Justice AP Shah's Speech On Homosexuality

S 377: From Hostility and Hatred to Courage and Freedom
Ninth Tarkunde Memorial Lecture

Delivered by Justice (Retd) AP Shah
12 December 2015
A. Introduction
1. Good evening everyone. It is a privilege and an honour to be
here to deliver the ninth Tarkunde Memorial lecture today.
2. Justice Tarkunde had retired from the Bombay High Court
much before I entered practice, but I did get to meet him once,
when he was felicitated by the High Court for having received
the Padma Bhushan. I was already familiar with his writings,
from when I was a student. My uncle, late Shri Vilas Shah, was a
Royist, who subscribed to the Radical Humanist, which in those
times, was edited by Justice Tarkunde. Soon after I started
practice, Emergency was declared. In those darkest days of
Indian democracy, Justice Tarkunde shone like a beacon,
supporting individual freedom. When practically the entire
intellectual class seemed to have lost the capability of
independent and critical thought, he organised meetings,
seminars, and workshops anything that could keep the flame
of democracy alive, in the face of a wave of censorship and
restraints on the freedom of speech.1
3. Justice Tarkunde is, perhaps, best remembered for having
continued the legacy of the political thinker MN Roy, in
particular, his philosophical and ideological movement,
Radical Humanism.
4. Roys humanism focused on values of dignity, individual
choice, freedom, rationalism, secular morality, and openness.
He insisted that these were ever-evolving, fluid, and would
change with new additions to human knowledge.2 This same
understanding underpins my speech today.

12 December 2015
5. This focus on individuality and freedom is finely articulated by

the legal and moral philosopher Joseph Raz, who said, The
ideal of personal autonomy is the vision of people controlling, to
some degree, their own destiny, fashioning it through successive
decisions
throughout
their
lives.3
Much
of
the
Indian
Constitution, too, can be viewed as a means to achieve the goal

of restoring to an individual a control over his own life and
destiny. Decades after the Indian Constitution was put in
place, we still struggle to guarantee these ideals to individuals.
The constitutional idea of India still remains a distant dream
for many, whether they are the untouchables, persecuted for
millennia; the disabled; menial workers; or the subaltern,
who live traumatised existences even now.4
6. Today, I speak to you on behalf of the Lesbian, Gay, Bisexual,
Transgender and Queer, or the LGBTQ, community, who have
been, for many decades, stigmatised and persecuted in India.
The rights of sexual minorities, whom the Supreme Court
trivially called a miniscule fraction of Indias population,
came to the forefront through a public interest litigation filed in
the Delhi High Court by the Naz Foundation. Just to highlight
how miniscule this minority is, there are studies that estimate
that in any given population, the conservative number of
LGBTQ persons is about 2 percent.5 If you extrapolate this to
Indias population, and put this in perspective, this is greater
than the number of Sikhs, Buddhists, Jains or Parsis in India,
and about 0.3 percent less than Christians here.6 How do you
decide who is part of a miniscule minority that is worthy of
being protected? In any event, the Naz case raised complex
questions of law, religion, morality, health, dignity, and culture

12 December 2015
which were discussed at length, and in different measure, by

my brother Judge S. Muralidhar and myself at the first
instance,7 and by the Supreme Court subsequently.8
7. The case concerned a 150 year-old provision (Section 377 of
the Indian Penal Code) that criminalizes carnal intercourse
against the order of nature.9 This provision criminalizes even
consensual sexual acts between adults in private, and imposes
a punishment of imprisonment for life or imprisonment which
may extend to 10 years and fine. The exact objective of this
provision remains unclear and unsubstantiated. It was
probably introduced in British India with a presumption of a
shared Biblical morality. Historians speculate that there were
concerns that not having wives would encourage the Imperial
Army to become replicas of Sodom and Gomorrah or to pick
up special Oriental vices.10 (Sodom and Gomorrah are
referred to as cities of homosexual sin in the Bible, the Torah
and the Quran. The word sodomy is derived from the name
of Sodom.) While the law seems neutral on the face of it, in
practice, it has been used almost exclusively against
homosexuals and other sexual minorities. It is commonly used
as a tool to threaten and harass LGBTQ persons. This provision
was challenged on constitutional grounds, and posed some
very stark questions to us at the Delhi High Court Why should
someones dignity and ability be judged by his or her sexual
preference? Why should someones fundamental life choices
be conditioned by other peoples prejudice, ignorance and
stigmatization? Why should public health be compromised by
an archaic and pedantic notion of public morality? And why

12 December 2015
should a sizeable population of Indians be deemed criminals in

the eyes of the law, simply for accepting who they are?
8. The High Court decision in Naz decriminalized consensual
sexual acts and highlighted the issues faced by sexual
minorities. Section 377 was read down, and was deemed
unconstitutional insofar as it criminalised consensual sexual
acts between adults in private. The judgement generated much
literature and debate, and therefore, I will not dwell upon the
decision itself. Instead, I will focus on some nuances that help
better understand the complex issues that arose in the Naz case
and its aftermath.
9. To my own disappointment, and to the disappointment of
many, the Supreme Court took a contrary view, and reversed
our decision when the case came up in appeal in Suresh Kumar
Koushal and another v. Naz Foundation and others.11
10.That Supreme Court judgement is now being re-examined in a
curative petition, and closure on the issue is awaited.
Subsequent developments may also influence the Court,
notably, its own 2014 decision in NALSA v. Union of India12 on
the rights of transgenders. In that case, the Court affirmed that
transgenders had the right to self-identification of their gender
as male, female or third gender, as part of their fundamental
rights. Most significantly, the Court declared that no one could
be discriminated on grounds of sexual orientation. In effect,
it accepted and reaffirmed the logic of the judgement in Naz.
(Incidentally, NALSA was a landmark progressive decision not
just in India, but for much of the world as well. Most of Europe,
for instance, is only slowly beginning to recognise the third

12 December 2015
gender as an identity option in official documents. Germany

introduced it only in 2013.)
11. Other developments are also relevant. Before the NALSA
judgement, the 2013 report of the Justice Verma Committee on
criminal law amendments affirmatively noted that the right to
equality in the Constitution used the word sex as including
sexual orientation. It said that:
if human rights of freedom mean anything, India cannot
deny the citizens the right to be different. The state must
not use oppressive and repressive labeling of despised
sexuality. Thus the right to sexual orientation is a human
right guaranteed by the fundamental principles of
equality.Our
constitutional
cultural
principles
prejudices
of
equality,
must
yield
empathy
to
and
respect.13
12.More recently, in June 2015, the US Supreme Court in
Obergefell v. Hodges14 declared same-sex marriage to be legal
throughout that country. It held that denying marriage licenses
to same-sex couples and refusing to recognize marriages
performed in other States (jurisdictions) would violate the US
Constitution. That decision was not about decriminalisation, but
it does have some bearing on my comments today.
13.Let me clarify that I speak of these issues before you not
because I delivered the Naz judgement. This is not a defence of
that judgement. In a hierarchical judicial system, decisions are
inevitably reversed. Here, though, larger issues are involved.
Our Constitutional ideals of equality, dignity, and freedom
must translate into practice. To borrow words from Professor
5

12 December 2015
Upendra Baxi, when stigma that is created and perpetuated by

popular sanction is further reinforced by legal sanction, it
destroys the lives of many individuals. Worse though, are the
ensuing repercussions, which, over decades, and even
centuries, create entire communities of discriminated and
disadvantaged people.15 We cannot allow prejudice and
discrimination to continue in perpetuity. I am here to speak
against these wrongs, and for and on behalf of these people.
14.I begin with a short introduction to the origins of the
criminalisation of homosexuality, how it came into India, and
how the world elsewhere has dealt with it. I briefly discuss the
Naz judgement, the context in which it came before the Delhi
High Court, its separation of constitutional morality from public
morality, and its influence on public debate. I then offer my
views on the Supreme Courts judgement in Koushal. I focus
especially on how Koushal demonstrates that the judiciary must
play a counter-majoritarian role and protect minority rights.
Finally, I conclude with my views on the ways in which the
rights of the LGBTQ community can change in India, through
actions by the Legislature as well as the Judiciary.
B. Origins of the criminalisation of homosexuality
15.For millennia, it was believed that humans were born to desire
sexual and emotional relations only with the opposite sex; and
that this was the will of God or of nature. Anyone not
conforming to this norm was perverse, unnatural and a sinner.
The Abrahamic religions of Judaism, Christianity and Islam,
traditionally forbade sodomy, believing it to be sinful. English
law was thus, deeply influenced by these beliefs.16

12 December 2015
16.In contrast, religions emerging from the Indian subcontinent,

such as Hinduism and Buddhism, had a less polarised view on
homosexuality. Arguably, their understanding of gender and
identity is much more variable and fluid. Temple imagery,
sacred and mythical narrative, and religious scriptures suggest
that homosexual activities existed in ancient India in some form
or other. Clear depictions of homosexuality can be found in the
Khajuraho and Konark temples. The Kamasutra also discusses
homosexual acts. References prevail in later centuries as well.
A 17th century poem titled Haqiqat al-Fuqura describes the
love of two men, one Hindu and the other Muslim, namely
Hussayn and Madho.17
17.Historians offer a more structured perspective on the change in
societal perceptions of homosexuality over centuries. British
archaeologist and paleolinguist Colin Renfrew suggests that in
earlier mythic times, when religion took centrestage,
homosexuality was regarded as a sin, moral degradation and
vice. This changed with industrialisation, and the idea of the
nation State. The economy needed future citizens, soldiers and
workers. Homosexuals defied the biological imperative to
procreate and did not, it was believed, contribute to the
growth of the nation-State. Hence, they were subjected to
criminalisation and punishment. With early experiments in
psychology, homosexuality was seen as a mental illness or
disease. None of these were mutually exclusive phases each
overlapped with and influenced the other.18 Today, in many
parts of the world, societys views appear to have reached a
rational end, and homosexuality is now regarded as nothing
more than one of many variations in human nature. 19

12 December 2015
18.The English law criminalising homosexuality was imported to

India. This model, codifying such religious morality, was also
transported to various other colonies of the British Empire.
19.In stark contrast, Frances sodomy offence, which had existed
since the middle ages, was omitted when Napoleon ordered its
Penal Code to be rewritten in 1810. And nations influenced by
French law also omitted the offence from their respective laws,
including Holland, Belgium, Spain, Portugal, Scandinavia,
Germany and Russia, and later, even Japan and China.
C. The Naz judgement
I. When Naz came to the Delhi High Court
20.When Naz came up before the Delhi High Court, global
attitudes towards the criminalisation of homosexuality were
completely different from 1860, when the law was enacted.
21.In the United Kingdom itself, for example, the 1957 Report of
the Departmental Committee on Homosexual Offences and
Prostitution
(better
known
as
the
Wolfenden
report),
recommended, that homosexual behaviour between consenting

adults in private should no longer be a criminal offence. A
decade later, England passed the Sexual Offences Act 1967, to
replace the previous law on sodomy.20 The Wolfenden report
had been prompted by the arrests of a few high-profile
homosexuals in the UK, You will also recall the recent apology
by the British monarch for the persecution of another
homosexual, Alan Turing, the famous mathematician and
cryptographer, who was recently profiled in the film, The
Imitation Game.

12 December 2015
22.Thereafter, laws criminalising homosexuality were repealed in

approximately two-thirds of countries globally. This included
all of Europe and most of the Commonwealth, notably Canada
and New Zealand. Constitutional court decisions in Nepal, Fiji
and Hong Kong decriminalised homosexuality. In South Africa,
too, crimes of sodomy and commission of an unnatural sexual
act were declared unconstitutional, in National Coalition for
Gay and Lesbian Equality v. Minister of Justice,21 which applied
retroactively to acts committed since the country adopted its
Interim Constitution in 1994. The US Supreme Court, by a fivejudge majority in Lawrence v. Texas,22 struck down the sodomy
law in Texas, and invalidated sodomy laws in the 13 remaining
states, effectively making same-sex sexual activity legal
nationwide. The European Court of Human Rights ruled23 that
the UK law criminalising male homosexual acts violated the
European Convention on Human Rights, setting a precedent
that led to the Council of Europe requiring that no member
state could criminalise male or female homosexual behaviour.
23.As far back as 1990, the World Health Organization announced
that homosexuality was not a mental disorder.24 Presidents of
the
World
Psychiatrists
Association
and
the
World
Organization of Family Doctors have been openly homosexual.

The medical case for homosexuality is universally demolished.
In law and society, too, the time has come to do the same.
24.In India, however, policymakers make themselves believe that
homosexuality was a Western import with no real roots in
India, as Siddharth Dube points out in his book, No One Else: A
Personal History of Outlawed Love and Sex. Dube writes that, in
the late 1980s and early 1990s, most policymakers did not
9

12 December 2015
believe homosexuality existed here, asserting instead that

India had no homosexuals, or very few of them. In 1989, the
head of the Indian Council of Medical Research reportedly
insisted that homosexuality did not exist in India because it was
banned and entailed a serious criminal penalty.25 It is shocking
to think that qualified persons, with full access to latest
developments in medical science, training and understanding
in socio-legal history, would believe that homosexuality did not
exist.
25.Naz came up before Justice Muralidhar and myself in this
backdrop of domestic and international developments. The
government of India itself took contradictory positions. The
Ministry of Health and Family Affairs argued that Section 377
was unconstitutional as criminalization drove homosexuals
underground and hampered the Governments HIV/AIDS
programme. But the Ministry of Home Affairs supported Section
377 on grounds of public morality. It argued that Indian society
was yet to demonstrate readiness or willingness for greater
tolerance to homosexual practices, and the law could not run
separately from society since it only reflected societys
perceptions. It also argued that any challenge to Section 377
would be misconstrued as unfettered license for immoral
activities and would open floodgates of delinquent behaviour.
II. Naz and Constitutional Morality
26.The courts answer to the Home Ministrys argument for
retaining section 377 lay in understanding the distinction
between public and constitutional morality.26
10

12 December 2015
27.Public morality reflects moral and normative values of the

majority population. In contrast, constitutional morality
derives from fundamental values of the Constitution, on the
basis of which Judges must test the legitimacy of a moral law.
Constitutional morality not only reflects majority values, but
also shapes and changes them through social engineering.27
28.Why do we need constitutional morality? A modern democracy
rests on twin principles: majority rule and the need to protect
fundamental rights. Fundamental rights are inalienable, and
transcend challenge or limitation. These rights identify
subjects, withdraw them from political controversy, place them
beyond the reach of majorities, and establish them as legal
principles to be applied by courts equally for everyone.28 The
judiciary ensures that a majority Government does not
override the fundamental rights. While law may derive from
majoritarian moral beliefs, constitutional guarantees lose
significance if they are given majoritarian interpretations.
29.Take untouchability, for example. A class of persons was
discriminated against, denied equal treatment, and deprived
of various freedoms for centures, in the name of religious
sanction, merely because of their caste. The Constitution
changed this by prohibiting untouchability. The Delhi High
Court used this to rule that Section 377, though (theoretically)
reflecting public morality, was against constitutional morality,
and thus not immune from judicial review.
30.This discussion on a constitutional morality that is secular,
respects human dignity, and recognises the autonomy of free
will and the freedom of choice and action, is especially
relevant today. We mark today, among other things, Justice
11

12 December 2015
Tarkundes humanism, which celebrated precisely these same

values of secular morality, dignity and individual freedoms.
31.As a final reference from Naz, I refer to a single paragraph,
which I believe captures the essence of the judgement and the
spirit in which it was delivered:
If there is one constitutional tenet that can be said to be an
underlying theme of the Indian Constitution, it is that of
inclusiveness. This court believes that Indian Constitution
reflects this value deeply engrained in the Indian society,
nurtured over several generations. The inclusiveness that
Indian society traditionally displayed, literally in every
aspect of life, is manifest in recognising the role in society
for everyone. Those perceived by the majority as deviants
or different are not on that score excluded or ostracised.
Where
society
can
display
inclusiveness
and
understanding, such persons can be assured of a life of

dignity and non-discrimination. 29
32.What happened after Naz was particularly remarkable, for it
marked a turning point in public life. When the judgment was
pronounced in open court on 2 July 2009, many present there
broke down and wept. LGBTQ groups later held collective
readings of the judgment to assure themselves that they were
now legal persons who could finally demand to be treated as
non-criminal and full human beings as their fellow citizens.
The decision itself shaped public opinion nationwide on
homosexuality. Naz led to an unprecedented 'coming out' of
LGBTQ persons, in many cases, with strong family and parental
support. In Kaushal, parents themselves filed an intervention,
represented by Senior Advocate Fali Nariman. Another visible
12

12 December 2015
change is how the middle class has stopped joking about

homosexuals. In many personal narratives written after Naz,
homosexuals acknowledge having found the space to express
themselves without fear of ridicule or ostracization. Gay pride
parades now take place regularly all over, most recently last
month. The Delhi High Court judgment started an important
conversation in this country, one that is spiritedly continuing
today, and that is compelling a move away from the language
of homophobia, towards a vocabulary of choice, personal
autonomy, the fundamental right to love,30 and greater
sensitivity towards the variability of the human kind.31 In the
words of my friend Justice Michael Kirby, A minority that, until
recently, was hated, excoriated and penalised is now asserting
itself and demanding equal rights in the law, as in society. 32
D. The Koushal judgment
I. The counter-majoritarian role of the Judiciary
33.The Naz judgment was challenged almost immediately, with
various parties and intervenors approaching the Supreme
Court. Unfortunately, in its December 2013 decision in Koushal,
the Supreme Court overturned Naz, returning section 377 to the
Legislature, observing that Parliament was free to legislatively
repeal the provision. It merely pronounced on the correctness
of the view taken by the Delhi High Court on the constitutionality
of section 377.33
34.Such a view misunderstands the counter-majoritarian role of
the Court in protecting the interests of discrete and insular
minorities.
democracy
derives
its
legitimacy
from
representing the will of the majority. However, this comes at a

13

12 December 2015
cost, which is especially borne by certain minority groups

those that are unpopular or victims of deep prejudice and are
unable to influence the Legislature in any way. As a result,
such groups remain excluded from the everyday exchanges
and compromises of democratic politics, which tend to
prioritise political expediency over the protection of rights.
Here, too, with no political expediency to act, Parliament has
not even tried to repeal the Victorian-era section 377, leaving
the LGBTQ community as fringe a group today as it was in
1947, when India became independent.
35.When there is no attempt at, or possibility of, legislative
solution, the responsibility shifts to the judiciary, which must
step in to safeguard rights of discriminated minorities. In fact,
this power to protect minorities from the tyranny of the
majority is the basis of judicial review powers that allow Courts
to strike down laws for violating the Constitution. Historically,
our Supreme Court has fulfilled this task with aplomb, through
its Public Interest Litigation jurisprudence. Over the years, PILs
have protected undertrial prisoners, bonded labourers and
inmates of mental institutions.
More recently, the NALSA
decision protected interests of transgendered persons as well.

36.But with Koushal, the Court turned away from decades of its
own history. Instead of a progressive, rights-enhancing
decision, the Court exercised judicial restraint and relied on
the presumption of constitutionality. This came as a particular
surprise, since the Union of India did not itself file an appeal
against Naz. In fact, the government submitted that there was
no error in the High Court order, although the Supreme Court
could take a look at it.
14

12 December 2015
37.Parliament will always be competent to repeal section 377, but

this was not reason enough to prevent the Court from taking a
different stance in Koushal. In fact, Justice Kennedy, in his
majority opinion in the 2015 US Supreme Court gay marriage
ruling,34 adopted precisely this stance, where he said:
The dynamic of our constitutional system is that
individuals need not await legislative action before
asserting a fundamental right. The Nations courts are open
to injured individuals who come to them to vindicate their
own direct, personal stake in our basic charter. An
individual can invoke a right to constitutional protection
when he or she is harmed, even if the broader public
disagrees and even if the legislature refuses to act.
In India, the situation was the same. Individuals guaranteed
constitutional protections were being harmed. The broader
public disagreed. The Legislature had refused to act. Who else
was left to ensure that no harm was done, but the judiciary?
II. Excessive deference to colonial law
38.The Supreme Courts reluctance to review section 377 is
perhaps explained by the Courts deference to colonial law,
and the Victorian values they enshrine.
39.But as Lord Lester has said, The IPC was not Indian; nor was it a
gift from God. It has no divine sanctity. It was the handiwork of
the English Utilitarians, inspired by Jeremy Bentham.35 Thus,
this deference to colonial-era law, even when it runs contrary
to our Constitutional values, and our fundamental rights, seems
incongruous. Recall that a mere 10 years after Indias
independence, the Wolfendon Report in the UK recommended
15

12 December 2015
the decriminalisation of homosexuality, and the law to that

effect was finally passed in 1967. So within 20 years of Indian
independence, the British, who had brought this law to India,
had reversed their stance on homosexuality. But here, nearly
70 years on, we still have this law hanging on our heads.
40.Unfortunately, the Supreme Court neither engaged with the
change in English law, nor with changing social mores
globally. In fact, it even sidestepped Indias international
obligations under treaties such as the Universal Declaration of
Human Rights.
Instead, the Courts views suggest that the
legitimacy of a law is unquestionable, regardless of its origins

in an imposed foreign morality or contrary evidence, scientific
or otherwise. In fact, the High Courts extensive consideration
of international developments were brushed aside by the
Supreme Court with the solitary statement that, Though these
judgments shed considerable light on various aspects of this right
and are informative in relation to the plight of sexual minorities,
we feel that they cannot be applied blindfolded for deciding the
constitutionality of the law enacted by the Indian legislature.36
41.In contrast, no such deference to legislative wisdom was shown
in the recent judgement on the National Judicial Appointments
Commission,37 even as Parliament and many state legislatures
had voted in the constitutional amendment and the Act.
III. Undue (and incorrect) focus on non-prosecution
42.In arriving at its conclusions, the Supreme Court chose to be
guided by the low persecution rate under section 377, noting
that the High Court had overlooked that a miniscule fraction of
16

12 December 2015
the countrys population38 constitute LGBTs and only 200 had

been prosecuted over the years as per reported orders.
43.In the US, Justice Powell took a similar view in his majority
decision
in
Bowers
v.
Hardwick,39
upholding
the
constitutionality of a state sodomy law on grounds that the law

was unenforced. The US Supreme Court in Lawrence v Texas
finally overturned this, and decriminalised homosexuality as
well. Justice Powell later admitted that he probably made a
mistake in that one.40
44.Justice Richard Posner argues similarly, that because sodomy
laws are unenforced, no real damage is inflicted, and,
consequently, there is no urgency in eliminating such
legislations.41 This assessment of sodomy laws, though, is
deceptively simple and false. Merely because no one is
arrested or jailed does not mean that no one is affected.
45.Anti-sodomy laws like section 377 have three direct effects.
They damage the psychological well-being of the LGBTQ
community; encourage anti-gay violence and discrimination;
and facilitate harassment, blackmail and exploitation by police,
as well as society at large. Considerable harm gets done even
with no enforcement. Section 377, thus, not only raises the
possibility of actual prosecution, but also the fear of prosecution
and persecution. In turn, this causes a chilling effect, for
instance, a hesitation in coming out as openly gay or lesbian. In
his book, Dube writes that homophobia made many of his
peers turn to alcohol, and some even committed suicide.42
There is also the tragic story of Professor Shriniwas
Ramachandra Siras, who was sacked from his position of
Reader and Chair of Modern Indian Languages at the Aligarh
17

12 December 2015
Muslim University on charges of homosexuality, and eventually

died an unnatural death. Justice Lokur in his recent opinion in
the NJAC decision,43 also spoke of how the present political
executive would not permit the appointment of a gay judge.
46.Thus, even without enforcement, sexual minorities are reduced
to so-called un-apprehended felons. Besides this, the law
legitimises and encourages blackmail, police entrapment,
violence, queer bashing, and peripheral discrimination, such
as denial of accommodation and opportunities.
47.The Supreme Court, in Koushal, seems to have ignored all of
this socio-political history, unwarranted and unprovoked
cultural prejudice, and criminal jurisprudence. Instead, its
judgement was based on a reductionist observation of the
Respondent having miserably failed to furnish the particulars of
the incidents of discriminatory attitude exhibited by the State
agencies towards sexual minorities.44
IV. Inconsistency with Constitution and fundamental rights
48.While deferring to English law and focussing on the low
incidence of prosecution, the Supreme Court did not, at any
stage, even attempt to engage with the Delhi High Courts
discussion on constitutional morality. It thus missed the most
important part of the analysis that is, that section 377 does not
withstand constitutional scrutiny.
49.For instance, Koushal does not deal with the fundamental right
to equality and the prohibition of discrimination on grounds of
religion, race, caste, sex or place of birth. The High Court had
interpreted the term sex to include sexual orientation, but
the Supreme Court summarily dismissed this.
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12 December 2015
50.This position is now in complete contrast with a later ruling of

the Supreme Court, in NALSA v Union of India, recognising
transsexuals as a third gender. At its heart, the later judgement
accepted that the non-recognition of Hijras/transgender
persons denies them equal protection of law thereby leaving
them extremely vulnerable to harassment, violence and sexual
assault.45 Contrary to Koushal, the Court interpreted sex to
include gender identity to establish a violation of the right to
equality. It also extended freedom of speech and expression to
encompass values of privacy, self-identity, autonomy and
personal integrity. In essence, NALSA said that even if a law
were neutral on the face of it, it could still be unconstitutional if
it had disparate impact and discriminatory intent.
51.In Koushal, in language verging on derision, the same Court
had referred to the so-called rights of LGBT persons.
46
One
wonders if the Court grasped that principles of dignity,

inclusiveness and equality, consistent with constitutional
ideals, would also be applicable to this miniscule minority.
52.With a single stroke of a pen, the Supreme Court criminalised
the very existence of an entire class of people, who are now
condemned to live in the shadow of the law, in fear, and in
oppression, and who are told that their idea and expression of
love is against the very order of nature.
53.It is hard to think about Koushal without thinking about recent
developments in the United States, whether it is the striking
down of the Defence of Marriage Act47 or the gay marriage
ruling, leading to many, including President Obama, using the
social media hashtag #lovewins to convey their support.
People on social media added a rainbow filter to their profile
19

12 December 2015
pictures to celebrate the Obergefell decision. Gay rights are

also a part of the Hillary Clinton election campaign, and theres
a very powerful video on this that is up on YouTube, which I
would recommend you watch.48 In this context, it is apt to quote
Justice Leila Seth, who, after the Koushal decision, said:
What makes life meaningful is love. The right that makes
us human is the right to love. To criminalize the expression
of that right is profoundly cruel and inhumane. To
acquiesce
in
such
criminalization
or,
worse,
to
recriminalize it is to display the very opposite of

compassion. To show exaggerated deference to a
majoritarian Parliament when the matter is one of
fundamental rights is to display judicial pusillanimity, for
there is no doubt that in the constitutional scheme it is the
judiciary that is the ultimate interpreter.49
E. The way ahead
54.One thing is clear. Unless section 377 is repealed or struck
down, there is no hope for a change in the lives of LGBTQ
persons. Until then, they will continue to survive under threats
of violence, blackmail, arrest, ostracism and persecution
generally. And until then, having a personal life of any kind, in
the present circumstances in India, will remain outside the
realm of possibility for them.
55.Section 377 acts as a gateway for many more changes that need
to be made in the rights of sexual minorities. Many countries
have changed laws or set precedent to ensure that the stigma
against
LGBTQ
persons
is
removed,
and
that
non-
discrimination and fair treatment are truly available to all. This

20

12 December 2015
has taken place in at least three ways in recent decades in

different parts of the world.
56.The first way has been to provide for this in the constitution
itself. For example, for the first time in history, South Africas
post-apartheid constitution was drafted to expressly forbid
discrimination on the grounds of sexual orientation. It is
interesting to note that Mandela, under whose watch the
Constitution was drafted, was not pro-gay rights to begin with.
He was convinced that gay rights are the same as human rights
and no discrimination could be acceptable, by the younger
leadership of the ANC. Another anecdote is that when a lesbian
couple in South Africa, after being informally married, were
taken to the police station by their families, the station chief
pointed to a portrait of Mandela, and basically said, if he
doesnt have a problem, why do you?50 Other countries have
taken inspiration, and done the same in their constitutions,
such as Fiji, Ecuador, and Bolivia.
57.The second way has been by reading fundamental protections
expansively. By 1989, the Supreme Court of Canada had
established the principle that their Constitution did not provide
exhaustive grounds of discrimination, but that grounds
analogous to those enumerated were also covered.51 In the
1995 case of Egan v. Canada,52 the Court extended the
analogous grounds doctrine to LGBT persons as well. The
Indian Supreme Court accepted this doctrine in its NALSA
judgement, powerfully concluding that discrimination on the
basis of sexual orientation or gender identity includes any
discrimination, exclusion, restriction or preference, which has the
effect of nullifying or transposing equality by the law or the equal
21

12 December 2015
protection of laws guaranteed under our Constitution.53

International courts have similarly expansively read provisions
dealing with protections, as for example, the European Court
of Human Rights did in Dudgeon v UK,54 and the UN Human
Rights Committee did in Toonen v Australia.55
58.The third way has been by passing or amending national laws
that explicitly prohibit discrimination against LGBT persons.
Examples of this abound, notably in the United Kingdom,
Australia and New Zealand. The UKs Equality Act, 2010,
includes sexual orientation and gender reassignment as
protected characteristics, and the law applies to areas as
diverse as employment, pension benefits and education.
59.Wherever basic rights of LGBT persons have become
entrenched and recognised, jurisdictions have moved on to
explore the many other ways in which such persons can be
mainstreamed
into
society.
After
recognising
same-sex
relationships, the next step has been to recognise formal civil

unions or partnerships between same-sex individuals, leading
eventually to the recognition of marriage.
60.The underlying principle is not to provide any kind of special
status to any group of persons. Rather, it is to acknowledge that
social institutions like marriage, child rearing, and family life
are neutral to sexual orientation or gender identity.
61.The 2015 US Supreme Court decision in Obergefell v. Hodges56
is relevant here. This case came about because laws in four
States in the US defined marriage to be only a union between a
man and a woman. The petition clubbed the cases of 14 samesex couples, and two men whose same-sex partners had died.
22

12 December 2015
The Court concluded that the fundamental constitutional right

to marry is guaranteed even to same-sex couples. By doing so,
the Court overturned a long-standing 1971 decision, which had
held to the contrary. This case effectively legalized same-sex
marriage throughout the United States.
62.While bringing sexual minorities into the mainstream, a host of
misconceptions
also
need
to
be
changed,
particularly
regarding linkages between homosexuality and the spread of

HIV/AIDS. Contrary to what some believe, sexual minorities
are at the greatest risk of HIV/AIDS precisely because the
stigma, discrimination and criminalisation they face act as
major barriers to access HIV prevention, treatment, care and
support. Even the UN General Assembly has endorsed this
view. Our role is to move towards reversing this risk.
63.This brings us to the present state of events in India. The
political climate is not as averse to the idea of change as many
would think. When Naz came about, Mr Veerappa Moily, then
law minister in the UPA government, favoured scrapping
section 377, although he later called for consensus on the issue.
64.As recently as November 2015, key representatives of the two
major political parties in India Mr Arun Jaitley of the BJP and
Mr P Chidambaram of the Congress publicly criticised the
Supreme Courts Koushal decision, and said that laws
criminalising homosexuality need to be rethought.57 Mr Jaitley
went on to admit that the greatest problem for enforcing rights
of transgenders was section 377 itself. Indeed, the Congress,
the Left, and AAP have taken a clear stand against section 377.
But to what extent are the political parties as a whole, and not
merely through individual personalities, prepared to bite the
23

12 December 2015
bullet, and truly embrace inclusiveness and fraternity as being

the guiding spirits of the Constitution?
65.Significantly, Mr Jaitley in his recent comments drew parallels
with the ADM Jabalpur case.58 In that case, as here too, the
Supreme Court had failed the people by ruling that
fundamental rights of citizens could be suspended during
Emergency. Decades later, in 2010, in an unrelated decision,
Justice Ganguly of the Supreme Court apologised for the ADM
Jabalpur judgement. He said that the earlier decision, which
violated the human rights of citizens, was rare, but was based
on an erroneous perception of facts and law.59 Recall that the
Supreme Court took up Koushal in response to religious groups
attacking the Naz judgement as being contrary to Indian moral
and religious values. Today, the very same Supreme Court has
the opportunity to correct the mistake it made in Koushal and
redeem its glorious status as the protector of fundamental
rights, by asserting that when it comes to the dignity of the
individual and the fraternity, both of which appear in the
Preamble to our Constitution, constitutional morality should
trump religious and social morality.
66.A few weeks ago, Prime Minister Narendra Modi had occasion
to say that transgenders have been treated unjustly in India,
and that the government needed to change its outlook
including through changes to its law and regulations.60
67.Everything returns to, and turns on, section 377. It cannot be a
never-ending game of toss-and-catch between the Legislature
and the Judiciary. Someone must take up the gauntlet. A
private members bill on decriminalising homosexuality has
been tabled in Parliament by Mr Shashi Tharoor.61 The
24

12 December 2015
Supreme Court has an opportunity to reconsider its 2013

judgment when it takes up curative petitions to examine legal
infirmities in its earlier verdict. Both the Legislature and the
Judiciary need to act independently, but act now they must.
68.More than 150 years after the British left behind this regressive
legal provision; after most of Europe, America and even our
neighbour Nepal have embraced the idea of homosexuality;
and after even our own Supreme Court has protected the rights
of transgendered persons, surely, the time has come to
recognise the validity of same-sex love. Let us be on the right
side of history for this one.
69.But remember that the battle to safeguard the rights of LGBTQ
persons will not be won simply by political or judicial action
removing section 377. The battle will finally be won when
everyone in India, whether in big cities or small towns, in
police chowkis or hospitals, will truly believe that LGBTQ
persons are no different; that they have the same capacity to
love, build long lasting relationships, and be good parents, as
everyone else. While you and I may not be able to remove
section 377 from the statute books, we can certainly help by
spreading awareness, by talking about the issue, and by
treating
LGBTQ
persons
with
equal
kindness
and
consideration. Changing public notions around homosexuality

may well eventually lead to a change in the law.
70.In conclusion, I believe a couplet from the great Persian mystic
poet Hafiz of Shiraz captures succinctly what I have been trying
to say all evening: Every foundation that you see is defective.
Except the foundation of love, which is without defect.
25

12 December 2015
1 Iqbal Chagla, A Renaissance Man, VM TARKUNDE AT 90 : A RESTLESS CRUSADER FOR HUMAN FREEDOMS
35-36 (MA Rane ed., 1999)

2 VM TARKUNDE, RADICAL HUMANSIM: THE PHILOSOPHY OF FREEDOM AND DEMOCRACY, Section 1, Chapter
1, as cited in VM TARKUNDE AT 90 : A RESTLESS CRUSADER FOR HUMAN FREEDOMS 89-91 (MA Rane ed.,
1999)
3 J RAZ, THE MORALITY OF FREEDOM 369 (1986).
4 Upendra Baxi, Dignity In and With Naz, in LAW LIKE LOVE: QUEER PERSPECTIVES ON LAW 231
(Arvind Narrain & Alok Gupta eds., 2011)
5 THE TIMES OF INDIA, Gay count varies from 2% to 13% of population, July 3 (2009), available at
http://timesofindia.indiatimes.com/india/Gay-count-varies-from-2-to-13-ofpopulation/articleshow/4731097.cms (last visited December 11, 2015)
6 See, FIRSTPOST, India has 79.8% Hindus, 14.2% Muslims, says 2011 census data on religion, August
26 (2015), available at http://www.firstpost.com/india/india-has-79-8-percent-hindus-14-2percent-muslims-2011-census-data-on-religion-2407708.html (last visited December 11, 2015)
7 Naz Foundation v. Government of NCT 160 (2009) DLT 277
8 Suresh Kumar Koushal and another vs Naz Foundation and others, Civil Appeal No 10972 of 2013
(Supreme Court) (order passed on December 11, 2013)
9 Section 377, Indian Penal Code, 1860 which provides
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.
10 SUPARNA BHASKARAN, The Politics of Penetration: Section 377 of the Indian Penal Code in
QUEERING INDIA : SAME-SEX LOVE AND EROTICISM IN INDIAN CULTURE AND SOCIETY (Ruth Vanita ed.,
2002).
11 Suresh Kumar Koushal and another vs Naz Foundation and others, Civil Appeal No 10972 of
2013 (Supreme Court) (order passed on December 11, 2013)
12 National Legal Services Authority v. Union of India and others, WP (Civil) No 400 of 2012
(Supreme Court) (order passed on April 15, 2014)
13 REPORT OF THE COMMITTEE ON AMENDMENTS TO CRIMINAL LAW, Justice (Retd) JS Verma, Chairman,
55 (January 23, 2013)
14 Obergefell et al. v Hodges, Director, Ohio Department of Health, et al., 576 U. S. ____ (2015)
(Docket No. 14-556)
15 Upendra Baxi, Dignity In and With Naz, in LAW LIKE LOVE: QUEER PERSPECTIVES ON LAW 231
16 See MICHAEL D KIRBY, SEXUAL ORIENTATION & GENDER IDENTITY ENTEW PROVINCE OF LAW FOR INDIA,
Tagore Law Lectures, 45 (2013)
17 ARVIND NARRAIN & ALOK GUPTA, Introduction, LAW LIKE LOVE: QUEER PERSPECTIVES ON LAW xiv
Tagore Law Lectures, 39-40 (2013)
20 See THE NATIONAL ARCHIVES, Homosexuality, THE CABINET PAPERS 1915-1986, available at
www.nationalarchives.gov.uk/cabinetpapers/themes/homosexuality.htm (last visited on 20
November, 2015)
21 National Coalition for Gay and Lesbian Equality and Another v. Minister of Justice and Others
(CCT11/98) [1998] ZACC 15; 1999 (1) SA 6; 1998 (12) BCLR 1517
22 Lawrence v. Texas, 539 U.S. 558 (2003)
23 Dudgeon v. U.K . 45 Eur. Ct. H.R. (ser. A) (1981)
24 Susan D Cochran et al., Proposed declassification of disease categories related to sexual
orientation in the International Statistical Classification of Diseases and Related Health Problems
(ICD-11), 92 BULLETIN WORLD HEALTH ORGANISATION 672679 (2014)
25 SIDDHARTH DUBE, An Indefinite Sentence: Love, homophobia and the AIDS panic in 1980s India,
Adapted from NO ONE ELSE: A PERSONAL HISTORY OF OUTLAWED LOVE AND SEX (Forthcoming, 2015),
26

12 December 2015
available at http://www.caravanmagazine.in/reportage/indefinite-sentence-homophobia-aidspanic-1980 (last visited on November 28, 2015)
26 Dr.Ambedkar had a different idea when he spoke of that concept. See, for example, Pratap
Bhanu Mehta, What is constitutional morality?, We The People: a symposium on the Constitution
of India after 60 years, 1950-2010, 615 SEMINAR (2010), available at http://www.indiaseminar.com/2010/615/615_pratap_bhanu_mehta.htm (last visited on December 4, 2015)
27 Rohit Sharma, The Public and Constitutional Morality Conundrum, 2 NUJS LAW REVIEW 445
(2009)
28 West Virginia State Board of Education v. Barnette, 319 US 624 (1943)
29 Naz Foundation v. Government of NCT 160 (2009) DLT 277, 130
30 ARVIND NARRAIN & ALOK GUPTA, Introduction, LAW LIKE LOVE: QUEER PERSPECTIVES ON LAW xxxiii
31 ARVIND NARRAIN & ALOK GUPTA, Introduction, LAW LIKE LOVE: QUEER PERSPECTIVES ON LAW xxxiii
2013 (Supreme Court) (order passed on December 11, 2013) 56
(Docket No. 14-556)
35 Lord Lester of Herne Hill QC, Time for a Penal Code Fit for India, THE JUSTICE KT DESAI
MEMORIAL LECTURE, Delivered at the Central Court Room, Bombay High Court, Mumbai, October 6
(2015)
37 Supreme Court Advocates on Record Association and Anr v Union of India, WP (C) No. 13 of
2015, (Supreme Court) (order passed on October 10, 2015)
39 Bowers v. Hardwick, 478 U.S. 186 (1986)
40 Joan Biskupic and Fred Barbash, Retired Justice Lewis Powell Dies at 90, WASHINGTON POST,
August
26
(1998),
available
at
http://www.washingtonpost.com/wpsrv/national/longterm/supcourt/stories/powell082698.htm (last visited on December 4, 2015)
41 See Ryan Goodman, Beyond the Enforcement Principle: Sodomy Laws, Social Norms, and and
Social Panoptics, 89 CALIFORNIA LAW REVIEW 3 (May, 2001), available at
http://www.law.harvard.edu/faculty/rgoodman/pdfs/Goodman_Beyond_the_Enforcement_Prin
ciple_Sodomy_Laws.pdf (last visited on December 4, 2015)
42 Shreya Ila Anusuya, Homophobia made many of my peers turn to drink, some committed suicide,
SCROLL.IN, November 27 (2015), available at http://scroll.in/article/771909/homophobia-mademany-of-my-peers-turn-to-drink-some-committed-suicide (last visited on November 27, 2015)
43 Supreme Court Advocates on Record Association and Anr v Union of India, WP (C) No. 13 of 2015
decided by the Supreme Court of India on 16.10.2015
(Supreme Court) (order passed on April 15, 2014) 55
47 United States v. Windsor, 570 U.S. ___ (2013) (Docket No. 12-307)
48 See, Hillary Clinton, The fight for LGBT equality is not over, available at
https://www.youtube.com/watch?v=nRw_lwKUCMw (last visited on December 11, 2015)
49 Justice Leila Seth, A mother and a judge speaks out on section 377, THE TIMES OF INDIA, January 26
(2014), available at http://timesofindia.indiatimes.com/home/sunday-times/deep-focus/Amother-and-a-judge-speaks-out-on-section-377/articleshow/29383723.cms (last visited on
November 27, 2015)
50 See, Scott Roberts, Journalist: It would be wrong to say Mandela was always comfortable with
gay rights,
PinkNews,
December
9
(2013)
available
at
27

12 December 2015
http://www.pinknews.co.uk/2013/12/09/journalist-it-would-be-wrong-to-say-mandela-wasalways-comfortable-with-gay-rights/ (last visited on December 11, 2015)
51 Andrews v. Law Society of British Columbia [1989] 1 SCR 143
52 Egan v. Canada [1995] 2 S.C.R. 513
(Supreme Court) (order passed on April 15, 2014) 77
54 Dudgeon v. U.K . 45 Eur. Ct. H.R. (ser. A) (1981)
55 Toonen v Australia, Communication No. 488/1992, UN, Doc CCPR/C/50/D/488/1992 (1994)
(Docket No. 14-556)
57 See Express News Service, Arun Jaitley: Need to reconsider SC orders on 377, NJAC, INDIAN
EXPRESS, November 29 (2015), available at http://indianexpress.com/article/india/india-newsindia/need-to-reconsider-sc-orders-on-377-njac-arun-jaitley/ (last visited on November 29,
2015), and Amit Anand Choudhary, SC must review Sec 377 ruling, allow gay relationships: Jaitley,
Chidambaram, THE TIMES OF INDIA, November 29 (2015), available at
http://timesofindia.indiatimes.com/india/SC-must-review-Sec-377-ruling-allow-gayrelationships-Jaitley-Chidambaram/articleshow/49965445.cms (last visited on November 29,
2015),
58 Additional District Magistrate, Jabalpur v. S S Shukla, 1976 AIR 1207: 1976 SCR 172
59 Ramdeo Chauhan v. Bani Kant Das and others (Supreme Court) (order passed on November 19,
2010)
60 Indrani Basu, Indian Government Must Change Its Outlook Towards Transgender Community,
Says Narendra Modi, HUFFPOST INDIA, November 10 (2015), available at
http://www.huffingtonpost.in/2015/11/09/india-government-transgen_n_8518242.html (last
visited on December 4, 2015)
61 Apoorva Mandhani, Shashi Tharoor submits private members bill to scrap S.377; Jaitley,
Chidambaram and Bhushan opine SC must review Kaushal judgement, LIVELAW, November 30
(2015), available at http://www.livelaw.in/shashi-tharoor-submits-private-members-bill-toscrap-s-377-jaitley-chidambaram-and-bhushan-opine-sc-must-review-kaushal-judgment/ (last
visited on December 4, 2015)
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S 377: From Hostility and Hatred to Courage and Freedom

Ninth Tarkunde Memorial Lecture

S 377: From Hostility and Hatred to Courage and Freedom

5. This focus on individuality and freedom is finely articulated by

Constitution, too, can be viewed as a means to achieve the goal

S 377: From Hostility and Hatred to Courage and Freedom

which were discussed at length, and in different measure, by

S 377: From Hostility and Hatred to Courage and Freedom

should a sizeable population of Indians be deemed criminals in

S 377: From Hostility and Hatred to Courage and Freedom

gender as an identity option in official documents. Germany

S 377: From Hostility and Hatred to Courage and Freedom

Upendra Baxi, when stigma that is created and perpetuated by

S 377: From Hostility and Hatred to Courage and Freedom

16.In contrast, religions emerging from the Indian subcontinent,

S 377: From Hostility and Hatred to Courage and Freedom

18.The English law criminalising homosexuality was imported to

recommended, that homosexual behaviour between consenting

S 377: From Hostility and Hatred to Courage and Freedom

22.Thereafter, laws criminalising homosexuality were repealed in

Organization of Family Doctors have been openly homosexual.

S 377: From Hostility and Hatred to Courage and Freedom

believe homosexuality existed here, asserting instead that

S 377: From Hostility and Hatred to Courage and Freedom

27.Public morality reflects moral and normative values of the

S 377: From Hostility and Hatred to Courage and Freedom

Tarkundes humanism, which celebrated precisely these same

understanding, such persons can be assured of a life of

S 377: From Hostility and Hatred to Courage and Freedom

change is how the middle class has stopped joking about

representing the will of the majority. However, this comes at a

S 377: From Hostility and Hatred to Courage and Freedom

cost, which is especially borne by certain minority groups

More recently, the NALSA

decision protected interests of transgendered persons as well.

S 377: From Hostility and Hatred to Courage and Freedom

37.Parliament will always be competent to repeal section 377, but

S 377: From Hostility and Hatred to Courage and Freedom

the decriminalisation of homosexuality, and the law to that

Instead, the Courts views suggest that the

legitimacy of a law is unquestionable, regardless of its origins

S 377: From Hostility and Hatred to Courage and Freedom

the countrys population38 constitute LGBTs and only 200 had

constitutionality of a state sodomy law on grounds that the law

S 377: From Hostility and Hatred to Courage and Freedom

Muslim University on charges of homosexuality, and eventually

S 377: From Hostility and Hatred to Courage and Freedom

50.This position is now in complete contrast with a later ruling of

wonders if the Court grasped that principles of dignity,

S 377: From Hostility and Hatred to Courage and Freedom

pictures to celebrate the Obergefell decision. Gay rights are

recriminalize it is to display the very opposite of

discrimination and fair treatment are truly available to all. This

S 377: From Hostility and Hatred to Courage and Freedom

has taken place in at least three ways in recent decades in

S 377: From Hostility and Hatred to Courage and Freedom

protection of laws guaranteed under our Constitution.53

relationships, the next step has been to recognise formal civil

S 377: From Hostility and Hatred to Courage and Freedom

The Court concluded that the fundamental constitutional right

regarding linkages between homosexuality and the spread of

S 377: From Hostility and Hatred to Courage and Freedom

bullet, and truly embrace inclusiveness and fraternity as being

S 377: From Hostility and Hatred to Courage and Freedom

Justice AP Shah's Speech On Homosexuality

Justice AP Shah's Speech On Homosexuality