Laws enforcing sexual morality may cause misery of a special degree[i].
Eliminating such anachronistic laws is primal for the functioning of a
liberalistic egalitarian democracy. September 6 marked the biennial anniversary
of the landmark judgment by the Supreme Court in which consensual sex of adults
of the same gender was struck down as a criminal offence under section 377 of
the Indian Penal Code.
The triumphant end of this lengthy legal battle had
brought exhilarating joy among the LGBTQ community who were fighting for years
against suppression and also for the freedom to express their feelings for their
partner of the same gender. Vicious tales of blackmail, extortion and violence
faced by the queer community from the police across the nation and other evil
intended people[ii] were not something unheard of in the country but now with
the abolishment of the draconian law those would become the horrors of past
hurled into the dustbin of history.
The first petition challenging the
constitutionality of section 377 was filed in 1994. Since then the journey has
been long and tedious but the result has been imperative as it could pave way to
a plethora of civil rights in our country. The tide has certainly changed for
the LGBTQ community since the verdict and the protracted grapple of eminent
activists and others should be perceived to fathom the magnitude of the triumph.
Sowing The Seeds
In 1994 Ms. Kiran Bedi, I.G. Prisons had made a shocking statement that condoms
will not be supplied to the inmates of Tihar jail[iii]. The authority's
reasoning for this brutish decision was that it encourages homosexuality even
though the fact that homosexuality is rampant amongst prisoners is acknowledged
by the authorities but according to them since it's a crime under section 377 of IPC, distributing condoms will mean acceptance of a crime and aiding that crime.
A collective named AIDS BhedbhavVirodhiAndolan popularly known as ABVA had filed
a civil writ petition before the Delhi High Court in which Lawyers Shobha
Aggarwal, founding member of ABVA and S. Muralidhar appeared on behalf of ABVA
and they argued that this decision would result in wide spread of HIV infection
among the inmates.
They contended that section 377 of IPC is obsolete and thus
must be struck down for being unconstitutional & violative of fundamental rights
of Indian citizens as it discriminates citizens purely on the basis of their
sexual orientation. The petitioners supplicated based on Amnesty report[iv],
which took a positive stand on homosexuality and Kinsey report[v] which had
survey results stating the prevalence of gays and lesbians in various parts of
the world. Thus, not legalizing homosexuality reveals bias, ignorance and lack
of tolerance of Indian Judiciary towards sexual minorities.
They prayed to the
court to direct the respondents to immediately make condoms available at the
dispensary in Tihar Jail for the proper implementation of the government's
National AIDS control Program. Despite long-running efforts to mobilize support,
the petitioners could only garner the support of two NGOs Mumbai based HUMSAFAR
and Kolkata based SANGINI[vi]. All the prayers of petitioners fell on deaf ears
as the petition was eventually dismissed in 2001. The verdict was extremely
In the year 2001, Naz Foundation, a Delhi based NGO that works on HIV/AIDS and
sexual health filed a public interest litigation (PIL) in the Delhi high court,
challenging the constitutionality of section 377 and calling for the
legalization of homosexuality. Unfortunately, in 2003 the petition was dismissed
by the Delhi High Court stating that the petitioners had no locus standi in the
matter. A review petition filed by the Naz Foundation was also dismissed by the
Delhi High Court.
The Naz foundation then preferred an appeal to the Supreme
Court and the apex court in February 2006 ruled that the Delhi High Court should
reconsider this case on its merits. Thus, the case was placed before the
Division Bench of Delhi High Court comprising of Chief Justice Ajit and Prakash
Shah and Justice S. Muralidhar.
The petitioners by citing Jayalakshmi v. State
of Tamil Nadu
[vii] drew the attention of the court to custodial tortures of
people belonging to the queer community by the police across the nation to state
that as long as section 377 exists in its current form there will always be
police abuse, detaining and questioning, extortion, harassment, forced sex and
payment of hush money for the queers in India.
Petitioners pointed out that the
existence section 377 dampens the progress to eradicate the stigma associated
with sexual minorities in our country and considering the fact that the fields
of psychiatry and psychology no longer treat homosexuality as a disease and
regard sexual orientation to be a deeply held, core part of the identities of
individuals. A rather peculiar feature of this case is that completely
contradictory affidavits were filed by two wings of the government.
Ministry of Home Affairs had filed an affidavit against decriminalization of
homosexuality the National AIDS Control Organization, a division of the Ministry
of Health and Family Welfare had filed an affidavit stating that the enforcement
of Section 377 violates LGBT rights. There was an intervention in the case by a
coalition formed between NGOs and progressive groups based in Delhi called
Voices against 377, they argues that adult consensual sex should be excluded
from section 377.
The honorable bench held that criminalization of consensual gay sex violated the
fundamental rights of a person to dignity and privacy within the right to life
and liberty guaranteed by Article 21. The court applied the tests laid down by
the Supreme Court in State of West Bengal v. Anwar Ali Sarkar
considering the violation of Article 14 and clearly stated that Section 377
offends the guarantee of equality enshrined in Article 14 since it creates an
unreasonable classification and targets homosexuals as a class.
interpreted the term �sex' in article 15 of the Indian Constitution to not only
to merely denote the gender of the person but to be inclusive of �sexual
orientation' as well. The judgement did reflect a sense of conscience and
empathy towards the marginalized sexual minorities hitherto unseen.
There was a
sense of poetic justice in the fact that the verdict was delivered on 2nd of
July,2009 exactly on the 10th anniversary of the first pride parade in India and
Justice S. Muralidhar, who was a part of the division bench was actually the
same lawyer who fought for the petitioner in Aids Bhedbhav Virodhi Andolan (ABVA)
v. Union of India
[ix] Not everyone was happy with the judgment. Many including
politicians had expressed how disgruntled they were with the verdict.
The joy was however short lived for the umbrella community as in the year 2009
itself Suresh Kumar Koushal, a Delhi-based astrologer, was extremely
disappointed with the verdict of the Delhi High Court in Naz Foundation v. Govt.
of NCT of Delhi[x]thus, he challenged the Delhi high court's decision in the
He pleaded that the courts in our country has the moral
responsibility and duty in protecting cultural values of Indian society. The
petitioners argued that Naz Foundation had not placed any tangible material
before the High Court to show that Section 377 had been used for prosecution of
homosexuals as a class and went on to state that the few affidavits and
unverified reports of some NGOs relied upon by the respondents of this case
could not supply basis for recording a finding that homosexuals were being
singled out for a discriminatory treatment.
The petitioners relied heavily on
the judgements of the apex court in Southern Petrochemical Industries v.
[xi], Tamil Nadu Electricity Board v. Status Spinning
[xii] and Seema Silk and Sarees v. Directorate of Enforcement
[xiii] to state
that the High Court was wrong in ruling that section 377 is violative of
Articles 14 and 15 of the Constitution solely based on the reports prepared by
Moving on this perception the petitioner went on to state
that the Indian social structure and the institution of marriage will be
detrimentally affected and young persons will be tempted towards homosexual
activities if the Supreme Court upholds the decision of the High Court. The
respondents meanwhile relied on State of MP v. Baldeo Prasad
[xiv] to make the
argument that Section 377 is impermissibly vague and that the criminalization of
homosexuality condemns in perpetuity, a sizable section of society and forces
them to live their lives in the shadow of harassment, exploitation, humiliation,
cruel and degrading treatment at the hands of the law enforcement machinery.
After extensive arguments by all the parties in which, the petitioner reiterated
that section 377 is gender neutral and thus the question of discrimination
doesn't arise and that the section merely defines a crime and decriminalizing it
goes against the public morality and popular opinion. The respondents countered
that by stating that public morality or popular opinion should not be the ground
for violation of fundamental rights guaranteed in Article 21 of The Indian
The verdict by the Division bench was a huge blow to LGBTQ community as the apex
court overturned the Delhi High Court's judgement by stating that section 377
does not suffer from the vice of unconstitutionality and the declaration made by
the division bench of the High Court is legally unsustainable. The Supreme Court
stated that the High Court had extensively relied upon the judgments of other
jurisdictions albeit, the fact that these judgments shed considerable light on
multiple aspects of LGBTQ rights and were informative in relation to the
deplorable plight of sexual minorities.
The apex court by relying on Jagmohan
Singh v. State of U.P
[xv] held that judgments of other jurisdictions cannot be
applied blindfolded for determining the constitutionality of the law enacted by
the Indian legislature. Strangely the apex court stated that the legislature
shall be free to consider the desirability and propriety of deleting Section 377
IPC from the statute book or amend the same as per the suggestion made by the
The Central Government had filed a review petition stating
that judgement by the Supreme Court contradicts the well-established principles
of law laid down by the apex Court enunciating the width and ambit of
Fundamental Rights under Articles 14, 15 and 21 of the Constitution.
Unfortunately, the Supreme Court dismissed the review petition. The
re-criminalization of gay sex in India came under fire from various eminent
leaders from all corners of the world. The then UN secretary general, Ban Ki
Moon condemned this by clamoring for the need for equality and opposed any
discrimination against lesbians, gays and bisexuals.
Glimmer Of Hope
In 2017 a nine-judge supreme court bench, in Justice K. S. Puttaswamy (Retd.)
and Anr. vs Union of India And Ors
[xvi] popularly known as the Aadhaar case, had
to determine the constitutionality of the Aadhar project and whether it breaches
right to privacy of the citizens. Although, the petition was dismissed the Bench
unanimously ruled that privacy was a fundamental right.
This verdict gave a
glimmer of hope to LGBTQ community as the court also stated that sexual
orientation is an essential attribute of privacy and discrimination against an
individual on the basis of sexual orientation is deeply offensive to the dignity
and self-worth of the individual.
The court held that equality demands the
sexual orientation of each individual in society to be protected on an even
platform and the right to privacy and the protection of sexual orientation lie
at the core of the fundamental rights guaranteed by Articles 14, 15 and 21 of
the Constitution. By bringing protection of sexual orientation under the ambit
of the golden triangle of Indian Constitution, the Supreme Court enunciated the
paramount importance of underpinning LGBTQ rights.
It should be noted that the
Supreme Court took a steady deviation from the majoritarian view it took
in Suresh Kumar Koushal vs Naz Foundation
[xvii] and held that popular acceptance
cannot be the basis to disregard rights. This judgement also paved way to the
abolishment of the provisions pertaining to crime of Adultery under section 497
of Indian Penal Code in Joseph Shine v. Union of India
In June 2016 renowned Bharatanatyam dancer, Navtej Singh Johar filed a writ
petition in the Supreme Court challenging the constitutionality of section 377.
Acclaimed chef RituDalmia and hotelier AmanNath also joined the fight and after
the verdict in K. S. Puttaswamy (Retd.) and Anr. vs Union of India And
s [xix] hotelier Kesav Suri also joined the petitioners.
By July 2018 a
five-judge bench of the Supreme Court, including Chief Justice DipakMisra, began
hearing the petitions. The petitioners contended that in Suresh Kumar Koushal v.
Naz Foundation[xx] the apex court had been guided by social morality leaning on
majoritarian perception whereas the issue, in actuality, needed to be debated
upon in the backdrop of constitutional morality.
The petitioners referred to the
decision in Mosley v. News Group Newspapers Ltd
.[xxi] to highlight the emphasis
for individuals' freedom to conduct his or her sex life and personal
relationships as he or she wishes, subject to the permitted exceptions,
countervails public interest. The petitioners supplicated that privacy of the
individual having been put on such a high pedestal and sexual orientation having
been emphasized in National Legal Services Authority v. Union of India
Section 377 IPC cannot be construed as a reasonable restriction as that would
have the potentiality to destroy the individual autonomy and sexual orientation.
To bolster the argument that LGTBQ persons should not be penalized simply for
choosing a same sex partner, for the constitutional guarantee of choice of
partner extends to the LGBT persons as well, the petitioners relied on Francis Coralie Mullin v. Administrator, Union Territory of Delhi and others
[xxiii] and Common
Cause (A Registered Society) v. Union of India and another
[xxiv] wherein it was
held that the right to life and liberty, as envisaged under Article 21, is
meaningless unless it encompasses within its sphere individual dignity and that
right to dignity includes the right to carry such functions and activities as
would constitute the meaningful expression of the human self.
further contended that Section 377 was violative of Article 14 of the
Constitution as the said Section is vague in the sense that carnal intercourse
against the order of nature was neither defined in the Section nor in the IPC
or, for that matter in any other law.
As per the petitioners, there was no
intelligible differentia or reasonable classification between natural and
unnatural sex as long as it was consensual. In view of the decision of the
Supreme Court in Anuj Garg and others v. Hotel Association of India and
[xxv] which lays down the principle that classification which may have
been treated as valid at the time of its adoption may cease to be so on account
of changing social norms.
According to the petitioners Section 377 was
manifestly arbitrary and over-broad and for the said purpose, immense
inspiration was drawn from the principles stated in ShayaraBano v. Union of
India and others
[xxvi]. The petitioners further supplicated that making
consensual relationship a crime on the ground that it is against the order of
nature suffers from manifest arbitrariness at the fulcrum.
The central government filed an affidavit leaving the decision on the section's
constitutionality to the court's wisdom. There were many intervenors as
respondents and one such respondent of the case contended that to prohibit a
type of conduct which a particular society considers worthy of condemnation by
criminal sanctions is deeply influenced by the values governing that society and
it, therefore, varies from one country to another and one period of history to
Further, it was contended by a respondent that persons indulging in
unnatural sexual acts which have been made punishable under Section 377 IPC are
more susceptible and vulnerable to contracting HIV/AIDS and the percentage of
prevalence of AIDS in homosexuals is much greater than heterosexuals and that
the right to privacy may not be extended in order to enable people to indulge in
unnatural offences and thereby contact AIDS.
It was also the case of the
respondents that if Section 377 is declared unconstitutional, then the family
system which is the bulwark of social culture will be in shambles, the
institution of marriage will be detrimentally affected and rampant homosexual
activities for money would tempt and corrupt young Indians into this trade.
According to another respondent the argument of the petitioners that consensual
acts of adults in private have been decriminalized in many parts of the world
and, therefore, it deserves to be decriminalized in India as well does not hold
good for several reasons inasmuch as the political, economic and cultural
heritage of those countries are very different from India which is a
multicultural and multi-linguistic country.
The attention of Court was drawn to
the case of Fazal RabC houdhary v. State of Bihar
[xxvii] wherein this Court held
that the offence under Section 377 IPC implies sexual perversity. Furthermore,
it was supplicated that there should not be identical transplantation of Western
ideology in our country which has also been a matter of concern for this Court
in Jagmohan Singh v. State of U.P
The respondents cited the case
of State of Gujarat v. Mirzapur Moti Kureshi Kassab Jamat and others
stress upon the fact that the interest of a citizen or a section of the society,
howsoever important, is secondary to the interest of the country or community as
a whole and while judging the reasonability of restrictions imposed on
fundamental rights, due consideration must also be given to the Directive
Principles stated in Part IV of the constitution.
On 6 September 2018, the court unanimously scrapped the part of section 377
which criminalized consensual sexual conduct between adults of the same sex.
Chief Justice DipakMisra described section 377 as irrational, indefensible and
manifestly arbitrary [xxx].
Justice R.F. Nariman categorically stated that
persons who are homosexual have a fundamental right to live with dignity, which,
in the larger framework of the Preamble of India, will assure the cardinal
constitutional value of fraternity. The Judge further declared that such groups
are entitled to the protection of equal laws, and are entitled to be treated in
society as human beings without any stigma being attached to any of them.
According to Justice Chandrachud human Dignity ensures the sanctity of life
which makes human dignity an essential element of a meaningful existence and
thus a life of dignity comprehends all stages of living including the final
stage which leads to the end of life.
The only woman on the bench, Justice Indu
Malhotra summed up her judicial opinion with the words 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. The members of this community were compelled to live a life full of
fear of reprisal and persecution.[xxxi]
As the Constitution endures, persons in every generation can invoke its
principles in their own search for greater freedom these were the words of
Justice Kennedy while delivering his judgement in Lawrence vs Texas
judgement of the Supreme Court was dubbed as the victory of love it was also a
tight slap on the face for all the people who had differentiated LGBTQ community
In the past many people belonging to sexual minorities had
committed suicide because of the stigma and humiliation faced while coming out
but the continuation of such tragic incidents will become unlikely after the
verdict. The message to vanquish prejudice and embrace equal rights was loud and
Many LGBTQ activists believe that the attainment of social legitimacy
will help in depreciating homophobia among Indian society. The battle for
equality for the queer community could go on for years and there are many
hindrances to completely avert Social exclusion, identity seclusion and
isolation from the social mainstream but this verdict will forever remain as a
- H.L.A. Hart in Law, Liberty and Morality
- People's Union for Civil Liberties (PUCL) Report on Rampant violation of
rights of Sexual Minorities, p.14 (2000)
- KAI FRIESE, Tihar jail bans condoms, India Today May 31, 1994 p 3
- Amnesty International Report 1987 p (293-296)
- Kinsey Report Sexual Behavior 1948 Table 147, p. 651
- Sanjukta Bose, A BRIEF HISTORY OF THE GAY RIGHTS MOVEMENT IN INDIA p 2
- (2007) 4 MLJ 849
- AIR 1952 SC 75:  SCR 284
- Civil Writ Petition 1784 Of 1994 Delhi High Court
- (2009) DLT 277
- (2007) 5 SCC 447
- 2008 (9) SCR 870
- (2008) 5 SCC 580
- (1961) 1 SCR 970
- (1973) 1 SCC 20
- (2017) 10 SCC 1
- (2014) 1 SCC 1
- (2019) 3 SCC 39
- Supra note 16
- Supra note 17
-  EWHC 1777 (QB)
- (2014) 5 SCC 438
- 1981) 1 SCC 608
- (2018) 5 SCC 1
- (2008) 3 SCC 1
- (2017) 9 SCC 1
- (1983) 3 SCC 9
- (1982) 3 SCC 9
- 2005 (8) SCC 534
- (2018) 10 SCC 1
- Supra note 30
- 2003 U.S. LEXIS 5013