CHANAKYA NATIONAL LAW UNIVERSITY

CRIMINALIZING HOMOSEXUALITY VIS-À-VIS PROTECTION OF HUMAN RIGHTS OF

LGBT COMMUNITY: CONTEMPORARY DEBATES IN INDIA

Human Rights

Submitted to: Submitted by:

Dr V K Vimal Saksham Dwivedi

(Faculty, Human Rights)) Roll no. 605

10
0th Semester

i
 CONTENTS

ACKNOWLEDGEMENT ................................................................................................3

RESEARCH METHODOLOGY ......................................................................................4

PREFACE ....................................................................................................................5

I. INTRODUCTION .......................................................................................................6

II. DELHI HC JUDGMENT: TAKING A DIP INTO CONSTITUTIONAL INCLUSIVENESS

....................................................................................................................................8

III. OVERTURNING DELHI HC VERDICT: DID WE GO WRONG?...........................11

IV. LGBT RIGHTS: A PEEK INTO THE INTERNATIONAL LEGAL REGIME ...........14

V. NURTURING INCOHERENCE: REVIEWING THE IMPLICATIONS OF NALSA VS.

UNION OF INDIA .......................................................................................................17

VI. CONCLUSION AND THE WAY AHEAD ...............................................................20

BIBLIOGRAPHY ........................................................................................................23
 ACKNOWLEDGEMENT
Any project completed or done in isolation is unthinkable. This project, although prepared by

me, is a culmination of efforts of a lot of people. Firstly, I would like to thank our Professor for

his valuable suggestions towards the making of this project.

Further to that, I would also like to express my gratitude towards our seniors who were a lot of

help for the completion of this project. The contributions made by my classmates and friends are,

definitely, worth mentioning.

I would like to express my gratitude towards the library staff for their help also. I would also like

to thank the persons interviewed by me without whose support this project would not have been

completed.

Last, but far from the least, I would express my gratitude towards the Almighty for obvious

reasons.

Saksham Dwivedi

3|Page
 RESEARCH METHODOLOGY

1. Method of Research
The researcher has adopted a purely doctrinal method of research. The researcher has made
extensive use of the available resources at library of the Chanakya National Law University and
also the internet sources.
2. Aims and Objectives
The aim of the project is to present an overview of various aspects of rights of LGBT community
on an analysis of the various case laws and juristic opinions in this regard.
3. Scope and Limitations
Though the current topic is an immense project and pages can be written over the topic but due
to certain restrictions and limitations the researcher has not been able to deal with the topic in
great detail.
 Sources of Data:
The following sources of data have been primarily used in the project-
1. Books

2. Journals

3. Cases

 Method of Writing:
The method of writing followed in the course of this research paper is primarily analytical.
 Mode of Citation
The researcher has followed the bluebook method of citation (19th ed.) throughout the course of
this research paper. The author has followed the foot note system for citation.

4|Page
 PREFACE

Much discourse has taken place and a lot of jurisprudential ink has flown in an attempt to
highlight the plight of those who have been discriminated on the basis of their sexual orientation
or gender identity. The Supreme Court’s judgment to overrule the well reasoned Delhi High
Court judgment in Naz Foundation vs. Government of NCT of Delhi has evoked a bitter response
from the all corners due to its failure in upholding the interests of the LGBT community. The
Court, in Suresh Koushal vs. Naz Foundation, held that § 377 doesn’t suffer from any
constitutional infirmity and in effect criminalized homosexuality once again. Without delving into
a rigid constitutional analysis as expected, the Apex Court highlighted the minute fraction of
population of LGBT community, less number of convictions and extensive reliance by the High
Court on other jurisdictions, among several sordid reasons, to uphold the constitutionality of the
150 year old regressive provision. This contemporary scenario becomes complex in the light of
recent judgment in NALSA vs. Union of India recognizing the transgender as the third gender.
The author will examine the repercussions of such a intricate legal position in India along with a
critique of the international legal regime that seeks to protect LGBT rights. The fundamental
question, the answer to which is sought in this paper, is whether criminalization of
homosexuality is constitutionally tenable? This project deals with this very question in the light
of international position, societal perceptions, jurisprudential notions of morality, and
conflicting decisions of Supreme Court benches of equal strength.

5|Page
 I. INTRODUCTION
“Unless a deliberate attempt be made by society through the agency of the law to equate the
sphere of crime with that of sin, there must remain a realm of private morality and immorality
which is, in brief and crude terms, not the law's business.1"
While the rest of the world seems to driving towards the decriminalization of
homosexuality, the decision of Supreme Court of India in Suresh Kumar Koushal vs. Naz
Foundation2 (hereinafter Suresh Koushal) takes a ride in the reverse direction. The Supreme
Court has overruled the decision of Delhi High Court in Naz Foundation vs. Government of NCT
of Delhi3(hereinafter Naz Foundation) where § 377 of the Indian Penal Code, insofar as it
criminalized consensual acts between adult individuals in private, was held unconstitutional as
being violative of Articles 14, 15 and 21 of the Constitution of India4. Though the review petition
directed against this verdict has been dismissed5, the Apex Court has agreed to hear the curative
petition in an open court6 whereby the matter remains sub judice.
The verdict, though welcomed by religious groups among others, has hitherto been
criticized by human rights groups and homosexual community as being regressive. Much
discourse has taken place on the utility of this provision, given the fact that the changing notions
of morality demand its scraping because morality has been the sole reason enunciated by Lord
Macaulay for its enactment7. This section essentially intends to punish sodomy and bestiality. 8 A
relic of the colonial mindset, it essentially prohibits ‘carnal intercourse against the order of
nature’, thus bringing within its ambit consensual intercourse between adult males. The Law
Commission of India and the erstwhile Attorney General G. E. Vahanvati9 among many others
have suggested the deletion of this provision. The Court, while upholding its constitutionality,

1
Report of the Departmental Committee on Homosexual Offences and Prostitution (1957), United Kingdom, ¶ 23 as
cited in Allison Jernow, Morality Tales In Comparative Jurisprudence: What The Law Says About Sex, 3
Amsterdam L.F. 4 2011, p. 6
2
(2014) 1 SCC 1
3
(2009) 160 DLT 277
4
Ibid. ¶ 132
5
Review Petition (C) Nos. 41-55 OF 2014
6
Live Law, Supreme Court’s consent to hear curative petitions filed by gay rights’ activists in an open court, April
3rd, 2014, available at http://www.livelaw.in/supreme-courts-consent-hear-curative-petitions-filed-gay-rights-
activists/ (last visited 15/04/16)
7
Report of the Indian Law Commission on the Penal Code, October 14, 1837, pp 3990-91
8
Ratanlal & Dhirajlal, The Indian Penal Code, LexisNexis Butterworths Wadhwa, Nagpur, (32nd Edition 2013), p.
2173
9
Supra Note 2, ¶¶ 2, 56; See Law Commission of India, 172nd Report, 2000.

6|Page
highlighted the minuscule fraction of their population, low number of convictions10 and finally
put the ball in the legislature’s domain to determine its desirability and propriety11. The Court
also held that the harassment, torture, blackmail and other misuse by police authorities is no
reflection of the vires of this section12. The judgment of Delhi High Court, on the other hand,
held that it denies a person's dignity and criminalizes his or her core identity solely on account of
his or her sexuality and thus violates Article 21 of the Constitution13. However, the Courts have
overlooked the discrimination within homosexuals as it only seeks to punish gay individuals or
Men who have sex with Men (MSM) while it does not prohibit lesbian relationships because
penetration is necessary to constitute this offence14.
This essay essentially attempts to highlight the plight of homosexuals in India and the
repercussions of Apex Court’s judgment on the human rights of this minuscule population. Also,
the author would attempt an exhaustive critique of both the judgments including a
comprehensive evaluation of constitutional doctrines to expand the existing jurisprudence.
Furthermore, the author will be exploring the international position as to decriminalization of
homosexuality and its viability in India considering the moral perception prevailing herein.
Finally, the author would be addressing this multifaceted dilemma in the light of societal and
human rights perspectives and also in light of the recent judgment of the Supreme Court
recognizing transgender as the third gender.

10
Ibid. ¶ 43
11
Ibid. ¶ 56
12
Ibid. ¶ 51
13
Rohit Sharma, The Public And Constitutional Morality Conundrum: A Case-Note On The Naz Foundation
Judgment, 2 NUJS L. Rev. 445, 446 (2009)
14
Supra Note 8, Explanation to § 377

7|Page
II. DELHI HC JUDGMENT: TAKING A DIP INTO CONSTITUTIONAL INCLUSIVENESS
The Judgment in Naz Foundation15 was not only eagerly anticipated and closely
followed16, but also lauded by the greater fraction of the society17 for giving new meaning to
identity politics in India and recognizing the emergence of new social identities while carefully
side stepping lingering concerns about their elite roots and urban biases18. However, the Supreme
Court’s overruling19 has been termed as “constitutionally preposterous” and “morally
egregious”20 because of unsound constitutional interpretation and bizarre annotations. Naz
Foundation’s beauty is that it competently mixed exclusivity, seldom invoked by courts in India,
with pragmatism in the interpretation of Constitution. It has also been praised for displaying
great humanism, sensitivity, and empathy21.
Categorically as well as substantively, Naz Foundation leads a comprehensive
modification in the constitutional jurisprudence. The Court found that the obvious consequences
of this provision, apart from misery and fear, are harassment, blackmail, extortion and
discrimination of the homosexuals22. Citing Prof. Ryan Goodman’s work23, the Court found that
public abhorrence and criminalization of same sex conduct, apart from compromising HIV
prevention and treatment24, results in a great negative impact on their lives by entrenching stigma
and encouraging discrimination in different spheres of life25.
Based on a notion of sexual morality which was explicit to Victorian era, drawing on
ideas of carnality and sinfulness26, § 377 targets the homosexuals as a category and is motivated
by an animus towards this vulnerable class of people27. The Court also held that it is facially
neutral and it apparently targets not identities but acts, but in its operation it does end up unfairly

15
Supra Note 3
16
Vikram Raghavan, Navigating The Noteworthy And Nebulous In Naz Foundation, 2 NUJS L. Rev. 397, 398
(2009)
17
Gay Sex Judgment Greeted with Delight and Jubilation, The Hindu, July 4, 2009, available at
http://www.hindu.com/2009/07/04/stories/2009070451260300.htm (last visited 15//04/16)
18
Vikram, Supra Note 16, p. 416
19
Supra Note 2
20
Gautam Bhatia, The Unbearable Wrongness Of Koushal vs. Naz, Outlook India, Dec 11, 2013, available at
http://www.outlookindia.com/article.aspx?288823 (last visited 16/04/16)
21
Vikram, Supra Note 16, p. 398
22
Supra Note 3, ¶ 50
23
Ryan Goodman, Beyond the Enforcement Principle: Sodomy Laws, Social Norms and Social Panoptics, 89 Cal. L.
Rev. 643
24
Supra Note 3, ¶ 61
25
Ibid ¶¶ 49- 50
26
Ibid ¶ 92
27
Ibid ¶ 91

8|Page
targeting a particular community28. The State’s rationale for retaining the law was health and
enforcement of public morality but the Court found no connection between homosexuality and
public health29. A predominantly drastic move was the Court's re-interpretation of Article 1530.
The Court extended the scope of Article 15 by its ruling that "sexual orientation is a ground
analogous to sex and that discrimination on the basis of sexual orientation is not permitted by
Article1531." Naz Foundation also dodges through the Supreme Court’s line of inconsistent
decisions32 on privacy to forcefully assert that the Constitution protects a fundamental right to
privacy33. Furthermore, without explicitly saying so, Naz Foundation extended the command of
Article 17 to abolish new avatars of disability based on sexual identity. And in so doing, the
decision is a reminder that the Indian constitution is a vibrant, living document which must be
interpreted in the light of contemporary developments34.
The Court placed extensive reliance on foreign citations from conventional jurisdictions
such as USA, UK and also from unlikely places like Hong Kong, Fiji and Nepal35 which is
reflective of the idea that gay or homosexual rights are not wholly western concept. Furthermore,
the Court held that if there is any type of “morality” that can pass the test of compelling state
interest for restriction of the fundamental rights, it must be “constitutional” morality, and not
public morality36 which may make fundamental rights prone to the delicate interpretations of
judges or politically motivated considerations of a legislature37.
Many have articulated the consequence of this paradigm swing in terms of how the
safeguard of LGBT rights is reflective of not just guaranteeing constitutional rights to a minority,
but also of the vision of a nation “we all want to live in”.38 In the aftermath of Naz Foundation

28
Ibid ¶ 94
29
Gautam, Supra Note 20
30
Danish Sheikh, The Road to Decriminalization: Litigating India's Anti-Sodomy Law, 16 Yale Hum. Rts. & Dev.
L.J. 104, 115 (2013)
31
Supra Note 3, ¶ 104
32
See Gobind v. State of Madhya Pradesh, (1975) 2 SCC 148; Kharak Singh vs. State of U. P., (1964) 1 SCR 332.
33
Vikram, Supra Note 16, pp. 402-403
34
Ibid p. 399
35
Supra Note 3, ¶ 58
36
Ibid ¶ 79
37
Rohit Sharma, Supra Note 13, p. 445
38
Arvind Narain, A New Language of Morality, in LAW LIKE LOVE 253, 275 (Alok Gupta & Arvind Narain eds.,
2011) as cited in Danish, Supra Note 30.

9|Page
came up the case of suspension of an AMU professor39 for indulging in homosexual acts at his
home. Subsequently, the Allahabad High Court ordered his reinstatement because his right to
privacy was violated and unless the conduct has substantial nexus with his employment, it cannot
be treated as misconduct40. This view owes much to the ruling in Naz Foundation that a person’
sexuality is his own choice which would not have been possible otherwise41.

39
Manjari Mishra, Aligarh Muslim University Professor Suspended For Being Gay, Times Of India, Feb. 18, 2010,
available at http://articles.timesofindia.indiatimes.com/2010-02-18/india/281187691shrinivas-ramchandra-siras-
rickshaw-puller-amu-campus (last visited 16//04/16)
40
Shrinivas Ramchandra Siras vs. The Aligarh Muslim University, Civil Misc Writ Petition No.17549/2010
Allahabad High Court
41
Vinay Sitapati, The Spectre of Naz, The Indian Express (April 22, 2010) available at
http://www.indianexpress.com/news/the-spectre-of-naz/609695/0 (last visited 16/04/16)

10 | P a g e
 III. OVERTURNING DELHI HC VERDICT: DID WE GO WRONG?
The Supreme Court, on 11th Dec. 2013, reversed the Delhi High Court verdict and held
that Section 377 does not suffer from any constitutional infirmity42. In doing so, the Court
criminalized homosexuality in India, eclipsing the four years of ecstatic pleasure felt by LGBT
community. The 98 page judgment is replete with authorities but refused to doggedly engage
with the logical coherence which binds the High Court judgment. The Court, speaking through
Singhvi J., pointed towards separation of power in democracy43 and held that self restraint must
be exercised and the analysis must be guided by the presumption of constitutionality. Rather than
venturing into a well considered analysis of constitutionality, the Court was more reliant on the
legislative inaction to repeal § 37744.
The Court’s reasoning to take a different stand than the High Court is the fact that this
provision creates a distinction between those who have carnal intercourse in ordinary course and
those who have it against the order of nature and thus the claim of irrational classification does
not arise. Also, the section merely prescribes the prohibited act and punishment which, according
to India’s Apex Court, does not violate Articles 14 and 15 of the Indian Constitution45. The Court
pointed another flaw in the High Court’s judgment as it ignored the miniature population of
LGBT community and the fact that only a few prosecutions have been done in last 150 years46.
The lack of any sound constitutional critique plagues the entire judgment.
With regard to Article 14, the Court is required to examine the reasonable classification,
whether the same has any rational nexus to the objective and whether the objective is legally
sound47. Dodging the entire chain of examination, the Court merely found that § 377 classifies
acts and not persons and thus Article 14 is not attracted48. A fortiori, the Court overlooked the
entire Article 15 analysis by the High Court. This implies that even if sexual minorities form a
class, it is too small and insignificant a class to warrant constitutional protection49.

42
Supra Note 11
43
Supra Note 2, ¶ 28
44
Ibid ¶ 32
45
Ibid ¶ 42
46
Ibid ¶ 43
47
State of West Bengal vs. Anwar Ali Sarkar, AIR 1952 SC 75
48
Shreya Atrey, Of Koushal v. Naz Foundation’s Several Travesties: Discrimination and Democracy, Oxford Hum
Rts Hub Dec. 12, 2013, http://ohrh.law.ox.ac.uk/?p=3702 (last visited 17//04/16)
49
Rehan Abeyratne & Nilesh Sinha, Insular and Inconsistent: India’s Naz Foundation Judgment in Comparative
Perspective, 39 Yale J. Int. Law 74, 76 (2014)

11 | P a g e
 The Court also dealt with the claim of violation of Article 21 in similar fashion. Article
21, the Indian counterpart to America’s ‘due process of law’, prohibits the state from depriving a
person of his life or liberty except after following a procedure established by law. Article 21
embraces within itself the right to dignity50, privacy51, and personal liberty52. Furthermore, the
mere prescription of some kind of procedure cannot meet the mandate of Article 21. The
procedure prescribed by law has to be fair, just and reasonable, not fanciful, oppressive or
arbitrary53. The Court, acknowledging the immense reach of Article 2154 conceded to the ill use
of this provision by police and other authorities against the homosexuals55. However, considering
the fact that this treatment is neither mandated nor condoned by this provision, the “mere fact” of
abuse does not affect its constitutionality56. The Court also denounced the comparative
constitutional approach taken by the High Court by observing that “in its anxiety to protect so
called LGBT rights, the Court has extensively relied upon the judgments of foreign jurisdictions.
While they shed considerable light on these aspects, they cannot be blindfolded applied for
determining the constitutionality of any provision’57.
However, the Apex Court miscomprehended the approach taken by High Court towards
comparative constitutional law58. The High Court’s approach, contrary to Apex Court’s
observations, was to engage dialogically with foreign judgments to reflect on values and
assumptions underlying the Constitution of India59. This approach has been followed by the
Supreme Court, most notably, in Vishakha vs. State of Rajasthan60 to lay down guidelines for
protection of women from sexual harassment at workplaces. Though, unlike Suresh Koushal, the
issue in Vishakha concerned an area where there was no comprehensive legislation. In any case,
the Court followed this approach in numerous landmark judgments including Maneka Gandhi vs.

50
Mullin v. Adm’r, Union Territory of Delhi (1981) 2 SCR 516, p. 527
51
Malkani v. State of Maharashtra, (1973) 2 SCR 417, p. 427
52
Singh v. State of Uttar Pradesh, 1963 1 SCR 332, p. 335
53
Maneka Gandhi v. Union of India, (1978) 1 S.C.C. 248 ¶ 13
54
Supra Note 2, ¶¶ 45-50
55
Ibid ¶ 51
56
Ibid
57
Ibid ¶ 52
58
Sujit Choudhry, How to Do Comparative Constitutional Law in India: Naz Foundation, Same-Sex Rights, and
Dialogical Interpretation, in Comparative Constitutionalism In South Asia 45, 46 (Sunil Khilnani, Vikram
Raghavan & Arun K. Thiruvengadam eds., 2013)
59
Ibid. p. 47
60
AIR 1997 SC 3011, ¶¶ 14 - 16

12 | P a g e
Union of India61 wherein the Court drew extensively from American jurisprudence to adopt the
due process requirement under Article 21 and also in Kharak Singh vs. State of U.P.62 wherein
the Court relied on British and American cases to uphold right to privacy under Article 21.
Without elaborating on the proper interpretation of Constitution, the Court63 relied on Jagmohan
Singh vs. State of U.P.64 and Pal vs. Arora65 to abhor the transplantation of western approach in
dealing with legality of death sentence and a family dispute respectively.
Amidst all this, Singhvi J., who spoke for the Court, ignored the reliance on non
convention jurisdictions like Hong Kong, Fiji, Nepal66 and most importantly South African
Constitutional Court’s jurisprudence67 whose experience with colonialism and discrimination
shed instructive light in the Indian Context.

61
Supra Note 53
62
(1964) 1 SCR 332, pp. 347 - 49
63
Supra Note 2, ¶¶ 52 - 53
64
(1973) 1 SCC 20
65
(1974) 2 SCC 600
66
Supra Note 2, ¶ 58
67
Naz Foundation vs. NCT of Delhi, Supra Note 3, ¶¶ 52, 56 and 81

13 | P a g e
 IV. LGBT RIGHTS: A PEEK INTO THE INTERNATIONAL LEGAL REGIME
In this section, the author shall attempt to elucidate the international human rights
mechanism that may offer protection to the LGBT community. Majority of the nations are
equivocal in recognizing that a human’s sexuality is an integral part of who they are, and their
sexual orientation makes up a large part of this68. A person’s sexuality is an intimate part of his
right to expression which should be recognized rather than being criminalized. Many have
extolled the majesty of true sexuality, its earthiness, its mystical and exalted power of
momentary union between two humans; its capability of ameliorating the natural aloneness of
the human condition, and its ability to replenish the human soul69. The fundamental principle of
Universal Declaration of Human Rights is that all human beings are born free and equal in right
and dignity70. Furthermore, UDHR makes a sweeping entitlement to all the rights under the
declaration without any distinction on sex among other grounds such as colour, language, region,
etc71. However, before 199472, international law did not explicitly defend any sexual minority
including homosexuals. Equality is core human rights principle embodied in the Charter of the
United Nations, the Universal Declaration of Human Rights and core human rights treaties73
which require states to refrain from discriminating in their laws and policies. The Vienna
Declaration and Programme of Action confirm that ‘while regional, historical and cultural
backgrounds should be kept in mind, the states shall protect and endeavor to promote the human
rights and essential liberties’74.
In 200875, Art I was affirmed to include sexual orientation. Furthermore, in 1994, the
International Covenant on Civil and Political Rights76 was held to include sexuality as also the

68
Josh Hepple, Will Sexual Minorities Ever Be Equal? The Repercussions of British Colonial “Sodomy” Laws, The
Equal Rights Review, Vol. 8, 50 (2012) p. 50
69
E. Wolfson & R. S. Mower, When the Police are In Our Bedrooms, Shouldn't the Courts Go In After Them?, 21
Fordham Urb. L. J. 997, 1028-1029 (1994) as cited in Joseph T. Gonzales, International Legal Protection For
Homosexual Sexual Conduct, 72 Phil. L.J. 1, 1 (1997)
70
Universal Declaration of Human Right, GA Res. 217A (III) 1948, Art 1
71
Ibid. Art 2
72
Toonen v Australia, Communication No. 488/1992, U.N. Doc. CCPR/C/50/D/488/1992 ¶ 10.4 (1994); See also X
v. Colombia, communication no. 1361/2005 (CCPR/C/89/D/1361/2005), ¶ 9 (2005)
73
Report of U. N. High Commissioner for Human Rights, Discriminatory laws and practices and acts of violence
against individuals based on their sexual orientation and gender identity, GA Res A/HRC/19/41, p. 4 available at
http://www.ohchr.org/Documents/Issues/Discrimination/A.HRC.19.41_English.pdf (last visited 17/05/14)
74
A/CONF.157/23, ¶ 5.
75
See UN General Assembly, Letter Dated 18 December 2008 from the Permanent Representatives of Argentina,
Brazil, Croatia, France, Gabon, Japan, the Netherlands and Norway to the United Nations, UN Doc A/63/635, 22
December 2008
76
ICCPR, Dec. 16, 1966, S. Treaty Doc. No. 95-20, 999 U.N.T.S. 171

14 | P a g e
International Covenant on Economic, Social and Cultural Rights77 has been interpreted78 to
include sexual orientation as a prohibited ground for discrimination. Also, the UDHR79 and
ICCPR80 have affirmed that none shall be subjected to cruel, inhuman or degrading punishment
on the grounds of sexual orientation or gender individuality. Furthermore, Article 12 of UDHR
and Article 17 of ICCPR mandate that no one shall be subjected to arbitrary and unlawful
interference with his privacy. The UN Human Rights Committee has urged State parties to
“guarantee equal rights to all individuals, as established in the Covenant, regardless of their
sexual orientation or preference”,81 and welcomed legislation that includes sexual orientation
among prohibited grounds of discrimination82. Subsequently, the Yogyakarta Principles were
formulated by human rights experts for application of human rights law to gender identity and
sexual orientation so as to tackle the human rights violations of the LGBT community83. As of
now, more than seventy nations84, including India and several former British colonies, have laws
criminalizing homosexuality or laws which criminalize sexual orientation or gender identity.
These laws, which are relics of the colonial era and Victorian ideologies, generally embody
vague and indeterminate terminologies like ‘against the order of nature85’, ‘morality’86, among
others.
Also, these laws adversely affect the LGBT community’s access to health facilities87
specially the prevention and treatment of HIV/AIDS. In Toonen vs. Australia88, the Human
Rights Committee dismissed the assertion that laws criminalizing homosexuality is an essential
public health measure and held that these laws actually impede public health by restricting the
access to health facilities.

77
ICESCR, Dec. 16, 1966, S. Treaty Doc. No. 95-19, 993 U.N.T.S. 3
78
Committee on Economic, Social and Cultural Rights, Non-Discrimination In Economic, Social And Cultural
Rights, UN Doc. E/C.12/GC/20, 2009, ¶ 27.
79
Supra Note 70, Art 5
80
Supra Note 76, Art 7
81
Supra Note 73, p. 7; See Concluding observations on Chile (CCPR/C/CHL/CO/5), ¶ 16.; San Marino
(CCPR/C/SMR/CO/2), ¶ 7
82
Ibid: See Observations on El Salvador (CCPR/C/SLV/CO/6), ¶ 3(c); Greece (CCPR/CO/83/GRC), ¶ 5
83
Michael O'Flaherty and John Fisher, “Sexual Orientation, Gender Identity and International Human Rights Law:
Contextualizing the Yogyakarta Principles”, Human Rights Law Review Vol. 8: Issue 2 (2008), p. 207
84
State-Sponsored Homophobia: A World Survey Of Laws Criminalizing Same-Sex Sexual Acts Between Consenting
Adults, ILGBTA, Brussels, May 2011, p. 9
85
Supra Note 8
86
A/HRC/7/28/Add.2, ¶¶ 59-60
87
P. Aggleton, HIV and AIDS related stigmatization, discrimination and denial: research studies from Uganda and
India (Geneva, UNAIDS, 2000), pp. 17-18
88
Supra Note 72, ¶ 5.4

15 | P a g e
 Though a large number of nations still maintain such laws impeding the LGBT rights,
Britain and France’s votes to ratify wedding equality, besides the U.S. Supreme Court verdict89,
so as to regulate recognition of same-sex marriages are the obvious indication that the world has
ushered into a new era of recognition of LGBT rights90. Also, the Netherlands was the first
country to legalize same sex marriage back in 200191 and several countries, such as Spain
(2005), Canada (2005), South Africa (2006), Norway (2009) and Sweden (2009), have followed
the same. In April 2013, New Zealand became the first country in the Asia-Pacific region to
legalize gay marriage. Gay marriage is also legal in Argentina and Uruguay. Botswana, Cape
Verde, Mauritius, Mozambique, Seychelles, among several other countries, also offer legal
protection to them92.
Thus, we find that the international framework to recognize the rights of LGBT
community has existed since the mid twentieth century but the effective operation did not begin
since the late twentieth century. Moreover, the anti sodomy laws or laws punishing homosexual
behaviour exist in certain jurisdiction while some have ousted them and in certain jurisdictions,
the Courts have invalidated them. These laws are essentially a relic of the British colonial era
and even though Britain had decriminalized homosexuality way back, several of its former
colonies including India and Singapore still retain the regressive laws. Conclusively, we accept
that the international framework aims towards establishing a world with equal rights for every
human without any discrimination on the basis of sexual orientation among several other
grounds, the trend in national jurisdictions has not been consistent.

89
United States v. Windsor, 133 S. Ct. 2675, (2013); [2013 BL 169620]
90
Garima Tiwari, LGBT Rights: Colonisation And International Human Rights Standards, A Contrario, Dec 31,
2013 available at http://acontrarioicl.com/2013/12/31/lgbt-rights-colonisation/ (last visited 17/04/16)
91
Amit Sinha, Homosexuality in India: Better Late Than Never, India Law Journal, Vol 3. Issue 4, 2010 available at
http://www.indialawjournal.com/volume3/issue_4/article_by_amit.html (last visited 17/05/14)
92
Supra Note 90

16 | P a g e
 V. NURTURING INCOHERENCE: REVIEWING THE IMPLICATIONS OF NALSA VS.
UNION OF INDIA
“Seldom, our society realizes or cares to realize the trauma, agony and pain which the members
of Transgender community undergo, nor appreciates the innate feelings of the members of the
Transgender community93”.
After the judgment in Suresh Koushal’s case, the Supreme Court pronounced its
judgment in NALSA vs. Union of India (hereinafter NALSA) which, many believe, can
undoubtedly affect the outcome of curative petition. The Supreme Court bench comprising
Radhakrishnan J. and Sikri J., directed the government to officially give recognition to
transgender as the third sex and also to provide the benefits of socially and economically
backward class94. The court also held that “Rule of law demands protection of individual human
rights. Such rights are to be guaranteed to each and every human being. These transgender,
although insignificant in numbers, are still human beings and therefore they have every right to
enjoy their human rights95”. This stands in sharp contrast to the judgment in Suresh Koushal’s
wherein one of the important consideration to uphold the constitutionality of § 377 was the
minuscule fraction of their population96.
The Court drew attention to their strong historical presence in Hindu mythological texts,
Jain texts, their predominant role in courts of Islamic world particularly during Mughal rule, and
most importantly their victimization due to Criminal Tribes Act, 1871 (now repealed) and
several such laws during British rule which branded them as innately criminal97. However, the
Court’s most important observation is that § 377, “though associated with specific sexual acts,
highlighted certain identities, including Hijras, and was used as an instrument of harassment and
physical abuse against Hijras and transgender persons98”.
The Court, however, escaped from delving into a greater analysis into § 377, citing the
Suresh Koushal Judgment, and found that this case was concerned with entirely different issue

93
NALSA vs. Union of India, Writ Petition (C) No.400 Of 2012 ¶ 1
94
Ibid ¶ 129; See Also Suchitra Menon, The Transgender community to be formally recognized as the third sex,
Live Law, April 15, 2014 available at http://www.livelaw.in/transgender-community-formally-recognised-third-sex-
also-avail-benefits-socially-economically-backward-communities-supreme-court-directs-centre-stat/ (last visited
20/04/16)
95
Ibid ¶ 123
96
Supra Note 2, ¶ 43
97
Supra Note 93, ¶¶ 12 - 16
98
Ibid ¶ 18; See Queen Empress v. Khairati (1884) ILR 6 All 204

17 | P a g e
i.e. constitutional and legal rights of Transgender community and their gender identity and
sexual orientation. However, the Court reservation to ‘express an opinion’ on § 377 is not so
simple and while navigating through the judgment, one invariably finds an intricate relationship
between the two judgments.
The NALSA judgment, involves an extensive debate of international law, domestic
legislations in other countries and foreign judgments99, engages reams of proof of actual
discrimination against transsexuals in Indian society, and discusses the idea of human rights.
Many also believe that it destroys the very foundation on which Suresh Koushal judgment was
based100. The Court’s also observed that every person’s self-defined sexual preference and
gender individuality is indispensable to their persona and is one of the most fundamental aspects
of autonomy, dignity and liberty101. The Court relied102 on Apparel Export Promotion Council v.
A. K. Chopra103, and several other decisions, wherein it was held that domestic courts have a
duty to give due respect to the international conventions and treaties for interpretation of the
domestic laws, more so, when there is no discrepancy among them and there is a void in
domestic law. Conclusively, it was also held that “non-recognition of the identity, despite
constitutional guarantee of no discrimination, of transgender persons denies them equal
protection of law, thus rendering them particularly susceptible to persecution, violence and
sexual assault by various persons including police authorities104”. Moving on to the
constitutional interpretation as regard Article 15 and 16, the Court held that the prohibited
ground of discrimination on the basis of sex contemplates the proscription on the discrimination
on the ground of sexual orientation105 and thus the transgender community is entitled to benefits
under these provisions.

99
Ibid ¶¶ 21-33
100
Gautam Bhatia, NALSA V. UOI: The Supreme Court On Transsexuals, And The Future Of Koushal V. Naz,
Indian Constitutional Law And Philosophy, April 15, 2014, available at
http://indconlawphil.wordpress.com/2014/04/15/nalsa-v-uoi-the-supreme-court-on-transsexuals-and-the-future-of-
koushal-v-naz/ (last visited 21/05/14)
101
Supra Note 93, ¶ 19
102
Ibid ¶ 53
103
(1999) 1SCC 759
104
Supra Note 93, ¶ 55
105
Ibid ¶ 59

18 | P a g e
 Relying on certain American decisions, the Court found that freedom of expression under
Art 19(1) (a) contemplates the freedom to express one’s self identified gender106 through manner,
speech, dressing, etc. and consequently reduced the distinction between conduct and identity.
Thus, § 377, by prohibiting certain acts, criminalizes sexuality and thereby outlaws the identity
of homosexuals. This, again, stands in sharp contrast with Suresh Koushal wherein the Court
dodged the entire examination of constitutionality of § 377 on the ground that it prohibits certain
acts and does not classify persons.
Once the distinction between a person’s identity and his conduct crumples, the whole
edifice, on which Suresh Koushal judgment stood, falls. Conclusively, it won’t be possible for
the Court to avoid the application of the test of constitutionality under Article 14 and 15 without
expressly dealing with the logical coherence that flows within the Delhi High Court’s judgment.
In any case, there remains another issue of Article 19(1) (a) to be dealt by Court. The Delhi High
Court decided Naz Foundation without realizing the need of this provision though it was argued
before it.
In NALSA vs. Union of India, the Court held that it protect core expression of our identity
including sexual identity. So even if we were to separate identity and conduct, § 377 is
unconstitutional in terms of Article 19(1) (a) in so far it criminalizes the expression of
homosexual identity107. The Court has also held that gender identity is integral to the dignity of
an individual under Article 21 and is at the core of “personal autonomy” and “self-
determination”, an assessment which § 377 undoubtedly fails108.
The underlying impression of this part was the author’s understanding that Suresh
Koushal and NALSA are fundamentally different in terms of their reasoning pertaining to the
nearly same evaluation. If NALSA judgment has been correctly decided, to which there exists no
doubt, then the judgment in Suresh Koushal requires re - evaluation by a larger bench being
essentially flawed in terms of constitutional reasoning.

106
Ibid ¶¶ 63-66;See City of Chicago v. Wilson et al., 75 III.2d 525(1978) [Supreme Court of Illinois]; Doe v.
Yunits et al., 2000 WL 33162199 [Supreme Court of Massachusetts]
107
Supra Note 100.
108
Supra Note 93, ¶ 74

19 | P a g e
 VI. CONCLUSION AND THE WAY AHEAD
The Supreme Court judgment in Suresh Kumar Koushal vs. Naz Foundation is not only
legally outrageous but also constitutionally untenable. It tells us that though the Constitution
forbids discrimination if a person is born in a particular gender or a particular caste but not if a
person possesses a particular sexual orientation. It also tells us that even though every citizen has
a right to dignified life under our Constitution; it does not extend to homosexuals. The author,
however, fails to comprehend any constitutional provision or its interpretation that justifies the
stand taken by the Apex Court in the country. Furthermore, the parochial approach taken in this
case is partly due to the refusal to consider the jurisprudence of certain other major and minor
jurisdictions as well as the refusal to consider its earlier well praised tendency to uphold the
rights of the individuals of this country.
In any case, there is an institutional flaw which gets highlighted in this verdict. Article
145 of the Constitution requires matter of ‘substantial question’ of constitutional importance to
be heard by bench of at least five judges. Furthermore, many legal luminaries including senior
members of the bar like Fali S. Nariman and K. K. Venugopal have advocated the altogether
abolition of sitting of division bench in the Supreme Court. The reason for such a plea is that the
division bench judgment is usually, but not always, delivered by the senior judge whose views
become the views of division bench and consequently of the entire Supreme Court. This is not
quite productive as the Supreme Court is the court of last resort and the human fallibility cannot
be ignored. In any case, judges are human beings who are susceptible to their own
understanding, lifestyle and the environment in which they were raised. The difficulty gets
thoroughly highlighted by the two division bench judgments viz. Suresh Kumar Koushal vs. Naz
Foundation and NALSA vs. Union of India which, as highlighted earlier, maintain inconsistent
position as regard to the nearly same subject matter.
The Naz Foundation judgment of the Delhi high Court had initiated to diminish the
popular, although irrational and legally untenable, moral denunciation of homosexuality. It also
gave a new dimension to the identity and social politics in the country which has, unfortunately,
been reversed by the Apex Court. The author also acknowledges the fact that Naz Foundation
was essentially a correct step towards distinguishing the different types of morality. The
argument that Naz Foundation rejects the concept of public morality is misunderstanding the
essence of this judgment because it distinguishes constitutional morality with that of public

20 | P a g e
morality. This distinction is nothing but the distinction between morality that is allowed by
constitution and the one which is not permissible. This again is in consonance with the eminent
theories put forth by Rawls and Dworkin that state action for affording protection to public
morality must be within the limited sphere allowed.
Apart from the social and legal ramifications surrounding the criminalization of
homosexuality, the greater question that remains unanswered amid all this is that “do we really
require criminalization of sexual conduct that are done in private?” The answer remains negative
because for greater reasons, there has always been a divergence between law and morality. This
does not require any unnecessary buttressing with precedents and theories. Had there been any
cogent and solid reason for criminalization of homosexuality, the author would have attempted to
analyze the same. However, the 98 page verdict of Supreme Court has not given us any such
reason. In any case, the verdict’s frail attempt to hint at the constitutionality is filled with weak
and shaky grounds which have no constitutional relevance.
The fact that LGBT community is only a small fraction of India’s population and that
there has been two hundred prosecutions is itself a reason to afford them protection rather than
criminalization as has been done by the Court. The theory of separation of power cannot be
invoked by the Judiciary to side step its greatest responsibility of determining the
constitutionality of any legislation. The fact that the legislature has not acted in a particular
manner is not a valid reason to uphold the constitutionality of a law that violates the fundamental
rights of many and that too in the presence of substantive evidence thereof. The Court has shrunk
from the very responsibility which the Constitution has bestowed on it. The major part of
judgment abhors the ‘blindfolded’ reliance on foreign judgments while any person who has read
the Delhi High Court verdict cannot reasonable take that impression as the Court merely utilized
their guidance in performing the pious obligation which it is constitutionally required to do.
Sometimes, the Supreme Court of a country delivers a judgment which thwarts the
reputation of the highest court in the country and is also constitutionally flawed. We have seen
the instances like Plessey vs. Fergusson in the USA and ADM Jabalpur vs. Shivkant Shukla in
our own country ousting fundamental rights during emergency. These judgments do not only
suffer from public outrage and unsound reasoning but also remain a blot on the face of Judiciary.
The Supreme Court’s judgment in Suresh Koushal vs. Naz Foundation is again a reminder of the
fallacies of any judicial institution.

21 | P a g e
 In the light of extensive critical analysis of the three judgments viz. Naz Foundation,
Suresh Koushal and NALSA, and on the consideration of the international regime and
contemporary scenario, the author expects that Suresh Koushal vs. Naz Foundation will be over
ruled by the bench hearing the curative petition.
Though the curative petitions have seldom been successful in the Supreme Court of India,
the recent developments, due to the decision in NALSA, might lead to decriminalization of
homosexuality in India. The author anticipates that the constitutional values and constitutional
morality shall, once again, be upheld.

22 | P a g e
 BIBLIOGRAPHY

 STATUTE
 Constitution of India, 1950
 Indian Penal Code, 1860

 BOOKS
 Basu, Durga Das, (1984). Introduction to the Constitution of India (10th ed.). South
Asia Books New Delhi
 Seervai, H.M., (2011), Constitutional Law of India, Universal Law Publishings, (7th
Ed.) New Delhi
 Iyer, Krishna, V.R., (2003), A Constitutional Miscellany, 2nd Edn., Eastern Book
Company, Lucknow
 Jain, MP (2010), Constitution of India, (44th ed.), LexisNexis Butterworths Wadhwa,
Nagpur
 Khanna, Hans Raj (1981). Making of India's Constitution, (8th ed.). Eastern Book Co.
Lucknow
 Pylee, M.V. ,(1997). India's Constitution. (4th ed.). S. Chand & Co. New Delhi
 Singh, MP (2009), V N Shukla’s Constitution of India, (32nd ed.). Eastern Book Co.
Lucknow

 CASES
Significant
1. NALSA vs. Union of India, Review Petition (C) Nos. 41-55 OF 2014
2. Naz Foundation vs. Government of NCT of Delhi, (2009) 160 DLT 277
3. Suresh Kumar Koushal vs. Naz Foundation, (2014) 1 SCC 1

Foreign
1. B. v. Boyes, (1861) 1 B & S 31’1 (A). In — (1861) 1 B & S 311 (A).
2. Burdwick v. United States, 236 US 79; 59 L.ed. 476.
3. Ex parte Garlandv, 71 U.S. 333 (1866).
23 | P a g e
 4. Ex parte Grossman, (1924) 69 Law Ed 527 (F).
5. Knote v. United States, (1877) 24 Law Ed 442.
6. United States v. Klein, 80 U.S. (13 Wall.) 128, 147 (1871).
7. United States v. Wilson 32 U.S. 150 (1833).

Indian
1. Ashok Kumar v. Union of India, (1991) 3 SCC 498.
2. Harbans Singh v. State of Punjab, 1987 Cri LJ 1088.
3. Harbans Singh v. State of U.P., AIR 1982 SC 849.
4. Hukam Singh v. State of Punjab, AIR 1975 Punj & Har 148.
5. In Re: Maddela Yerra Channugadu and Ors , MANU/TN/0394/1954.
6. Javed Ahmed v. State of Maharashtra, (1985) 1 SCC 275.
7. K.M. Nanavati v. State of Bombay, AIR 1981 SC 112.
8. Kehar Singh v. Union of India, (1989) 1 SCC 204.
9. Krishnan Nair V. State Of Kerala, 1983-(CR1)-GJX -0321 –KER
10. Kuljit Singh v. Lt. Governor of Delhi, AIR 19782 SC 774.
11. M. T. Khan v. The Government of Andhra Pradesh and Others, 1996 2 SCC 432
12. Madhu Mehta v. Union of India, 1989Cri.L.J. 2321.
13. Maru Ram v. Union of India, (1981) 1 SCC 107.
14. R.Raghupathy v. State of Tamil Nadu, 1984 Cri LJ (NOC) 117.
15. Ramdeo Chauhan v. State of Assam, (2001) 5 SCC 714.
16. Sher Singh v. State of Punjab, 1983 SCC (Cri) 461.
17. State of Madhya Pradesh v. Ratan Singh, (1976) SCC (Crl) 428.
18. State of Punjab v. Joginder Singh, 1990 Cri. L.J. 5.
19. T.V. Vatheeswaran v. State of Tamil Nadu, (1983) 2 SCC 68.
20. Triveniben v. State of Gujarat, (1989) 1 SCC 679.
21. Shatrughan Chauhan vs. Union of India [Writ Petition (Criminal) No. 55 of 2013]

24 | P a g e