Section 377, Indian Penal Code, 1860 (hereinafter ‘IPC’) was enacted by the British colonial regime to criminalise ‘carnal intercourse against the order of nature’. It was rooted in the Judeo-Christian religious morality that abhorred non-procreative sex.
Section 377, IPC reads as:
“377. Unnatural offences.—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.
Explanation.—Penetration is sufficient to constitute the carnal intercourse necessary to the offence described in this section.”
Lacking precise definition, Section 377 became subject to varied judicial interpretation over the years. Initially covering only anal sex, it later included oral sex and still later, read to cover penile penetration of other artificial orifices like between the thighs or folded palms. The law made consent and age of the person irrelevant by imposing a blanket prohibition on all penile-non-vaginal sexual acts under the vague rubric of ‘unnatural offences’
Though ostensibly applicable to heterosexuals and homosexuals, Section 377 acted as a complete prohibition on the penetrative sexual acts engaged in by homosexual men, thereby criminalising their sexual expression and identity. Besides, the society too identified the proscribed acts with the homosexual men, and the criminalisation had a severe impact on their dignity and self-worth. Section 377 was used as a tool by the police to harass, extort and blackmail homosexual men and prevented them from seeking legal protection from violence; for fear that they would themselves be penalized for sodomy. The stigma and prejudice created and perpetuated a culture of silence around homosexuality and resulted in denial and rejection at home along with discrimination in workplaces and public spaces.
The Naz Foundation (India) Trust, a Delhi-based non-governmental organization and working in the field of HIV prevention amongst homosexuals and other men having sex with men (MSM), realised that Section 377, IPC constituted one of the biggest impediments in access to health services for MSM. MSM remained a hidden population due to fear of prosecution under the law. Through its interactions with clients, Naz Foundation became acutely aware of the disproportionate and invidious impact of Section 377 on homosexuals.
Writ Petition in the High Court of Delhi
Naz Foundation (India) Trust v. Government of NCT of Delhi and Ors. [Writ Petition (Civil) No. 4755 of 2001]
In 2001, Lawyers Collective, on behalf of Naz Foundation (India) Trust, filed a writ petition in Delhi High Court challenging the constitutionality of Section 377 on grounds of violation of right to privacy, dignity and health under Article 21, equal protection of law and non-discrimination under Articles 14 and 15 and freedom of expression under Article 19 of the Constitution. Notice was issued to Union of India in 2002 and the Attorney General was asked to appear. The Ministry of Home Affairs filed an affidavit opposing the petition in September, 2003. The petition was dismissed by the High Court on 02.09.2004 for lack of cause of action as no prosecution was pending against the petitioner.
The Petitioner filed a review petition (RP 384/2004) in the High Court against the order of dismissal but that too was dismissed on 03.11.2004. Aggrieved by the same, the Petitioner filed a Special Leave to Appeal (C.N. 7217-18/2005) in the Supreme Court of India in 2005. On 03.02.2006, the Supreme Court passed an order holding that “the matter does require consideration and is not of a nature which could have been dismissed on the ground afore-stated”. Remitting the matter back to the High Court of Delhi to be decided on merits, the Supreme Court set aside the said order of the High Court. Subsequently, the Ministry of Health and Family Welfare through National AIDS Control Organisation (NACO) submitted an affidavit in support of the petition in the High Court contending that Section 377 acted as an impediment to HIV prevention efforts in July, 2006.
Thereafter, the final arguments in the matter ensued in November, 2008 before the division bench of Chief Justice of Delhi High Court A.P. Shah and Justice S. Muralidhar.
On 02.07.2009, the Delhi High Court passed a landmark judgment holding Section 377 to be violative of Articles 21, 14 and 15 of the Constitution, insofar as it criminalised consensual sexual acts of adults in private. Read the judgment here
Appeal Proceedings in the Supreme Court of India
Suresh Kumar Koushal & Ors. v. Naz Foundation (India ) Trust & Ors.[Special Leave Petition (Civil) No. 15436 of 2009]
Following the High Court decision, 15 Special Leave Petitions (SLPs) were filed in the Supreme Court appealing against the said decision on behalf of mostly faith-based and religious groups from all parts of India. 7 intervention applications (I.A.s) were also filed; out of which, 5 I.A.s were in support of the High Court judgment while 2 I.A.s were against the decision. Importantly, the Union of India did not appeal against the judgment and the Supreme Court too did not grant a stay on the operation of the same. In February, 2012, final arguments began in this matter before the division bench of Justice G.S. Singhvi and Justice S.J. Mukhopadhyay and continued till the end of March, 2012. Mr. Anand Grover, Senior Advocate and Director, Lawyers Collective argued on behalf of Naz Foundation (India) Trust and defended the Delhi High Court decision. The judgment is currently awaited.
Please find the following documents below:
Written Submissions on behalf of Naz Foundation (India) Trust in the Supreme Court
Record of Proceedings in the Supreme Court of India