Legal Status of Homosexuals in India;

There are several provisions under the Indian legal system under which we tend to keep “homosexuals” as a separate category or tend to categorize homosexuals distinctly.

Section 377 of the Indian Penal Code, 1860, relates to unnatural offenses and includes homosexuality within its domain. In India, this law was adopted from the British Penal Code in the 19^th century, which states as follows:-

“Whoever voluntarily has carnal intercourse against the order of nature with any man, woman or animal shall be punished for imprisonment for life, or with imprisonment of either description for a term which may extend to 10 years and shall also be made liable for a fine”.

Further Section 292 of the Indian Penal Code, 1860, which refers to the concept of “Obscenity” tends to clearly incorporate within its ambit the aspect of “Homosexuality”. Apart from this provision, Section 294 (IPC, 1860), which penalizes any kind of obscene behavior in the public, too can be used against gays and lesbians.

Therefore, in India, the primary provision which deals with the aspect of “Homosexuality” in Section 377, IPC, 1860, which explains and defines the unnatural offenses and makes the said offenses punishable under the code with imprisonment for life or for the imprisonment of either description for a term extending to 10 years plus liability to pay the requisite amount of fine.

Introduction to the judgment 

To quote Shakespeare, who once stated that-“What’s in a name? That which we call a rose by any other name would smell as sweet”. This line is indicative of the fact that what matters the most are the essential characteristics or qualities of the substance and not essentially the name by which they are called.

Identity is pivotal for one’s survival. Life bestows honor on it and freedom of living, as a facet of life, expresses a genuine desire to sustain the same. When supported by constitutional recognition, the said desire is what exactly seems to be the intention of the constitutional makers, wherein, “grant of identity” to an individual is emphasized the most under the Indian Constitution. No doubt about the fact that grant of identity to individuals sourced through the constitutional background, holds utmost importance, but what holds equal significance is the “sustenance of identity”, it is a filament of life.

The overarching ideals of our Constitution, which include individual autonomy and liberty, equality sans discrimination, recognition of identity along with the dignity of individuals and privacy of individuals constitute to form the four ideal corners of the apex Indian document, which in fact lays the foundation stone for the appraisal of fundamental rights that tends to elude certain sections of the society which are in a way compelled to live a bonded life in this so-called “equality” based society.

Destruction of individual identity would be tantamount to crushing the intrinsic dignity of an individual that cumulatively encapsulates the values of privacy, freedom of speech, and other expressions. It should be understood that the natural identity of an individual is extremely essential for his being. What is provided by the nature is natural and absolutely not a disease as many see it. Just because certain categories of people are different from the majority, they cannot be said to be unnatural. Sexual orientation (discussed in detail in the latter part of this submission), is an intrinsic part of one’s identity. Whether an individual sees himself/herself as a male or a female, is a matter of his/her sexual orientation. The mere recognition of the fact that the transgender is “different” as far as sexual orientation is concerned, cannot in any way deprive them of their rights which they, as Indian citizens hold under the aegis of the Indian Constitution. Thus this part of an individual’s personality has to be respected and not to be looked down upon.

Therefore, the first step on the long path to acceptance of diversity in the Indian territory that nature has created has to be now taken by vanquishing the enemies of prejudice and injustice and the wrongs done so as to make way for a progressive and inclusive realization of social and economic rights embracing all and to begin a dialogue for ensuring rights and opportunities of “less than equal” sections of the society.

The Supreme Court of India, while dwelling upon the status of identity of the transgender community in India, acting through Justice Radhakrishnan and after duly acknowledging the catena of judgments as well as International Covenants in this regard, opined as follows[1]:-

“Gender identity of an individual is one of the most fundamental aspects of life which refers to a person’s intrinsic sense of being a male, female, transgender or a transsexual person. A person’s sex is usually assigned at birth, but a relatively small group of persons may be born with bodies that incorporate both or certain aspects of both male as well as female physiology. Elaborating further, the learned judge in the instant matter has stated that, Gender identity refers to each person’s deeply felt internal and individual experience of gender, which may or may not correspond to the sex assigned to an individual naturally, including the personal sense of body which may involve a freely chosen, modification of bodily appearance. Therefore, gender identity is referred to as an individual’s self-recognition and identification as a man, woman, transgender or any other recognized category”.

In the aforesaid case, the learned judge- Hon’ble Mr. Justice Radhakrishnan, has figured out that our Constitution highlights by virtue of Article 15 and 16 the non-prevalence and condemnation of any sort of discrimination on the basis of sex. The word “sex” does not merely refer to the biological sexual intercourse between a man and a woman but also includes the people who neither consider themselves to be a male nor a female or the ones who belong to the third gender community.

Justice Sikri, while giving his concurring opinion in the aforementioned case of NALSA v. Union of India, has also thrown some light upon the rights of the transgenders which ought to be made available to them under the aegis of the Indian Constitution, in the same manner as are made available to any man or a woman. Justice Sikri, in this regard, has stated that-“there seems to be no reason as to why a transgender person is denied of his basic human rights which include the most essential Right to Life and personal liberty with dignity, right to privacy, right to freedom of speech and expression, right to education and empowerment, right against discrimination and right against exploitation. Therefore, it is now the right time for us to extend the existing limited scope of the Constitution so as to acknowledge the rights of the transgenders and ensure a dignified life to the transgenders”.

The judiciary is under an obligation to locate the “intent” behind any legal provision that is put forth before it for the purpose of statutory interpretation. As far as the interpretation of the Indian Constitution is concerned, the “constitutional intent” or the intention of the makers of the constitution was to make India a place where each and every individual is free to live his own life in a way he wants without any sort of interference from the state in any manner whatsoever. But is that happening at all? At one place, we in India, have positioned the constitution as the topmost document governing its subjects and that we see it as a Charter of Rights which render equal rights upon its subjects while on the other hand, we tend to utterly disregard the message conveyed by our constitution that is “Equality before laws- speaking through its Article 14”. All the rights which have been mentioned in the previous paragraph are considered to be an inextricable component of Article 21 of the Indian Constitution and that this article persuades for laying an emphasis on the judicial recognition of such rights as being a part of Article 21.

Further, the thing which is of primary importance in the instant submission is to acknowledge the distinction between “social morality” and “constitutional morality”. In the instant submission, we are going to look as to how the reason for the non-acceptance of homosexuality in India which was primarily based upon the argument of “social morality”, gets overturned into an argument for the acceptance of homosexuality reasoned with the concept of “constitutional morality”. Therefore, it can be construed easily that whenever the concept of morality is being talked of, we are to consider only the “constitutional morality” because “social morality” brings with it the aspect of uncertainty and an unparalleled approach then tends to prevail where every person would find himself standing on a different pedestal.

Non-recognition in the fullest sense and denial of expression of choice by a statutory penal provision and giving a stamp of approval by a two-judge bench of the apex court of India to the said provision, that is, Section 377 of the Indian Penal Code, 1860 in the case of Suresh Kumar Koushal and another v. Naz Foundation and others[2], which ultimately overturned the decision of the Delhi High Court in the matter of Naz Foundation v. Government of NCT of Delhi[3], is the primary issue involved in the present controversy relating to “Homosexuality and the rights of homosexuals in India”.

Submissions of the Petitioners

It is the submission of the petitioners in the instant controversy that homosexuality, bisexuality, and other sexual orientations are equally natural and that is further an expression of choice and an inclination founded on the consent of two persons who are legally entitled to express such consent and is neither a physical nor a mental illness. Such sort of orientations depicts the free-thinking process and expression which when kept under the head of “offenses” as categorized under the Indian Penal Laws, tend to be highly prejudicial to those who belong to such “different” categories. Viewing the people belonging to third gender or the ones belonging to the transgender community every time with a suspected eye pinches hard on the autonomy of an individual inherent in his personality, thereby causing great discomfort to the gender identity and destruction to the privacy of the person concerned which in fact is a pivotal facet of Article 21 of the Indian Constitution.

No doubt about the fact that generally the phrase “order of nature” is limited to the procreative concept related to sexual activity but this limitation should not forego to take note of the inborn traits of an individual. It has further been argued by the petitioners citing the American Psychology Association that-“Sexual orientation is something natural and that nobody except nature itself has a say in it. Further that sexual attraction towards the same sex as well as the opposite sex, both are equally normal. The only difference that is there between the two is that the instances of sexual attractions among the same-sex people are quite less in numbers”.The homosexual community forms 7-8% of India’s total population which is still a decent percentage leaving no scope for the authorities to argue and give excuses in relation to the strength of LGBTs in the country. The state, like in normal situations, is under a similar obligation imposed on it through the constitution, to abstain from ignoring the rights of this relatively smaller section of the society who acquire the same by virtue of their birth in the Indian Territory and by them being Indian citizens.

Therefore there is no reason as to why should homosexuals be deprived of their basic human rights when their identity, although is quite different from others is still a natural factor.

LGBT groups suffer discrimination and abuse throughout their lives due to the existence of Section 377 IPC which is nothing but a manifestation of a mindset of societal values prevalent during the Victorian era where sexual activities were considered mainly for procreation. With merely this concept prevailing leaves the homosexuals to suffer at the hands of law and are thus deprives them of the citizenry rights guaranteed to them under the Indian Constitution. The law should have treated them as natural victims and sensitized society towards their plight and laid stress on such victimization, however, the reverse is being done due to which a sense of alienation has developed. Continuous alienation due to stigma and threat is contrary to the fundamental principle of personal liberty under the constitution.

The case of Justice KS Puttaswamy v. Union of India[4] is heavily relied upon by the petitioners in the matter at hand wherein the aforesaid judgment was directed towards titling “privacy” as a fundamental right imbibed in the very foundation of the Indian Constitution conveyed through Article 21. The petitioners, in this regard, contended that sexual orientation is an essential attribute of privacy and therefore protection of both sexual orientations of an individual along with his right to privacy is extremely significant for, without such protection, individual identity will lose its significance. Sexual orientation along with the right to privacy lies at the core ofArticlese 14, 19, and 21 (the Golden Triangle of the Indian Constitution), and thus, in the light of the aforementioned judgment, it has become imperative that Section 377, IPC be struck down.

Having said that, the petitioners further argued in favor of providing due acknowledgment to the right to sexual autonomy and the right of a person to choose his/her sexual partner. In the light of the above-mentioned argument wherein the right to sexual orientation is to be regarded as an essential component of privacy and hence to be duly protected under the Constitution, it can further be stated that “choosing one’s sexual partner” is also an essential right to be protected herein, which in fact is significant for the exercise of “right to sexual orientation”. Sexual orientation is not be construed in a restricted sense to be limited to include only as to whether one observes himself/herself to be a male or a female respectively, but it extends to include those individuals who fall under neither of the two categories. The above-quoted statements can find their basis from an important case[5] before the Supreme Court of India, wherein the court has clearly recognized that an individual’s exercise of choice in choosing a partner is a feature of dignity and therefore is protected under Article 19 and 21 of the Constitution.

The 2009 judgment (Naz Foundation v State of NCT of Delhi[6]) of the High Court of Delhi, which although was overturned by the apex court in 2013 in the case of Suresh Kumar Koushal v. Naz Foundation[7], provides us with enormous sensible arguments in favor of the issue as to whether or not consensual carnal intercourse between homosexual and heterosexual adults should not be regarded as an offense by virtue of Section 377 of the Indian Penal Code, 1861. In the case of Naz Foundation v State of NCT of Delhi[8], argued before the Delhi High Court, the counsels have argued that the court should direct its thinking towards considering and acknowledging the concept of “constitutional morality” and forego the aspect of “social morality” which is subject to change as per an individual’s own thought process and as per the environment in which he/she has been brought up. But, what is of permanent nature is the understanding of “Constitutional morality” because the constitution does not regard an individual’s interest, but regards everybody’s common interest, and therefore going by this argument, consensual carnal intercourse between heterosexuals and homosexual adults cannot be regarded as an offense under the Indian Penal Laws.

Petitioners have further contended that Section 377 is violative of Article 14 of the Constitution as the said Section is vague in the sense that carnal intercourse against the order of nature is neither defined in the Section nor in the IPC nor, for that matter, in any other law. There is, as per the petitioners, no intelligible differentia or reasonable classification between natural and unnatural sex as long as it is consensual because of the decision of this Court in the case of Anuj Garg and others v. Hotel Association of India and others[9].

Lastly, the petitioners have contended that the majority view/opinion cannot be the guiding factor for sustaining the constitutionality of a particular provision. in a situation where the majority view or perception tends to hamper the rights of the minority guaranteed to them through the constitution itself, then no one under the law can take away those guaranteed rights. Right to sexual orientation and the right to choose one’s sexual partner are essential components of the Right to Privacy which in itself is an essential component of the Right to Life enshrined under Article 21 of the Constitution. Therefore even the state cannot deny these rights to the people who claim such rights as this would be violative of the main constitutional text.

Submissions on behalf of Respondents

The respondents in the instant matter straight away quoted the Supreme Court’s 2013 judgment (Suresh Kumar Koushal v. Naz Foundation)[10] which upheld the validity of Section 377 on extraneous grounds. The only question that was referred to the constitutional bench for its consideration pertained to the constitutional validity of criminalizing “consensual sexual acts of adults in private” falling under Section 377 of IPC.

The respondents have put their emphasis upon the existing notions of Indian society where certain things are considered worthy of condemnation and that if anyone indulges in such acts, such individual had to bear the criminal sanctions to restrain the people in future from indulging in the so-called “prohibitive acts”. “Sexual acts of homosexuals” are one of such acts, which (according to the respondents) are never approved by the Indian primitive society. Therefore, Section 377 of the IPC ought not to be legalized.

Further, it has been contended by the respondents that persons indulging in unnatural sexual acts which have been made punishable under Section 377 IPC are more vulnerable to contracting HIV/AIDS and the percentage of prevalence of AIDS in homosexuals is much greater than heterosexuals and that the right to privacy may not be extended to enable people to indulge in unnatural offenses and thereby contact AIDS.

In India, the family system is the bulwark of social culture, which with the prevalence of Section 377, would be in shackles, as a result of which the institution of marriage would be detrimentally affected and rampant homosexual activities would wrongly persuade the young minds to enter into this trade for money.

The respondents tend to compare Indian culture with the culture prevailing abroad, considering which, they argue that homosexual activities when are prohibited in countries abroad, then it should also be prohibited in India which happens to be a multi-cultural nation. The cultures, traditions, or beliefs of the people should not be tampered with, and according to the Indian culture; sexual activities are primarily carried on for procreation. This understanding should be limited to this very extent and should not be understood in a broader sense.

The respondents have argued that “the word ‘sexual orientation’ in itself is not mentioned in the constitution per se. Further that Article 15 of the Indian Constitution prohibits discrimination based on only caste, religion, sex, race, and place of birth but not sexual orientation”. Through this argument, the Union of India (hereinafter referred to as Respondents) tends to give us a glimpse of a verbatim interpretation of the constitution, keeping at bay the intention and purpose behind drafting the constitution. This argument is indicative of the fact that the respondents are not bothered to acknowledge the purposive interpretation of the constitution and have failed to understand that the constitution cannot be interpreted literally.

Keeping in mind, the aforementioned submissions, the respondents in this regard favored not to revisit the judgment under the case of Suresh Kumar Koushal v. Naz Foundation[11] because the court must restrain itself from adopting the methodology of judicial legislation since legislating is a primary and sole function of the legislature. There persists a pervasive presumption of constitutionality of legislation and that the judiciary should avoid unnecessary interference in the tasks of the state’s legislative organ. The legislative intent of the parliament must be respected and that amendment to Section 377, IPC must be left upon the wisdom of the parliament, which would make necessary changes in law as and when the need arises in this regard. The courts are not free to add or delete the wordings from a statute, which in fact is the primary function of the legislature, but the courts are never restrained from interpreting the statute in a way that such interpretation would meet the ends of justice.

 Analysis of decisions in the case of Naz Foundation v State of NCT of Delhi[12] and the case of Suresh Kumar Koushal v. Naz Foundation[13];

Before heading forward to discuss more the controversy in the instant matter, it has become imperative to discuss the decision rendered by the High Court of Delhi in the case of Naz Foundation v. State of NCT of Delhi and thereafter to highlight the essential points relied upon by the Supreme Court of India to render its decision in the case of Suresh Kumar Koushal v. Naz Foundation.

The decision of High Court of Delhi in the case of Naz Foundation v. State of NCT of Delhi;

The primary aspect concerning holding Section 377, IPC as unconstitutional, as has been highlighted by the High Court of Delhi in the aforesaid decision, is based on the ground that the word “sex”, as has been used under Article 15 of the Constitution should be provided a wider interpretation to include “sexual orientation”. The court has clearly stated that “sex” should not be interpreted to mean merely biological sexual intercourse between a man and a woman but it should also include within its ambit the “sexual orientation” of individuals which depicts the identity of an individual of being a male or a female. Therefore, in the opinion of the High Court of Delhi, if there is discrimination based on sexual orientation, it would amount to a violation of Article 15 of the constitution. Discrimination has always been the antithesis to equality (irrespective of the nature of discrimination concerned). The dignity of an individual will be fostered when equality is construed in its widest sense. That apart, constitutional morality would, in every situation prevail over social morality. This is because of a reason that, if we consider our society, then it has not morally accepted the situation described under Section 377, IPC and thus considers such situations (if arisen) as immoral (“situations” in this context does not merely include carnal intercourse against the order of nature engaged between a man and a woman but also amongst the homosexual individuals). This sort of “social immorality” (as it exists in the eyes of the society) is contrary to the very principles of our constitution which are descriptive of “constitutional morality” instead of social morality. Constitution of India is known to acknowledge every person’s equality before the law under Article 14 and discrimination based on caste, creed, sex, religion, and place of birth is thereby prevented under Article 15 (the term “sex” to include “Sexual Orientation”).

Apart from this, the High Court threw some light on the value of inclusiveness deeply ingrained in Indian society. The presumption that, whatever be the majority opinion in a society, it ought to be correct in every situation, is no more a reality. Majoritarian opinion/view can also be baseless and therefore when this happens, it is the duty of the court to render such opinion/view (if such opinion is violative of the basic principles of the constitution) as unconstitutional and thereby maintain the dignity of the constitution. The High Court in this regard has categorically stated that-“those who are perceived by the majority as deviants/different should not be based on that very score, be ostracized”.

Based on the aforementioned reasons, the High Court has read down Section 377 in a manner that said the said provision is declared unconstitutional in part to the extent it criminalizes consensual sexual intercourse of adults in private but has upheld that part of the provision which tends to criminalize non-consensual sexual acts as well as sexual acts among minors and has thus maintained the status quo in this regard.

The decision of Supreme Court of India in the case of Suresh Kumar Koushal v. Naz Foundation;

The Supreme Court of India, in the aforesaid case, opined that the acts which fall under the ambit of Section 377, would be determined about acts themselves and not about the situations in which they are executed. This means that the provision, irrespective of whether they are entered into between the heterosexuals or the homosexuals, irrespective of age and consent, does not criminalize a particular section of people having a certain sexual orientation, but only identifies certain acts, which when committed, would constitute an offense. Such restriction/regulation put forth by the said provision helps in regulating sexual conduct without pinpointing a specific section of society in this regard.

The court has further opined that Section 377 is quite a clear-cut provision that pinpoints no section of society as such. Just because a certain section of the society is being harassed and tortured at the hands of police authorities or is being subjected to unbearable mental agony, cannot be the sole ground to render the provision unconstitutional.

Further, the mere fact that Lesbian, Gay, Bisexual, and Transgender constitute a minuscule part of the entire Indian society and that in the last 150 years, less than 200 people have been prosecuted under Section 377, IPC, forms no valid ground for declaring this provision as ultra vires Article 14, 15 and 21 of the constitution. Basically, several prosecutions concerning a particular provision do not make a valid ground for declaring a particular provision as constitutional or unconstitutional.

It is the function of the legislature to decide as to which provision should exist in the statute book. In the opinion of the Supreme Court of India, section 377 should in no way be kept outside the statute book; however, the ultimate authority to repeal or amend any statutory provision lies in the hands of the legislature. Therefore, in case the legislature is of an opinion that the said provision should be repealed or that there is a need for any amendment and that if it does so, the same shall be the law of the land.

Constitution and section 377 IPC

Indian Constitution is a charter of progressive rights that is organic in nature and that is always open to adapt to the changes which take place in our society. The phrase-“an all-inclusive document” would aptly justify the nature of the Indian Constitution. It is called “an all-inclusive document” because it talks of every aspect which is necessary for a state to run in a much smoother fashion. It acknowledges the elementary rights (referred to as “fundamental rights” under Part III of the Constitution of India), imposes several duties upon an Indian citizen (under the Part IVA dealing with Fundamental Duties), describes the essential state policies which should be followed in a state to further an all-pervasive objective of promoting the public welfare and also supervising upon the organization of such authorities which are engaged in activities promoting the public welfare (dealt with under Part IV i.e. “Directive Principles of State Policy”). These are the core parts of the Indian Constitution. However, the constitution is not solely about the aforesaid parts. It contains others parts as well which have not been dealt with here in the instant submission.

The Supreme Court of India, in one of its several judgments, pronounced concerning the nature of the Indian Constitution and how it should be viewed. The court in the said judgment[14] said that-“Constitution of India is a living document, an integrated organism having a soul and consciousness of its own emanating from the basic structure named spinal cord in the body of the entire constitution, sensations of which can be felt in the extremities of its limbs” (“in the extremities of its limbs” means that the essence of the concept of basic structure can be felt almost in every part of the constitution and that everything, provided it is in consonance with the changes taking place in the society, except the basic structure, is subject to changes in accordance with the changes taking place in the society).

Since the Indian constitution is believed to have expanding horizons as stated by the Supreme Court of India, it is required that the dynamic concepts imbibed in the body of the constitution are always kept ignited so as to apply them to the ever-changing circumstances in the Indian society. The Supreme Court of India, in relation to the ever-expanding horizons of the Indian constitution, states that-“Constitution is an ever-changing document and that it is formed to incorporate the various changes taking place in our society, which would be indicative of the growth of law in the Indian context. Therefore it can be said that the horizons of the constitutional law are expanding”[15].

The constitution is not to be a mere collection of dead letters and that the courts are obligated to breathe life into the constitutional text by a purposive interpretation of the said text. A dynamic and purposive interpretation further elongates the ambit of the document because then it tends to open up the gates for a much more liberal construction of the provisions. In the absence of any “specific” purpose as defined under the constitution, unlike the other statutes, is said to be drafted by its drafters with an open mind who believed to carve out India into a welfare state. When we talk of the “welfare state”, we presume the existence of certain Fundamental Rights with the people of that very state, which are irrevocable even at the hands of the state (except when they are revoked by following due processes under law). The rights which are guaranteed under the constitution as Fundamental Rights are dynamic rights of “Liberty” and “Equality” and that it would not be just to give them a restricted or strict interpretation. This justifies the reasoning behind the aspect of declaring Section 377 IPC as constitutional or as unconstitutional. The term “equality” when is interpreted liberally, tends to give an automatic answer to the controversy underlying the instant submission.

Our constitution fosters the spirit of equality wherein every individual, irrespective of the section of society to which he belongs, enjoys equal rights which enable him/her to grow and realize his/her potentials as an individual. The judiciary should not be oblivious to the changes in the society and that it is high time for them to acknowledge the basic principles under the constitution in a manner as they were thought by the drafters to be implemented so that equal rights can be harnessed by the people (as already discussed).

Therefore, considering the wide ambit of the constitution, it cannot be said that Section 377, IPC is in any manner justifies its present and complete existence in the Indian penal laws. The provision is required to be construed in a manner that the basic principles inscribed under the constitution are not attacked in any manner. Hence, the provision should be given an interpretation by virtue of which every sect of the society (including the homosexual individuals) are entitled to claim similar rights which, in general, have been granted to the rest of the population in the country. Further, the argument that homosexuals form a minuscule part of the entire population is no valid ground for the maintenance of the provision (section 377, IPC) in the penal code of India. The Court, as the final arbiter of the Constitution, has to keep in view the necessities of the needy and the weaker sections. The role of the Court assumes further importance when the class or communities whose rights are in question are those who have been the object of humiliation and discrimination not only the State and the society at large but also at the hands of their very own family members. The courts are not to be a mute spectator to the struggle for the attainment and realization of rights of such people.

Comparative analysis of Section 375 and Section 377 of IPC

A cursory reading of Section 375 IPC depicts that it is a gender-specific provision for the protection of women as only a man can commit the offense of rape. The said section deals with the acts which when committed would amount to the offense of rape provided they said acts should fall under the 7 descriptions which are provided in the latter part of the chapter. These seven descriptions deal with the element of “consent”, which is absent or is not communicated by a woman explicitly or through gestures in order to engage in a sexual act, which would amount to rape. This element of consent forms the basic difference in the interpretation of both the provisions. On one hand, there is Section 375 which has dealt with the aspect of “Consent” to a great extent in the 7 descriptions (as has been discussed previously) while on the other hand, Section 377, IPC, does not provide anything of such sort and therefore, tends to apply equally upon the individuals who voluntarily engage into carnal intercourse.

On the contrary, Section 377 is a gender-neutral provision as it uses the word-“Whoever”. The provision quotes as follows-

“Whoever voluntarily has carnal intercourse against the order of nature with any man, woman or animal shall be punished with imprisonment for life or with imprisonment of either description for a term which may extend to ten years, and shall also be liable to fine”.

Further, in this regard, the interpretation of the phrase-“Against the order of nature”, also tends to make a difference between the two provisions. On one hand, Section 375, IPC, clearly provides as to what would amount to sexual intercourse. “Sexual intercourse”, in that case, is in sync with the order of nature, which is not the case with Section 377, IPC. Section 377, IPC, talks about offenses against the order of nature.

In a situation concerning heterosexuals, engaging in voluntary and consensual carnal intercourse, would necessarily not fall within the ambit of rape and hence we are no one to title it as an unnatural offense under the aegis of Section 377. In a similar fashion, voluntary and consensual carnal intercourse amongst the LGBT individuals within their most private and intimate spaces, should not be held as unnatural just because they have a varied sexual orientation.

At last, it can be said that criminalization of consensual carnal intercourse, be it amongst homosexuals, heterosexuals, bi-sexual or Transgender, hardly serves any legitimate public purpose or interest. In this regard, the Supreme Court of India is of an opinion that if Section 377, remains in the statute books in its present form, it would facilitate the exploitation and harassment of the people belonging to the LGBT community.

Conclusions

The Supreme Court of India has justly interpreted Section 377 of the Indian Penal Code, which statutorily penalized the one who engages in carnal intercourse with a man, woman, or an animal against the order of nature. The court has not repealed the entire provision from the statute books but has read down the provision in a manner that only the part of the section which earlier punished an individual even for consensual carnal intercourse (including consensual carnal intercourse between the homosexual adults) has been set aside. Non-consensual penile non-vaginal intercourse between adults and penile-non-vaginal intercourse between minors is still a penal offense.

The Supreme Court of India has kept in mind all the constitutional mandates whereby the dignity of the Golden Triangle of the Constitution (Article 14, 19, and 21) is certainly maintained. The court has rightly upheld the recognition of one’s sexual orientation forming an essential part of an individual’s dignity. The drafters of our constitution would never have intended to foster discrimination amongst the people, which in fact can be inferred from the wording of Article 15 of the constitution itself, which states- “The state should not discriminate amongst people on the basis of caste, creed, religion, sex, etc”. The word “sex” used here, includes one’s sexual orientation, and hence discrimination on these grounds as well, is totally inadmissible.

“Every individual, being an Indian citizen has every right to exercise his rights guaranteed to him by the Indian Constitution, irrespective of what such person’s sexual orientation is”

• [1]National Legal Services Authority v. Union of India and others; (2014) 5 SCC 438 (India).
• [2](2014) 1 SCC 1 (India).
• [3](2009) 111 DRJ 1 (India).
• [4](2017) 10 SCC 1.
• [5]Shakti Vahini v. Union of India and others; (2018) 7 SCC 192, Shafin Jahan v. Ashokan K.M; AIR 2018 SC 1933.
• [6](2009) SCCOnLine Del 1762 (India).
• [7](2014) 1 SCC 1 (India).
• [8]Ibid.
• [9](2008) 3 SCC 1 (India).
• [10]Ibid.
• [11]Ibid.
• [12]Ibid.
• [13]Ibid.
• [14]The chief justice of Andhra Pradesh and others v. L.V.A Dixitulu and others; (1979) 2 SCC 34 (India).
• [15]Saurabh Chaudhary and others v. Union of India and others; (2003) 11 SCC 146.

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