological
tests could not differentiate Homosexual from Heterosexual orientation. Research also
demonstrated that people with homosexual orientation did not have any objective
psychological dysfunction or impairments in judgement, stability and vocational capabilities.
The acceptance of the distinction between desire, behaviour and identity acknowledges the
multidimensional nature of sexuality. Medicine and psychiatry employ terms like
homosexuality, heterosexuality, bisexuality and trans-sexuality to encompass all related
issues, while current social usage argues for lesbian, gay, bisexual and transgender (LGBT),
which focuses on identities. Bisexuality, both sequential and concurrent, and discordance
between biological sex and gender role and identity add to the issues.
1
VA Sadock, Kaplan and Sadock's Comprehensive Textbook of Psychiatry (BJ Sadock, VA Sadock & P Ruiz
ed, 9th edn Philadelphia: Lippincott Williams & Wilkins, 2009) 2027–59.
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LIST OF ABBREVIATIONS
1. ADM – Additional District Magistrate

2. AIR – All India Reporters
3. Art. – Article
4. HC – High Court
5. J. - Justice
6. MISA – Maintenance of Internal Security Act
7. SC – Supreme Court
8. Sec. – Section
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LIST OF CASES
Cases
Naz Foundation v. Govt. of NCT of Delhi (2009)160 DLT 277 ……………………………15
Suresh Kumar Koushal and Another v. NAZ Foundation and others (2014) 1 SCC 1……....17
Navtej Singh Johar v. Union of India W.P. (Crl.) No. 76 of 2016…………………………..18
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TABLE OF CONTENTS
Contents
PREFACE.............................................................................................................................................ii
LIST OF ABBREVIATIONS...............................................................................................................iii
LIST OF CASES..................................................................................................................................iv
CHAPTERIZATION.............................................................................................................................6
1. History of Homosexuality.......................................................................................................6
2. Homosexuality Around The World.......................................................................................7
3. Homosexuality in Indian Society...........................................................................................9
4. Section 377 of IPC.................................................................................................................11
5. Attitude of Indian Legislature.............................................................................................13
6. Attitude Of Indian Judiciary...............................................................................................14
7. Conclusion.............................................................................................................................20
BIBLIOGRAPHY...............................................................................................................................21
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CHAPTERIZATION
1. History of Homosexuality :
The earliest western document concerning homosexual relationship come from Ancient
Greece, where same sex relationship were the societal norm. Even homosexual marriages
have occurred with relative frequency in the past, both within Christian and non-Christian
communities. Researchers suggest that the Catholic Church, which has been extremely
vociferous in its opposition to homosexuality in general, approved of same-sex marriages for
over 1500 years, only ceasing to perform them in the nineteenth century.
In preindustrial societies also homosexuality was generally accepted by the lower classes
while some members of upper classes considered it immoral. However with the rise of
urbanization and the nuclear family, homosexuality became much less tolerated and even
outlawed in some cases. The sexual orientation in pre modern era as depicted in love poetry
and paintings and even in historic figures such as Alexander the great, Plato, Hadrian, Virgil,
Leonardo da Vinci, Michelangelo and Christopher Marlowe included or were centered upon
relationship with people of their own gender.
However the term homosexuality appears in print for the first time in 1869 in an anonymous
German pamphlet paragraph 142 of the Prussian penal Code and Its maintenance paragraph
152 of the Draft of a Penal Code for North German Confederation written by Karl Maria
Kertbeny. This pamphlet advocated the repeal of Prussia’s sodomy laws.
Thus homosexuality is not a new phenomenon. Even instances of homosexuality are

available in Hindu Mythology. The literature drawn from Hindu, Buddhist, Muslim, and
modern fiction also testifies the presence of same-sex love in various forms. Ancient texts
such as the Manu Smriti, Arthashastra, Kamasutra, Upanishads and Puranas refer to
homosexuality. Also there are reports that same-sex activities are common among sannyasins,
who cannot marry. Thus instances of homosexuality are available in historical and
mythological texts world over and India is not an exception to this.2
2
David Sharp, “All the Period in History when homosexuality was Celebrated and Embraced” (Rankers 24 april
2017)<https://www.ranker.com/list/homosexuality-in-history/david-sharp> accessed on 21 october 2018
6
The Cultural residues of homosexuality can be seen even today in a small village Angaar in
Gujarat where amongst the Kutchi community a ritualistic transgender marriage is performed
during the time of Holi festival. This wedding which is being celebrated every year, for the
past 150 years is unusual because Ishaak, the bridegroom and Ishakali the bride are both men.
Thus the history is filled with evidences proving the existence of homosexuality in past.
Whereas in the past 10 years world over, for the lesbian and gay rights, we find that the legal
initiatives have shifted from the right to be privately sexual, that is the right to have same-sex
relationships at all, to the right to be individual civic subjects, protected from discrimination
in the work place and in the provision of services, toward the right to have relationships given
status by the law. This shift in rights-focus, from decriminalization, to civil protection, to
civil recognition is, not entirely a linear one. Thus in recent years a number of jurisdictions
had relaxed or eliminated laws curbing homosexual behaviour.
2. Homosexuality Around The World :
According to Aristotle, although most "belligerent nations" were strongly influenced by their
women, the Celts were unusual because their men openly preferred male lovers . H. D.
Rankin in Celts and the Classical World notes that "Athenaeus echoes this comment and so
does Ammianus. It seems to be the general opinion of antiquity." In book XIII of his
Deipnosophists, the Roman Greek rhetorician and grammarian Athenaeus repeating
assertions made by Diodorus Sculus in the 1st century BC, wrote that Celtic women were
beautiful but that the men preferred to sleep together. Diodorus went further, stating that "the
young men will offer themselves to strangers and are insulted if the offer is refused". Rankin
argues that the ultimate source of these assertions is likely to be Poseidonius and speculates
that these authors may be recording "some kind of bonding ritual ... which requires
abstinence from women at certain times".
Queen Beatrix of the Netherlands signs into law the first same-sex marriage bill in the
world making Netherlands the first country in the world to legalise Homosexuality.
Fifty years after homosexuality was decriminalised in England and Wales, 72 other countries
and territories worldwide continue to criminalise same-sex relationships, including 45 in
which sexual relationships between women are outlawed. There are eight countries in which
homosexuality can result in a death penalty, and dozens more in which homosexual acts can
result in a prison sentence, according to an annual report by the International Lesbian, Gay,
7
Bisexual, Trans and Intersex Association (ILGA). Southern and east Africa, the Middle East
and south Asia persist with the most draconian approaches. Western Europe and the western
hemisphere are the most tolerant.
But Britain was by no means a frontrunner when it moved 50 years ago to partly
decriminalise homosexuality. Some 20 other countries had already led the way, including
France, Belgium, the Netherlands, Brazil and Argentina, all of whom had legalised it well
before 1900.
In Iran, Sudan, Saudi Arabia and Yemen, homosexuality is still punishable by death, under
sharia law. The report notes that, although the potential exists for a death penalty to be
handed down under sharia courts in at least five other countries – Pakistan, Afghanistan, the
UAE, Qatar and Mauritania – there is no evidence suggesting that it has been implemented
for consensual same-sex acts between adults in private.
Same-sex relations – which are variously criminalised under laws covering sodomy, buggery
and “acts against nature” among others – could lead to a prison sentence in 71 states in all.
Altogether, more than 120 countries have decriminalised homosexuality. But some cannot be
described as liberal eg. Russia has recently introduced laws banning the promotion of
homosexuality.
With the Supreme Court decriminalising gay sex, India joins 25 other countries where
homosexuality is legal. However, 72 countries and territories worldwide still continue to
criminalise same-sex relationships, including 45 in which such relationships between women
are outlawed.
Here is the list where 26 countries where Homosexuality is Legal –
The Netherlands(2000) Greenland(2015)

South Africa(2006) Australia(2017)
Scotland(2014) Iceland(2010) Spain(2005)
Belgium(2003) Ireland(2015)
United States(2015) Brazil(2013)
Luxembourg(2014) Sweden(2009)
Canada(2005) Malta(2017)
Colombia(2016) Uruguay(2013)
Denmark(2012) Argentina(2010)
England / Wales(2013) New Zealand(2013)
Finland(2015) Norway(2008)
France(2013) Portugal(2010)
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Germany(2017) India(2018)
3. Homosexuality in Indian Society :
Homosexuality, often called the third sex, has an unsettled legal and social status in India.
While, we see rallies and public protests against the oppression of homosexuals in the
society, we also see the homosexuals being looked down upon by a large number of members
of the society. The Indian society appears ambivalent, being tugged between popular views
and the call of their own conscience. These societal and legal perspectives in turn, have a
plausible psychological impact on the members of the homosexual community, also called
the LGBT (lesbians, Gays, Bisexuals, transgenders) community in the local jargon.3
The law criminalising same-sex sexual acts in India has a long history going back to India’s
colonial past. The law was enshrined in Section 377 of the Indian penal Code (IPC),
authored under the chairmanship of Lord Macaulay, which came into force in 1860 when
India was a British colony. Section 377 reads thus: “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.” Though the section does not explicitly
mention homosexuality, the phrase ‘carnal intercourse against the order of nature’ refers to
non-normative and non-reproductive sexual acts (i.e. sexual acts other than penile-vaginal
intercourse) which includes same-sex sexual acts. The general thrust of this law derives from
England’s Buggery Act of 1533, enacted during the reign of Henry VIII.
This colonial era anti-sodomy law in India became the basis for the persecution and ostracism
of queer communities in the country, with police oppression and everyday violence going
unaddressed as LGBTQ Indians feared being themselves booked under Section 377 if they
are to report such matters to the authorities. It also became the basis to deny LGBTQ Indians
access to Aids prevention programmes, and a range of other rights. What the Supreme Court
in its ruling has done, is to proclaim that Section 377 will cease to apply to the LGBTQ
population. By doing so, the Apex Court has taken a step towards decolonising sexuality and
its regulation in India. The colonial desire of controlling and regulating the bodies of the
colonised population, was institutionalised and codified through laws like these and taking
them off the books is a welcome step in undoing entrenched colonial violence.
3
Ankita Sen, ‘Homosexuality and the Law in India’, (IPLEADERS, 15th October 2015)
<https://blog.ipleaders.in/homosexuality-law-in-india/ > accessed 15th October 2017.
9
But it will be oversimplifying the case to argue that homosexuality and gender fluidity had a
pride of place in pre-colonial India, only to be repressed by colonial intervention. Forms of
non-normative sexualities and gender expressions flourished in different pockets in pre-
colonial India from time to time, and there exists textual evidences for the same, but it was
never universally celebrated by all sections and in every period. What colonial legal
frameworks did was to compartmentalise and codify these sexual and gender diversities –
often residing in the margins – into then prevalent western categories and criminalise them in
unprecedented ways.
The challenges of living in a predominantly heterosexual world, the diversity within people
with homosexual orientation results in many different kinds of issues. Sex, gender, age,
ethnicity and religion add to the complexity of issues faced. The stages of the life cycle
(childhood, adolescence, middle and old age), family and relationships present diverse
concerns. In most circumstances, the psychiatric issues facing gay, lesbian and bisexual
people are similar to those of the general population. However, the complexities in these
identities require tolerance, respect and a nuanced understanding of sexual matters. Clinical
assessments should be detailed and go beyond routine labelling and assess different issues
related to lifestyle choices, identity, relationships and social supports. Helping people
understand their sexuality and providing support for living in a predominantly heterosexual
world is mandatory. People with homosexual orientation face many hurdles including the
conflicts in acknowledging their homosexual feelings, the meaning of disclosure and the
problems faced in coming out.
Perhaps no postcolonial nationalist myth on sexuality is more pervasive than the belief that
homosexuality is alien to India (read as: Hinduism) and is the outcome of Mughal invasions
and westernizations.. Religion has played a role in shaping Indian customs and traditions.
While homosexuality has not been explicitly mentioned in the religious texts central to
Hinduism, it has taken various positions, ranging from positive to neutral or antagonistic.4
Rigveda one of the four canonical sacred texts of Hinduism says Vikriti Evam Prakriti (what
seems unnatural is also natural), which some scholars believe recognises the cyclical
constancy of homosexual/transsexual dimension of human life, like all forms of human
diversity.
4
Nilanjana s. Roy, ‘ Homosexuality in India: A literary History’ “ (New York Times, 24 February 2012)
<https://india.blogs.nytimes.com/2012/02/24/homosexuality-in-india-a-literary-history/> accessed 26 October
2018
10
The legal fight against this draconian colonial-era law began several decades ago. One of the
first organised movements was led by the Delhi-based organisation AIDS Bhedbhav Virodhi
Andolan (ABVA), roughly translated as ‘Movement to Protest AIDS Discrimination’. The
ABVA published a manifesto called “Less Than Gay” in 1991, demanding for Section 377 to
be struck down and the rights of LGBTQ Indians to be recognised. It was ABVA which led
the first legal challenge against Section 377 at the Delhi High Court in 1994, but the group
itself disbanded before the petition came up for hearing.
The Naz Foundation had tucked at Section 377 of the Indian Penal code, the very root of anti-
sodomy law in India. The Naz Foundation India(Trust) Limited., a nongovernmental
organization works towards the prevention of AIDS, providing support to the victims of this
deadly disease, that includes people from the sexual minorities, like the homosexuals. The
crusade against law criminalizing consensual same sex activity between adults started in the
year 2001, when the Naz Foundation filed a lawsuit in the High Court of Delhi against the
anti sodomy law, alleging that Section 377 was being used for police atrocities, thus
impeding their activities.
4. Section 377 of IPC :
“377. Unnatural offences—Whoever voluntarily has carnal intercourse against the order of
nature with any man, woman or animal, shall be punished with imprisonment for life, or with
imprisonment of either description for a term which may extend to ten years, and shall also
be liable to fine.
Explanation — Penetration is sufficient to constitute the carnal intercourse necessary to the
offence described in this section.”
Section 377 in the Indian Penal Code, drafted by Lord Macaulay is also an offshoot of such
historical as well as popular conservative religious beliefs.
Burglary Act
This Section was drafted by Thomas Macaulay around 1838 but was only brought into effect
in 1860 in light of the Sepoy Mutiny (First War of Independence) 1857. This law in British
India was modelled on the Buggery Act 1533 which was enacted under the reign of King
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Henry VIII. This law defined ‘buggery’ as an unnatural sexual act against the will of God and
man. Thus, this criminalised anal penetration, bestiality and in a broader sense
homosexuality.5
Offences against the Person Act 1861

In 1828, the Act was repealed and replaced by the Offences against the Person Act 1828. This
Act broadened the definition of unnatural sexual acts, and allowed for easier prosecution of
rapists, but also homosexuals. This Act is what is considered to be the inspiration for Section
377 of the Indian Penal Code. In years to come this Act would be repealed by the British and
replaced by the Offences against the Person Act 1861 and finally homosexuality was
decriminalised by the Sexual Offences Act 1967. It is interesting to note that while the British
government has now made same-sex marriage legal, the Indian government still follows this
archaic law written in the 1830s and enacted in 1860.6
The language of against the order of nature‟ in section 377 provides little indication that it is
directed towards particular sexual subjects. The commentary attached to section 377 indicates
that the law is meant to punish sodomy, buggery and bestiality; in other words, targeting
sexual practices rather than sexual subjects who come to embody socially
constituted perversities in the form of homosexual. Increasingly the state became sites to give
new ideas and, truths about sexuality.
There is a nagging inconsistency between seeing section 377 as a node in the production of
state power and arguing that it is a prevalent site for the legal regulation of same sex sexual
subjects. Section 377 case law suggests that few cases of same sex adult sexual activity
are prosecuted in the higher courts. But what is certain is that section 377 is wielded
as a threat against sexual minorities. The question which the Indian Judiciary has been trying
to deal with since 1860 is to determine what exactly constitutes, carnal intercourse against the
order of nature‟. The meaning of section 377 in 1884 was restricted to anal sex, by 1935 it
was broadened to include oral sex and the judgements in contemporary India have broadened
it to include thigh sex. The lack of a consent based distinction in the offence has made
homosexual sex synonymous to rape and equated homosexuality with sexual perversity. If we
are to search for a principle which holds together all these sexual acts can be found as early as
in 1935.
5
Chaitanya Kediyal, ‘Tracing the History of Section 377’ (FACTLY, 28th January 2016)
<https://factly.in/tracing-the-history-of-ipc-section-377/> accessed 24th October 2018.
6
ibid.
12
Section 377 expresses deep social repugnance towards queer people and provides harassment
of queer people by friends, family as well as other societal and governmental institutions. The
criminalization of homosexuality, by condemning into perpetuity an entire class of people
forces them to live their lives in a shadow of harassment, humiliation, and degrading
treatment at the hands of the law enforcement machinery, further denying them the right to a
full moral citizenship.
5. Attitude of Indian Legislature :
The Indian Legislation hasn’t been the kindest towards LGBT community. Section 377 was
introduced during the British Rule in India and still haunts us. While the Congress-led
government had pledged to repeal the part of the section 377 which criminalizes
Homosexuality, if it came to power again, but it was crushed by Bhartiya Janta Party in 2014
general election.
Whatever the complex reasons for the emergence of the queer movement in the Indian
context, its institutional history is very short, spanning activism of a little over two decades.
As network of groups began to form, the collective nature of assertion emerged as the
community started responding to issues of direct concern through public protests against
extortion and violence as well as questioning unjust colonial laws.
Shashi Tharoor introduced a Private members’ Bill in Lok Sabha in order to decriminalize
Homosexuality by amending Section 377. The introduction of the bill which sought
amendment to the IPC by seeking to “substitute a new section for section 377 of the IPC”
was objected to by BJP member Nishikant Dubey. Dubey said he was opposing the bill not
because of any religion, vedas or ‘puranas’ but because of the Supreme Court judgement.
The Supreme Court in December 2013 overturned a verdict of the Delhi High Court that had
set aside Section 377 of the IPC asking the government to take a view on the controversial
subject of decriminalising homosexuality.
The Delhi High Court in 2009 ruled that Section 377 was unconstitutional.
Tharoor, however, insisted on going ahead with the introduction of the Bill arguing that
Dubey was quoting only “partially” from the Supreme Court judgement. However, in order to
take the sense of the House, Deputy Speaker put the motion to vote. Tharoor pressed for
division of votes in which the motion was negated by 71 ‘Noes’ against 24 ‘yes’. There was
one abstention.
13
Commenting on the development, Satpathy remarked “it is a very very sad day”.7
In a series of tweets later, Tharoor said he would make another attempt to introduce the bill.
“Intro of Pvt. Member’s Bill 2 decriminalize consensual sex between consenting adults
defeated in LS 71-24. Surprising to see such intolerance.
“Notice of intent to oppose introducing of Bill came so late there was no time 2 rally support.
Will try again in future. We shall overcome!” he said.
Again in March 2016, he introduced a Private members’ bill for the same. As Tharoor sought
the leave of the House to introduce the Bill, Nishikant Dubey, BJP member from Godda
(Jharkhand), demanded a division. As Speaker Sumitra Mahajan put Tharoor’s motion to
vote, it was defeated by 58 to 14. Of the 73 people present, one abstained.
Tharoor later blamed the BJP for using its “brute majority” in the Lok Sabha to thwart his
attempt. The Kerala MP called it “religious bigotry” of the ruling party that had disallowed
discussion on his private Bill to amend the “colonial era” Section 377 of the IPC, adding that
Parliament was a place for open deliberations on all issues.
He used the opportunity to voice his anguish while moving another Bill on the Rights of
Transgender Persons when the House was transacting Private Members’ Business. On the
rejection of his Bill at the introduction stage, Tharoor said it was “a low in the proud annals
of Indian democracy” where “brute majority prevailed over the rights of a member” to bring
the measure. He regretted that the House was not allowed to deliberate on a law which was
framed by the British rulers.
Now after the judgment of Supreme Court on 6th September 2018 Section 377 of Indian Penal
Code has been repealed, the court has asked the Parliament to legalise Homosexuality and
strike down Section 377.
6. Attitude Of Indian Judiciary :
What is significant about the last twenty years is the emergence of queer activism in the legal
discourse. In 1994, the AIDS Bhedbhav Virodhi Andolan (ABVA), a human rights activist
group, filed a Public Interest Litigation(PIL) in the Delhi High Court. The petition challenged
the constitutional validity of section 377 of the IPC. It also advocated the supply of condoms
to jail inmates, with a plea to restrain the authorities from segregating or isolating prisoners
with homosexual orientation or those suffering from HIV/AIDS. In 2001, the NAZ
7
Unknown, ‘Shashi Tharoor’s bill to decriminalise homosexuality defeated in Lok Sabha’ (The Indian Express,
18 December 2015) < http://indianexpress.com/article/india/india-news-india/shashi-tharoors-bill-to-
decriminalise-homosexuality-defeated-in-ls/ > accessed on 23rd October 2018
14
Foundation(an NGO working with HIV/AIDS related issues) approached the Delhi High
Court to read down section 377 to exclude acts of private consensual acts between adults, as
opposed to asking section 377 to be struck down as a whole.
Mobilization against section 377 had deepened and widened across India since these
two petitions were filed. Many groups started emerging which were very vocal in their
opposition to section 377. Voices Against Section 377 was forged out of a coalition of
Delhi based groups, including women and feminists groups and individuals united in
their struggle to change the law. The Million Voices Campaign was also underway to gather
and document one million voices opposed to the law. These are among the vivid examples of
the widening circles of the struggle to change or repel the law and in effect to decriminalize
same sex sexuality.
The section 377 of IPC was challenged on a number of grounds, mostly on the basis of the
violation of the fundamental human rights. The ABVA filed the petition against 377 on the
ground that it violated Articles 14-15 (right to protection against discrimination),
Article 19(right to freedom of speech and expression) and Article 21(the right to life and
liberty which encompasses the right to privacy) of the Constitution of India. Sexual relations
are among the most private aspects of a person’s life and selfhood, which, according to the
PIL, this law continually jeopardises even when no harm is done to others. The PIL also
stated that the law promotes homophobia and discriminates against homosexuals. Article 377
is also noted to be inconsistent with International law-Article 12 of the UDHR and Article 8
of the European Convention for the Protection of Human Rights and Fundamental Freedoms
by which India abides.
The Delhi High Court Judgement that legalized homosexuality in India
Naz Foundation v. Govt. of NCT of Delhi8
“In a landmark judgment, the Delhi High Court struck down the provision of Section 377 of
the Indian Penal Code which criminalised consensual sexual acts of adults in private,
holding that it violated the fundamental right of life and liberty and the right to equality as
guaranteed in the Constitution…”
8
(2009)160 DLT 277
15
The petitioner, The Naz Foundation pleaded that Section 377 of the Indian Penal Code be
declared unconstitutional on grounds that it clearly violates the sacrosanct Fundamental
Rights enshrined in Part III of the Indian Constitution. They contended that the right to
equality under Article 14 was being grossly violated by the discrimination against these
sexual minorities. It was also contended that, sexual relations was a very private issue of an
individual’s life. State interference in such a sensitive issue was a clear violation of the right
to privacy, implicit in the right to life guaranteed under Article 21 of the Constitution. Such
discrimination against the LGBT community on grounds of an aberrant sexual orientation had
another impact too. It showed a clear violation of the fundamental right under Article 15(1),
which eliminates ‘sex’ as a ground of state discrimination. The petitioners also contended that
there was violation of the fundamental rights under Article 19 because, the victims were not
being given the right to freely express their sexual preferences and also move at their own
free will in order to get involved in any kind of homosexual behaviour.
“Limiting their plea, the petitioners submit that Section 377 should apply only to non-
consensual penile non-vaginal sex and penile non-vaginal sex involving minors.”
The Court sensitised on the issue of harassment of the homosexuals in the society and
declared Section 377 as violative of Articles 14, 15, 19 and 21 of the Constitution, so far as it
tries to criminalize the private sexual activities of consenting adults. The Court also realized
that so far Section 377 has only been used to protect the victims from any kind of unnatural
forced sexual activity. Thus, using it to criminalize sexual relations and activities between
consenting homosexual adults, would be a misutilization of the Section. However, the Court
held that “The provisions of Section 377 IPC will continue to apply to non-consensual penile
non-vaginal sex and penal non-vaginal sex involving minors.”
A significant contribution made by the judgement is the enhancement of the concept

of privacy in a society which is highly intrusive. The court said that the sphere of privacy
allows persons to develop human relations without interference from the outside community
or from the state. “Section 377 denies a person’s dignity and criminalizes his or her core
identity, solely on account of his or her sexuality and thus violates Article 21 of the
constitution.”
16
The final nail in the coffin was the health ministry’s submission that section 377 was serving
as impediment to promoting HIV/AIDS prevention measures. The court acknowledged that
there was unanimous medical and psychiatric opinion that homosexuality is not a disease or a
disorder and is just another expression of human sexuality.
The Supreme Court Judgement that struck down a Delhi High Court judgment to make
homosexuality illegal in India again.
Suresh Kumar Koushal and Another v. NAZ Foundation and others9
After the landmark judgement by the Delhi High Court, Suresh Kumar Koushal, an Indian
citizen who felt it important to protect the moral values embedded in the society, sent a
petition to the Supreme Court of India, challenging the High Court judgement.
In the views of the petitioners scrapping down Section 377 was irrefutably baseless. It was
argued that no constitutional right validates any act which has the tendency to cause harm to
oneself and to others, intercourse between homosexuals being one such high risk activity.
The petitioners brought in the concept of the code of nature- every organ in the human body
have been assigned discrete functions by nature and man should not violate such naturally set
norms. Thus, accepting the Delhi High Court Order might inimically perturb marriage as an
institution itself and might tempt the youth towards homosexual activities.
The respondents showed through various cases, how Section 377 IPC was being used to
harass people from the homosexual community. This was grossly unreasonable because, the
Explanation to Section 377 IPC mentions penetration as a requirement. The respondents
argued on the archaic and obsolete nature of Section 377 IPC.
Repelling the moral stand taken by the petitioners, Shri F.S Nariman fighting on behalf of the
respondents pointed out, Section 377 IPC falls under Chapter XVI, “Of Offences affecting
the Human Body” (and not under Chapter XIV). Thus, Section 377 should not be used to
classify against the LGBT community morally.
The respondents also paid attention to the commonly debated question, whether Section 377
should apply to the sphere of homes. They argued that Section 377 IPC should not apply to
9
(2014)1 SCC 1
17
the private activities of the homosexuals because the difference between amoral and depraved
acts in the public and private spheres has been recognized statutorily by Section 294 IPC. It
was argued that, the right of the homosexuals to enter into any personal relation of their
choice, cannot be denied, by shedding an umbrella of criminality over same sex relationships.
The Supreme Court Judgement that struck down Section 377 :
Navtej Singh Johar v. Union of India10
A Constitution Bench ( Five Judge Bench) led by Chief Justice Dipak Mishra said section
377 of the Indian Penal Code was arbitrary and unconstitutional to the extent that it punishes
consensual intercourse between adults irrespective of their gender identity or sexual
orientation.
SC held that section 377 infringed upon the fundamental rights of LGBTQ persons, who
ought to be treated equally before the law, enjoy dignity and freedom of expression and not
face discrimination. While reading his judgment, Mishra quoted German thinker Johann
Wolfgang Von Goethe , “I am what I am. So take me as I am. No one can escape their
individuality.”
In four separate but concurring judgments, the apex court ruled that societal morality cannot
violate the fundamental rights of even a single individual. “Constitutional morality cannot be
martyred at the altar of societal morality,” the bench said.
Justice Indu Malhotra, who is the lone woman judge of the five-judge Constitution Bench,
said, “Sexual orientation is an innate attribute of one’s identity, and cannot be altered. Sexual
orientation is not a matter of choice. Homosexuality is a natural variant of human
sexuality. History owes an apology to the members of this community and their families, for
the delay in providing redressal for the ignominy and ostracism that they have suffered
through the centuries,”
However, in his judgment, Justice DY Chandrachud said, “This case involves much more
than merely decriminalising certain conduct which has been proscribed by a colonial law.
The case is about an aspiration to realise constitutional rights. But decriminalisation is a first
step.”
10
W.P. (Crl.) No. 76 of 2016
18
Justice Rohinton Nariman asked the government to take measures to ensure the judgement is
given wide publicity through the public media and initiate programs to reduce and finally
eliminate the stigma. Government officials, in particular police officials, be given periodic
sensitization and awareness training of the plight of LGBT community.
Justices Nariman, Chandrachud and Malhotra, pointed out how section 377 affected the
access of the LGBT community to health-care facilities. This, they said, results in serious
health issues, including depression and suicidal tendencies. Justice Nariman referred to the
newly notified Mental Healthcare of 2017 in which Parliament, he said, makes it clear that
homosexuality is not a mental illness.
The judgment also does away with a dichotomy in the criminal law. While the rape law
permits consensual penetrative acts, section 377 makes the same acts of penetration
punishable irrespective of consent.11
Non-consensual intercourse and bestiality remains an offence under section 377.
The top court also rejected the plea made by religious institutions from all backgrounds to
retain section 377.
11
Bhadra Sinha, “I am what I am” (Hindustan Times,7 september 2018)
<https://www.hindustantimes.com/india-news/supreme-court-strikes-down-section-377-as-it-violates-right-
to-equality/story-09whedPdzisUC2Ndf7S25I.html> Accessed 27 October 2018
19
7. Conclusion :
All the above arguments in favour and in against homosexuality suggest that Indians are not
ignorant about homosexual events around the world and its legalisation but still they have
some reservation about homosexual relations. The Empirical findings amongst middle class
youths although favours legalisation of homosexual marriages but they in themselves are not
much attracted for such type of marriages (with an exception of 4-6% respondents who said
they may/will prefer to go for homosexual marriages). This shows that Indian youth still
maintains the sanctity of the marriages, as scared, heterosexual institution where
homosexuality even if legalised may result only in 4-6% homosexual minority.
Although as per statistics the demand for giving social and legal recognition to homosexual
marriage is limited to only 10% of the Indian Population (that is by homosexuals themselves
or NGO’s Supporting them). This small representation is also one of the factors responsible
for exploitation of sexual minority. Even today majority of Indians are not comfortable with
homosexual marriages for oneself. It seems as if still it is long way to go for social
acceptance of the homosexual marriages in India. As the legal recognition of homosexual
unions would mean not only approval of homosexual behaviour with the consequence of
making it a model in present day society but may also obscure the basic values (of family,
marriage, procreation and continuity of Species) which belong to common inheritance of
humanity. But at the same time Indians should realize that sex orientation is biological and is
a natural process it’s not a disease. It’s true that the acceptance of the demand for social
recognition of homosexuality has not been approved today but in any case homosexual
community should not be exploited and mistreated.
In near future the stereotype attitude of society for marriage as heterosexual institution
associated with procreation and rearing of children may also include homosexual marriages
where love between the partners will be given importance rather than the gender. Then the
failure to acknowledge the changing nature of society and the family will result in more harm
than good. Although it is long to go for this to happen. Homosexual marriages is giving birth
to a new conflict in the institution of marriage, family and Law which cannot be denied. But
at the same time giving social and legal recognition is not that easy in this traditional society
as it has been in the western societies but in any case to ignore this emerging conflict in the
institution of family and marriage will be short sighted and can have fatal results if not
handled sensitively.
20
BIBLIOGRAPHY
1. Dipika Jain, Impact of the Naz Foundation Judgement on The Gay, Bisexual and
Transgender People in Delhi:An Empirical Investigation, 2 Centre for Health Law,
Ethics and Technology, Jindal Global Law School(2012).
2. Unknown, ‘Shashi Tharoor’s bill to decriminalise homosexuality defeated in
Lok Sabha’ (The Indian Express, 18 December 2015)
<http://indianexpress.com/article/india/india-news-india/shashi-tharoors-bill-to-
decriminalise-homosexuality-defeated-in-ls/>
3. J Drescher, Kaplan and Sadock's Comprehensive Textbook of Psychiatry (BJ Sadock,

VA Sadock & P Ruiz ed, 9th edn, Philadelphia: Lippincott Williams & Wilkins,
2009) 2060–89.
4. Ankita Sen, ‘Homosexuality and the Law in India’, (IPLEADERS, 15th October 2015)
<https://blog.ipleaders.in/homosexuality-law-in-india/ > accessed 15th October 2018
5. Chaitanya Kediyal, ‘Tracing the History of Section 377’ (FACTLY, 28th January 2016)
<https://factly.in/tracing-the-history-of-ipc-section-377/> accessed 24th October 2018.
6. VA Sadock, Kaplan and Sadock's Comprehensive Textbook of Psychiatry (BJ
Sadock, VA Sadock & P Ruiz ed, 9th edn Philadelphia: Lippincott Williams &
Wilkins, 2009) 2027–59.
7. Bhadra Sinha, “I am what I am” (Hindustan Times,7 september 2018)
<https://www.hindustantimes.com/india-news/supreme-court-strikes-down-section-
377-as-it-violates-right-to-equality/story-09whedPdzisUC2Ndf7S25I.html> Accessed
27 October 2018
8. Nilanjana s. Roy, ‘ Homosexuality in India: A literary History’ “ (New York Times,
24 February 2012) <https://india.blogs.nytimes.com/2012/02/24/homosexuality-in-
india-a-literary-history/> accessed 26 October 2018
9. David Sharp, “All the Period in History when homosexuality was Celebrated and
Embraced” (Rankers 24 april 2017)<https://www.ranker.com/list/homosexuality-in-
history/david-sharp> accessed on 21 october 2018
21

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Homosexuality: Review of the attitude of Legislative and Judiciary in India

Dr. RAM MANOHAR LOHIYA NATIONAL LAW

SUBMITTED BY: UNDER THE GUIDANCE OF:

Hariank Gupta Dr. Shashank Shekhar

Enrolment No. 180101053 Assistant Professor

Sec: A Faculty of Law, RMLNLU

B.A. LL.B. (Hons.), Semester- I

have helped me develop this project.

correct resources for my research and for helping me enrich my knowledge.

believe that I would be pardoned for the same.

Homosexuality can be defined as sexual attraction or the tendency to direct sexual

Psychoanalytic, psychiatric, medical and mental health professionals now consider

1. ADM – Additional District Magistrate

Naz Foundation v. Govt. of NCT of Delhi (2009)160 DLT 277 ……………………………15

Navtej Singh Johar v. Union of India W.P. (Crl.) No. 76 of 2016…………………………..18

Thus homosexuality is not a new phenomenon. Even instances of homosexuality are

2. Homosexuality Around The World :

The Netherlands(2000) Greenland(2015)

3. Homosexuality in Indian Society :

4. Section 377 of IPC :

Offences against the Person Act 1861

5. Attitude of Indian Legislature :

6. Attitude Of Indian Judiciary :

The Delhi High Court Judgement that legalized homosexuality in India

Naz Foundation v. Govt. of NCT of Delhi8

A significant contribution made by the judgement is the enhancement of the concept

Suresh Kumar Koushal and Another v. NAZ Foundation and others9

The Supreme Court Judgement that struck down Section 377 :

Navtej Singh Johar v. Union of India10

Non-consensual intercourse and bestiality remains an offence under section 377.

3. J Drescher, Kaplan and Sadock's Comprehensive Textbook of Psychiatry (BJ Sadock,

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