Aditi Tandon

In law, gay is happy no more
The Supreme Court upholding the law that declares homosexuality criminal has set back a whole movement that was well on its way to ensuring the gay community its rights. Here’s reading between the lines of law and changing social mores world over, India included.
loseted in his tenement in one of New Delhi’s shabby suburbs, Suresh Kumar is weighing his options for the future. Until a few days ago, he was not even concerned about being gay or the fact that his family had subjected him to countless rounds of electro convulsive therapy (ECT) in the hope of “turning him into a man”.





Aditi Tandon
In law, gay is happy no more
The Supreme Court upholding the law that declares homosexuality criminal has set back a whole movement that was well on its way to ensuring the gay community its rights. Here’s reading between the lines of law and changing social mores world over, India included.

Closeted in his tenement in one of New Delhi’s shabby suburbs, Suresh Kumar is weighing his options for the future. Until a few days ago, he was not even concerned about being gay or the fact that his family had subjected him to countless rounds of electro convulsive therapy (ECT) in the hope of “turning him into a man”.

Suresh, like his other homosexual friends, had hoped that the Supreme Court of India would uphold the promise of justice made to them in 2009 by the Delhi High Court, which de-criminalised gay sex, turning a new leaf in the history of LGBT (Lesbian, Gay, Bisexual and Transgender) rights movement in India.
Gay rights activists protest against the Supreme Court ruling reinstating a ban on gay sex, in New Delhi. Tribune photo: Manas Ranjan Bhui
Gay rights activists protest against the Supreme Court ruling reinstating a ban on gay sex, in New Delhi. Tribune photo: Manas Ranjan Bhui

But that was not to be, and on December 11 the apex court upheld as valid Section 377 of the Indian Penal Code (IPC), overturning the historic HC judgment which had read it down to de-criminalise consensual sexual acts in private between adults. Allowing 15 appeals against the lower court’s progressive order, the Supreme Court said the law in question didn’t suffer from the vice of unconstitutionality and the High Court was wrong in declaring it violative of Articles 14, 15 and 21 of the Constitution.

Needless to say, majority of the appellants against the High Court judgment were faith-based leaders, including a representative of yoga guru Ramdev, who still invites homosexuals to his ashrams promising a cure. Little does it matter to the moral police that the World Health Organisation had, way back on May 17, 1990, removed ‘homophobia’ and ‘transphobia’ from its International Classification of Diseases. The removal came after scientific evidence that sexual orientation is a genetic matter and is immutable.

The Supreme Court order, simply put, means Section 377 would continue to haunt India’s homosexuals in that it criminalises those very sexual acts which gays and lesbians practise.

The section penalises with life imprisonment “carnal intercourse against the order of nature (meaning all forms of non-peno-vaginal sexual acts)” even if they involve consenting adults in private. Because such intercourse is mainly practised by homosexual couples, the law ends up targeting them disproportionately over heterosexuals whose relationships enjoy social sanction.

To the Supreme Court the discrimination argument didn’t appeal. It said the section simply defined certain unnatural offences and prescribed punishment for them without differentiating between the sexual orientations of people who indulge in those.

The apex court, normally hailed for its pro-rights stance, refused to itself interpret the Constitution and expand the protections to homosexuals by upholding the High Court order. Instead, it struck down what the High Court had said and shifted the onus to the legislature, saying Parliament could delete Section 377 from the statute book or amend it.

The anti-rights pitch of the court stunned Additional Solicitor General Indira Jaisingh, who said, “We have lost a historic opportunity to expand the constitutional values and protect the human rights of sexual minorities.”


The news of SC re-criminalising gay and lesbian sex stunned millions like Suresh, who would now be forced back into their closets. “I must prepare for more rounds of ECT. I was a fool to have thought I would finally have a life. This verdict means my sexuality will never be accepted and I will continue to be criminalised for what I am. In the eyes of my family, I will forever remain diseased,” he says, his eyes stoned by shock.

For the 100-million strong LGBT community of India, the apex court ruling came as a blow, plunging them back by 153 years into colonial era when Section 377 was first enacted by the British on October 6, 1860. The provision drew from the Judeo-Christian notions of morality prevalent in Victorian times, when non-procreative sex was abhorred.

While the British have themselves abolished similar laws and are considering legalising same-sex marriages, India continues to harbour the regressive remnant of the Raj.

“I am stunned that SC has legitimised all forms of violence against the LGBT community and approved their criminalisation. The order relies on the argument of morality and religious values made by faith based leaders. I thought we were a secular state where religion had nothing to do with rights and laws,” says Anjali Gopalan of Naz Foundation, the organisation which first challenged the constitutional validity of Section 377 in the Delhi High Court in 2001.

Not an easy journey

Anjali recalls how the High Court had first dismissed their PIL saying they were not an affected party. It was after the apex court on Gopalan’s appeal said that the matter required consideration that the High Court began hearing it. “It’s ironical how the courts have reversed their roles,” says Leslie, a lesbian, who was in tears when the SC order was pronounced.

Twelve years of the Naz Foundation’s struggle for gay rights were brought to a naught in a second. Pawan Dhall, a gay writer, notes, “So far in the gay rights movement we have had only had small successes. This is the first major setback.”

Pawan, member of eastern India’s first counsel club for LGBT persons, recalls how his parents had reacted to the news that he was gay. “I knew it since I was 14 but I told my family when I was 17. No one knew what to say. It’s this silence that pervades the lives of LGBT persons who have no space to communicate, who live half lives. I am lucky my parents are accepting. But I am a clear exception.”

It is in response to the culture of silence surrounding sexual minorities in India that Pride Walks have started gaining strength. From one such walk in 1999 to 15 last year (including in cities like Chandigarh and Pune), the movement is evolving on the social stage. “But on the legal stage, it is going backwards,” says Pawan, who is currently recording verbal testimonies of LGBT persons settled in Kolkata. He plans to publish the voices of the voiceless.

Case against Sec 377, IPC

Represented by senior counsel Anand Grover, the Naz Foundation argued in the Delhi High Court that unless Section 377, IPC, was done away with, the fight against HIV/AIDS could not be won. They made a public health argument for India, which has the highest number of HIV-positive cases after South Africa and Nigeria.

“The section is detrimental to the health of homosexuals whom it directly impacts because they practise non-peno-vaginal sex more. It is a weapon for police abuse in the form of detention, questioning, forced sex and extortion of homosexuals, driving gay men and sexual minorities underground and crippling their access to HIV/AIDS preventions,” the Foundation says.

Grover challenged the law in court on the grounds that it violated Articles 14 and 15 (right to equality by being more anti-homosexual than anti-heterosexual), Article 21 (right to privacy and dignity by criminalising personal choices adults make in private) and Article 19 (right to freedom of expression by preventing LGBT people from sexual gratification by proscribing sexual acts they indulge in).

The National AIDS Control Organisation (NACO) supported the Naz Foundation’s case, saying HIV prevalence in ‘men who have sex with men’ (MSMs) was a whopping 8 per cent as against 1 per cent in the general population and they were at very high risk.

The Ministry of Home through Director (Judicial) Venu Gopal, however, opposed the petition, saying Section 377 “could not be rendered unlawful only because the person to whose detriment it acts [read a homosexual] has consented to it”.

Throughout the case, the Government of India kept changing its stand, confusing the court and ultimately harming the cause of LGBT persons.

The High Court, yet, de-criminalised homosexuality and all other consenting sexual acts between adults, while retaining the penalising power of the law to the extent that it affects children.

“We declare that Section 377, IPC, insofar as it criminalises consensual sexual acts of adults in private is violative of Articles 21, 14 and 15 of the Constitution. The provisions of Section 377, IPC, will continue to govern non-consensual penile non-vaginal and penile non-vaginal sex involving minors. By adults we mean anyone who is 18 years old or more. This clarification will hold till the Parliament amends the law,” the High Court’s July 2, 2009, order pronounced by Chief Justice AP Shah (retd) and Justice S. Muralidhar had said.

In its judgment, the High Court quoted Justice V. Krishna Iyer on Article 21: “The spirit of man is at the root of Article 21. Absent liberty, all other freedoms are frozen.”

High Court's take

Ruling that the purpose of Section 377 is to criminalise private conduct of people which doesn’t harm anyone but which fails to conform to religious views of a section of society, the Delhi High Court trashed the public morality argument against de-criminalisation of gay sex.

“Moral indignation is not a valid basis for overriding an individual’s fundamental right to dignity and privacy. Criminalisation of adult same-sex relations doesn’t serve any public interest and it is not within the constitutional competence of the state to invade people’s privacy,” it said.

The High Court added, “The section apparently targets acts and not people but in its operation it ends up unfairly targeting a particular community. ...Section 377, IPC, has the effect of viewing all gays as criminals.”

The High Court took upon itself the role of protector of human rights saying to the ASG: “The role of judiciary is to protect fundamental rights. A modern democracy while based on the principles of majority rule recognises the need to protect the rights of those who deviate from the majoritarian view.”

SC’s undoing

The Supreme Cort reversed the High Court order by holding that the Naz Foundation had miserably failed to prove that Section 377 was discriminatory to gays; the section was non-discriminatory as it punished everyone who indulged in unnatural offences and not just homosexuals.

Finally, the SC castigated the lower court saying, “In its anxiety to protect the so-called rights of LGBT persons who are a miniscule fraction of our population the HC extensively relied on international judgments… which we feel can’t be applied blindfolded for deciding the constitutionality of the law passed by the Indian legislature.” The highest court here mentioned a case where a reference to abolition of capital punishment in the US was negated by the Supreme Court earlier while deciding a domestic matter.

In legal terms, the order may seem simple. But its consequences spell the return of discrimination to the lives of LGBT persons. As Arvind, a lawyer working for the cause and a gay, says, “The protective arm of the law has been withdrawn. We feel defenceless.”

Armed with the HC order, Anand Grover had in 2010 managed to protect the employment and residential rights of an Aligarh Muslim University professor Shrinivas Siras, whom the university had suspended on grounds of sexual misconduct (read homosexuality).

Shaleen Rakesh, Technical Director, India HIV/AIDS Alliance, instrumental in filing the Naz petition, says, “We should have grown wiser in four years. But we have gone back in time. It’s too huge a setback but we promise to fight until we triumph.”

Not everyone though can make the same claim as Shaleen, whose gay identity does not bother his family. There are people like 30-something Rahul Kumar who lives under constant threat of abduction. “My family was in complete denial when I told them. It was when they were pressuring me for marriage. Quite expectedly, I had to find myself another home. That was not all. My uncle started threatening to abduct me. I had to seek police protection from my own family. The 2009 order had hit upon the root of negative attitudes. The 2013 order will bring them back.”


‘No right absolute’

SURESH KAUSHAL was the first appellant in the SC against de-criminalisation of Section 377. His appeal was followed by 14 appeals including that of SK Tijarawala, a disciple of Ramdev. The appeal said he was a citizen of India and had a moral right to protect the country’s cultural values. His argument was that no right was absolute and even the right to free expression was subject to censorship.

“The law doesn’t target a class; it applies to all. Tomorrow you will say Section 302 IPC (murder) is being misused and so it should be deleted. The SC has noted that only 200 cases have been registered under Section 377, IPC, in all these years. That’s hardly a proof of its misuse. On medical front too, ayurveda can cure homosexuality but the practitioners of Indian systems of medicine were not called to depose. Our final argument is that endorsement of homosexuality would endanger national security. Consider same-sex relationships in the armed and paramilitary forces. One such act is enough for us to lose a battle,” Kaushal says.

‘High AIDS risk’

DELHI COMMISSION for Protection of Child Rights lawyer Amerendra Sharan says the Naz petition didn’t contain foundational facts to prove the unconstitutionality of Section 377. “Anal intercourse between two males is a highly risky act, as admitted by NACO. When one of the two adults in such an act is a bisexual, who would protect the rights of his wife? Would she not be at HIV risk and unknowingly so?” he asks.

‘Natural code’

TRUST GOD MISSIONARIES CHARITABLE TRUST, represented by K Radhakrishnan, argued in the apex court that man had an obligation to nature and every human organ had a purpose in the code of nature. The violation of that code must be punished.

‘Majoritarian morality’

ALL INDIA MUSLIM PERSONAL LAW BOARD representative Hufeza Ahmadi says sexual orientation can always be restricted on the principles of morality and health and the promotion of majoritarian sexual morality is a legitimate state interest.


‘Quaint, archaic law’

MINNA SARAN, who, on behalf of 20 parents of LGBT persons supported de-criminalisation of gay sex in the apex court, says the very phraseology of the law is quaint and archaic and must be understood in the context of the times in which it was drafted. Saran was represented in the SC by top lawyer Fali Nariman who argues, “Section 377 is vague and delegates policy making powers to the police, resulting in harassment and abuse of the rights of LGBT persons. Widespread abuse of LGBT persons by way of this law is incontrovertibly established.”

Intellectual backing

FILMMAKER SHYAM BENEGAL joined the proceedings in the SC in support of the homosexuals. He earlier along with Nobel Laureate Amartya Sen, writer Vikram Seth, RTI activist Aruna Roy and Capt Laxmi Sehgal, and Trinamool’s Derek O Brien signed a petition against Section 377.

What Sec 377 says

"Whoever voluntarily has carnal intercourse against the order of nature with any man, woman or animal shall be punished with imprisonment for life, or imprisonment of a term that may extend to 10 years and shall be liable to fine. Penetration alone will be enough to attract punishment; complete insertion not required."

Options to move forward

  • The government can go for a review of the SC order or file a curative petition seeking examination of the matter by a five-judge Bench.
  • Bring a bill to further amend the criminal law, as done to strengthen the anti-rape IPC sections. The amendment can add a proviso in Section 377 saying nothing in it would affect adult consensual relations in private. The amendment can also altogether delete the section. Parliament would have to pass such an amendment.
  • A government ordinance to restore the HC order de-criminalising gay sex.


Now, Cong to help

UPA chairperson Sonia Gandhi and her son Rahul openly slammed the SC order, calling it archaic and standing up for the LGBT community, saying sexual preference was their private choice. Top UPA ministers from P Chidambaram to Kapil Sibal have since assured the LGBT persons that the government would do everything possible to restore the Delhi HC order. But the fact is the government flip flop in the case spoilt its outcome.

BJP non-committal

BJP leader Sushma Swaraj did not take a clear stand on the matter when asked if the BJP would support a criminal law amendment to repeal the law. She said the government should call an all-party meeting. BJP MP Yogi Adityanath and BJP leader Subramanian Swamy, however, called homosexuality a malfunction and said they would stand by Section 377. The Congress is already making an issue of BJP PM candidate Narendra Modi’s silence on the issue.

How govt flip flop hurt LGBT persons

* NACO supported de-criminalisation of gay sex in the interest of HIV/AIDS prevention.

* Home Ministry’s Director (Judicial) Venu Gopal argued in the HC against repeal or reading down of Section 377, IPC.

* An Additional Solicitor General also took a pro-377 position by telling the HC that it could not declare the law invalid and could only interpret it as it was.

* During arguments in the Supreme Court, the Attorney General on March 1, 2012, said a Group of Ministers had concluded that the HC order had no error.

* ASG PP Malhotra told the SC just the opposite: Sec. 377 could not be declared constitutionally invalid because Parliament had not deleted it in 60 years. But Mohan Jain, ASG, supported de-criminalisation of homosexuality.



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