As the Supreme Court has exceptionally accepted the curative petition in the case filed by Lawyers Collective to decriminalize same-sex sexual intercourse, the constitutionality question of Section 377 IPC has been raised once again. This article portrays an image of the historical position of the LGBT community before criminalizing legislation came into force. The legal framework will set out and it will be shown what the colonial legislation has changed. Important case law regarding this legislation will be dealt with. Three landmark judgments will be highlighted; the 2009 Delhi High Court decision which declared Section 377 IPC unconstitutional; the 2013 Supreme Court decision to uphold Section 377 IPC and the 2015 Supreme Court decision granting the transgender community a third gender and special protection. The implications of all this for the LGBT community will be evaluated, which will show the desirability that the Supreme Court soon bring clarification in its final decision regarding Section 377 IPC.
In a topic as one on hand, there are bound to be as many viewpoints to wit as are colours in a rainbow. No single view point may be fully correct or fully incorrect and yet all of them can peacefully coexist.
1 Behind the Indian rainbow colours
Two weeks ago, the Supreme Court has accepted to hear a curative petition regarding the constitutionality of Section 377 IPC. Most notoriously known as the section criminalising homosexuality. Filing this petition was the last possible step to take by the Lawyers Collective, standing for the LGBT community, in their case to attempt to strike down Section 377 IPC in that it criminalises all same-sex intercourses, both consensual and non-consensual. Their case was brought before the courts in 2001 already, to be followed by a legal rollercoaster. In 2009, the criminalisation was struck down by the Delhi High Court, but in 2013 upheld again by the Supreme Court. Then in 2015, followed a very progressive and unique decision by the Supreme Court to recognise and protect the transgender community.
This article will give an overview of the history of the LGBT community in India and the legal framework. Both the legislation at stake and the landmark judgments will be looked into. An analysis will be made of their implications for the current position of the LGBT community in India, which will show the need for the Supreme Court to deal with the question of the constitutionality of Section 377 IPC once again.
2 Historical and societal perspective
“Unity in diversity”, that is the national slogan of India. Indeed, it is a vast country which is known for its many aspects of diversity. When it comes to the perception of homosexuals and transgenders, however, this message sometimes seems to be forgotten, as there are noticeably very different views and attitudes. Some people, and more broadly some states, are very tolerant towards the LGBT community. Others, on the other hand, are very conservative and do generally not accept the ‘otherness’ of this community.
In ancient Indian culture, acceptance towards homosexuality can be found in various sources. In several Hindu temples, walls are carved with images of same-sexed persons engaging in sexual activities. In ancient literature, most commonly known the Kama Sutra, direct references are made to sexual activities between same-sex partners. This shows tolerance in the Hindu culture towards homosexuality. As for transgenders, descriptions about sexual intercourse with people of a ‘third nature’ (Tritiya Prakriti) can be found in the Kama Sutra as well.
There are other Hindu texts, such as the Manu Smriti, which forbid sex between men. However, this is only sanctioned with minor penalties, such as bathing with one’s clothes on. To place this into context: the same penalty is provided for men who have sex with women in a cart pulled by a bullock, in water or during the day. Also should a man who had unnatural sex, bestial sex, sex with a menstruating woman or in water, atone by performing a Samtapana Krikkhra. This means he has to consume a drop of a purifying substance made of the urine of cows, cow dung, milk, sour milk, clarified butter and a concoction of Kusa grass, and he has to fast for one day and night. The offence was thus only considered a minor one.
Transgenderism, particularly the hijra community, is a long existing part of Indian culture. In ancient times, hijras, being neither men nor women, were called upon for their religious powers to bless and to curse. People wanted to keep them satisfied and gave them money – they feared that or else the hijras could bring them misfortune. Their traditional work is badhai – singing and dancing in public –, blessing new-born babies, or dancing in ceremonies. They are still called upon for the performance of those societal functions at such occasions.
Even though the Indian precolonial era has not always shown much tolerance towards LGBTs, there can be said to have been a general climate of acceptance. This perception has changed radically over the years. This has been acknowledged by relatively recent case law, where it was stated that “[homosexuality] is not considered normal and at best of times looked down upon by the society”. This change of mind-set can be traced back to the introduction of anti-sodomy provisions in the IPC during the British rule.
3 And then came the IPC
Since its entry into force, the IPC contains Section 377, which criminalises “unnatural offences”. It states that “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.”
The section is largely based upon the traditional Judeo-Christian standards which Macaulay, the British drafter of the IPC, advocated. It was considered to intend criminalisation of all kinds of non-procreative sex that were not penile-vaginal intercourse.
No legal definition is given of “unnatural offences” or “carnal intercourse against the order of nature”. This has later been clarified in case law as to cover oral sex, anal sex and penetration of other orifices.
Today, the provision is mostly known for its penalisation of homosexual conduct. However, this is also the only provision that criminalises sexual activities such as paedophilia and bestiality, as there are no separate provisions in the IPC that address these sexual crimes. This is why, even though there are many opponents of the provision, an entire abolition of the section is mostly not advocated.
4 Case law
The constitutionality of Section 377 IPC has been questioned before the Delhi High Court in 2009. The High Court deemed itself competent to declare Section 377 IPC unconstitutional. It ruled that Section 377 IPC was in violation of the right to equality and non-discrimination and the right to privacy, guaranteed by articles 14, 15 and 21 Constitution, insofar that it criminalised consensual sexual acts of same-sexed adults in private. The section would continue to govern non-consensual penile non-vaginal sex and penile non-vaginal sex involving minors. This clarification by the Court would hold until the Parliament would choose to amend the law. The latter has not happened up until now.
The LGBT community’s euphoria about the High Court’s decision would last long. Four years later, in 2013, the case was brought before the Supreme Court, which decided that Section 377 IPC was not unconstitutional. The Court emphasised the principle of presumption of constitutionality and that the judiciary should exercise self-restraint when dealing with challenges to the constitutionality of laws. This already set the tone for its following findings on the constitutionality.
No violation of the right to equality and non-discrimination under articles 14 and 15 Constitution was found, because the classification that Section 377 IPC makes, would not be arbitrary nor irrational. According to the Court, those who have intercourse in the ordinary course and those who have intercourse against the order of nature, constitute different classes and they can thus be treated differently. It did not accept that there was sufficient proof of a discriminatory attitude by state agencies towards sexual minorities and a consequential denial of their basic human rights. Also the LGBT community was said to be only a miniscule fraction of the Indian population and over the last more than 150 years, less than 200 people had been prosecuted for committing an offence under Section 377 IPC.
The right to privacy under article 21 Constitution was not found violated either, because alleged harassment of the LGBT community on the ground of Section 377 IPC was neither mandated nor condoned by the section. The fact that the section was misused by police authorities and others, could be a relevant factor for the legislator to consider when judging on a contingent amendment of Section 377 IPC, but could not influence constitutionality of the section.
The Supreme Court thus radically reversed the progressive decision by the Delhi High Court to strike down the criminalisation of same-sex intercourse. It applied a rather rigid interpretation of the law to uphold the section as it had always been interpreted before.
In the light of the foregoing, it was rather surprising that two years later, in 2015, the Supreme Court made a most progressive decision regarding the legal recognition of transgenders’ gender identity.
The Supreme Court judged that transgenders should be recognised as a third gender, for they faced wide-spread discrimination and the non-recognition of their identity in Indian legislation, denied them equal protection of the law. The Court continued that they should be treated as a socially and educationally backward class and are entitled to reservations in cases of admission in educational institutions and public appointments. Several measures were ordered to be undertaken to address their struggles in society, such as separate public toilets and separate HIV sero-surveillance centres.
5 Implications for LGBT position
The Supreme Court decisions of 2013 regarding the upholding of the criminalisation and of 2015 regarding the recognition and protection of the transgender community as third gender, seem to be in tension with each other to some extent. The first decision is a conservative one, which completely swept the liberal reasoning by the Delhi High Court under the carpet. The latter is, on the contrary, unique in its progressiveness and a model case for other countries in the international community.
Transgenders are provided extra protection and rights, whereas the same-sex sex ban has been reinstated. Now what does this mean? It is not unlikely that both instances occur in one case. It seems absurd how transgenders get reservations in education, jobs and welfare schemes – must be protected! –, but on the other hand, if they perform the sexual acts that are intertwined with their gender identity, they are to be criminalised – not acceptable, criminal offence! It seems to imply some kind of split personality of transgenders…
Sound explanations are difficult to provide. Perhaps the fact that hijras are a visible class in society, which homosexuals are not, has to do with it. Perhaps homosexuality is still less accepted in Indian society than transgenderism is. Perhaps the bench in 2013 was just more conservative than the one deciding the transgender case two years later. Whatever the reason may be, although the latter case can be considered a step forward, the legal position of the LGBT community is still currently very ambiguous.
The fact that the Supreme Court has now agreed to hear the curative petition which has been filed as a last remedy in the case concerning the constitutionality of Section 377 IPC, shows that there still is some hope for the LGBT community.
A reflection on the history of the LGBT community, shows the struggles which it has faced, especially since the colonial legislation was introduced in India. There were four years of a feeling of victory, after the Delhi High Court had decided to strike down the criminalisation of consensual same-sex intercourse between adults. The Supreme Court, however, reversed this liberal decision and re-enforced the same-sex sex ban.
It is to be awaited what the Supreme Court will decide in its final decision, as it has recently accepted the curative petition considering this constitutionality. As curative petitions are admitted only very exceptionally, in 1% of the cases, this can already be considered a big step forward. The LGBT community will surely be holding their rainbow flags ready to waive in victory in case of a definite decriminalisation. All will have to exercise patience to see which path the Supreme Court will take on its final journey regarding Section 377 IPC…
By Iris Leerdam
Gujarat High Court 28 February 2014, X v. State of Gujarat, § 24.
 I. Trivedi, “The Indian in the Closet. New Delhi’s Wrong Turn on Gay Rights”, Foreign Aff. March/April 2014, vol. 93, (21) 23.
Manu Smriti Chapter XI, verse 175.
Manu Smriti Chapter XI, verse 174 and 213.
P. S. Jagadish, “Mainstreaming Third-Gender Healers: The Changing Perception of South Asian Hijras”, VURJ 2013, vol. 9, (1) 1.
 S. Nanda, Neither Man nor Woman. The Hijras of India, New York, Wadsworth Publishing Company, 1999, ed. 2, 1, 119.
 Gujarat High Court 28 February 2014, X v. State of Gujarat, § 21.
 Supreme Court 11 December 2013, Suresh Kumar Koushal and Another v. Naz Foundation and Others, http://judis.nic.in/supremecourt/imgs1.aspx?filename=41070, 82-83, § 42.
Ibid. 78-79, § 40.
Ibid. 83, § 43.
Ibid. 91-92, § 51.
 Supreme Court 15 April 2014, National Legal Services Authority v. Union of India, http://supremecourtofindia.nic.in/outtoday/wc40012.pdf, 72-73, § 75.
Ibid. 109-110, § 129.