Homosexuality: An "Unnatural Offence" in India

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Though section 377 of the Indian Penal Code, 1860 does not specifically mention the word “homosexuality”, it covers the same under the sweeping definition of “unnatural offences”:


“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 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.”


The debate about the removal of this section from the Indian Penal Code has been raging in India for many years, though it gained momentum after the Naz Foundation, an NGO based in Delhi filed a case in the Delhi High Court seeking deletion of this section on the grounds that it violates the Fundamental Rights granted to the citizens of India by the Indian Constitution.


The case, filed in 2001 as a public interest litigation (PIL) petition with the Delhi High Court, challenged the constitutional validity of Section 377 under Article 14 of the Indian Constitution on equality, Article 15 on equality on the basis of sex, Article 19 on freedom of speech and expression, and Article 21 on the right to privacy and health. Naz Foundation was represented by the Lawyers Collective with Anand Grover, who is now the United Nations Special Rapporteur on the Highest Attainable Standard of Health, as lead counsel. In 2006, Voices Against 377 filed an intervention in the Court in support of the Naz Foundation petition. Voices Against 377 is a Delhi-based coalition of human rights, women’s rights and children’s rights groups, and was represented in this case by Shyam Divan.


In the same year that this case was filed, four workers from Naz Foundation International and Bharosa Trust in Lucknow, in the northern state of Uttar Pradesh, were arrested and charged with conspiracy to commit sodomy and possession of obscene materials. The offices of Naz Foundation were also raided.


The judgment in the case of Naz Foundation (Petitioners) vs The Government of the National Capital Territory of Delhi and Others (Respondents) was delivered by the Delhi High Court on July 2, 2009 in which the Court upheld the contention of the petitioner and declared section 377 of the IPC as violating the Rights guaranteed by the Indian Constitution. It said,


“We declare that Section 377 IPC, insofar it criminalizes consensual sexual acts of adults in private, is violative of Articles 21, 14 and 15 of the Constitution. The provisions of Section 377 IPC will continue to govern non-consensual penile non-vaginal sex and penile non-vaginal sex involving minors. By 'adult' we mean everyone who is 18 years of age and above. A person below 18 would be presumed not to be able to consent to a sexual act. This clarification will hold till, of course, Parliament chooses to amend the law to effectuate the recommendation of the Law Commission of India in its 172nd Report which we believe removes a great deal of confusion. Secondly, we clarify that our judgment will not result in the re-opening of criminal cases involving Section 377 IPC that have already attained finality.

We allow the writ petition in the above terms.”


The judgment has generated a huge debate in India, with LGBT and civil rights groups welcoming the judgment, while religious bodies have protested saying that homosexuality is not sanctioned by religion or Indian culture. A petition has been filed in the Supreme Court of India against this judgment, while the stand of the Government of India is still not clear.


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