INTERLINKING AND HYPERLINKING

• Anjela Devarajan

THE NAZ FOUNDATION CASE
SECTION 377
“I AM THE LOVE THAT DARE NOT SPEAK ITS NAME”
― ALFRED BRUCE DOUGLAS
Introduction:
incidents of harassment of the
homosexual community and social
discrimination in india remain
widespread despite years of
campaigning by sexuality rights
g r o u p s i n t h e c o u n t r y. t h e b i g g e s t
hurdle faced by the campaign to
fight discrimination based on sexual
orientation in india is section 377 of
the indian penal code (ipc), which
c r i m i n a l i s e s " u n n a t u r a l s e x " . t h e l a w,
a r e m n a n t o f v i c t o r i a n m o r a l i t y, w a s
made in 1860, when any sexual
activity that was not meant for
procreation was considered a sin.

HISTORICAL BACKGROUND:
1994 – THE BEGINNING
A DELHI- BASED NGO WORKING ON HIV/AIDS
ISSUES, NAZ FOUNDATION'S PETITION ASKED
THE COURT TO READ DOWN SECTION 377 OF THE
INDIAN PENAL CODE AS EXCLUDING ACTS OF
CONSENSUAL PRIVATE SEX FROM ITS PURVIEW.
JANUARY 2001
PETITION DISMISSED AS ABVA AS A GROUP
BECOMES DEFUNCT AND DOES NOT APPEAR IN
THE MATTER.
DECEMBER 2001
NAZ FOUNDATION FILES A PETITION
CHALLENGING SECTION 377 IN DELHI HIGH
COURT.
2004
THE DELHI HIGH COURT DISMISSED THE NAZ
PETITION, ON THE GROUND THAT THE
PETITIONER, THE NAZ FOUNDATION, WAS NOT
AFFECTED BY SEC 377 AND HENCE HAD
NO 'LOCUS STANDI' TO CHALLENGE THE LAW

2006:
THE SUPREME COURT DECIDED THAT NAZ FOUNDATION HAD THE
STANDING TO FILE A PUBLIC INTEREST LAWSUIT IN THIS CASE, AND
SENT THE CASE BACK TO THE DELHI HIGH COURT TO RECONSIDER IT
ON THE MERITS.
AN INTERVENTION WAS FILED BY VOICES AGAINST 377, SUPPORTING
THE PETITIONER AND STATING THAT SEC 377 IS VIOLATIVE OF THE
FUNDAMENTAL RIGHTS OF LGBT PERSONS.
2009:
JUDGMENT READS DOWN SECTION 377 TO DECRIMINALIZE
CONSENSUAL SEXUAL RELATIONS BETWEEN ADULTS.
2013:
THE SECTION WAS DECLARED UNCONSTITUTIONAL IN SO FAR IT
CRIMINALISES CONSENSUAL SEXUAL ACTS OF ADULTS IN PRIVATE.
THE COURT STATED THAT THE JUDGEMENT WOULD HOLD
UNTIL PARLIAMENT CHOSE TO AMEND THE LAW.
2014:
PETITION FOR JUDICIAL REVIEW WAS REJECTED.

SECTION 377 OVER THE DECADE
2001 – ARREST OF HEALTH WORKERS IN LUCKNOW
2004 – KOKILA RAPE AND CUSTODIAL ABUSE N
BANGALORE
2005 – ARREST OF HIJRAS AND KOHIS IN BANGALORE
2006 – SUICIDE OF PANDIAN DUE TO POLICE
TORTURE, CHENNAI
2006 – SECTION 377 APPLIED TO TWO WOMEN IN
CONSENSUAL RELATIONSHIP
DELHI
2006 – SEXUAL ABUSE OF GAY MEN BY DELHI POLICE
2007 – GOA ARREST
2013 – ARREST OF 13 PEOPLE IN KARNATAKA

• Dhriti Hazowary

CASE DEVELOPMENTS
 NOV 2001: NAZ FILES PETITION IN DELHI HIGH COURT
(HC)
 2002: NOTICE ISSUED TO GOVT OF INDIA; ATTORNEY
GENERAL ASKED TO APPEAR
 SEPT 2003: MINISTRY OF HOME FILES AFFIDAVIT
OPPOSING PETITION
 SEPT 2004: PETITION DISMISSED FOR LACK OF
“STANDING”
 NOV 2004: REVIEW PETITION IN HC REJECTED
 FEB 2005: APPEAL FILED IN SUPREME COURTA

CONTD…
Apr 2006: Matter remanded back to HC
July 2006: NACO files affidavit
admitting legal hurdles in HIV
prevention with MSM
May 2008: Final arguments begin
Nov 2008: Arguments conclude
July 2009: HC pronounces verdict

SECTION 377 VIOLATES
FUNDAMENTAL RIGHTS:
• Article 14 (Equality and Equal Protection of Law)
• Vague; unjust; unreasonable
• Disproportionate impact
• Article 15 (Non-discrimination)
• Prohibited grounds of sex includes sexual orientation
• Article 19 (Freedom of speech, expression & association)
• Obstructs right to receive/impart information
• Forbids self-expression
• Prevents organising
• Article 21 (Right to Life and Liberty)
• Intrusion in Privacy; w/o compelling state interest
• Violates right to Dignity
• Infringes right to Health (HIV arguments)

COUNTER ARGUMENTS BY GOVT OF INDIA
 Article 14:
Substantive Arguments
 Not arbitrary; clear intent to prevent acts against nature
 No disparate impact; covers heterosexual too
 Article 15: Constitution does not recognise sexual orientation and/or
sexual minorities
 Article 19: No hindrance to freedoms; eg: “gay parades”
 Article 21:
 No right to commit an offence; private/adult/consent irrelevant
 Injurious to public health
 Decriminalization will increase AIDS
 Homosexuality is a disease
 Threatens public order
 Against public morality
Section 377 preserves public interest; restrictions on rights justified

Present scenario of gay
marriageLaws and punishments
Manaswitha Rai
Roll No.: 309

countries where gay
marriage is
legal
Netherland,
2000
Belgium, 2003
Canada, 2005
Spain, 2005
South Africa,
2006
Norway, 2009
Sweden, 2009
Iceland, 2010
Portugal, 2010
Argentina, 2010
Denmark, 2012
France, 2013
Brazil, 2013

After the publishing of the Wolfenden report in the UK, which asserted
that "homosexual behaviour between consenting adults in private should
no longer be a criminal offence", many western governments, including
the United States, have repealed laws specifically against homosexual
acts. In June 2003, the U.S. Supreme Courtruled in Lawrence v.
Texas that state laws criminalizing private, non-commercial sexual activity
between consenting adults at home on the grounds of morality are
unconstitutional since there is insufficient justification for intruding into
people's liberty and privacy.

India
Section 377 of the Indian Penal Code, called for a maximum
punishment of life imprisonment for all carnal intercourse against the
order of nature with any man, woman or animal (primarily interpreted
to be homosexuality, especially sodomy, including between consenting
adults)
On 2 July 2009, in the case of Naz Foundation v National Capital Territory
of Delhi, the High Court of Delhi struck down much of S. 377 of the IPC as
being unconstitutional. The Court held that to the extent S. 377
criminalised consensual non-vaginal sexual acts between adults, it
violated an individual's fundamental rights to equality before the law,
freedom from discrimination and to life and personal liberty under
Articles 14, 15 and 21 of the Constitution of India. The High Court did not
strike down S. 377 completely – it held the section was valid to the extent
it related to non-consensual non-vaginal intercourse or to intercourse
with minors – and it expressed the hope that Parliament would soon
legislatively address the issue.

There are 84 countries where homosexuality is illegal
Anti-LGBT laws
Uganda
Ugandan law currently provides for a life sentence for
homosexual acts involving either men or women.
The Penal Code Act of 1950 (Chapter 120) (as amended) 166
Section 145. Unnatural offences.
―Any person who—
has carnal knowledge of any person against the order of
nature or has carnal knowledge of an animal; or permits a
male person to have carnal knowledge of him or her against
the order of nature, commits an offence and is liable to
imprisonment for life.

Countries with most strict anti-gay laws
Sudan. The punishment for same-sex relationships from five years in prison to the death
penalty. Shariah which forms the basis of the legislation of the North African states
expressly prohibit homosexual relations, providing penalties for even a man disguised
as a woman. For violation of this rule once a Sudanese court sentenced 19 young men
to a sentence of 30 lashes each and a large (by local standards) fine $ 400. If the court
proved that partiers not just dressed in women's clothes, but also had sexual
intercourse, the punishment could be much more severe - including the death penalty.
Tanzania. The penalty for homosexual behavior: life imprisonment. In 2010, Tanzanian
President Jakaya Kikwete denied accreditation to one of the diplomats representing
Western Europe, on the basis of his sexual orientation. As tough Tanzanian authorities
have responded to the threat of the British prime minister David Cameron to deprive the
country of financial assistance, if he refuses to respect the rights of sexual minorities:
"We do not agree to legalize this nonsense to get help and money," - said the head of
the Tanzanian Foreign Minister Bernard mem.
Barbados. The penalty for homosexual behavior: life imprisonment. Public display of
homosexuality is forbidden.
Saudi Arabia. The punishment for same-sex relationships: the death penalty. Perhaps
the most famous case of the death penalty for homosexuality in Saudi Arabia - a
public beheading with a sword, in 2000. This sentence became widely known outside
of the country and caused a lot of protests.

Saudi Arabia. The punishment for same-sex relationships: the death penalty.
Perhaps the most famous case of the death penalty for homosexuality in Saudi
Arabia - a public beheading with a sword, in 2000. This sentence became
widely known outside of the country and caused a lot of protests.
UAE. The punishment for same-sex relationships: the death penalty. A striking
example of the official reaction of the UAE authorities to homosexual
relationships can be the sentence to two lesbians - a citizen of Bulgaria and
Lebanon, charged with unnatural public hugs and kisses. They spent a month
in prison, after which they were extradited. Such a punishment can be
considered unusually mild: if they were UAE citizens they would be sentenced
to death by beheading.
Iran. The punishment for same-sex relationships: the death penalty. The loudest
event was the execution in 2005 of two young boys accused of homosexuality
- Mahmoud Asgari and Ayaz Marhoni.Tehran considers homosexuality a
"manifestation of immorality and disease."
Pakistan. The penalty for homosexual behavior: life imprisonment. The
Constitution of Pakistan just does not stipulate a ban on homosexuality, but
such relationships are illegal and punishable by sharia, which operates in the
country since 1990. In 2011, Pakistan's largest Islamic party "Jamaat-e-Islami"
issued a statement which said: "These people (homosexuals) - the bane and
the dregs of society. They do not deserve the right to be called Muslims or
Pakistanis".
Malaysia. The penalty for homosexual behavior: up to 20 years in prison.

UTKARSH KUMAR
ROLL NO.: 356

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 committed a severe error by declaring Section 377 to violate
Articles 14, 15 and 21 of the Constitution as it ignored the lack of any
foundational facts in the Respondent’s writ which would be necessary for
pronouncing upon the constitutionality of any statutory provision. The
documentary evidence supplied in its place was not a basis for finding that
homosexuals were singled out for discriminatory treatment by the law.
• The statistics incorporated in the Respondent’s petition were insufficient for
finding that Section 377 adversely affected the control of HIV AIDS and that
decriminalisation would reduce the number of such cases. The Appellants also
argued that the data presented was manufactured and fraudulent.
• Section 377 is entirely gender neutral and covers voluntary acts of carnal
intercourse irrespective of the gender of persons committing the act. As no
specific class is targeted by the law, no classification has been made,
therefore rendering the finding of the High Court that it offended Article 14 to
be without basis.

CONT…
• Section 377 does not violate the right to privacy
and dignity under Article 21 and the right to privacy
does not include the right to commit any offence as
Defined under Section 377 or any other section.
• If the declaration were approved, India’s social
structure and the institution of marriage would be detrimentally
affected and it would cause young people to become tempted
towards homosexual activities.
• Courts by their very nature should not undertake the task of
legislating which should be left to Parliament. The High Court was
unsure whether it was severing the law or reading it down and, as
long as the law is on the statute book, there is a constitutional
presumption in its favour. Whether a law is moral or immoral is a
matter that should be left to Parliament to decide.

NEWS REPORT- SETBACK FOR GAY
RIGHTS ACTIVISTS…

RESPONDENTS’
ARGUMENTS
The Respondents submitted:
• Section 377 targets the LGBT community by criminalising a closely
held personal characteristic such as sexual orientation. By covering
within its ambit consensual acts between persons within the privacy
of their homes, it is repugnant to the right to equality. Sexual rights
and sexuality are human rights guaranteed under Article 21. Section
377 therefore deprives LGBT of their full moral citizenship.
• The criminalization of certain actions which are an expression of the
core sexual personality of homosexual men makes them out to be
criminals with deleterious consequences impairing their human
dignity. As Section 377 outlaws sexual activity between men which is
by its very nature penile and non vaginal, it impacts homosexual men
at a deep level and restricts their right to dignity, personhood and
identity, equality and right to health by criminalising all forms of sexual
intercourse that homosexual men can indulge in.

CONT…
• Sexual intimacy is a core aspect of human
experience and is important to mental health,
psychological well being and social adjustment.
By criminalising sexual acts engaged in by
homosexual men, they are denied this human
experience while the same is allowed to
heterosexuals.
• The Court should take account of changing values and the temporal
reasonableness of Section 377. The Constitution is a living document and it
should remain flexible to meet newly emerging problems and challenges. The
attitude of Indian society is fast changing and the acts which were treated as
an offence should no longer be made punitive.
• The right to equality under Article 14 and the right to dignity and privacy
under Article 21 are interlinked and must be fulfilled for other constitutional
rights to be truly effectuated.

CONT…
• The difference between obscene acts in
private and public is recognised in
Section 294. It should be read in light of
constitutional provisions which include the
right to be let alone.
• Section 377 is impermissibly vague,
delegates policy making powers to the police, and results in the harassment and
abuse of the rights of LGBT persons. Appellants provided evidence of
widespread abuse and harassment (citing judicial evidence and NGO reports).
• Section 377 does not lay down any principle or policy for exercising discretion
as to which of all the cases falling under the broadly phrased law may be
investigated. It is silent on whether the offence can be committed within the
home.

• Tracyness Sutnga

-What Article 14 states?
- Article 14 resulting in
irrational classification have
no nexus with the object of
the law.
- How does the judgement
violate this Article?
-What article 21 states??

- What the high
court provided.
-Supreme
Court's view on
privacy.
-the judgement
has violate
Article 21.

• Divya Lakra
• Roll No.: 360

SURESH KUMAR KOUSHAL & ORS. V. NAZ
FOUNDATION (INDIA ) TRUST & ORS.[SPECIAL LEAVE
PETITION (CIVIL) NO. 15436 OF 2009]
• The 2009 judgement:
• Application filled
• Preamble proclaims a commitment to equality and
justice for all
• In 2009, the Delhi High Court made a significant
ruling in the Naz case, ending 150 years of
criminalization and oppression
• “no constitutional infirmity”
• The court confirmed that the people of the LGBT
(lesbian, gay, bisexual and transgender) community
are equal citizens

.
• A person below 18 would be presumed not
to be able to consent to a sexual act.
• Sec 377 targets homosexual as a class
• Sexuality and identity:
(a)non-discrimination;
(b) protection of private
rights; and
(c) the ensuring of special
general human rights protection to all,
regardless of sexual orientation or gender
identity..

SURESH KUMAR KOUSHAL & ANR. VS NAZ FOUNDATION &
ORS. ON 11 DECEMBER, 2013
• Supreme Court justices HL Dattu and Sidhansu Jyoti
Mukhopadhaya have rejected a number of review petitions
of its late 2013 judgment that effectively re-criminalised
homosexual intercourse.
• Held section 377 as unconstitutional.
• Criminalises,consensual sexual acts of adults in private, is
violative of Articles 21, 14 and 15 of the Constitution.
• majority as “deviants' or 'different' are not on that
score excluded or ostracised
• This clarification will hold till, of course, Parliament chooses to
amend the law to effectuate the recommendation of the Law
Commission of India in its 172nd Report which we believe
removes a great deal of confusion.

CONCLUSION
AISHWARYA DHAKAREY
ROLL NO 369

OVERALL CRITICISM: WE DISSENT
• The judgment can be divided into six issues that the Court addresses:
1.
Restrictive Reading of the Power of Judicial Review
2.
The Court, referring to precedent on the interpretation of
section 377 observes that the law can be interpreted only in a case-by-case
basis, ―with reference to the act itself and circumstances in which it is
executed‖
3. The Court fails to appreciate the evidence of
discrimination, harassment and torture faced by
LGBT persons that was placed before in the form
of FIRs, personal affidavits, fact-finding reports,
official statistics, peer reviewed articles, and the
reported judgments.

CONTD…
4. The Court hold that the LGBT community is only a
―miniscule fraction of the country’s population‖,
thereby implying that they are not in need of
protection from the law.
5. In a highly insular move, the Court criticizes the Delhi
High Court’s reliance on foreign precedent to read
down section 377. Here the court refers
to Jagmohan v State of U.P. where the Supreme Court
during the course of hearings on the challenge to
capital punishment rejected references to the U.S. case
law, saying that Western experience cannot be
transplanted in India.

REVIEW PETITION
• The Supreme Court on Jan’28
2014 refused to review its order
criminalizing gay sex, rejecting
review petitions filed by the
central government and several
non-government organizations.
• ―Application for oral hearing is
rejected. We have gone through
the review petitions and the
connected papers. We see no
reason to interfere with the order
impugned. The review petitions
are, accordingly, dismissed,‖ said
the order by judges H.L.
Dattu and S.J. Mukhopadhyay

CURATIVE PETITION- THE ROAD
AHEAD
• But despite the setback, gay rights activists say they will continue to fight and file a
curative petition in the apex court.
Curative petition (Rupa Ashok Hurra v Ashok Hurra and Anr.)
The requirements which are needed in order to accept the curative petitions are:
• The petitioner will have to establish that there was a genuine violation of principles
of natural justice and fear of the bias of the judge and judgement that adversely
affected him.
• The petition shall state specifically that the grounds mentioned had been taken in
the review petition and that it was dismissed by circulation.
• The curative petition must accompany certification by a senior lawyer relating to
the fulfilment of the above requirements.
• The petition is to be sent to the three senior most judges and judges of the bench
who passed the judgement affecting the petition, if available.
• If the majority of the judges on the above bench agree that the matter needs
hearing, then it would be sent to the same bench.
• The court could impose ―exemplary costs‖ to the petitioner if his plea lacks merit.

Contitution: 15,16,19(1),21
Case Laws- India
& Foreign
Article 21
Section 377
Morality- Section
377
Doctrine of Severability
Medical Jurisprudence- Sexual
Morality
IPC Section 377