Author Name:   Prarthana

In the wake of the Naz Foundation Judgment this article looks at the struggle which lead to the decriminalisation of homosexuality in a decision by the Delhi High Court...

 An article titled “India: End to Unnatural Exclusion[1]”, had been published in The Hindustan Times on July 2nd, 2009. In this article, the author had written about the Delhi High Court Judgment that decriminalized non-heterosexual sex between consenting adults. It said that in an eloquently argued judgment of 150 pages, the bench had struck down Section 377 of the Indian Penal Code (IPC), a colonial legislation drafted by Lord Macaulay in 1860, that criminalized “carnal intercourse against the order of nature” punishable by imprisonment extending up to ten years. India was one of the few countries left in the world that criminalized and discriminated on the basis of sexual orientation. The author opined that by overturning Section 377, the Delhi High Court has fore grounded the importance of sexual rights, lent dignity to people of different sexualities and upheld the Constitutional values of democracy and equality.

This is a view that seems to be shared by a multitude of the intelligentsia in the country. Judging from the response that the Delhi High Court’s ruling has received, it is becoming quite apparent that the once traditional and culture-centric nation is opening its doors to possibilities of the ethos evolving in a direction that was previously seen as appalling. The new wave of judicial activism that has been set forth in the past few decades, is pulling under its radar the plight of a particular section of the population that was previously criminalized, but is now being recognized as very much a part of the Indian people, which has rights and an identity of its own.

According to Faucault, an imminent jurist belonging to the Marxist School, the acquisition of subjectivity implies both being a subject - an individual who is empowered to act, and being subjected - an individual whose actions are defined for him or her by the terms of discourse from which the individual’s status as subject is derived. In accepting a new subject position, such as the LGBT’s, we are provided with a culturally meaningful way of experiencing ourselves and our interactions within society.

For Faucault, resistance is the irreducible opposite of power and it comprises isolated acts of rebellion as well as organized political movements. Resistance may entail the use of one discourse against another to contest its exclusionary outcomes, thereby forcing to redraw its boundaries to permit inclusion. This inclusion is what the various agencies, NGO’s and Conventions across the world, have been trying to achieve through the resistance they have doggedly shown at every instance where a LGBT person has been persecuted. [2] In the last two decades, LGBT activism played a major role in creating awareness on the issue. In 2006 writer Vikram Seth released a public letter demanding that the “cruel” law be struck down. The letter was supported by a large number of signatories including Captain Lakshmi Sehgal, Aruna Roy, Soli Sorabjee, Shyam Benegal, Shubha Mudgal, Arundhati Roy, Aparna Sen, Mrinalini Sarabhai and demanded the scrapping of the “brutal law” that “punitively criminalizes romantic love and private, consensual sexual acts between adults of the same sex” while being used to “systematically persecute, blackmail, arrest and terrorize sexual minorities”. Amartya Sen also asked for an abolition of the “colonial era monstrosity” that ran contrary to “the enhancement of human freedom” and India’s commitment to “democracy and human rights”

The message all these attempts try to convey is that by not shoehorning all partnerships into existing categories, we may be able to systematically observe and understand the true nature of intimate partnerships. Nurtured over many years, “inclusiveness” recognizes “a role in society for everyone” where “those perceived by the majority as ‘deviants’ or ‘different’ are not ‘excluded or ostracized’”. It argues that “Constitutional law does not permit the statutory criminal law to be held captive by the popular misconceptions of who the Lesbian, Gay, Bisexual and Transgender (LGBT) are. It cannot be forgotten that discrimination is the antithesis of equality and that it is the recognition of equality which will foster the dignity of every individual.

History Of Section 377 Of IPC
Section 377 was introduced by Lord Macaulay in 1860 as a part of the Indian Penal Code. A plain reading of the section makes clear that it punishes 'carnal intercourse against the order of nature' with either imprisonment of 10 years or life and fine. The provision reads, “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.”

The question which the judiciary has struggled with since 1860 is to determine what exactly 'carnal intercourse against the order of nature' means. The meaning of Section 377 in 1884 was restricted to anal sex, by 1935 it was broadened to include oral sex and the judgments in contemporary India have broadened it to also include thigh sex. Section 377 is not merely a law about anal sex alone, but applies to homosexuality in general. The lack of a consent-based distinction in the offence has made homosexual sex synonymous to rape and equated homosexuality with sexual perversity.[3]

If we are to search for a principle which holds together these various sex acts prohibited by Section 377, it was laid down as early as 1935. The Court in Khanu vs Emperor laid down that, “the natural object of sexual intercourse is that there should be the possibility of conception of human beings, which in the case of coitus per os (oral intercourse) is impossible”. It then went on to define sexual intercourse as “the temporary visitation of one organism by a member of the other organism, for certain clearly defined and limited objects.

The primary objective 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 is enveloped at least partially by the visited organism, for intercourse connotes reciprocity. Looking at the question in this way it would seem that the sin of Gomorrah is no less carnal intercourse than the sin of Sodom.”[4]

This idea of sex without the possibility of conception has been used by the judiciary over the last 140 years to characterize homosexuality as a 'perversion', 'despicable specimen of humanity', 'abhorrent crime', 'result of a perverse mind' and 'abhorred by civilized society'. What judicial interpretation did was to include both acts of consensual sex as well as acts of sexual assault under its catch all category of 'carnal intercourse against the order of nature'. It is also important to note that technically speaking, Section 377 does not prohibit homosexuality or criminalize homosexuals as a class but targets instead sexual acts. However the fact that these sexual acts are commonly (mistakenly) associated with only homosexuals has made homosexuals far more vulnerable to prosecution under the law than heterosexuals.

The judicial understanding of Section 377 only legitimizes and reinforces state power to persecute and harass those of an alternative sexual orientation or gender identity. This enormous power in the hands of the state to enforce its vision of morality finds frightening expression in the form of arbitrary and brutal state action.

The real danger of Section 377 lies in the fact that it permeates different social settings including the medical establishment, media, family, and the state. Thus it becomes a part of ordinary conversations and ultimately a part of the very social fabric in workplaces, families, hospitals and the popular press.

This helps to create an environment where violence against queer people gains a semblance of legal acceptability. Section 377 expresses deep societal repugnance towards queer people and provides the fig leaf of legitimacy for the harassment of queer people by families, friends, the medical establishment and other official institutions.[5]

To take just two examples, 'Sodomy is illegal in India,' was a statement made by a doctor that shows how a law such as Section 377 has to be evaluated not merely in terms of the actual prosecutions but in terms of its impact in constructing mindsets. The effect on actions by authorities right from the medical profession to the National Human Rights Commission should be seriously studied to grasp how Section 377 has functioned as cultural signifier for the 'unacceptability' of homosexuality.

Similarly the social intolerance fostered by the legal regime of Section 377, results in the situation wherein lesbian couple after lesbian couple feel they have no option but to commit suicide when faced with the dire reality of the Indian norm of compulsory marriage. Deepa from Sahayatrika, a voluntary organisation, has documented the cases of 23 couples in the tiny state of Kerala who have committed suicide rather than be forced into marriage. Of course this form of extreme intolerance is also being combated by the emergence of queer activism, but for many women from small towns without any access to the queer community it remains a lonely struggle to keep alive the revolt against compulsory heterosexuality. Section 377 is a visible symbol of all that is wrong with compulsory heterosexuality and it is within this context that a queer critique has to be framed.

Essentials of The Offence
Unnatural offences are dealt with under Section 377 of the Indian Penal Code, 1860. The section reads as follows –

“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.”
The first word that comes to prominence is ‘voluntarily’, which is defined in Sec.39 of the IPC as intending to cause it, or by means which, at the time of employing those means, the person knew or had reason to believe to be likely to cause. Applying this definition we deduce that the act of committing an unnatural offence must be accompanied by intention. The words ‘…has carnal intercourse’ suggest that this offence is punishable only if the act is committed, that is an actus reaus followed by the mens rea must be present. ‘Carnal intercourse’ leaves outside of its ambit sexual intercourse in the normal sense between humans of opposite sex i.e. any sexual act which is not of the usual penile-vaginal penetration of male-female sexual intercourse. Also, carnal intercourse may not be done with a man, woman or animal. There are four different forms of intercourse which are strictly prohibited by Sec. 377:

Penile-anal penetration
Finger-anal penetration
Finger-vaginal penetration
Object-vaginal penetration.[6]
This establishes the rule criminalizing sodomy in India.

The explanation to the Section clarifies that penetration in any orifice is enough to constitute the offence, and so the full act of intercourse or even the point of reaching climax is not required to constitute the offence. The true meaning that emerges is that penetration per anum is only punishable, but coitus per os, or the act of inserting the penis into another’s buccal cavity (mouth) has also been read into this as an unnatural offence in cases like Khanu v. Emperor[7] which was later reaffirmed in Lohana Vasantlal Devchand v. The State[8]. In the case of Calvin Francis v. State of Orissa[9], the High Court of Orissa was of the opinion that the act of placing the male organ inside another’s mouth would amount to an unnatural offence because it would amount to an ‘initiative act of sexual intercourse for the purpose of his satisfying the sexual appetite’.

One important omission in Section 377 is of any respite for an unnatural offence committed with the consent of the other. This is establishes that consent is immaterial in the commission of an unnatural offence in India.[10] That is to say, that even consensual sodomy is illegal, as given in the case of Jagjir Singh v. State[11].

Furthermore, the offence is cognisable, non-bailable, non-compoundable and triable by a magistrate of first class. Mere intention to commit the crime is not enough to convict the accused.[12] In a trial of an accused under this Section, the prosecution must prove that the:

accused had carnal intercourse with a man, woman or an animal;
such intercourse was against the order of nature;
the act was done voluntarily by the accused; and
penetration had occurred.

Section 377 also recognises bestiality which is sexual intercourse either by man or woman with an animal. Another definition is “Sexual activity between a human and an animal. Some authorities restrict the term to copulation between a human and an animal of the opposite sex.” Interestingly, the definition of sodomy also includes bestiality hence sodomy is not only sexual intercourse between two humans of the same sex, but also a human and an animal of opposite gender.[13] The reason for including bestiality within the definition of unnatural offences as contained in Section 377 is not clear. It may be inferred from the title of the Section that the drafters of the Code intended to enalize all unnatural offences, whether carnal intercourse was committed against a man, woman or an animal.

History Of The Persecution
The criminalization of homosexuality, by condemning into perpetuity an entire class of people, forces them to live their lives in the shadow of harassment, exploitation, humiliation, and cruel and degrading treatment at the hands of the law enforcement machinery; further it denies them moral full citizenship.[14] Proof of such harassment and exploitation is seen from the various incidents that keep getting reported in the newspapers on a regular basis, but that never really make it to the headlines. Let us consider some of these incidents as case studies -

In August 2004, the newspapers in Delhi were full of details of the double murder at Anand Lok, which involved the murder of two gay men in the posh South Delhi house of one of the victims. The media was quick to pounce upon the “unsafe lifestyle” of the victims, and instead of mourning the death of two people, began detailed reports of the “dark underbelly of Delhi’s nightlife”. Screaming headlines such as “Gay Murders Tip of Sordid Sleazeberg”[15] became daily fare; newspaper reports talked endlessly of the promiscuous and unsafe lifestyles of gay people in the city, and how Pushkin Chandra, one of the murder victims, was part of a “homosexual syndicate”.[16]

Like all laws, Section 377 was used both inside and outside the courtroom. In 2006, the Lucknow police entrapped five gay men by tracking them over the internet and then arresting them under Section 377. For years, police have used Section 377 to extort, threaten, intimidate and harass LGBT people. Commenting on how law-enforcers can misuse such penalisable offences, Amartya Sen observed that the harm done by such an “an unjust law” can, therefore, “be far larger than would be indicated by cases of actual prosecution”.[17]

On 20th October 2008, five hijras were caught by the police and taken to the Girinagar police station. In the station, the hijras were beaten up by the police, including the Assistant Commissioner of Police (ACP), H. T. Ramesh. False charges under section 341 (wrongful restraint) and 384 (extortion) of the IPC (Indian Penal Code) were brought upon them. They were produced before the magistrate at 7:30 pm and were sent into judicial custody. All through the hijras were handled by men police and no medical treatment was given to the injured hijras in police or judicial custody. They were released on bail on 22nd October, 2008. Upon receiving a call from one of the arrested hijras, five crisis team members of Sangama rushed to the Girinagar police station. Sangama is a human rights organization that has been working among hijras and other sexual minorities on issues of their rights and health for the past ten years. Sangama's crisis intervention is recognized as an effective practice by the Indian Government through its National AIDS Control Plan III, 2006-2011 to be emulated by organizations working with sexual minorities and sexworkers across India. The crisis team members tried to enquire of the police about the arrested hijras. To the surprise of the members, they were roundly abused by the police, and subjected to physical and verbal assault. All had their organizational ID cards with them, but this did not prevent them from being illegally assaulted and detained by the police at the Banashankari police station, and later at the Girinagar police station. All of them were accused of offences punishable under Section 143 (unlawful assembly), 145 (joining unlawful assembly ordered to be dispersed), 147 (rioting) and 353 (obstructing government officials in performing their duty) of the IPC. They were produced before the magistrate at 8.45 PM and were sent into judicial custody. These 5 crisis team members were released on bail on 22nd October, 2008. Around 150 human rights activists and lawyers from various organizations gathered outside the Banashankari police station by the evening of October 20. They tried unsuccessfully to negotiate with the ACP and the Police Inspector to release the Sangama crisis team members.[18]

There was a reported beheading of a young Indian man by a male co-worker who apparently told police he “was ashamed” after the two had sex. [19] Halol police on Monday arrested the youth, Naushad Pathan, allegedly involved in the murder of his associate, Dilshad, on the outskirts of Halol town on 22 January 2005.

The other disturbing trend increasingly apparent is that, in ever-greater numbers, police pretend to arrest homosexual men from cruising areas--only to take them either to police vans or to the police station to force them to provide the police with "sexual favors". Male sex workers (MSW) are especially vulnerable to this, since usually the beat constables know who they are. This sexual exploitation often turns violent and sometimes turns to gang rape should the person arrested refuse. Also—while most homosexuals, including sex workers, in cruising areas are now aware of HIV/AIDS and increasingly use condoms-- the police insist on having unsafe sex. The pattern of brutal rape and gang rape is intensified if the victim resists unsafe sex. This has resulted in terrible trauma for the victims, and increased fear of contracting HIV and STDs. It also leads to depression and other psychological/emotional complications, not to mention physical trauma and hemorrhage from the torture and abuse.[20]

Social Bias:
The fact that Naushad had to murder the man he had sex with shows the level of shame and indignity that has been attached with the concept of homosexuality in India. Who is the homosexual in India today? In law, a criminal committing unnatural sexual offences; in religion, a sinner who violates Gods laws; and in medicine, a mentally ill person who needs treatment. These three systems of knowledge –– law, religion and medicine –– deeply impact our understanding of homosexuality in India.[21]

Swami Ramdev has even said that homosexuals are mentally ill and need hospitals, not legal vindication. Similarly, the Vishwa Hindu Parishad, the Catholic Church and Muslim theological bodies have all ordained homosexuality as being against the order of nature. While some of them have adopted a conciliatory approach towards decriminalisation of homosexuality, they vehemently oppose its legalisation. The beliefs about unstable and distressing homosexual relationships first constructed by western psychiatrists, in the early twentieth century find voice in Indian society as well. Multiple partners, cruising for sexual contact, short-term relationships, rejection and depression, are all mentioned in passing as problems that homosexual people have to face without exception. There is little or no questioning of the social pressure behind the cause for many of these so-called unstable components of homosexual relationships. Additionally conservative notions of relationships (both from religious roots or otherwise) as being monogamous, single-partner, marital and procreative only, permeates unconsciously through these assumptions.

The one fact assumed at the start by these mental health practitioners is that heterosexuality is the objective of all sexual development. That being a heterosexual is the “natural” thing. And that people are homosexual because of unhealthy fixations, same-sex experimentation, same-sex sexual abuse and peer pressure.

Effect On Anti-Aids Campaigns
With the anti-sodomy law in place, the Queer movement was restricted to talking about disease prevention and the repealing of Section 377. Since homosexuals are among the high-risk communities in the spread of HIV-AIDS, many non-governmental organisations (NGOs) argued against Section 377, pointing out that by criminalising homosexuality the state was pushing more people underground and thereby accelerating the HIV risk factor. NGOs working in this area have thus helped in strengthening the queer movement. The hidden nature of homosexuality groups is impending intervention under the National AIDS Control Programme. An enabling environment is to be created where the people involved in risky behaviour can be provided total access to the services of such preventive efforts.

Cases Under Section 377
The courts have dealt with a variety of case law in which they have applied the Section and its ingredients and set out its scope. The cases of
Khanu v. Emperor
Lohana Vasantlal Devchand v. The State
Calvin Francis v. State of Orissa
Jagjir Singh v. State
have been discussed in the preceding chapters. The ratios of certain other important cases are as follows:

Nowshiriwan Irani V. Emperor[22]
The Court held that the offence was not committed and that no attempt to commit the offence could be interpreted since there had been no penetration.

Lohana Vasantlal Devchand V. The State[23]
This dealt with whether the act of placing one’s organ inside the mouth of the victim and ejaculating could be termed as carnal intercourse. The facts included that such act had occurred after a boy could not bear penetration into the anus by the accused. After analysing the definition of sodomy in English law and comparing it to Section 377, the Court reached the decision that the accused were liable for committing unnatural offence. This case substantially recognised oral intercourse as a form of carnal intercourse punishable under Section 377.

State Govt. Of Nct Of Delhi V. Sunil[24]
In this case two men took away a four year old girl from her house and committed rape and sodomy on her, which eventually led to her death. Medical evidence showed that the two accused had indulged in anal intercourse with the girl, hence they were also convicted of the offence under Section 377.

The Igniting Incident
On 7 July2001, police raided a park in Lucknow that was frequented by the MSM (men who have sex with men) community. The raid was based on an FIR (First Information Report, filed at a police station in the event of a crime) filed by a person who alleged that he had been sexually assaulted. The raid led to the arrest of an outreach worker of the Bharosa Trust, a NGO working with the MSM community in the area of HIV/AIDS prevention. The police raided the offices of Bharosa and Naz Foundation and seized materials from there, arresting nine people in all. The media sensationalised the arrests, describing the police action as the busting of a sex racket.

The arrested persons were remanded to judicial custody on 8 July 2001; they were allegedly beaten up and their offices sealed. They were charged under Sections 377 (unnatural offences), 292 (sale of obscene books, etc.), 120b (criminal conspiracy) and 109 (abetment) of the IPC; under Section 60 of the Copyright Act; and Section 3 and 4 of the Indecent Representation of Women Act. Their bail applications were rejected twice, first by the chief judicial magistrate (CJM) and then by the district judge, Lucknow. The CJM denied bail, stating that “the work of the accused is like a curse on society”. The sessions judge upheld the arguments of the prosecution, which alleged that the accused are “a group of persons indulging in these activities and are polluting the entire society by encouraging young persons and abetting them for committing the offence of sodomy; that the investigation is still under progress; that the offences are being committed in an organized manner”. The appeal for bail was moved again on 8 August in the Lucknow High Court by Indira Jaising and Anand Grover of the group Lawyers Collective. It was only on 16-17 August that all four accused were granted bail, and that too only after the public prosecutor had stated that no link between the NGOs and the incident of 7 July could be established. A medical examination was done of all the four accused but no evidence to charge them under Section 377 was found.

This incident alarmed and disturbed the queer community in India, and made it clear that the threat of Section 377 being used as a means of discrimination was a concern that needed to be urgently addressed. The petition filed in the Delhi High Court by the Naz Foundation in 2001 asked, therefore, for the reading down of this law. It asked that private consensual sex between adults be decriminalised. The thrust of the petition was to challenge the law as a violation of the right to privacy; to question the legislative intent as being arbitrary and outdated; to challenge the effect of the law as being discriminatory on the grounds of sexual orientation.

Chronology Of Protests
2001: An NGO fighting for gay rights, Naz Foundation files PIL seeking legalisation of gay sex among consenting adults.
Sept 2, 2004 : Delhi High Court dismisses the PIL seeking decriminalisation of gay sex.
Sept, 2004: The gay right activists file review petition.

Nov 3, 2004: The HC dismisses the review plea.
Dec, 2004: Gay rights activists approach the apex court against the order of the High Court.

Apr 3, 2006: The apex court directs the HC to reconsider the matter on merit and remands the case back to High Court.
Oct 4, 2006: The HC allows senior BJP leader B P Singhal's plea, opposing decriminalising gay sex, to be impleaded in the case.

Sept 18, 2008: Centre seeks more time to take stand on the issue after the contradictory stand between the Home and Health ministries over decriminalisation of homosexuality. The Court refuses the plea and final argument in the case begins.[25]
Sep 25, 2008: The gay rights activists contend that the government cannot infringe upon their fundamental right to equality by decriminalizing homosexual acts on the ground of morality.
Sep 26, 2008: The Court pulls up the Centre for speaking in two voices on the homosexuality law in view of contradictory affidavits filed by Health and Home ministries.
Sep 26, 2008: Centre says that gay sex is immoral and a reflection of a perverse mind and its decriminalisation would lead to moral degradation of society.
Oct 15, 2008: The High Court pulls up the Centre for relying on religious texts to justify ban on gay sex and asks it to come up with scientific reports to justify it.

Nov, 2008: Government in its written submission before the High Court says judiciary should refrain from interfering in the issue as it is basically for Parliament to decide.
Nov 7, 2008: High Court reserves its verdict on petitions filed by gay rights activists seeking decriminalisation of homosexual acts.

July 2, 2009: High Court allows plea of gay rights activists and legalises gay sex among consenting adults.
NACO (National Aids Control Organization) had also demanded the scrapping of Section 377 as it was obstructing effective health interventions.
The 172nd report of the Law Commission of India and the recommendations of the National Planning Commission for the 11th Five Year Plan also demanded decriminalization of homosexuality

Naz Foundation V. Government Of NCT
In February 2006, the Supreme Court had ordered the High Court to reconsider the constitutional validity of Section 377. The Naz Foundation petition was supported by Voices Against 377, comprising 12 organizations across the country while it was being opposed by the government of Delhi and others. The position of the government (represented by the Ministries of Health and Law) has been conflicted while many of its affiliates demanded decriminalization. This visionary judgement is the culmination of a ten-year legal battle. In 2001 Naz Foundation (an NGO related to HIV/Aids issues) filed a petition in the Delhi High Court asking for Section 377 to be ‘read down’ by decriminalizing consensual sex among adults. In September 2003, the Government insisted on retaining Section 377 on the grounds that ‘Indian society’s disapproval of homosexuality was strong enough to justify it being treated as a criminal offence even where adults indulge in it in private’.[26]

The writ petition has been preferred by Naz Foundation, a Non Governmental Organization (NGO) as a Public Interest Litigation to challenge the constitutional validity of Section 377 of the Indian Penal Code, 1860 (IPC), which criminally penalizes what is described as ‘unnatural offences’, to the extent the said provision criminalizes consensual sexual acts between adults in private. The challenge is founded on the plea that Section 377 IPC, on account of it covering sexual acts between consenting adults in private infringes the fundamental rights guaranteed under Articles 14[27], 15[28], 19[29] & 21[30] of the Constitution of India. Limiting their plea, the petitioners submit that Section 377 IPC should apply only to non-consensual penile non-vaginal sex and penile non- vaginal sex involving minors.

The writ petition was dismissed by this Court in 2004 on the ground that there is no cause of action in favour of the petitioner and that such a petition cannot be entertained to examine the academic challenge to the constitutionality of the legislation. The Supreme Court vide order dated 03.02.2006 in Civil Appeal No. 952/2006 set aside the said order of this Court observing that the matter does require consideration and is not of a nature which could have been dismissed on the aforesaid ground. The matter was remitted to the Delhi High Court for fresh decision.

ISSUES:
I. Whether Section 377 is violative of Article 14
It has was submitted that Section 377’s legislative objective of penalizing ‘unnatural sexual acts’ has no rational nexus to the classification created between procreative and non- procreative sexual acts, and is thus violative of Article 14 of the Constitution of India. Section 377’s legislative objective is based upon stereotypes and misunderstanding that is outmoded and enjoys no historical or logical rationale which renders it arbitrary and unreasonable. The Court made it explicit that where an Act is arbitrary, it is implicit in it that it is unequal both according to political logic and constitutional law and is, therefore, violative of Article 14.

According to Union of India, the stated object of Section 377 IPC is to protect women and children, prevent the spread of HIV/AIDS and enforce societal morality against homosexuality. It is clear that Section 377 IPC, whatever its present pragmatic application, was not enacted keeping in mind instances of child sexual abuse or to fill the lacuna in a rape law. It was based on a conception of sexual morality specific to Victorian era drawing on notions of carnality and sinfulness. In any way, the legislative object of protecting women and children has no bearing in regard to consensual sexual acts between adults in private.

The second legislative purpose elucidated is that Section 377 IPC serves the cause of public health by criminalising the homosexual behaviour. As already held, this purported legislative purpose is in complete contrast to the averments in NACO’s affidavit. NACO has specifically stated that enforcement of Section 377 IPC adversely contributes to pushing the infliction underground, make risky sexual practices go unnoticed and unaddressed. Section 377 IPC thus hampers HIV/AIDS prevention efforts.

Lastly, as held earlier, it is not within the constitutional competence of the State to invade the privacy of citizens lives or regulate conduct to which the citizen alone is concerned solely on the basis of public morals. The criminalisation of private sexual relations between consenting adults absent any evidence of serious harm deems the provision’s objective both arbitrary and unreasonable. The state interest ‘must be legitimate and relevant’ for the legislation to be non-arbitrary and must be proportionate towards achieving the state interest. If the objective is irrational, unjust and unfair, necessarily classification will have to be held as unreasonable. The nature of the provision of Section 377 IPC and its purpose is to criminalise private conduct of consenting adults which causes no harm to anyone else. It has no other purpose than to criminalise conduct which fails to conform with the moral or religious views of a section of society. The discrimination severely affects the rights and interests of homosexuals and deeply impairs their dignity.

II. Whether Section 377 is in violation of Article 15?
International Covenant on Civil and Political Rights (ICCPR) recognises the right to equality and states that, ‘the law shall prohibit any discrimination on any ground such as race, colour, sex, language, religion, political or other opinion, national or social region, property, birth or other status’. In Toonen v. Australia, The Human Rights Committee, while holding that certain provisions of the Tasmanian Criminal Code which criminalise various forms of sexual conduct between men violated the ICCPR, observed that the reference to ‘sex’ is to be taken as including ‘sexual orientation’.

Similarly, in Corbiere v. Canada, the Canadian Supreme Court identified the thread running through these analogous grounds – ‘what these grounds have in common is the fact that they often serve as the basis for stereotypical decisions made not on the basis of merit but on the basis of a personal characteristic that is immutable or changeable only at unacceptable cost to personal identity.’

Therefore, sexual orientation is a ground analogous to sex and that discrimination on the basis of sexual orientation is not permitted by Article 15. Further, Article 15(2) incorporates the notion of horizontal application of rights. In other words, it even prohibits discrimination of one citizen by another in matters of access to public spaces. Therefore, discrimination on the ground of sexual orientation is impermissible even on the horizontal application of the right enshrined under Article 15.

III. Whether it violates Article 21
Blackmun, J. in his dissent in Bowers, Attorney General of Georgia v. Hardwick[31], made it clear that the much - quoted ‘right to be let alone’ should be seen not simply as a negative right to occupy a private space free from government intrusion, but as a right to get on with your life, your personality and make fundamental decisions about your intimate relations without penalisation. The privacy recognises that we all have a right to a sphere of private intimacy and autonomy which allows us to establish and nurture human relationships without interference from the outside community. The way in which one gives expression to one’s sexuality is at the core of this area of private intimacy. If, in expressing one’s sexuality, one acts consensually and without harming the other, invasion of that precinct will be a breach of privacy.[32]

The sphere of privacy allows persons to develop human relations without interference from the outside community or from the State. The exercise of autonomy enables an individual to attain fulfilment, grow in self-esteem, build relationships of his or her choice and fulfill all legitimate goals that he or she may set. In the Indian Constitution, the right to live with dignity and the right of privacy both are recognised as dimensions of Article 21. Section 377 IPC denies a person’s dignity and criminalises his or her core identity solely on account of his or her sexuality and thus violates Article 21 of the Constitution. As it stands, Section 377 IPC denies a gay person a right to full personhood which is implicit in notion of life under Article 21 of the Constitution.

Ratio:
Section 377 however, by criminalising consensual sexual acts between adults in private[33] basically penalises the minority group and has targeted the homosexuals in particular since the majority considers it to be against the order of nature. Therefore, it is arbitrary and unreasonable under Article 14.

The expression ‘sex’ as used in the Article 15 cannot be read restrictive to ‘gender’ but includes ‘sexual orientation’[34] and, thus read, equality on the basis of sexual orientation is implied in the said fundamental right against discrimination.

Repercussions Of Judgment
When the Delhi High Court struck down the provision of Section 377 of the Indian Penal Code (IPC) that criminalises even consensual sex between same sex individuals, it also effectively opened up public space – long inaccessible – for the queer movement in India. The decision not only permits the queer community to carry out a much more democratic struggle against the oppression of its sexuality but also gives it an opportunity to complicate the language of the movement vis-a-vis class and gender issues in the country.

Ponni Arasu, a member of the Alternative Law Forum and a queer activist, said, “The decision has given the queer community basic access to law. You could not be identified as a homosexual as it was criminal to be so. So, even when there is a case of civil rights abuse or other forms of oppression, you could never go to a police station. You had to hide your identity.” The movement, in a way, starts now as it is out of the courtroom. Gautam Bhan, a member of Voices Against 377, said, “No battle is won in the courtroom. It is from here we start to complicate our language of sexuality and engage it with other forms of oppression and discrimination in society.”

The decision was long due, considering that the law was framed as a colonial tool by the British to enter the family space and dictate private matters. Earlier, the subcontinent’s monarchs had not intervened in the realm of sexuality, keeping the state away from disturbing the inherent status quo.

In a way, the queer movement in India, which took a stand against the Victorian law drafted in 1860, can also be seen as contributing to the women’s movement in the country. Not only does the queer movement challenge the defining patriarchal nature of public and private spaces, the queer debate also forms an integral part of ongoing class struggles as it deals with the politics of marginalisation.

Bhan said, “A Dalit woman who is a lesbian will have existential issues to deal with other than her sexuality. But her sexuality, too, is an integral part of her life. How can we, then, separate issues of sexuality from other democratic struggles of India? Similarly, working class people who could be queer have their economic issues to deal with. We need to use the language of sexuality to check any discrimination of queer people in employment, educational institutes, hospitals, and so on. Such discriminatory practices are a norm but we can take up these issues.”[35]

Activists identify several benefits from the recent decision to decriminalize homosexuality. Significantly, opportunities for entrapment and blackmail of LGBT people, which take advantage of their fear of being prosecuted for their sexual orientation and gender identity, can now be challenged more publicly and hopefully decrease. However, it must be noted that regardless of Section 377, sex workers are still entrapped, detained and penalized using other laws. The positive court decision also will enable LGBT and HIV/AIDS groups and activists to continue or expand their work without persecution by the authorities. Individuals can participate in Pride marches and other related demonstrations with less fear of being prosecuted under Section 377.

At the same time, there is some worry of negative repercussions since a favorable judgment will not end homophobia and its devastating effects on the lives of LGBT people in India. One concern is the possibility of organized and social backlash against LGBT people as their issues and identities are made more public and prominent in mainstream media and could potentially increase family and community surveillance and violence. Some activists say there is an even greater urgency now for safe houses, particularly for young lesbians, bisexual women, and non-gender conforming men and women. There is also some criticism that the disappearance of Section 377 will not make a significant difference in the daily lives of vernacular (non-English speaking) youth, economically disempowered people, or non-heteronormative women facing forced marriages, forced confinement by the family, and forced separation from same sex partners because these issues are grounded in denial of autonomy and dignity for non-conforming sexuality, gender identity or expression. Despite these concerns, the overwhelming feeling among most activists is that the positive verdict in Delhi has tremendous symbolic value and could lead to more public debate, more challenges to other repressive morality laws, and increased support for social change in India.[36]

The legal battle has been partly won. Over the years, the movement has seen a shift in the social reaction – from fierce homophobia to more openness. What is now crucial to the movement is, perhaps, its ability to make people question the conventional norms of the social structure and to highlight its own aim as one that seeks not to annihilate the accepted social fabric but to ensure that the social ethos reflects the nuances of human life and is not bound only by tradition

Conclusion
The historical Naz Foundation judgment derives its inspiration from a Nehruvian vision of ‘Equality’. While moving the ‘Objective Resolution’ on December 13, 1946, Jawaharlal Nehru said, and the Judgement quotes: “Words are magic things often enough, but even the magic of words sometimes cannot convey the magic of the human spirit and of a Nation’s passion. The Resolution seeks very feebly to tell the world of what we have thought or dreamt of so long, and what we now hope to achieve in the near future.” These words no doubt echo the feelings and aspirations of all LGBT people and their friends and family.

The struggle against Section 377 will not only have to factor in the state but also take on board civil society voices such as that of the Hindu Right as well as AIDS deniers. Added to the civil society voice one can also note that there is also a growing judicial recognition of the unacceptability of this law in a modern democratic society. However judges are constrained by the existence of the law.

Yet another criticisism of Section 377 and an urge for its repeal comes from noted writer Vikram Seth who was supported by scientists, authors, teachers, academics and businessmen. As Seth put it, the problem with Section 377 is that 'By presumptively treating as criminals those who love people of the same sex, Section 377 violates fundamental human rights, particularly the rights to equality and privacy.' Noted economist and Nobel laureate, Prof. Amartya Sen, in a letter supporting Vikram Seth, eloquently notes - 'It is surprising that independent India has not yet been able to rescind the colonial era monstrosity in the shape of Section 377, dating from 1861. That, as it happens, was the year in which the American Civil War began, which would ultimately abolish the unfreedom of slavery in America. Today, 145 years later, we surely have urgent reason to abolish in India, with our commitment to democracy and human rights, the unfreedom of arbitrary and unjust criminalization.'

It is indeed unacceptable that in 21st century India we still have a law which denies basic constitutional rights to a section of the Indian population. As Justice Albie Sachs of South Africa put it while striking down South Africa's anti-sodomy law, 'it is only in the most technical sense that this law is about who can penetrate whom and where. At a practical and symbolic level it is about the status, moral citizenship and sense of self worth of a significant section of the community.

Section 377 is the biggest affront to the dignity and humanity of a substantial minority of Indian citizens.. So if we believe that like all heterosexual married couples, homosexuals too should have the freedom to engage in intimate sexual acts without being subject to state harassment, then this law needs to go. The simple logic being that the Constitution cannot know or tolerate classes and there cannot be a law which is based on pure animus towards one section of the community.[37] The decriminalisation of sodomy will contribute directly to restoring the dignity of homosexuals and allow the gay movement to emerge from the shadows.

“I have spoken against the injustice of apartheid, racism, where people were penalized for something about which they could do nothing, their ethnicity… I therefore could not keep quiet, it was impossible, when people were hounded for something they did not choose, their sexual orientation.”- Archbishop Desmond Tutu
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[1] Shohini Ghosh, “India: End to Unnatural Exclusion”, Hindustan Times, New Delhi, July 2nd, 2009.
[2] Vivienne Elizabeth, “Cohabitation, Marriage, and the Unruly Consequences of Difference”, Vol. 14, No.1, Special issue: Emergent and Reconfigured Forms of Family Life (Feb. 2006), Gender and Society.
[3] Alok.Gupta, Economic and Political Weekly, November 18, 2006, pp. 4815-4823.
[4] “The hated Section 377 of the Indian Penal Code”, 4 February, 2008, International Humanist and Ethical Union, http://www.iheu.org
[5] Bhan et. al., “Because I have a voice”, Yoda Press, New Delhi, 2005, p. 8
[6] K.D. Gaur, “Commentary On The Indian Penal Code”, 1st Edition, 2006, p.1207.
[7] Khanu v. Emperor , AIR 1925 Sind 286
[8] Lohana Vasantlal Devchand v. The State, 1968 Cr LJ 1277
[9] Calvin Francis v. State of Orissa 1992 (2) Crimes 455 (Ori).
[10] SK Sarvaria (Ed.) “Indian Penal Code”, R.A. Nelson, Volume 3, 9th Edition, 2003, p.3738.
[11] Jagjir Singh v. State, 1969 PLR 34 (SN).
[12] Y.V. Chandrachud (Rev.), “The Indian Penal Code”, Ratanlal & Dhirajlal, 29th Edition, 2nd Reprint, 2004, p.1818.
[13] “Black's Law Dictionary” (8th ed. 2004), ‘bestiality’, available on: www.westlaw.com.
[14] Kalpana Kannabiran, “India: From ‘Perversion’ to Right to Life with Dignity”, The Hindu, July 6th, 2009.
[15] “Gay Murders Tip of Sordid Sleazeberg”,The Hindustan Times, 17 August, 2004.
[16] Siddharth Narrain, “The Queer Case of Section 377, Sarai Reader, 2005, p.466.
[17] Shohini Ghosh, “India: End to Unnatural Exclusion”, Hindustan Times, New Delhi, July 2nd, 2009.
[18] Letter written by the Registrar of Karnataka Human Rights Commission to the Police Commissioner, dated 26.10.2008, available on the blogsite of Campaign for Sexworkers and Sexual Minorities Rights. http://sangamablog.blogspot.com/
[19] “India: IGLHRC Responds to Reports of Gay Man Beheaded After Sex”, press release, IGLHRC – International Gay and Lesbian Human Rights Commission Website on 31/01/2005
[20] Mr. Aditya Bondyopadhyay, “State-Supported Oppression and Persecution of Sexual Minorities”, NGO Briefing, United Nations Commission on Human Rights April 8, 2002.
[21] Arvind Narrain and Vinay Chandran “It’s not my job to tell you it’s okay to be gay - Medicalisation of homosexuality: a queer critique”,http://www.altlawforum.org/gender-and-sexuality/publications/medicalizationfinal.rtf/
[22]Nowshiriwan Irani V. Emperor AIR 1934 Sind: 37 CrLJ 728.
[23] Lohana Vasantlal Devchand V. The State AIR 1968 Guj. 352
[24] State Govt. Of Nct Of Delhi V. Sunil 2001 Cri.L.J 504.
[26] Shohini Ghosh, “India: End to Unnatural Exclusion”, Hindustan Times, New Delhi, July 2nd, 2009.
[27] Equality before law- The State shall not deny to any person equality before the law or the equal protection of the laws within the territory of India.
[28] Prohibition of discrimination on grounds of religious, race, caste, sex or place of birth.
[29] Protection of certain rights regarding freedom of speech, etc.
[30] Protection of life and personal liberty.
[31] 478 US 186 (1986).
[32] Ackermann J. in The National Coalition for Gay and Lesbian Equality v. The Minister of Justice, decided by Constitutional Court of South Africa on 9th October, 1998.
[33] Acts which does not harm anybody or the public.
[34] An individual has a right to choose his/her sexual orientation, he can decide what sexual orientation he prefers to be.
[35] Ajoy Ashirwad Mahaprashasta, “Queer Politics”, Gender Issues, Volume 26 - Issue 15 :: Jul. 18-31, 2009, Frontline.
[36] “India: Section 377 and Naz Foundation (India) Trust v. Government of NCT Delhi” , Global Monitor, IGLHRC – International Gay and Lesbian Human Rights Commission Website on 02/07/2009
[37] “The hated Section 377 of the Indian Penal Code”, 4 February, 2008, International Humanist and Ethical Union, http://www.iheu.org

The  author can be reached at: prarthana@legalserviceindia.com

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