CONSTITUTIONAL VALIDITY OF S.

377

5.2 Criminal Law – I

Submitted to
Ms. Karishma Gavai (Assistant Professor of Law)

Submitted by
Diksha Dubey
UG 2016-18
III Year V Semester

Maharashtra National Law University, Nagpur

 TABLE OF CONTENTS

TABLE OF CASES ..................................................................................................................................... III

TABLE OF ABBREVIATIONS ................................................................................................................. IV

TABLE OF STATUTES.............................................................................................................................. IV

INTRODUCTION ........................................................................................................................................ V

RESEARCH OBJECTIVES ........................................................................................................................ VI

RESEARCH METHODOLOGY ................................................................................................................. VI

RESEARCH SCHEME ............................................................................................................................... VI

HYPOTHESIS ............................................................................................................................................. VI

CHAPTER – 1 .............................................................................................................................................. 1

S.377 – HISTORICAL BACKGROUND, SCOPE AND ESSENTIALS .................................................... 1

1.1 Scope and Essentials of the S.377....................................................................................................... 2

CHAPTER -2 ................................................................................................................................................ 5

NAZ FOUNDATION V. GOVERNMENT OF NCT OF DELHI – CONTENTIOUS CASE .................... 5

CHAPTER -3 ................................................................................................................................................ 9

CONSTITUTIONAL VALIDITY OF S.377................................................................................................ 9

2.1 Article 14 and S.377 ........................................................................................................................... 9

2.2 Article 15 and S.377 ......................................................................................................................... 11

2.3 Article 21 and S.377 ......................................................................................................................... 12

CONCLUSION AND SUGGESTION ....................................................................................................... 17

BIBLIOGRAPHY ........................................................................................................................................ VI

II
 TABLE OF CASES
Anwesh Pokkuluri & Ors. v. Union of India W.P. (Crl.) No. 121 of 2018................................................... 7

Bijoe Emmanuel v. State of Kerala [1978] AIR 748. ................................................................................. 10

Bowers v. Hardwick 478 U.S. 186 (1986). ................................................................................................... 1

Brother John Anthony v. The State 1992 CriLJ 1352............................................................................... 2, 3

Calvin Francis v. State of Orissa (1992) 2 Crimes 455 (Ori)........................................................................ 3

Jayan Cherian v. Union of India WP(C).No. 27418 of 2016 (B)................................................................ 10

Justice KS Puttaswamy v. Union of India (2014) 6 SCC 433 ...................................................................... 9

Kailash Laxman Khamkar v. State of Maharashtra criminal appeal no. 159 of 2004 Bombay HC, 2004. .. 3

Khandu vs Emperor AIR 1934 Lahore 261. ................................................................................................. 4

Khanu v. Emperor AIR 1925 Sind 286. ........................................................................................................ 3

Lawrence v. Texas 539 U.S. 558 (2003)....................................................................................................... 1

Maneka Gandhi v. Union of India 1978 AIR 597......................................................................................... 8

NALSA v. Union of India [2014] 5 SCC 438............................................................................................. 10

Narasappa v. Shaik Hazrat AIR 1960 Mys. 59 ............................................................................................. 7

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

Pooran Ram v. State of Rajasthan 2001 CriLJ 91......................................................................................... 3

Prinsloo v. Van Der Linde 1997 (3) SA 1012 CC. ....................................................................................... 8

Shayara Bano v. Union of India (2017) 9 SCC............................................................................................. 6

State of Kerala v. Kundumkara Govindan (1969) Cr LJ 818 (Ker). ............................................................. 3

Suresh Kumar Koushal v. Naz Foundation and ors. Civil appeal no. 10972 of 2013. ................................. 5

Toonan v. Australia Communication no. 488/1992 ...................................................................................... 9

Union of India v. Naveen Jindal [2004] 2 SCC 510. .................................................................................. 10

III
 TABLE OF ABBREVIATIONS

AIR : All India Report

Bom. : Bombay

Cal. : Calcutta

Cri LJ Criminal Law Journal

Ed. (s) : Editor (s) or edited or edition

E.G. : “Exempli gratia”; for example

Ibid : ‘Ibidem’; same as above

Id : Same as second previous

Ors. Others

Ori Orissa

P :Page number

Rev. : Revised

S. : Section

Supra Latin term means above

SC : Supreme Court

V. : Verses

TABLE OF STATUTES
1. Buggery Act, 1553.
2. Indian Penal Code, 1860
3. Sexual Offences Act, 1996

IV
 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. LGBT people are painted as a stigma in the society and therefore, they are denied
inalienable rights like the right to life, right to live with dignity and right to equality etc. These
inalienable rights of the LGBT community are jeopardized since a long time due to the provision
of S.377 of Indian Penal Code.

Origin of S.377 of Indian Penal Code can be traced from the Buggery Act of England. The Act
made sexual relations with men punishable by death. S. 377 incorporate 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 between homosexuals. The provision is
based on the old and Victorian ideology that 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 s.377
of Indian Penal Code, thus this section by criminalizing certain acts based on sexual orientation
violates the Constitutional provisions of the country namely Article 14, 15, 19 and 21. 1

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 the 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 as
unconstitutional by Delhi High Court in Naz foundation case, but the decision was overturned in
Suresh Koushal case by Supreme Court in 2013. Supreme Court of India is currently hearing the
case regarding the Constitutional validity of the section.

Through this project the researcher will analyze the S.377 in the light of various Constitutional
provisions and will moot upon the constitutional validity of the same.

1
Constitution of India , Article 14, 15, 19 and 21.

V
RESEARCH OBJECTIVES
The Project will try to achieve the following objectives-

1. To study the historical background and scope and essentials of S.377 of Indian Penal
Code.
2. To Study the changing trends in judicial interpretation of S.377 of Indian Penal Code.
3. To analyze the section critically and to moot upon the constitutional validity of the same.

RESEARCH METHODOLOGY
This project would follow doctrinal methodology. Descriptive and analytical research
methodology will be followed by researcher in this project. Primary and secondary sources have
been used in gathering relevant information regarding the project topic. Secondary sources like
books and articles, which are available online have been used. Along with this, e-databases like
JSTOR, Hein online have also been used by researcher. Books suggested by faculty have also
been referred to have a detailed idea about subject matter and to give a firm structure to the
project. Using the sources mentioned above the researcher will try to understand the concept
from a sociological perspective. Footnotes have also been given, to acknowledge the source of
information, wherever necessary.

RESEARCH SCHEME
The Research project has been divided into three Chapters. Chapter one will briefly discuss the
historical background of incorporating S.377 in Indian Penal Code and its scope and essentials.
Chapter two will be focused on the Naz foundation case. Chapter three will comprise of the
critical analysis of the section and constitutional validity of the same will be analyzed. Last part
of the project will be about conclusion and suggestions, basically dealing with the effects of
holding the section as unconstitutional.

HYPOTHESIS
The Project study is based on the hypothesis that S.377 of Indian Penal Code is against the spirit
of Constitution of India and violates the fundamental rights of an individual namely right to life,
liberty, equality and right against discrimination.

VI
 CHAPTER – 1
S.377 – HISTORICAL BACKGROUND, SCOPE AND ESSENTIALS
Buggery Act2 of UK punished unnatural offences/ buggery that is an unnatural sexual act against
the will of God and man. Though this provision was repealed later in UK but this provision
found place in the Indian Penal Code in the form of S.377. Under English Law such Acts were
synonymous to sodomy that is to constitute an unnatural offence the act must be in that part
where sodomy is usually committed.3

Sodomy as per the American Jurisprudence is

“Sodomy appears originally part of the Herbriac law, taking its name from the practices
reputedly indulged in by the inhabitants of the cities of Sodom and Gomorrah, 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”.4

Anti Sodomy law (U.S.) was tested in various cases, for instance the anti sodomy law of Georgia
was upheld by the Court in Bowers v. Hardwick 5wherein the court ruled that even consensual
sex between homosexuals will be punishable and it did not infringe the fundamental right of an
individual and the law is constitutional if it has a legitimate government purpose. However, in
Lawrence v. Texas6 the Court declared the anti sodomy law to be unconstitutional.

In Roman Europe, male-male sexual relations entailed criminal sanctions.7 Further during
Middle Ages, in Christian Europe the government back then, condemned the homosexual
activity with the enactment of sodomy laws in many European countries.8 In UK, after the
enactment of Sexual Offences Act9 sodomy was penalized, though with the suggestion by

2
Buggery Act 1553.
3
R A Nelson, Indian Penal Code, (11th ed., vol.3, lexis nexis, 2016) p. 3242.
4
Ibid.
5
Bowers v. Hardwick 478 U.S. 186 [1986].
6
Lawrence v. Texas 539 U.S. 558 [2003].
7
Clarice B. Rabinowitz, Proposals for Progress: Sodomy Laws and the European Convention on Human Rights,
(1995) 21 Brook. J. Int'l L. 425.
8
Ibid.
9
Sexual Offences Act, 1996.
1
Wolfenden Report private consensual sex between homosexuals was decriminalized. Further, the
Constitutional Court of South in National Coalition for gay and lesbian equality v. South African
Human Right Commission10 case, J. Ackermann held that

“I find the offence of sodomy to be unconstitutional because it breaches the rights of equality,
dignity and privacy”.11

Though many countries have held sodomy laws as unconstitutional but there are around 72
countries which still criminalize same sex relationships.12

1.1 Scope and Essentials of the S.377

Indian provision, S.377 of Indian Penal Code states that –

Unnatural offences.—Whoever voluntarily has carnal inter-course against the order of

nature with any man, woman or animal, shall be punished with 1[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.13

The offences that are covered under this provision include sodomy, buggery and bestiality. The
acts of sexual perverse which can be covered under the section were discussed in Brother John
Anthony v. The State14 the case enlisted certain acts namely sodomy, bestiality, tribadism,
sadism, masochism, fetichism and exhibitionism, and further concluded that only sodomy,
buggery and bestiality are covered. A woman has filed a petition recently, in the Supreme Court
contending that apart from sodomy, buggery and bestiality, oral sex committed on women should
also be covered under S.377 and thus the approach laid in the above case must be relaxed to
include the same.

To constitute offence under this Section the essentials are –

10
National Coalition for gay and lesbian equality v. South African Human Right Commission [1999] ZACC 17
11
Ibid.
12
Pamela Duncan, Gay Relationships are still criminalized in 72 countries, report finds, (The Guardian,27th July
2017) https://www.theguardian.com/world/2017/jul/27/gay-relationships-still-criminalised-countries-report, last
accessed on 30th July 2018.
13
Indian Penal Code, 1860, s. 377.
14
Brother John Anthony v. The State 1992 CriLJ 1352.

2
 1. Accused had sex with man, woman or animal, 2. Against the order of nature, 3. Act was
done voluntarily by accused, 4. There was penetration.

The same was reiterated in Brother John Anthony v. The State15 The Unnatural sex will
constitute all the forms of sex other than penile vaginal i.e. it will include coitus in anum and
coitus in os16. The key terms in the provision like Carnal intercourse and penetration are not
defined in Indian Penal Code, but the Courts through various judgments have tried to define the
same. In Khanu v. Emperor17Court tried to define the word intercourse, the meaning of the word
was construed to be as –

By a metaphor the word intercourse, like the word commerce, is applied to the relations
of the sexes. Here also, there is the temporary visitation of the organism by a member of
the other organization, for certain clearly defined and limited objects. The primary object
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 if
enveloped at least partially by the visited organism, for intercourse connotes
reciprocity.18

The same meaning was construed in State of Kerala v. Kundumkara Govindan19 wherein the
court held that even inserting male organ between the thighs kept together and tight amounts to
‘carnal intercourse against the order of nature’20 Further to constitute offence under this section it
is necessary to prove penetration, though full act of intercourse is not an essential ingredient of
the offence, but where there is no penetration attempted or intended then this section will not be
attracted, the offence will be covered under s.354.21 The offence can also be tried in a single trial
along with the charges of s.376.22 In Pooran Ram v. State of Rajasthan23 it was held by the

15
Brother John Anthony v. The State 1992 CriLJ 1352.
16
After the case of Khanu v. Emperor AIR 1925 Sind 286 and Calvin Francis v. State of Orissa (1992) 2 Crimes 455
(Ori) { putting sex organ in the mouth of the victim (coitus in os) also constitutes as unnatural sex against the order
of nature}.
17
Khanu v. Emperor AIR 1925 Sind 286.
18
Ibid.
19
State of Kerala v. Kundumkara Govindan (1969) Cr LJ 818 (Ker).
20
PSA Pillai, Criminal Law, (13th ed.,lexis nexis, 2017) p.841.
21
Indian Penal Code,1860, s. 354.
22
Kailash Laxman Khamkar v. State of Maharashtra criminal appeal no. 159 of 2004 Bombay HC, 2004.
(Though in this it was stated that both the offences are different and according to the evidences put forth the case
is to be adjudged).
3
Court that perversity that results in sexual offence will either result in homosexuality or in
commission of rape.

Further having carnal intercourse with the animal is also considered as carnal intercourse against
the order of nature it was reiterated in Khandu v. Emperor24 wherein Khandu was seen inserting
his penis in the nostril of the bullock.25

23
Pooran Ram v. State of Rajasthan 2001 CriLJ 91.
24
Khandu vs Emperor AIR 1934 Lahore 261.
25
Alok Gupta, ‘Section 377 and the of the Indian Homosexuals’,(2006) EPW,
<https://www.outrightinternational.org/sites/default/files/15-1.pdf> accessed on 30th July 2018.

4
 CHAPTER -2
NAZ FOUNDATION V. GOVERNMENT OF NCT OF DELHI – CONTENTIOUS CASE

Constitutional validity of the S.377 was challenged in Naz Foundation v. Government of NCT of
Delhi26 by a PIL filed by the NGO ‘Naz foundation’ working for HIV/AIDS victims. The plea
was based on the contention that the section criminalizes the consensual sexual relations of
homosexuals which explicitly infringes their fundamental rights as enshrined in the Constitution
namely Article 14, 15, 19 and 21.27 Parties in the case were, the petitioner was NGO Naz
foundation and respondents were Union of India, NACO, Delhi state Aids control society and
ors.

The NGO Naz foundation primarily works for the victims of HIV/AIDS and thus their work
entails them with vulnerable section of society like homosexuals, who are extremely vulnerable
to HIV/AIDS infection. There petition was on the grounds that HIV/AIDS prevention efforts
and drive is extremely effected because of the discriminated treatment towards homosexuals by
the state agencies under the blanket of S.377.

Issues in the case

1. Whether S.377 is based on an intelligible differentia and have a reasonable nexus with
the object to be achieved i.e. whether it is in violation of Article 14.

2. Whether S. 377 infringes the privacy of homosexuals?

3. Whether S.377 infringes fundamental right to form associations and freedom of speech
and expression as given in Article 19 of the Constitution?

4. Whether S.377 purports discrimination on the basis of sexual orientation and is violating
Article 15 of the Constitution?

26
Naz Foundation v. Government of NCT of Delhi (2010) Cri LJ 94.
27
Constitution of India, Article 14,15,19 and 21.

5
Arguments by petitioner

1. Legislation is outdated and is based on Victorian ideology that sex is for procreation and
sexual relations between same sex couples qualifies as against the order of nature, thus
the same no place in the modern society.

2. Criminalising private, consensual same-sex conduct, Section 377 IPC serves as the
weapon for police abuse; detaining and questioning, extortion, harassment, forced
sex, payment of hush money; and perpetuates negative anddiscriminatory beliefs
towards same-sex relations and sexuality minorities; which consequently drive the
activities of gay men and MSM, as well as sexuality minorities underground thereby
crippling HIV/AIDS prevention efforts28

3. The classification on which S.377 is based that is differentiating carnal intercourse

against the order of nature and carnal intercourse in order of nature has no reasonable
nexus with the objective to be achieved. Thus the section violates Article 14 of the
Constitution.

4. The expression ‘sex’ used in the Article 15 cannot be restricted to gender identity and is
wide enough to include sexual orientation. They also quoted Yogyakarta principles to
support the same. Thereby contending that S.377 purports discrimination on the grounds
of sex.

5. S.377 also violates their (homosexuals) freedom of speech and expression, to form
association as provided for in Article 19 of the Constitution as they are denied private
consensual sexual act.

Arguments by Respondent

1. S.377 is generally invoked in cases of child sexual abuse or pedophilia and hardly there
are any cases reported wherein homosexuals are involved.

2. S.377 is in the IPC to fill the lacunae in the rape law and deletion of the same will lead to
delinquent behavior and will be misconstrued as unfettered license for homosexuality.

28
Supra 26.

6
 3. S.377 is created with the objective to protect public health, safety and morality and is
thus has a reasonable nexus with the classification and is not violation of Article 14. 42nd
Law commission report was quoted in support of their argument.

4. Law cannot run separately from the society as it reflects the perception of the society.

5. Right to privacy is not absolute and can be restricted for compelling state interest.

6. NACO reaffirmed the petitioners contention submitted that enforcement of Section 377
IPC against homosexual groups renders risky sexual practices to go unnoticed
and unaddressed inasmuch as the fear of harassment by law point by referring to the data
reflected in the National Baseline Behaviour Surveillance Survey (NBBSS of 2002)
which indicates that while 68.6% MSM population is aware about the methods of
preventing infection, only 36% of them actually use condoms. 29

Judgment

The High Court held that S.377 insofar as it criminalizes private consensual sexual relations
between homosexuals is in violation of Article 14, 15,19 and 21 of the Constitution of India. The
High Court started its Article 14 examination by setting out that any classification must be
founded on an intelligible differentia which has a balanced connection to the objective looked for
and must not be out of line or unjustifiable. S.377, the Court stated, does not recognize private
acts, or then again amongst consensual and non-consensual acts, subsequently does not consider
significant factors, for example, age, assent and the nature of the harm. Along these lines, such
criminalisation without proof of harm appeared to be subjective and nonsensical. In considering
the lawful standards forced by Article 14 of the Constitution, the Court considered the Equal
Rights Trust's Declaration of Principles on Equality as “the current worldwide comprehension of
Principles on Equality”. Refering to in full Principles 1 (right to equality), 2 (equal treatment)
and 5 (definition of discrimination) of the Declaration, together with landmark judgments from
the Canadian, South African and United States courts, the High Court underlined that there was
a need to incorporate sexual orientation among protected grounds of discrimination. Along these
lines, managing the contention that S. 377 was nonpartisan, as put together by the MHA, the

29
Supra 26.

7
High Court expressed that despite the fact that the arrangement all over was impartial and
focused on acts instead of people, in its task it unreasonably focused on a specific network,
having the outcome that every single gay man were considered criminal and it consequently
damaged Article 14 of the Constitution. Proceeding onward to consider whether the reference to
“sex” in Article 15 of the Constitution ought to be deciphered as including sexual orientation on
the premise that sex is analogous with sexual orientation as was contended by the Naz
Foundation. Court thereby finally declared that S.377 is in violation of Article 14,15 and 21 of
the Constitution and thus private consensual sex between homosexuals will not be punishable
under this section but will continue to govern non-consensual penile non-vaginal sex and penile
non-vaginal sex involving minors. Court observed that underlying theme of our Constitution is
inclusiveness and if certain group is considered by society as deviant then it does not mean that
they ostracized from the society –

The inclusiveness that Indian society traditionally displayed, literally in every aspect of
life, is manifest in recognising a role in society for everyone. Those perceived by the
majority as “deviants” or 'different' are not on that score excluded or ostracised.30

The decision of the High Court was later overruled in the Suresh Koushal case31 wherein the
Court upheld the Constitutional validity of the section.

30
Supra 26.
31
Suresh Kumar Koushal v. Naz Foundation and ors. Civil appeal no. 10972 of 2013

8
 CHAPTER -3
CONSTITUTIONAL VALIDITY OF S.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 Naz foundation v. Government of NCT of Delhi32that the 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 LGBT community. Further, it has been observed in
various case laws like Anuj Garg v. Hostel Association of India and ors.33 that pre constitutional
laws do not owed the presumption of constitutionality and thus can be challenged.34

2.1 Article 14 and S.377

Right to equality is provided for in Constitution under Article 1435 and the provision clearly
within its ambit fulfils the goal of the makers i.e. of including in preamble the words ‘equality of
status and of opportunity’. The provision is clearly laid down on the lines of the principle of
‘equality of opportunity’. Article 14 outlaws discrimination in a general way and guarantees
equality before law to all persons.36 Article 14 states that equal should be treated alike and it does
not mean that ‘unequals ought to be treated equally’. Therefore Article 14 allows reasonable
classification which is founded on intelligible differentia. It has been contended in Naz
Foundation case37 that S.377 does not purport reasonable classification, it furthers discrimination
and it is class legislation. The Delhi High Court stated that objective of the Section was to merely
criminalize conduct which fails to conform to the Victorian ideology and thus it is arbitrary and
is against the spirit of Article 14. Though Supreme Court in Suresh Kumar Koushal v. Naz
Foundation and ors.38 overruled the judgment and contended that the respondents failed to
furnish the details of discrimination faced by the LGBT community at the hands of state agencies

32
Naz Foundation v. Government of NCT of Delhi (2010) Cri LJ 94.
33
Anuj Garg v. Hostel Association of India and ors. Appeal (civil) 5657 of 2007.
34
Tarunabh Khaitan, ‘On presumption of constitutionality of pre constitutional laws’, ICLAP, 11 th July 2018,
https://indconlawphil.wordpress.com/2018/07/11/guest-post-on-the-presumption-of-constitutionality-for-pre-
constitutional-laws/, accessed on 2nd July 2018.
35
Constitution of India Article 14.
36
M.P. Jain, Indian Constitutional Law, (7th ed. ,lexis nexis 2014) p. 877.
37
Supra 26.
38
Suresh Kumar Koushal v. Naz Foundation and ors. Civil appeal no. 10972 of 2013.
9
and has failed to provide particulars of cases of sexual harassment and less than 200 people had
been prosecuted under this section since past 150 years.39 Further the Court contended that the
differentia between ‘carnal intercourse against the order of nature’ and ‘carnal intercourse in
ordinary course of nature’ is a reasonable classification.

In Shayara Bano v. Union of India40 , manifestly arbitrariness was defined –

Manifest arbitrariness, therefore, must be something done by the legislature capriciously,

irrationally, and/or without adequate determinative principle. Also, when something is
done which is excessive and disproportionate, such legislation would be manifestly
arbitrary.41

According to the researcher, S.377 is arbitrary as there is no intelligible differentia between

heterosexuals and homosexuals. Even if one supposes that the differentia on basis of sex is
unequivocal then there is no reasonable nexus with the object to be achieved from this
differentia. Further, according to Rawls conception of the role of state, individual liberty can be
compromised in the interest of the public order or security, there are two important caveats – (a)
that the danger to public order must be based on evidence (b) it must be based on reasoning
acceptable to all.42 Therefore, majority moral convictions cannot themselves be treated as valid
public interests in the absence of consequential threat to public order that is over and above
immorality.43 Thus S.377 is not based on a reasonable classification and is in violation of Article
14.

39
Case Comment : Suresh Kumar Koushal v. Naz Foundation and ors, (2013) 6 NUJS L Rev VI,
file:///C:/Users/asus/Downloads/J_2013_6_NUJS_L_Rev_VI_dikshadubey224_gmailcom_20180731_161122.pdf ,
accessed on 31st July 2018.
40
Shayara Bano v. Union of India (2017) 9 SCC.
41
Ibid.
42
Rohit Sharma, The Public and Constitutionality Conundrum – A case note on Naz foundation Judgment (2009) 2
NUJS L Rev 445,
file:///C:/Users/asus/Downloads/J_2009_2_NUJS_L_Rev_445_dikshadubey224_gmailcom_20180731_161225.pdf ,
accessed on 31st July 2018.
43
Ibid.
10
2.2 Article 15 and S.377
Article 1544 of the Constitution of India provides that state cannot discriminate on the grounds of
religion, race, caste, sex or place of birth or any of them. The words quite explicitly mentions ‘on
any of the ground’ and thus even if there is discrimination on any one of the ground it will be
covered under this Article. It was also reiterated in Narasappa v. Shaik Hazrat45

The use of the word 'only' connotes that discrimination that is discountenanced by the
Constitution is discrimination on account of purely and solely on any of these grounds,
viz., of religion, race, caste, sex, place of birth or any of them.46

S.377 of Indian Penal Code discriminates on the basis of sex as the consensual sex between same
sex partners is punishable under this Act. Further, Justice JS Verma Committee on the
Amendments to Criminal Law found that “sex” in Article 15 includes “sexual orientation” as a
prohibited ground of discrimination.47 The same has been established in many cases like-

In El-Al Israel Airlines v. Danielowitz, the Supreme Court of Israel held:

Conferring a benefit on a permanent employee for his recognized companion and not
conferring it on a permanent employee for a same-sex companion (who complies with all
the requirements of a recognized companion apart from the requirement of sex) amounts
to discrimination in conditions of employment because of sexual orientation. This
discrimination is prohibited. Consider A, a permanent employee of El- Al, who shares his
life for several years with a woman B. They cohabit and run a common household (as
required by El-Al for complying with the conditions of a recognized companion). A is
entitled to an aeroplane ticket for B. Now consider A who lives in the same way with a
man C. They too cohabit and run a common household. A is not entitled to an aeroplane
ticket for C. How can this difference be explained? Does the one carry out his job as an
employee differently from the other? The only explanation lies in A’s sexual orientation.
This amounts to discrimination in conditions of employment because of sexual

44
Constitution of India, Article 15.
45
Narasappa v. Shaik Hazrat AIR 1960 Mys. 59.
46
Ibid.
47
Anwesh Pokkuluri & Ors. v. Union of India W.P. (Crl.) No. 121 of 2018. (written submissions of Maneka
Guruswamy).
11
 orientation. No explanation has been given that might justify this discriminatory
treatment. There is nothing characterizing the nature of the job or the position that
justifies this unequal treatment (see s. 2(c) of the Equal Employment Opportunities
Law).48

South African Constitutional Court in Prinsloo v. Van Der Linde49 held that discrimination on
unspecified grounds is usually based on attributes and characteristics attaching to people thereby
impairing their fundamental dignity as human beings.

The Court in Naz Foundation case held that sexual orientation is a ground analogous to sex and
50
discrimination on the basis of sex is not permitted by Article 15. Though the same argument
was contended in the Singaporean Court when the Constitutional validity of the similar provision
was challenged and it was proposed that Article 12(2) of Singaporean Constitution prohibits
discrimination on the enumerated grounds “only of religion, race, descent or place of birth”.
Judges are not empowered to find ‘analogous’ grounds forbidding discrimination. Indeed, any
further additions must be introduced by constitutional amendment after rigorous debate in
Parliament.51 Also the Indian Supreme Court in the Suresh Koushal case failed to address on the
point whether Article 15 include sexual orientation within its ambit or not.

2.3 Article 21 and S.377

Article 2152 of the Constitution of India provides that no person shall be deprived of his life or
personal liberty according to the procedure established by law. In Maneka Gandhi v. Union of
India53 Supreme Court of India gave a wider meaning to right to life and it was observed that

The right also extends to private life : marriage, family and friendship are humanities
which can be rarely affected through refusal of freedom to go abroad and clearly show
that this freedom is a genuine human right.54

48
El-Al Israel Airlines v. Danielowitz [HCJ 721/94].
49
Prinsloo v. Van Der Linde [1997] (3) SA 1012 CC.
50
Supra 26.
51
Yvonne C. L. Lee, Don't Ever Talk a Fence down until You Know the Reason It Was Put Up – Singapore
Communitarianism and the Case for Conserving 377A, (2008) Sing. J. Legal Stud. 347,
<file:///C:/Users/asus/Downloads/YvonneCLLeeDontEverTalkaF.pdf > accessed on 31st July 2018.
52
Constitution of India, Article 21
53
Maneka Gandhi v. Union of India [1978] AIR 597.
12
Further after Puttaswamy55 Judgment Right to life also incorporates within its ambit right to
privacy. It was propounded that –

The family, marriage, procreation and sexual orientation are all integral to the dignity of
the individual. Above all, the privacy of the individual recognizes an inviolable right to
determine how freedom shall be exercised.56

Thus, the Section 377 which punishes even consensual sex privately done between same sex
partners is against the spirit of the fundamental right 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. Toonen v Australia57, the Human Rights Committee
(HRC) of the International Covenant of Civil and Political Rights (ICCPR) considered sections
122(a), 122(c), and 123 of the Tasmanian Criminal Code that criminalized “various forms of
sexual contacts between men, including all forms of sexual contacts between consenting adult
homosexual men in private” and whether this amounted to a violation of article 17 of the ICCPR
protecting the right to privacy and the right to protection by the law from interference into one’s
private life, it was held that sections violate the fundamental freedom of an individual58 Though,
even after such cases there comes the argument that whether prohibition against discrimination
on the grounds of sexual orientation 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.59 Therefore, until the countries do not take a proper stance on the
position of anti- sodomy laws it is difficult to protect the rights of the LGBT community.

54
Ibid.
55
Justice KS Puttaswamy v. Union of India (2014) 6 SCC 433.
56
Ibid.
57
Toonan v. Australia Communication no. 488/1992.
58
George Selvanera, Gays in Private: the Problems with the Privacy Analysis in Furthering Human Rights, (1994)
16 Adel. L. Rev. 331, <file:///C:/Users/asus/Downloads/GeorgeSelvaneraGaysinPriv.pdf>, accessed on 31 st July
2018.
59
Supra 43.
13
2.4 Article 19 and S.377

Article 1960 of the Constitution of India enshrines six fundamental freedoms, out of which the
most important one is freedom of speech and expression. As provided in Article 19 (1) (a)61 that
all citizens shall have a right to freedom of speech and expression. The scope of the Article is not
merely restricted to oral form of speech and expression, it is wide enough to include within its
ambit freedom to express one’s idea and opinion through writing, movies, printing etc. For
instance, in Union of India v. Naveen Jindal62 it was held that flying of flag is a form of
expression and in Bijoe Emmanuel v. State of Kerala63, not to sing National Anthem is a form of
expression. In, NALSA v. Union of India64 i.e. the transgender rights case it was held that-

Article 19(1) (a) of the Constitution states that all citizens shall have the right to freedom
of speech and expression, which includes one’s right to expression of his self-identified
gender. Self-identified gender can be expressed through dress, words, action or behavior
or any other form… Gender identity, therefore, lies at the core of one’s personal identity,
gender expression and presentation and, therefore, it will have to be protected under
Article 19(1)(a) of the Constitution of India.65

Further, Kerala High Court in Jayan Cherian v. Union of India66held that depicting
homosexuality in a movie is not vulgar –

We must also bear in mind that freedom to think and act differently is an essential feature
of democracy. The said freedom includes freedom to react and respond to same situations
differently and distinctly. One cannot expect everybody to express themselves in the
same manner.67

Thus S.377 violates the fundamental right of the LGBT community as it has chilling effect on
their right to freedom of speech and expression in form of sexual orientation and gender identity.

60
Constitution of India, Article 19.
61
Ibid.
62
Union of India v. Naveen Jindal [2004] 2 SCC 510.
63
Bijoe Emmanuel v. State of Kerala [1978] AIR 748.
64
NALSA v. Union of India [2014] 5 SCC 438.
65
Ibid.
66
Jayan Cherian v. Union of India WP(C).No. 27418 of 2016 (B).
67
Ibid.
14
Though there can be reasonable restrictions on the freedom of speech and expression in the
interest of the sovereignty and integrity of India, the security of the state, public order, decency
or morality, or in relation to contempt of court, defamation or incitement to an offence. 68 It is
contended by many that S.377 is valid as it can be covered under the ground of morality as a
restriction on the right of freedom and expression. The term morality that is used in the particular
article is to be construed as constitutional morality and not public morality i.e. morality flowing
from constitutional values and not from the majority opinion or public opinion. If the principle of
constitutional morality is not upheld then it will be a threat to democracy as it will hamper the
minority values and opinions. LGBT community’s freedom to form associations under Article 19
(1) (c)69 is also hampered because of the S.377, as they fear coercive and state action taken
against them. Further, if once they are convicted under this section then they will be denied
directorship to a company70 according to S.164-

“he has been convicted by a court of any offence, whether involving moral turpitude or
otherwise, and sentenced in respect thereof to imprisonment for not less than six months
and a period of five years has not elapsed from the date of expiry of the sentence. If a
person has been convicted of any offence and sentenced in respect thereof to
imprisonment for a period of seven years or more, he shall not be eligible to be appointed
as a director in any company”. 71

Thus it can be inferred that Constitutional values stand above any law and public morality. S.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 case72 that there is no reasonable
classification and there is discrimination on the basis of sexual orientation thus it against the
spirit of Article 14 and 15 respectively. Also, their 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 Puttaswamy73 Judgment. Further, the section is being misused, for instance the incident

68
Constitution of India, Article 19(2).
69
Constitution of India, Article 19 (1) (c).
70
Companies Act, 2013, s. 164.
71
Ibid.
72
Supra 32.
73
Supra 49.

15
of lucknow wherein for distribution of condom the persons were arrested for the commission of
an offence under S.377, if we must emulate. Therefore, the Supreme Court has to take call with
respect to this provision as it is against the spirit of Constitution and is being misused by state
agencies, if declared unconstitutional it will instill a sense of self acceptance and comfort in the
LGBT community.

16
 CONCLUSION AND SUGGESTION

There is no doubt that Supreme Court’s decision in Suresh Koushal case is fraught and S.377
suffers from certain vices and is against the spirit of Constitution. Therefore, there comes the
argument whether the section is to be read down with respect to cases only wherein private
consensual sex between same sex is not permitted or the section has to be held unconstitutional
in entirety. Law Commission of India in its 172nd report suggested that S.377 should be struck
down in entirety and for punishing sexual activities like pedophilia and other related sexual
activities there must be separate provision i.e. S.376E. Further, Supreme Court in Suresh
Koushal case observed that declaring a law as unconstitutional should be the last resort. Further
the Court also said that the mere fact that the section is misused by police authorities and others
is not a reflection of the vires on the section.74

Therefore, a stance has to be taken with regards to the same, whenever the Constitutionality of a
provision is challenged and rights of an individual are involved, then the Court must strike down
the provision and protect the rights. But when the Constitutional validity of the provision is
challenged wherein a cultural community is involved the Court is burdened with greater
responsibility and complexity in interpreting the provision. There are two approaches to address
this issue, first approach is the ‘narrow approach’ wherein the Court’s approach is limited to
technical grounds of law and to avoid questions of Constitutional law and it must decide on the
narrowest ground possible. That is refraining itself from giving opinion on any personal belief or
cultural ideology.75 Another approach is ‘transformative approach’ wherein it is proposed that
the Constitution is a transformative document and its aim is to remove the unjust laws, one of the
best example of India adopting such approach is Article 1776 i.e. abolition of untouchability. The

74
M.P. Singh, ‘Constitutionality of Section 377, Indian Penal Code- A case of misplaced hopes in courts’ (2013) 6
NUJS L Rev 569,
file:///C:/Users/asus/Downloads/J_2013_6_NUJS_L_Rev_569_dikshadubey224_gmailcom_20180731_161244.pdf l
accessed on 2nd July 2018.
75
Gautam Bhatia, ‘The narrow and transformative’, The Hindu (India, 31st July 2018), <
https://www.thehindu.com/opinion/lead/the-narrow-and-the-transformative/article24555861.ece> accessed on
2nd July 2018.
76
Constitution of India, Article 17.

17
researcher suggests that the Court must follow the transformative approach in case of S.377, as
mere decriminalization of the provision will not be a justified remedy for decades of
discrimination of LGBT community. The Court must rather declare that there must not be any
discrimination on the grounds of sexual orientation in public and private institutions and the
inalienable rights of LBGT community must be unequivocally be protected.

18
 BIBLIOGRAPHY

List of Articles

1. ‘Case Comment : Suresh Kumar Koushal v. Naz Foundation and ors’ (2013) 6 NUJS L
Rev VI.

2. Alok Gupta, ‘Section 377 and the of the Indian Homosexuals’, (2006) EPW.

3. Clarice B. Rabinowitz, ‘Proposals for Progress: Sodomy Laws and the European
Convention on Human Rights’, (1995) 21 Brook. J. Int'l L. 425.

4. George Selvanera, ‘Gays in Private: the Problems with the Privacy Analysis in Furthering
Human Rights’, (1994) 16 Adel. L. Rev. 331.

5. M.P. Singh, ‘Constitutionality of Section 377, Indian Penal Code- A case of misplaced
hopes in courts’ (2013) 6 NUJS L Rev 569

6. Rohit Sharma, ‘The Public and Constitutionality Conundrum – A case note on Naz
foundation Judgment’ (2009) 2 NUJS L Rev 445

7. Yvonne C. L. Lee, ‘Don't Ever Talk a Fence down until You Know the Reason It Was
Put Up – Singapore Communitarianism and the Case for Conserving 377A’, (2008) Sing.
J. Legal Stud. 347,

List of Newspaper Articles and Blog

1. Bhatia Gautam, ‘The narrow and transformative’, The Hindu (India, 31st July 2018).

2. Duncan Pamela, ‘Gay Relationships are still criminalized in 72 countries, report finds’
(The Guardian, 27th July 2017).

3. Khaitan Tarunabh, ‘On presumption of constitutionality of pre constitutional laws’

(ICLAP, 11th July 20180.

List of Books

1. M.P. Jain, Indian Constitutional Law, (7th ed. ,lexis nexis 2014)
VI
 2. PSA Pillai, Criminal Law, (13th ed.,lexis nexis, 2017)

3. R A Nelson, Indian Penal Code, (11th ed., vol.3, lexis nexis, 2016)

List of Websites

1. file:///C:/Users/asus/Downloads/GeorgeSelvaneraGaysinPriv.pdf.
2. file:///C:/Users/asus/Downloads/J_2009_2_NUJS_L_Rev_445_dikshadubey224_gmailco
m_20180731_161225.pdf
3. file:///C:/Users/asus/Downloads/J_2013_6_NUJS_L_Rev_569_dikshadubey224_gmailco
m_20180731_161244.pdf
4. file:///C:/Users/asus/Downloads/J_2013_6_NUJS_L_Rev_VI_dikshadubey224_gmailco
m_20180731_161122.pdf.
5. file:///C:/Users/asus/Downloads/YvonneCLLeeDontEverTalkaF.pdf
6. https://indconlawphil.wordpress.com/2018/07/11/guest-post-on-the-presumption-of-
constitutionality-for-pre-constitutional-laws/
7. https://www.outrightinternational.org/sites/default/files/15-1.pdf
8. https://www.theguardian.com/world/2017/jul/27/gay-relationships-still-criminalised-
countries-report,
9. https://www.thehindu.com/opinion/lead/the-narrow-and-
thetransformative/article24555861.ece.

VII