GAY RIGHTS IN INDIA: MATTER

OF NAZ FOUNDATION DECISION

INTRODUCTION TO SOCIOLOGY
2nd SEMESTER 2016-17
SUBMITTED BY:
DISHA PARMAR: 16A051
RAGVENDRA SINGH KHICHI: 16B122
FACULTY-SUPERVISIOR:
Mr. SAURABH ANAND
Assistant Professor of Sociology,
Gujarat National Law University.

‘‘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.’’

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 DECLARATION

We Ragvendra Singh Khichi, Disha Parmar, hereby declare that this research report entitled
GAY RIGHTS IN INDIA: MATTER OF NAZ FOUNDATION DECISION is the outcome
of our own study undertaken under the guidance of Mr. SAURABH ANAND Assistant
Professor of Sociology, Gujarat National Law University. We have duly acknowledged all the
sources used by us in the preparation of this dissertation.

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 ACKNOWLEDGEMENT
I would hereby like to acknowledge that the content of this project has been the outcome of the
research carried out by me and it is indeed my privilege to present my research paper to Mr.
SaurabhAnand (Asst. Professor Sociology).
Also, I would like to express my deepest gratitude to Mr. Bimal Patel, Director, Gujarat National
Law University, for providing this wonderful opportunity to carry out research on this significant
topic.

At Last, I would also like to thank everyone –Faculty, and peers – for giving valuable
information and help to formulate ideas through stimulating discussions and a cohesive work
environment to turn those ideas and stray thoughts into this coherent research paper.

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 TABLE OF CONTENT

1. INTRODUCTION………………………………………………………………..5
2. REVIEW OF LITERATURE……………………………………………………..5
2.1 Sexuality as a construct…………………………………………………………6
2.2 Sexuality as a Social construction Mode………………………………………...6
2.3 Sexuality as Ideology…………………………………………………………...6
2.4 Sexuality as a Cultural influence model……………………………………… ...7
2.5 Sexuality and Desire……………………………………………………………7
2.6 Sexuality as Praxis………………………………………………………………7
2.7 Sexuality and Pleasure………………………………………………………….8
3. THE NAZ FOUNDATION MATTER……………………………………………8
4. SURESH KUMAR KAUSHAL vs. NAZ FOUNDATION……………………… .9
4.1 Facts of the Case……………………………………………………………….9
4.2 Appellants’ Arguments…………………………………………………………9
4.3 Respondents’ Arguments………………………………………………………10
4.4 The Opinion of the Supreme Court of India…………………………………..11
5. ANALYSIS……………………………………………………………………….. 12
5.1 CRITICAL ANALYSIS OF NALSA v. UoI AND KOUSHAL v. NAZ……..13
6. CONCLUSION……………………………………………………………………16
7. REFERENCES……………………………………………………………………17

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INTRODUCTION
On December 12, 2013, the Supreme Court of India upheld a law punishing homosexual activity
with life imprisonment1. In so doing, India’s Court added to the lively and often contentious
debate surrounding gay rights both in India and abroad2. While the decision is a setback for
India’s homosexual community, it may also illuminate the way to a more humane ruling in the
future.
Indian Penal Code Section 377 criminalizes “unnatural offences” and states that “[w]hoever
voluntarily has carnal intercourse against the order of nature with any man, woman or animal,
shall be punished with imprisonment for life . . . and shall also be liable to fine.”3 The High
Court of Delhi found that Section 377 specifically violated Articles 14, 15 and 21 of the Indian
constitution.4 Article 14 guarantees that the “State shall not deny to any person equality before
the law or the equal protection
of the laws.”5 Article 15 prohibits state discrimination on the basis of “religion, race, caste, sex or
place of birth.”6 Article 21 guarantees that “[n]o person shall be deprived of his life or personal
liberty except according to procedure established by law.”7
This note will present a brief history of this matter before the Indian courts, along with a
synopsis of the opinion of the Supreme Court of India and the ways in which it contrasts with
that of the High Court of Delhi. Next, it will discuss the social and legal issues which likely
contributed to both opinions, as well as the doctrines contributing to each decision.

REVIEW OF LITERATURE

Sexuality as a construct
Scholars are of the opinion that sexuality is a construct. It is constructed
socially over time in different places between different cultures. The whole
hierarchical system in the society is built on the plinth of sexuality. Sexuality is
understood only in terms of sexual activity or the anatomical difference between male
and female. Beyond these it was not understood, discussed and studied as a social or a
cultural construct and its implications on one’s social or cultural life. As sex is the
core of whole humankind, there is a necessity to study it holistically in all areas
encompassing human life. The multiple dimensions of sexuality need to be studied.
This includes how sexuality is constructed as a social and cultural phenomenon and
its role in economic life and political status of individual, or how it interferes in one’s
religious life. Analytically speaking it is not always social aspects that have
determining influence over sexuality, but also sexuality of individuals affects one’s
personality etc. The triangular relationship between social, personal and sexual factors
together form human life.
Jeffrey Weeks puts it that sexuality is a fictional unity and of ephemeral in
nature. It is formed and influenced by time and space and gained prominence when
detailed attention was increasingly given to classifying, determining and producing
assorted sexual desires. The American classical scholar David M. Halperin expresses
views on similar lines. He stresses the time component in understanding the sexuality
which needs to be understood first and foremost in its own specific historical context
because the word itself might only have limited analytical reach if applied to sexual

1 1
Koushal v. Naz Foundation, Civil Appeal No. 10972 (2013) (India), available at http://judis.nic.in/supremecourt/
imgs1.aspx?filename=41070 Koushal v. Naz Foundation, Civil Appeal No. 10972 (2013) (India), available at
http://judis.nic.in/supremecourt/ imgs1.aspx?filename=41070 Koushal v. Naz Foundation, Civil Appeal No.
10972 (2013) (India), available at http://judis.nic.in/supremecourt/ imgs1.aspx?filename=41070 Koushal v. Naz
Foundation, Civil Appeal No. 10972 (2013) (India), available at http://judis.nic.in/supremecourt/
imgs1.aspx?filename=41070.
2
I.P.C. §377, 1860

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arrangements before the present century (Bristow, 1996).
Sexuality is also looked as a cultural product. There are arguments that
sexuality can not only be discussed within the purview of biology and the sexual
experiences cannot be universalized and social aspects of it cannot be ignored. The
differences between men and women can not only be explained with reference to
biology but through the concept of gender where social meanings that different
societies attach on different lines to masculinity and femininity. Beyond biology, it
evolves in the social universe comprising several meanings, believes and values
which humans attach. The ways in which different cultures and different time periods
have made sense of erotic pleasures and dangers vary widely. Sexuality is basically an
idea about which individuals and society have and beliefs and practices, which they
espouse and admonish. An ‘idea’, ‘action’, ‘practice’ and ‘belief’ are social in origin.
That is to say that there is an inextricable relationship between sexuality and social
structure. Social and political forces shape the notion of sexuality and connect in to
power relations revolving around class, race and gender. To be more explicit,
sexuality is a sociological reality.
Norms centered around masculinity valued ‘aggressive’, ‘dominant behavior’
in both public realm and other walks of life which encompasses sexuality.
Masculinity came to be identified with the notion of active, penetrative sexual role.
Whether sexual desire was normal or deviant was dependent upon the extent to which
it transgressed normative gender roles. Dominant metaphor of penetration had sway
over other things. Specific practices such as sodomy or masturbation did not lead to
moral anxieties in classical sexual culture as sexual etiquettes were centered on and
around penetration. Social status of male was symbolized by penetration, but who was
penetrated mattered little whether a woman or man. If penetration was looked as an
active element, whereas, submission to penetration was considered as passive. ‘It was
considered unnatural and demeaning for a free born man to desire to be penetrated,
since that would reduce him to socially inferior role of a woman or slave. Social status
was negotiated around the active/passive distinction, not on the basis of
heterosexual/homosexual categorization, which only emerged much later in history’.
But we need to take the observational jump here. The penetrated was inferior to the
penetrator and women were normally subject to penetration. Desiring for being
penetrated was not encouraged. If a man was penetrated, though he was tolerated, it
was not considered as desirable. Women were meant for penetrated. Penetration was
an inferior phenomenon and as a corollary if man was penetrated, he would be subject
to same set of negative considerations (Mottier, 2008, p.9).
Taking cultural dimension, one tries to understand the sexuality from a cross
cultural perspective and the cultural specificity of the construct of sexuality and the
need to study it independently and in its articulation with gender (Caplan (1987), as
cited in Nencel, 2005).
The recent developments in the issue of HIV/AIDS, different studies like of
Gay studies, Third Gender studies and other studies that emerged as a result of
concern for AIDS prevention have established their premise in social sciences that
sexual and gender identities need not be the same. Both gender and sexual identity
evolve socially and culturally in historical context (Kulick 1998; Prieur 1998 as cited
in Nencel, L 2005). Different perspectives have established that sexuality like gender
is a social construct and plural in nature.

Sexuality as a Social construction Mode

The term ‘social construction’ is used in diverse ways by the constructionist
theorists. The constructionist approach to sexuality reject trans-historical and trans

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cultural definitions of sexuality and argued instead that sexuality is mediated by
historical and cultural factors. Though they differ on such aspects as sexual acts,
sexual identities, sexual communities, direction of erotic interest and sexual desire,
they are of unequivocal stand that though sexual acts are identical physically they
vary in their social significance and meanings bound by different cultures and
historical periods. As culture varies from place to place in terms of meanings, values
and beliefs sexual acts with meanings, beliefs and sexual affective experiences also
vary coupled with changes in time and space which bind observers’ perspective.
Beliefs, values and definitions which are socially constructed not only influence
individual subjectivity and behaviour but also shape the collective experiences.
Radical constructionists argue that ‘there is no such thing as essential, undifferentiated
sexual ‘impulse’, ‘sex drive’ or ‘lust’ that resides in the body due to physiological
functioning and sensation. Therefore, sexual desire is itself constructed by culture and
history from the energies and capacities of the body’ (Vance, 1991).

Sexuality as Ideology
Sexuality at one layer of reality is basically plurality of ideas that humans
construct and espouse in a social system which revolves around sexual acts. Sexuality,
is therefore, intimately connected with ideology. Ideology is marked by its power to
affect the social circumstances. Beneath such social circumstances prevail are societal
relationships. Functions of ideology differ in the views of different social theorists.
The contemporary view of sexuality underlies most historical work in this field.
Sexuality is being understood largely in the light of feminist work. The modern
concept of sexuality is difficult to define in spite of elaborated discourses and analysis
and the continual stress on its centrality to human reality. It is defined and explicated
simply to the division of most species into males and females for the purpose of
reproduction. Beyond that, human sexuality is only described never defined. The
ideologists of sexuality describe only the supposed spheres of its operation-gender,
reproduction, the family and socialization, love and intercourse, etc,. Each of these
spheres has its own essence and forms but together they are taken to define the arena
in which sexuality operates. Within this arena, sexuality as a general, over-arching
category is used to define and delimit a large part of the world in which we exist. The
almost perfect congruence between those spheres of existence which are said to be
sexual and viewed as ‘private sphere’ of life (Padgug,2007).

Sexuality as a Cultural influence model

Sexual expression and practice are, although, thought to have been shaped by
culture, sexuality is assumed to be universal and biologically determined. ‘Within the
cultural influence model, the term ‘sexuality’ covers a broad range of topics like
intercourse, orgasm, fore play, erotic fantasies, stories, humour, sex differences and
the organization of masculinity and femininity, and gender relations. In this model,
sexuality is not only related to gender but blends easily, and is often conflated, with
it’. Though Sexuality, gender arrangements, masculinity and femininity are assumed
to be connected, even interchangeable, confusions are still unresolved. Sex is assumed
to cause gender on the one hand and gender causes sex on the other. Gender and
sexuality are seamlessly knit together (Vance, 1991).

Sexuality and Desire

Sexuality and desire are interrelated. There are some elements which are
common in both the concepts. Both the concepts are constructed around ‘sex’.
‘Sexuality‘and ‘Desire’ can change radically with contexts of time and place. Menon

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(2007) argues that ‘sexuality’ needs to be redefined in the framework of ‘desire’.
Sexual desire is a multi-determined concept. Influences of biological, cultural, and
psychodynamic aspects can be seen converging in the expression of all desire. Both
desire and sexuality need to be understood as more fluid and variable for many
individuals (Burch,1997).

Sexuality as Praxis
The content of sexuality is the product of human social relations, human
productive activities, and human consciousness. Sexuality can also be understood as
set norms which an individual is expected to follow up. Padgug(2007) argues that the
history of sexuality is the history of the subject whose meaning and contents are in a
continual process of change. It is the history of social relations. He invokes Marx’s
words where he writes in the Grundrisse that ‘ Society does not consist of
individuals, but express as the sum of interrelations, the relations within which these
individuals stand’.
Every society does divide its members into ‘men’ and ‘women’, and the roles
played by these divisions varies significantly from society to society and even within
each society, it varies according to the class, estate, or social position. The same is
true for kinship relations. All societies have some conception of kinship, and use it for
a variety of purposes.
Sexuality and Pleasure
Pleasure is the center of sex though it is restricted to procreation. It is
consciously ignored aspect and more stress was given to reproduction. In the words of
Foucault, the whole apparatus of sexuality is constructed through systematizing of
pleasure according to the laws related to sex. There is a language to talk about
coercive, painful and violent aspects of sexuality, language of pornography, language
to talk about erotica but there is a taboo to talking about the pleasurable aspects of
sexuality. Sexual pleasure is a human right of every male, female, old, young, thin,
fat, able bodied or not, lesbian, straight, gay, transgendered and the queer everyone.
She questions as to why the programmes on HIV/AIDS, sexual and reproductive
health are so pleasure phobic. Issues of power and gender complicate the discussion
of pleasure and safety. In patriarchal cultures it is normative for the pleasure of men to
be placed above the pleasure of women. Safety cannot be negotiated in situations of
unequal power (Chandiramani,2007).
The Naz Foundation Matter
The case was instituted by the Naz Foundation (“Naz”),8 a non-governmental organization
based in Delhi dedicated to HIV/AIDS issues. Brought originally before the High Court of
Delhi and naming Delhi as a respondent, the Union of India was joined based on the
constitutional nature of the matter.9 Alleging that its efforts to prevent HIV/AIDS were severely
impeded by the societal effects of discriminatory laws, Naz sought a declaration that Section 377
was unconstitutional to the extent it was applicable to consensual sexual acts done in private, and
sought a permanent injunction restraining the government from enforcing Section 377 on three
grounds.10
First, Naz claimed that Section 377 was not equally applied but in fact was used as a
weapon for police abuse thereby creating a “class of vulnerable people . . . continually
victimi[z]ed and directly affected by the provision.” 11 Second, the complaint alleged a right to
privacy to be implicit in the right to life and liberty guaranteed by Article 21 of the Indian
constitution, and that the pursuit of happiness therein understood necessarily includes a right to
pursue private, consensual sexual relations.12 Finally, Naz alleged that Section 377’s penalizing of
“unnatural sexual acts”13 was not rationally related to the classification created by procreative and

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non-procreative sexual acts and thus violated Article 14 of the Indian constitution.14 Finding
constitutional violations on each claim, the High Court of Delhi held themselves duty bound to
invalidate Section 377 and did so accordingly on July 2, 2009, stating that their clarification
would govern until the legislature amended the law.15

‘‘The absence of a consentbased distinction in the wording of the section has equated homosexual sex with rape and
equated homosexuality with sexual perversity.’’

Suresh Kumar Kaushal vs. Naz Foundation

Facts of the Case

The case related to the constitutionality of Section 377 of the Indian Penal Code which was
made during the British administration in India in 1860. Section 377 made an offence of
voluntarily having carnal intercourse “against the order of nature” with any man, woman or
animal, punishable by up to ten years imprisonment or a fine. As such the provision appears
to be neutral on its face, it have a discriminatory effect on LGBT persons, particularly
homosexual men.

In 2001 the NAZ Foundation – a non-governmental organisation working for HIV/AIDS

intervention and prevention – filed a writ petition in the Delhi High Court for a declaration
that Section 377, to the extent that it penalised sexual acts in private between consenting
adults, violated the India Constitution, specifically, Articles 14 (equality before the law), 15
(non-discrimination), 19(1)(a)-(d) (freedom of speech, assembly, association and movement)
and 21 (right to life and personal liberty). The Naz Foundation argued that this law had a
discriminatory affect because it was basically used against homosexual conduct, thereby
criminalising activity practiced more often by homosexual men and women. This was said to
risk HIV/AIDS anticipation strategies by driving gay person men and other sexual
minorities underground. It was further contended that, as private consensual relations were
secured under Article 21 of the Constitution, Section 377 was invalid as there was no
convincing state enthusiasm to legitimize the diminishing of a major opportunity. The Naz
Foundation additionally contended that Section 377 damaged Article 14 on two grounds: in
the first place, since it was irrational and self-assertive to criminalize non-procreative sexual
relations, and besides, in light of the fact that the authoritative target of punishing
"unnatural" acts had no normal nexus with the order amongst procreative and non-
procreative sexual acts.

In 2004, the High Court expelled the writ appeal to in light of the fact that lone absolutely
scholastic issues had been submitted which couldn't be analyzed by the court. It did likewise
in connection to a consequent audit request. The NAZ Foundation tested both requests and
the writ appeal to was transmitted for a new choice in 2006.

In its 2009 choice, the High Court found for the NAZ Foundation and acknowledged its
contentions that consensual same-sex sexual relations between grown-ups ought to be
decriminalized, holding that such criminalisation was in negation of the Constitutional rights
to life and individual freedom, fairness under the watchful eye of the law and non-

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segregation. In achieving its choice, while the court set a lot of accentuation on local
judgments, the court likewise depended on similar law in achieving its choice, alluding to
judgements from different purviews including the European Court of Human Rights, the
United Kingdom, the Republic of Ireland, South Africa and the USA. The court likewise
depended upon various dynamic universal legitimate systems including the Yogyakarta
Principles and the 2008 Declaration of Principles of Equality created by the Equal Rights
Trust and in addition various reports and records exhibiting the biased impact of Section
377. In its thinking, the High Court expressed that Section 377 "horribly disregards
[homosexual individuals'] appropriate to security and freedom typified in Article 21 seeing
that it criminalizes consensual acts between grown-ups in private"
. The court also held that:

“Section 377 criminalises the acts of sexual minorities, particularly men who have sex with men. It
disproportionately affects them solely on the basis of their sexual orientation. The provision runs counter to
the constitutional values and the notion of human dignity which is considered to be the cornerstone of our
Constitution”.

The decision was appealed to the SC and attracted a huge no. of interveners. Interveners
supporting the Appellants included organisations and individuals who have said that they
had an interest in protecting the moral, cultural and religious values of Indian society.
Interveners for the Respondents are composed of individuals and organisations argued that
Section 377 caused harm to the LGBT community and homosexual men in particular.

Appellants’ Arguments

The Appellants’ denied that Section 377 was unconstitutional and made a variety of
submissions as to why it was not:

• The High Court submitted a serious mistake by announcing Section 377 to damage
Articles 14, 15 and 21 of the Constitution as it overlooked the absence of any foundational
certainties in the Respondent's writ which would be vital for articulating upon the
lawfulness of any statutory arrangement. The narrative confirmation provided in its place
was not a reason for finding that gay people were singled out for biased treatment by the
law.

• The measurements consolidated in the Respondent's appeal to were lacking for finding
that Section 377 unfavorably influenced the control of HIV AIDS and that
decriminalization would lessen the quantity of such cases. The Appellants likewise
contended that the information displayed was fabricated and fake.

• Section 377 is altogether impartial and covers deliberate demonstrations of fleshly

intercourse regardless of the sexual orientation of people conferring the demonstration. As
no particular class is focused by the law, no arrangement has been made, in this manner
rendering the finding of the High Court that it annoyed Article 14 to be without premise.

• Section 377 does not abuse the privilege to security and nobility under Article 21 and the
privilege to protection does exclude the privilege to submit any offense as characterized
under Section 377 or whatever other area.

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 • If the statement were endorsed, India's social structure and the organization of marriage
would be inconveniently influenced and it would make youngsters move toward becoming
enticed towards gay person exercises.

• Courts by their extremely nature ought not embrace the undertaking of administering
which ought to be left to Parliament. The High Court was uncertain whether it was
disjoining the law or understanding it down and, the length of the law is on the statute
book, there is a sacred assumption to support its. Regardless of whether a law is good or
corrupt is a matter that ought to be left to Parliament to choose.
Respondents’ Arguments

The Respondents submitted:

• Section 377 focuses on the LGBT people group by criminalizing a firmly held individual
trademark, for example, sexual introduction. By covering inside its ambit consensual acts
between people inside the security of their homes, it is hostile to one side to correspondence.
Sexual rights and sexuality are human rights ensured under Article 21. Segment 377 accordingly
denies LGBT of their full good citizenship.

• The criminalisation of specific activities which are a statement of the center sexual
identity of gay person men makes them out to be lawbreakers with injurious outcomes hindering
their human poise. As Section 377 bandits sexual action between men which is by its
exceptionally nature penile and non vaginal, it impacts gay person men at a profound level and
confines their entitlement to pride, personhood and personality, correspondence and appropriate
to wellbeing by criminalizing all types of sex that gay person men can enjoy.

• Sexual closeness is a center part of human experience and is vital to emotional well-
being, mental prosperity and social conformity. By criminalizing sexual acts occupied with by gay
person men, they are denied this human experience while the same is permitted to heteros.

• The Court ought to assess changing qualities and the worldly sensibility of Section 377.
The Constitution is a living report and it ought to stay adaptable to meet recently rising issues
and difficulties. The state of mind of Indian culture is quick changing and the demonstrations
which were dealt with as an offense ought to never again be made reformatory.

• The appropriate to uniformity under Article 14 and the privilege to respect and security
under Article 21 are interlinked and should be satisfied for other established rights to be
genuinely effectuated.

• The distinction between foul acts in private and open is perceived in Section 294. It
ought to be perused in light of sacred arrangements which incorporate the privilege to be not to
mention.

• Section 377 is impermissibly dubious, delegates approach making forces to the police,
and results in the badgering and mishandle of the privileges of LGBT people. Appellants gave
confirmation of far reaching misuse and provocation (refering to legal proof and NGO reports).

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• Section 377 does not set out any guideline or arrangement for practicing carefulness as to
which of the considerable number of cases falling under the comprehensively stated law might
be examined. It is quiet on whether the offense can be submitted inside the home.

• Criminalisation expands disgrace and segregation and goes about as a boundary to HIV
avoidance programs. It frustrates wellbeing administrations by keeping the gathering of HIV
information, obstructing dispersal of data, keeping the supply of condoms; constraining access to
wellbeing administrations, driving the group underground, forestalling exposure of indications,
making a nonappearance of safe spaces prompting hazardous sex.

The Opinion of the Supreme Court of India

In an appeal to the Supreme Court of India brought by Suresh Kumar Koushal, a citizen of
India, and supported on both sides by several parties, appellants argued three primary points.
First, that the High Court erred in declaring Section 377 violated Articles 14, 15 and 21 of the
Indian constitution as the allegations did not contain “foundational facts necessary for
pronouncing upon [the] constitutionality of a statutory provision.”16 Second, that Section 377
was entitled to the presumption of constitutionality since the legislature treated the defined
sexual activity as an offense, and because Article 21 subjects the rights to life and liberty to the
procedure prescribed by law.17 Third, that Section 377 is gender neutral and did not subject any
class of persons to undue discrimination which can be said to violate Article 14 or 15.18
The Supreme Court of India began its opinion by expounding on the unique position of Indian
courts. Having gained independence only after the cessation of World War II, Indian law
remains heavily influenced by the system inherited from the British Empire. Many Indian laws
were first adopted during that period. However, India adopted its constitution in 1950.
Accordingly, Article 13 of the constitution vests courts with the power to strike down any law
inconsistent with the fundamental rights guaranteed by the Indian constitution, regardless of
when the law was first
adopted.19 Further complicating matters, the Court noted that given this unique situation, Indian
jurisprudence recognized a duty on courts to assess the constitutionality of any law with an eye
toward the “interpretive changes” that might be “affected by the passage of time.”20 In other
words, laws which may have been constitutional when adopted might be viewed as
unconstitutional in light of a changed legal or social situation, whether the change comes from
within Indian society or from outside via shifting international norms.21
Turning to its substantive analysis, the Supreme Court first addressed the notion that Section 377
is entitled to a presumption of constitutionality. The Court noted that a plain reading of the
constitution empowers courts to overturn laws inconsistent with the rights guaranteed by the
constitution.22 However, the Court also noted the great self-restraint historically exercised by
Indian courts due to concern for a separation of powers, and the resulting doctrine of a
presumption of constitutionality for all laws.23 Continuing, the Court acknowledged a significant
doctrine of Indian jurisprudence requires courts to uphold laws if some reading can render it
constitutional.24 Section 377, like all Indian laws, was entitled to such a presumption.
The Supreme Court noted the Indian Penal Code had been amended as recently as 2013 to deal
specifically with Chapter 16 and sexual offenses, of which Section 377 is a part.25 Moreover, it
pointed out a Law Commission of India report in 2000 specifically recommended deletion of
Section 377, and that the matter was debated, but ultimately not amended.26 The Court felt these
facts indicated a strong desire by the legislature, as representatives of the people of India, to
leave Section 377 in place. This notion was further strengthened by the fact that even though
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India was not formally appealing the order of the High Court of Delhi, the legislature had not
amended the law. 27 Opining that it is inappropriate for a court to strike down a law absent a
clear constitutional violation,28 it next
ssexamined the historical uses of Section 377 for evidence of such violations.
Noting that sodomy laws in India dated back to 1828, and that Section 377 had been adopted in
1860,29 the Supreme Court reviewed its application spanning from 1886 to 1992.30 The cases
reviewed showed that Section 377 had been used to prosecute consensual homosexual activity,
but also instances of rape and child incest; all under the ambit of “carnal intercourse against the
order of nature.”31 Therefore, the Court concluded that the application was not uniformly
discriminatory, and that the law was facially neutral.32
The Court was particularly concerned by the lack of specific examples of these alleged violations
in Naz’s original petition. With especially harsh words for the Delhi High Court, the Supreme
Court stated that the petition had been “singularly laconic” and “miserably failed” to identify the
way(s) that Section 377 singled out any class of persons.33 Unfortunately, the High Court left
itself open to such a charge by concluding without any sort of explanation that Section 377 was
not enacted to prevent any sort of sexual assault and also accepting almost out of hand Naz’s
contention that Section 377 stymied efforts to prevent HIV/AIDS.34
Next, the Supreme Court addressed the High Court’s finding of Article 14 and 15 violations.
The Court noted the principle underlying Article 14 is not that the same laws must apply to all.
Rather, the State has the power to identify classes for legislative purposes and even when such
legislation produces an inequality, the law is “not open to the charge of denial of equal
protection” so long as it applies to all classes.35 Even where it is alleged that a statute is applied
unequally, so long as the statute is clear in its goals, courts must defer to the administrative
bodies tasked with carrying it out. Courts may only strike down such statutes if they were clearly
crafted to discriminate.36 Referencing again the historical usage of Section 377, the Supreme
Court held it criminalized an activity,
not a class of persons and thus, was not open to charges that it violated Article 14 or 15 without
further evidence of such charges.37
Considering whether Section 377 violated Article 21, the Court acknowledged that
substantive due process and the right to privacy were both guarantees read into the Indian
constitution.38 While a certain level of privacy and bodily integrity in relation to sexual choices is
present in Indian law, the Court noted it was also well-established that this is not an absolute
right but rather may be lawfully restricted as the legislature sees fit.39 In so doing, the Supreme
Court rejected the High Court of Delhi’s more expansive understanding of Article 21, which
held that the sphere of privacy guards the development of human relations from all but the most
minimal of outside interference.40
Next, addressing allegations Section 377 was used to harass a certain class of persons, the Court
stated that the legislature did not mandate or condone such action. Thus, any harassment was
not a reflection of the statute itself.41 Noting again the lack of specific instances of harassment in
the petition, the Court pointed out that while power may often be abused, it was not in a
position to deny the existence of said power without a concrete showing of such abuse.42 Even
in instances, such as this one, where the existence of harassment is likely, the legal standard
involved called for concrete examples.
Concluding, the Court wrote that while the plight of homosexuals was real and their rights must
be protected, their plight could not be a blindfold to overturn properly enacted legislation on
constitutional grounds. The Supreme Court thus overruled the High Court of Delhi, holding
Section 377 constitutional on all grounds.43 After doing so, the Court’s final words were to
“make it clear that this Court has merely pronounced on the correctness of the view taken by the
Delhi High Court on the constitutionality of Section 377” and that the legislature was free to
delete or amend Section 377 per the suggestion of India’s Attorney General.44

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ANALYSIS

Koushal holds that there exists a presumption of constitutionality of a statutory provision, and
opined that there is a presumption that the legislature would act in the best interests of the
people. In fact, it goes so far as to state that even pre-Constitutional laws may be considered a
manifestation of the will of the Indian people.9 The Court overlooked that the decisions cited by
it had pointed out that a valid law may become invalid with the passage of time.
Secondly, the Court held that the classification between those indulging in carnal
intercourse in the ordinary course and against the order of nature is intelligible, in order to hold
that Section 377 was not violative of Article 14 of the Constitution". This ignored precedents
which require a justification of the classification in relation to the stated objective being pursued.
Thirdly, the Court held that Section 377 did not violate Article 15, providing no reasons
whatsoever. 1 3 This is particularly odd considering the most powerful and interesting section of
Naz Foundation provided the judicial reasoning as to why discrimination on the grounds of
sexual orientation was violative of Article 15 and that the term "sex" in the Article included
"sexual orientation"." Similarly, the Koushal bench discussed several landmark cases under
Article 21 but did not provide any reasoning as to how Section 377 is not in violation of Article
21.1
Finally, the Court stated that the decision to repeal Section 377 had to be left to the
Parliament, effectively directing a group that it recognises as a minority that its rights should be
protected by the majoritarian arm of government i.e. Parliament. These aspects of Koushal make
it more difficult, as discussed later, to pursue several judicial options in relation to recognition of
same-sex relationships. However, the Supreme Court has agreed to hear arguments on a curative
petition filed by Naz Foundation. One of the grounds urged in the petition is that Koushal did
not take into account the Criminal Law (Amendment) Act, 2013 that now criminalises coercive
peno-non vaginal sexual activities. This, it is argued, by implication decriminalises such acts if
performed consensually. Another ground in the petition is that the Court misread legislative
intention in not amending Section 377 in 2013 - the Lok Sabha refrained from considering such
an amendment since the matter was sub judice.

CRITICAL ANALYSIS OF NALSA v. UoI AND KOUSHAL v. NAZ

the SC given a landmark judgement recognising transsexuals as a third gender, and upholding
their rights to equality (Article 14), non-discrimination (Article 15), expression (Article 19(1)(a)
and autonomy (Article 21). The judgment involves a wide-ranging discussion of international law
and domestic legislation in other countries, engages reams of evidence of actual discrimination
against transsexuals in Indian society, and discusses the idea of human rights. It also, entirely
destroys the foundation of Koushal v. Naz, .
In Paragraph 11 of the case, Justice Radhakrishnan defines “transgender” as an “umbrella term
for persons whose gender identity, gender expression or behavior does not conform to their
biological sex.” After a brief historical excursion into the history of the transgender community
in India, he observes, in Paragraph 17, that S. 377 was brought in at at time when transgenders
were thought to come within its ambit, and then, in paragraph 18, he notes that “Section 377,
though associated with specific sexual act, highlighted certain identities, and was used as an instrument of
harassment and physical abuse…” In the same paragraph, he also holds that in light of Koushal v. Naz,

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the Court will here “express no opinion on [its constitutionality].” As we will see, however, the
matter is not quite so simple.
Indeed, issues of gender identity and sexual orientation are inextricably bound up with each
other through the judgment, and the Court – wisely – makes no effort to separate them.
Immediately after his analysis of S. 377, in a section titled “Gender Identity and Sexual
Orientation”, Justice Radhakrishnan begins by noting that “gender identity is one of the most
fundamental aspects of life… it refers to each person’s deeply felt internal and individual experience of gender…
including the personal sense of the body which may involve a freely chosen modification of bodily appearances or
functions by medical, surgical or other means and other expressions of gender, including dress, speech and
mannerisms.” (Para 19)
Notice here how gender identity and expressing that identity through conduct, such as dress and
speech, are inseparable. This is a point we shall return to.
Justice Radhakrishnan then observes that “each person’s self-defined sexual orientation and gender identity
is integral to their personality and is one of the most basic aspects of self-determination, dignity and freedom.”
(Paragraph 20) This sets the tone for the rest of his judgment, where the two concepts –
although distinct – are run together for the purposes of claims to rights.
After referring to international legal principles and foreign judgments, that are deeply solicitous
of transgender rights (paras 21 – 42), Justice Radhakrishnan cites evidence (ironically, of a similar
nature to that cited in Koushal) of widespread oppression against transgenders in India.
(Paragraphs 45 – 46) He follows this up with an account of India’s obligations to follow
international human rights law – and, in the absence of Indian legislation, engages in a kind of
incorporation by reference, to argue that the international conventions ought to be read into
Articles 14, 15, 19 and 21 (Paragraph 53). Armed with this, he has no trouble in holding that the
“non-recognition of Hijras/transgender persons denies them equal protection of law… thereby leaving them
extremely vulnerable to harassment, violence and sexual assault.” (Paragraph 55) Similarly, he argues that
the point of Article 15’s non-discrimination guarantee is to prevent differential treatment of
persons “for the reason of not being in conformity with stereotypical generalizations of binary genders…
therefore, the discrimination on the ground of sex under Articles 15 and 16 includes discrimination on the ground
of gender identity.” (Paragraph 59) Because of the historic discrimination against transsexuals, he
also holds that the State must provide them with affirmative action under Article 16(4) of the
Constitution.
The most interesting part of the judgment, however, is Justice Radhakrishnan’s analysis of
Article 19(1)(a). He holds 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.” (Paragraph 62) After citing a few American cases on point, we come to the heart of the
judgment, that is, Paragraph 66:
“Gender identity… 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. A transgender’s personality could be
expressed by the transgender’s behavior and presentation. State cannot prohibit, restrict or interfere with a
transgender’s expression of such personality, which reflects that inherent personality.”
Consequently:

“The values of privacy, self-identity, autonomy and personal integrity are fundamental rights guaranteed to the
members of the transgender community under Article 19(1)(a)… and the State is bound to protect and recognize
those rights.”
A standard Article 21 analysis follows (Paragraph 67 onwards), but this would be the ideal point
of departure to discuss NALSA v. UoI and Koushal v. Naz.
Recall that in Koushal v. Naz, it was argued that S. 377, insofar as it criminalises same-sex
intercourse between consenting adults, violates their rights under Articles 14 and 15. In
Paragraph 42 of Koushal, the Court rejects that argument. Let us excerpt the paragraph in full:

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“Those who indulge in carnal intercourse in the ordinary course and those who indulge in carnal intercourse against
the order of nature constitute different classes and the people falling in the later category cannot claim that Section
377 suffers from the vice of arbitrariness and irrational classification. What Section 377 does is merely to define
the particular offence and prescribe punishment for the same which can be awarded if in the trial conducted in
accordance with the provisions of the Code of Criminal Procedure and other statutes of the same family the person
is found guilty. Therefore, the High Court was not right in declaring Section 377 IPC ultra vires Articles 14 and
15 of the Constitution.”
The Court’s argument here rests upon a tight conceptual distinction between conduct and identity.
Under a normal Article 14 analysis, the Court would have had to examine the classification,
examine the rational nexus to a State purpose, and then examine the legitimacy of that purpose.
The Court dodged that entire chain of argumentation by holding that all S. 377 did was to
classify not persons, but acts – acts of carnal intercourse against the order of nature, and those in
accordance with the order of nature. Hence, Article 14 was never attracted. This also allowed the
Court to dodge the Article 15 argument, and engage with the Delhi High Court’s analysis of
“sexual orientation” coming within the meaning of the word “sex”, because there was no
classification of persons at all. In one fell swoop, therefore, the Supreme Court saved itself the
trouble of analysing S. 377 on the touchstone of either Article 14 or 15, and this entire edifice
rested upon its distinction between a person’s acts/conduct, and her identity.
Only, this distinction is deeply flawed, and NALSA v. UoI exposes the flaw in stark and glaring
terms. When it comes to sex and sexual orientation, your “identity” means nothing if you can’t
express it. A law that targets conduct, conduct that is the very expression of identity, thereby
targets identity itself. When, therefore, S. 377 outlaws homosexuals from engaging in same-sex
intercourse, it doesn’t just criminalise a set of acts – in outlawing the most basic expression of
one’s sexuality, it criminalises sexuality – and thereby, identity – itself. As Justice Kennedy
observed in Lawrence v. Texas:
“When sexuality finds overt expression in intimate conduct with another person, the conduct can be but one
element in a personal bond that is more enduring. The liberty protected by the Constitution allows homosexual
persons the right to make this choice.”
Similarly, in Elane Photography, the Supreme Court of New Mexico observed, just last year, that:
“… when a law prohibits discrimination on the basis of sexual orientation, that law similarly protects conduct
that is inextricably tied to sexual orientation.”
Once the conduct/identity distinction collapses, the entire edifice upon which Koushal v. Naz was
raised collapses along with it. The Court cannot now dodge either Article 14 or Article 15. It
must, if it wants to uphold S. 377, provide a legitimate state purpose and a rational nexus for a
law criminalising homosexuals as a class, and it must expressly engage with the Delhi High
Court’s argument.
And lastly, as NALSA v. UoI shows, there is a further issue of Article 19(1)(a) to be considered
(incidentally, 19(1)(a) was argued before the Delhi High Court in Naz, but the Court felt it
sufficient to decide the case on grounds of 14, 15 and 21). To the extent that Article 19(1)(a)
protects core expressions of our identity – including our sexual identity – as the Court holds
today, it must necessarily protect homosexuals in expressing their identity. So even if the Court
doesn’t wish to collapse conduct and identity – even if it wishes to hold the two to be separate –
the logic of NALSA v. UoI leads inexorably to the conclusion that at the very least, in criminalising
conduct, S. 377 criminalises the expression of homosexual identity, and therefore suffers from a 19(1)(a)
problem.
In sum: if the conduct/identity distinction dissolves, S. 377 violates Article 14 and 15, because in
criminalising conduct, it criminalises identity. If the conduct/identity distinction remains, S. 377
violates Article 19(1)(a), because it criminalises conduct that is the expression of identity. Either
way, under the logic of NALSA, it is unconstitutional.

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All this, of course, does not touch the Court’s holding that gender identity is “integral to the dignity
of an individual and is at the core of “personal autonomy” and “self-determination”, and is therefore also
protected by Article 21. (Para 74) This, as well, is inconsistent with the analysis in Koushal v. Naz.
The operative paragraph – with its directions – can be found at the end of the judgment,
Paragraph 129. Today’s judgment is progressive in the best sense of the term, and is to be
lauded. Equally important, however, today’s judgment is based upon reasoning that is
fundamentally at odds with the reasoning in Koushal v. Naz. If NALSA is rightly decided,
then Koushal is wrong. Surely, then, the time is now right to rehear Koushal before a Constitution
Bench, redeem the promise of full moral membership for all persons, regardless of their sexual
orientation, that the Delhi High Court affirmed so eloquently five years ago, and turn the page
on one of the darker chapters in the Supreme Court’s civil rights history.

Conclusion
Humanity in general needs to become more tolerant of diversity. Majorities within democracies
need to view minority groups and those who differ from them with respect. We need to focus on
other people's humanity rather than on their sexuality. We should voice our concerns against the
Supreme Court verdict. It is also time for social groups and professional associations to clearly
state their positions and demand a review of the flawed verdict. The Indian government and its
Parliament now have an opportunity to leave a lasting legacy of progress and should act
immediately to seek a repeal of Section 377. The 19 th century law has no place in a 21 st century
democracy
The holding of the Supreme Court of India is unfortunate but should not be viewed as
the final word on the matter. Indeed, while certainly disheartening to many both in India
and abroad, the Court’s opinion can simultaneously be read as pointing the way for the
ultimate declaration that Section 377 is unconstitutional.
Finally it can be said that if laws are supposed to represent socially acceptable dos and don’ts,
then a new mindset is the need of the hour. Otherwise, normal human beings will continue to
suffer inhuman exploitation just because nature has nourished them with the need to be different

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REFERENCES
1.
See Amrita Madhukalya, Rare unity: Religious leaders come out in support of Section 377, DNA
INDIA (December 12, 2013), http://www.dnaindia.com/india/report-rare-unity-
religious-leaders-come-out-in-support-of-section-377-1933612; S J Mukhopadhaya,
2.
Homosexuality is criminal offence: Supreme Court, THE ECONOMIC TIMES (December 11,
2013), http://articles.economictimes.indiatimes.com/2013-12-
11/news/45080584_1_apostolic-churches-alliance-decriminalisation-utkal-christian-
council; UN chief Ban Ki-moon calls for equality for lesbians, gays and bisexuals, THE
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ECONOMIC TIMES (December 12, 2013),
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4.
16 I.P.C. §377, 1860.
5.
Naz Foundation v. Government of Delhi, WP(C) No. 7455/2001 (Delhi H.C.) (2009)
(India), available at http://lobis.nic.in/dhe/APS/judgement/02-07-
2009/APS02072009CW74552001.pdf.
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7.
The Naz Foundation (India) Trust: Naz India, THE NAZ FOUNDATION (last visited Dec.
10, 2014), http://nazindia.org/about/naz-india/.
8.
Naz Foundation v. Government of Delhi, WP(C) No. 7455/2001 (Delhi H.C.) (2009)
(India), available at http://lobis.nic.in/dhe/APS/judgement/02-07-
9. 2009/APS02072009CW74552001.pdf.
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Id. 6.
11.
Id. 7.
12.
Id. 8.
13.
16 I.P.C. §377, 1860.
14.
Naz Foundation v. Government of Delhi, WP(C) No. 7455/2001 9 (Delhi H.C.) (2009)
(India), available at http://lobis.nic.in/dhe/APS/judgement/02-07-
15. 2009/APS02072009CW74552001.pdf.
16.
Id. 105.
17.
Koushal v. Naz Foundation, Civil Appeal No. 10972 21 (2013) (India), available at
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19.
Id. 24.
20.
Id. 25.
21.
INDIA CONST. art. 13.
22.
Koushal v. Naz Foundation, Civil Appeal No. 10972 54 (2013) (India), available at
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24.
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25.
Id. 51.
26.
Id. 52, 54.
27.
Id. 57.
28.
Koushal v. Naz Foundation, Civil Appeal No. 10972 61 (2013) (India), available at
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30.
Naz Foundation v. Government of Delhi, WP(C) No. 7455/2001 76 (Delhi H.C.)
(2009) (India), available at http://lobis.nic.in/dhe/APS/judgement/02-07-
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Koushal v. Naz Foundation, Civil Appeal No. 10972 91 (2013) (India), available at
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34.
UN Country Profile: India, UNITED NATIONS,
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See Soutik Biswas, Fear and loathing in gay India, BBCNEWS (May 17, 2005),
http://news.bbc.co.uk/2/hi/south_asia/4304081.stm; Shyamantha Asokan, India’s
Supreme Court turns the clock back with gay sex ban, REUTERS (December 11, 2013),
http://www.reuters.com/article/2013/12/11/us-india-rights-gay-

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 idUSBRE9BA05620131211.
36.
See Randeep Ramesh, India’s Literary Elite Call for Anti-Gay Law to be Scrapped, THE
GUARDIAN (September 18, 2006),
http://www.theguardian.com/world/2006/sep/18/gayrights.books; Kounteya Sinha,
37.
Ramadoss to take up gay rights with issue with PM, THE TIMES OF INDIA (January 20,
2011), http://timesofindia.indiatimes.com/india/ Ramadoss-to-take-up-gay-rights-issue-
with-PM/articleshow/3545889.cms?referral=PM.
38.
Naz Foundation v. Government of Delhi, WP(C) No. 7455/2001 25-28 (Delhi H.C.)
(2009) (India), available at http://lobis.nic.in/dhe/APS/judgement/02-07-
2009/APS02072009CW74552001.pdf.
39.
See, Vishaka v. Rajasthan, A.I.R. 1997 S.C. 3011 (India).
40.
See, Rehan Abeyratne and Nilesh Sinha, Insular and Inconsistent: India’s Naz Foundation
Judgment in Comparative Perspective, YALE JOURNAL OF INTERNATIONAL
41.
LAW ONLINE (May 1, 2014), http://www.yjil.org/ docs/pub/o-39-abeyratneandsinha-
insular-and-inconsistent-indias-naz-foundation.pdf.
42. See The Naz Foundation (India) Trust: Advocacy, THE NAZ FOUNDATION (last visited
Dec. 10, 2014), http://nazindia.org/programs/advocacysection-377/.
43. Justice Albie Sachs National Coalition for Gay and Lesbian Equality and Another v
Minister of Justice and Others (1998) 6 BHRC 127 at 163 (paragraph 107)
(Constitutional Court, South Africa).

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