SAME-SEX LOVE AND INDIAN PENAL

CODE § 377:AN IMPORTANT HUMAN

RIGHTS ISSUE FOR INDIA
Robert Wintemute*

The paper discusses the relatively new phenomena of “sexual orienta-

tion” and “gender identity”, the reasons why criminalisation of same-
sex sexual activity by IPC §377 is an important human rights issue for
India, the roots of §377 in Christian religious law, and the repeal of
its equivalent in English criminal law. It then examines the trends in
international and comparative human rights law that would support a
decision by the Supreme Court of India to affirm the Delhi High Court’s
“reading down” of §377 as not applying to private, consensual, adult
sexual activity.

I.  INTRODUCTION
In India, as in every country in the world, there exists a
small minority of men who fall in love with other men, and women who fall in
love with other women. These “same-sex-loving” men and women face wide-
spread legal and social discrimination. As a result of films like “Fire” (1996),
“Dostana” (2008) and “Dunno Y” (2010), and other discussions in the me-
dia, Indian society can no longer deny their existence.1 In Naz Foundation v.
Government of NCT of Delhi and Others,2 the Delhi High Court (consisting of

* BA (Alberta), LLB, BCL (McGill), DPhil (Oxford), New York Attorney, Professor of Human
Rights Law, King’s College London School of Law. I have borrowed part of my title from, and
am grateful to, Ruth Vanita and Saleem Kidwai, editors of Same-Sex Love in India (Palgrave
Macmillan, 2001). I would also like to thank all those who organised or attended my presenta-
tions on §377, especially Sumit Baudh, Prof. Ved Kumari and Prof. Sudhir Krishnaswamy for
their very helpful comments: in 2006 at the Government Law College (Mumbai), NALSAR
(Hyderabad), the Centre for the Study of Culture and Society (Bangalore), and the India
Habitat Centre (Delhi); in 2007 at the Alliance Française (Delhi), the British Council (Delhi),
and the University of Delhi (Faculty of Law, Law Centre-I); in 2009 at NUJS (Kolkata); and
in 2010 (during the Commonwealth Games) at the Alliance Française (Delhi).
1
See also Because I H ave a Voice: Queer Politics in India (Arvind Narrain & Gautam Bhan
eds., 2005); Rights for All: Ending Discrimination Against Queer Desire Under Section 377
in Voices Against 377 (2005); Parmesh Shahani, Gay Bombay: Globalization, Love and
(Be)Longing in Contemporary India (2008); The R ight That Dares to Speak its Name: Naz
Foundation v. Union of India and Others: Decriminalising Sexual Orientation and Gender
Identity in India (Arvind Narrain & Marcus Eldridge eds., 2009).
2
Naz Foundation v. Government of NCT of Delhi & Ors., 2009 (160) DLT 277.

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32 NUJS LAW REVIEW 4 NUJS L. R ev. 31 (2011)

Chief Justice Ajit Prakash Shah and Dr. Justice S. Muralidhar) took the first
step towards dismantling the legal discrimination they face, by interpreting
the Constitution of India as requiring a “reading down” of the offence of “car-
nal intercourse against the order of nature” in §377 of the Indian Penal Code.
The Delhi High Court’s judgment has been appealed to the Supreme Court
of India.3 I will argue in this article that Naz Foundation raises important hu-
man rights issues, and that persuasive authorities from international and com-
parative human rights law provide solid support for a judgment of the Supreme
Court affirming the “reading down”, and clearly extending it from the State of
Delhi to the whole of India.

I will begin by explaining what I mean by “same-sex love”,

“sexual orientation”, and “gender identity”, why Naz Foundation is an impor-
tant case, and how §377 began in Christian religious law and reached India via
English criminal law, before describing trends in international and comparative
human rights law related to discrimination based on sexual orientation. There
are two major trends: a growing judicial treatment of “sexual orientation” as
a “suspect ground” of discrimination (i.e. raising a strong presumption, under
international human rights treaties and national constitutions, against discrimi-
nation based on sexual orientation); and a gradual elimination of legal and so-
cial discrimination based on sexual orientation (as a result of the application
of this presumption by courts and legislatures). I will then turn to a specific
aspect of these two trends: the decriminalisation of same-sex sexual activity in
at least 58% of the 192 member states of the United Nations, and the decisions
of international human rights tribunals and national appellate courts that have
required decriminalisation in some of these states.

II.  PHENOMENA AND TERMINOLOGY:

SEXUAL ORIENTATION AND GENDER
IDENTITY
Since at least 1980, international human rights tribunals and
national constitutional courts around the world have been asked to consider is-
sues of discrimination related to two new phenomena: “sexual orientation” and
“gender identity”. These phenomena have presented a challenge to societies and
legal systems, because they represent two previously hidden aspects of human
diversity. They are characteristics that are possessed by every human being,
but manifest themselves in different ways, each one defining a majority and a
minority, or a more powerful group and a less powerful group. Societies have
always known that every person has a biological sex (generally male or female),
an age (calculated from their date of birth), and a set of ancestors (who deter-
mine the person’s racial, national or ethnic origins). Societies have also known

3
Suresh Kumar Koushal & Anr. v. Naz Foundation & Ors., SLP(C) No. 15436 of 2009.

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 DECRIMINALISATION OF SAME-SEX SEXUAL ACTIVITY 33

that most people have a religion, and that some people have physical disabilities
(often causing obvious impairments). The concepts of sexual orientation and
gender identity, however, did not exist for centuries, because every individual
was presumed to be heterosexual (to be attracted emotionally and physically
only to persons of the opposite sex), and to be non-transgender (to have a psy-
chological sex that matched their physical sex).

As more and more persons of minority sexual orientation or

gender identity have stated publicly that they are different, it has become neces-
sary to develop terminology to describe these characteristics, and the majority
and minority groups defined by them. An individual’s “sexual orientation” has
come to mean their orientation with regard to “choice of sex of partner” for
sexual activity and long-term emotional-sexual couple relationships, ie, “sexual
orientation” means “sex-of-partner orientation”. Possible sexual orientations
include “heterosexual” (women who are attracted to men, and men who are
attracted to women), “bisexual” (women who are attracted to both sexes, men
who are attracted to both sexes), “lesbian” (women who are attracted to women),
and “gay” (men who are attracted to men). Because sexual orientation is essen-
tially about combinations of sexes, a specific sexual act, or a specific long-term
emotional-sexual couple relationship involving two persons, can itself have a
sexual orientation. These acts and relationships can be “different-sex” (if they
are male-female) or “same-sex” (if they are male-male or female-female).

All the evidence suggests that, in every society, the vast ma-
jority of people are heterosexual, and the vast majority of sexual acts and cou-
ple relationships are different-sex. The percentage of the population strongly
preferring same-sex sexual acts and couple relationships, and thus in many
cases identifying as lesbian, gay or bisexual, is thought to be somewhere be-
tween 1% (a figure generally considered too low) and 10% (a figure generally
considered too high). It is hard to know how many people, in India or any other
country, would identify as lesbian, gay or bisexual, in the absence of any legal
or social discrimination against them. One very rough indication comes from
the Netherlands where, in 2009, 97.8% of registered relationships (marriages
and registered partnerships) involved different-sex couples, and 2.2% involved
same-sex couples.4

“Gender identity” is a phenomenon that is completely distinct

from “sexual orientation”. Every individual has both a sexual orientation and
a gender identity. To make the concept useful, an individual’s gender identity
4
Centraal Bureau voor die Statistiek, Marriage and Partnership registration: Key Figures,
available at http://statline.cbs.nl/StatWeb/publication/?DM=SLEN&PA=37772eng&D1=047&
D2=0,10,20,30,4,50,(l-1)-l&LA=EN&VW=T (Last visited on February 14, 2011). Of course,
even in the Netherlands, some lesbian and gay persons may enter different-sex marriages be-
cause of social or family pressure. And the 2.2% figure could be an underestimate, if lesbian
and gay persons are less likely than heterosexual persons to form couple relationships, or if
same-sex couples are less likely than different-sex couples to register their relationships.

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34 NUJS LAW REVIEW 4 NUJS L. R ev. 31 (2011)

must refer, not merely to whether they identify as male or female, but to whether
there is “conformity or non-conformity” between, on the one hand, their physi-
cal or biological or birth sex, and on the other hand, their psychological sex
and the way they express it through physical characteristics (including changes
to their body through hormones and surgery), hairstyle, dress, makeup, voice
and mannerisms. The vast majority of individuals (probably at least 999 out of
1000) find themselves in a position of conformity, because they were born into
a physical sex that matches their psychological sex. No standard terms even ex-
ist to describe the majority, apart from “non-transgender”, “non-transsexual”,
or “non-intersex”. Persons who are born into a physical sex, but come to realise
that it does not match their psychological sex, often identify as “transgender” or
“transsexual”. Persons who are born with a chromosomal pattern, or physical
characteristics, that do not clearly fall on one side or the other of the “male-
female line”, are known as “intersex”. It is important to note that the vast ma-
jority of lesbian, gay and bisexual persons are not transgender, transsexual or
intersex, and that many transgender, transsexual or intersex persons are hetero-
sexual. The expression “LGBT persons” refers to the combination of minorities
defined by sexual orientation, and minorities defined by gender identity. They
might support each other in political campaigns or litigation, but their lives and
concerns are often very different.5

It is important to note how “sexual orientation” and “gen-

der identity” are linked, through the concept of “legal sex”. In the case of a
transgender, transsexual or intersex person, their sexual orientation cannot be
determined, for legal purposes, until they have been assigned a legal sex. A
change to their legal sex, to bring it into conformity with their psychologi-
cal sex (whether or not changes to their physical sex are desired or financially
feasible), will generally change their sexual orientation as well. For example,
a person born male who is attracted to women might decide that her gender
identity is female, but remain attracted to women after transitioning from male
to female (legally and socially, with or without physical changes). If so, she will
go from having been seen by society as a heterosexual (and non-transsexual)
man to identifying publicly as a transsexual lesbian woman. Because of this
linkage, §377 is an issue for transgender, transsexual and intersex persons in
India (whether they identify as hijra or kothi or by another name). If they are

5
LGBT persons could also be described as “sex discrimination minorities”, in that they experi-
ence forms of discrimination based on sex that the majority (including the majority of judges)
are not willing to recognise. It can be argued that all forms of discrimination against LGBT
persons can be characterised as discrimination based on sex. See R. Wintemute, Recognising
New Kinds of Direct Sex Discrimination: Transsexualism, Sexual Orientation and Dress
Codes, (1997) 60 Modern Law Review 334; R. Wintemute, Sex Discrimination in MacDonald
and Pearce: Why the Law Lords Chose the Wrong Comparators, (2003) 14 K ing’s College
Law Journal 267. This argument is analytically sound, but is only necessary in the context
of a constitutional or statutory prohibition of discrimination that has an apparently closed list
of grounds, including “sex” but not including “sexual orientation” and “gender identity”. See,
e.g., Constitution of India, Article 15.

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 DECRIMINALISATION OF SAME-SEX SEXUAL ACTIVITY 35

legally male, their sexual activity with another man will probably be caught
by §377, even though (according to their gender identity), they might consider
themselves as engaging in legal female-male sexual activity.

The terms “sexual orientation” and “gender identity” are

now commonly used in international and comparative human rights law. Use of
the term “heterosexual” (with “hetero” meaning “other” or “different”), or its
equivalent in another language, is not really controversial, except that the vast
majority of heterosexual persons would rarely find it necessary to describe their
sexual orientation. If pressed, most would say “normal”. The term “bisexual”
(with “bi” meaning “two”), or its equivalent in another language, can probably
also be used in every country. But the terms “lesbian” and “gay” are problem-
atic. Their etymological origins (a Greek island, in the case of “lesbian”, and
slang usage of an English word meaning “happy” to connote sexual immoral-
ity, in the case of “gay”), and their associations with political identities, richer
countries, and particular “lifestyles”, arguably make them unsuitable in India
and other countries in the Global South.6

It is, however, difficult to propose alternatives that are cul-

turally-neutral, respectful, and accurate, yet not linguistically awkward. The
term “queer” means “strange” or “odd”, and is used as an insult in many
English-speaking countries. The Delhi High Court used it in the following
phrase: “[w]hen everything associated with homosexuality is treated as bent,
queer, repugnant ...”.7 “MSM” (“men who have sex with men”) is useful in the
field of education to prevent HIV transmission. But it ignores the reason why
the man has chosen a sexual act with another man, which will often be the
difficulty of obtaining sexual activity with any woman who is not his wife,
rather than a strong emotional and physical attraction to men. A better term
for men who feel a strong attraction to, and fall in love with, other men might
be “MLM” (“men who love men”). Combining MLM with the corresponding
term “WLW” (“women who love women”), lesbian and gay persons could in-
stead be described (as in the Introduction) as “same-sex-loving persons”. This
would avoid the associations of the term “homosexual” (even though “homo”
only means “same”) with a diagnosis of mental disorder,8 and with the insult
“homo”, which is common in some English-speaking countries.

Having mentioned the difficulty of finding neutral terminol-

ogy, I will postpone an experiment with “MLM”, “WLW” and “same-sex-loving
6
See Sonia Katyal, Exporting Identity, 14 Yale Journal of Law and Feminism 97 (2002).
7
Supra note 2,¶94. See also [2009] 4 Law Reports of the Commonwealth 838 at 883.
8
It is important to stress that the inaccuracy of this historical association was recognised by
the World Health Organization on May 17, 1990, when it removed “homosexuality” from its
list of mental illnesses. The anniversary of this decision has become the annual “International
Day Against Homophobia”. See IDAHO, The Global Portal for Information and Action on the
International Day Against Homophobia and Transphobia, available at http://www.dayagain-
sthomophobia.org/-IDAHO-english,41- (Last visited on February 14, 2011).

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36 NUJS LAW REVIEW 4 NUJS L. R ev. 31 (2011)

persons”, and instead use “lesbian” and “gay”, as the Delhi High Court did
throughout its judgment. The world’s largest association of non-governmental
organisations (NGOs) working for lesbian and gay human rights, ILGA, began
as the International Gay Association, but is now known as the International
Lesbian, Gay, Bisexual, Trans and Intersex Association.9 For the sake of brev-
ity, I will not use “bisexual”, “transgender”, “transsexual” and “intersex”, but
my arguments apply to every person who adopts one of these identities and is
affected by §377.

III.  WHY ALL FORMS OF DISCRIMINATION

SHOULD BE A PRIORITY FOR INDIA COURTS
In the 2009 Special Issue of this law review on “Sexual
Orientation and the Law”, Vice-Chancellor and Professor Mahendra P. Singh
expressed his doubt that the legal issue in Naz Foundation (whether or not the
Constitution of India permits criminalisation of consensual sexual acts be-
tween adults in private) “deserves so much prominence in the present stage of
our society as it has received”.10 Rather,

“homosexuality could very well have a

low priority, especially [because] ... hardly
anybody is prosecuted ... Even if the crimi-
nalizing provision of our law has a chilling
effect on homosexuality ... it is doubtful
if in our present day society these activi-
ties need to be made so sacrosanct as, for
example, freedom of speech...”11

He suggests that the West

“followed a logical sequence ... [F]reedom

from unlawful arrest and detention, [free-
dom] of ... expression, assembly and asso-
ciation came first[,] and then the freedom
from want such as hunger, disease, illiter-
acy, homelessness, etc. followed [b]y the ...
early twentieth century ... [S]ince the mid-
dle of the twentieth century they have been
attending to other restraints on freedom

9
See http://www.ilga.org.
10
Mahendra P. Singh, Decriminalisation of Homosexuality and the Constitution, 2 Nujs L. R ev.
361 (2009).
11
Id., 361-62.

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 DECRIMINALISATION OF SAME-SEX SEXUAL ACTIVITY 37

including the ones on sexuality, child bear-

ing, etc.”12

With great respect, I cannot accept Prof. Singh’s assessment

of the order in which human rights claims should be addressed. Prof. Singh’s
order appears to be: (1) civil and political rights essential for a democracy; (2)
economic and social rights essential to ensure a decent standard of living for
all; (3) other (more exotic?) freedoms related to sexuality and child bearing.
What Prof. Singh has not taken into account is that Naz Foundation is mainly
about discrimination (direct or indirect) against gay men and lesbian women,
and that freedom from discrimination is a civil and political right, essential for
a democracy in which there is equality of opportunity for all, without regard
to sex, race, caste, religion, etc. Although it is true that the “right to privacy”
(including the right to use contraception, to have an abortion, or to engage in
same-sex sexual activity) has only been upheld by the U.S. Supreme Court
since 1965,13 this is not because this right has a lower priority than the civil and
political rights established in the late 1700s and the 1800s. It is simply because
this right was of less concern to the white, Christian, heterosexual men who
dominated legislatures, courts and the legal profession in the United States in
the 1700s and 1800s.14

The social movements for equal opportunities in education

and employment for African-Americans and women only gained strength in
the 1950s and 1960s,15 and were joined in the 1970s by a social movement for
equal opportunities for lesbian and gay persons. These social movements were
or are demanding civil and political rights that should have been recognised at
stage (1), not stage (3), and without which their members cannot be fully equal
citizens. It is easy for many heterosexual, dominant-caste, Hindu men in India
to say that discrimination against women, Dalits, Muslims, Sikhs, or lesbian
and gay persons is not a priority, because these forms of discrimination do not
affect them personally. But a human rights lawyer must always strive to dis-
play empathy, and to put herself or himself in the shoes of the minority or the
disfavoured group.

Prof. Singh does not seem to appreciate that the absence of

police raids into bedrooms is a minimal form of respect, and that §377 has a
serious, stigmatising and chilling effect on India’s lesbian and gay minority.
Ideally, they would like to be able to live their lives in the same way as het-
erosexual persons, ie, to be open about their sexual orientations, and to enjoy

12
Id.
13
See Griswold v. Connecticut, 381 U.S. 479 (1965); Roe v. Wade, 410 U.S. 113 (1973); Lawrence
v. Texas, 539 U.S. 558 (2003).
14
See Bradwell v. Illinois, 83 U.S. 130 (1873) (women could be denied the right to practise law).
15
See Brown v. Board of Education, 347 U.S. 483 (1954); Civil Rights Act of 1964, Public Law
88–352 (Federal).

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38 NUJS LAW REVIEW 4 NUJS L. R ev. 31 (2011)

legal protection against any discrimination their openness may trigger on the
part of employers, landlords, service providers, etc. Yet as long as §377 exists,
the public debate about legal protection cannot even begin: why should the law
prohibit discrimination against people who are classified as “criminals”, like
thieves and murderers?16

In addition to §377’s symbolic condemnation of a minority,

criminalisation causes practical problems. Despite the benefits of the internet
and its virtual social spaces, it is difficult for any group to meet and organise
effectively, or make its presence known to society, if it does not have its own
physical social spaces. Part of the chilling effect of §377 has been to deter (for
fear of legally-authorised police harassment) the establishment of bars, clubs
and cafés where lesbian and gay persons can meet. For example, to my knowl-
edge, the four huge cities of Chennai, Delhi, Kolkata and Mumbai do not have
a single 7-night-per-week commercial social venue catering to the lesbian and
gay minority. Several such venues can be found in every major city of Japan,
China and South-East Asia, as well as South Africa, Europe, the Americas and
Australasia. The stigmatising and chilling effect of §377 makes it much harder
for India’s lesbian and gay minority to become visible, and to challenge legal
and social discrimination. The criminal law therefore helps to perpetuate their
inferior position in society.

If we accept that freedom from any form of discrimination

(including discrimination based on sexual orientation) is a first-priority civil
and political right, which deserves to be remedied by India’s courts immedi-
ately (rather than progressively, as in the case of an economic or social right,
realisation of which will depend on the availability of resources),17 it is not a
question of having to choose “freedom over bread”.18 Struggles for civil and
political rights, and economic and social rights, can proceed simultaneously
in different forums: ministries, legislatures, courts, media and university de-
bates, NGO activities, etc. Some struggles will take longer than others. It is
sad, but true, that it will take many years of economic growth and improvement
of social security systems before everyone in India enjoys access to adequate
healthcare, housing and education. But that is not a reason to say that legal
equality for lesbian and gay persons in India must be “put on hold” until those
goals are achieved, any more than legal equality for women, Dalits, Muslims
or Sikhs should be put on hold. The judicial resources required to “read down”
§377 are very small. Yet ending discrimination against minorities substantially

16
See, e.g., Padula v. Webster, 822 F.2d 97 at 103 (U.S. Court of Appeals for the District of
Columbia Circuit, 1987): “It would be quite anomalous ... to declare status defined by conduct
that states may constitutionally criminalise as deserving of strict scrutiny under the equal
protection clause ... [T]here can hardly be more palpable discrimination against a class than
making the conduct that defines the class criminal.”
17
International Covenant on Economic, Social and Cultural Rights, Article 2(1).
18
Singh, supra note 10, 362.

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 DECRIMINALISATION OF SAME-SEX SEXUAL ACTIVITY 39

improves their lives, frees them from having to fight discrimination, and gives
them more time to focus on the long-term battle to improve the economic and
social welfare of their neighbours.

Far from being a low-priority issue, Naz Foundation is a test

case (one of many) for human rights in the new India that has resulted from
India’s economic globalisation, since the collapse of the Soviet Union in 1991.
It is another test of the ability of the Constitution of India to respond to new
social situations, to protect new minorities that were not contemplated when
the Constitution was drafted, and to take into account strong trends in interna-
tional and comparative human rights law. Most importantly, it is another test
of India’s ability to lead on a human rights issue. India is the most populous
country in the world with a law criminalising some or all forms of private,
consensual, adult, same-sex sexual activity. No such law exists in China, the
United States, Indonesia,19 or Brazil, the other four most populous countries. If
the Supreme Court of India were to affirm the Delhi High Court’s decision, it
could have a highly persuasive influence on 42 other Commonwealth countries
with similar laws, including Pakistan, Bangladesh, Sri Lanka, the Maldives,
Malaysia, Brunei and Singapore.20 Indeed, it would be a watershed judgment
for the world, because it would immediately and definitively reduce, by nearly
50%, the number of lesbian and gay persons living in countries with criminal
laws.

As for India’s 21st-century rivalry with China (in which the

entire democratic world is rooting for India), a favourable final decision in
Naz Foundation would serve as an excellent example of where India stands.
It would demonstrate, once again, that India is a democracy in which NGOs,
representing a minority, can go to court to challenge a law with a discrimina-
tory impact, and have the law “read down” to make it consistent with India’s
constitutional values.

19
In 2009, the Governor of the province of Aceh (island of Sumatra) refused to sign a bill that
would create a Muslim Criminal Code, including a prohibition of same-sex sexual activity.
Even if the bill became law, this prohibition would not be necessarily permitted by Indonesia’s
Constitution. See Ziba Mir-Hosseini & Vanja H amzic, Control and Sexuality: The R evival
of Zina Laws in Muslim Contexts 67 (2010).
20
See Michael Kirby, Legal Discrimination Against Homosexuals: A Blind Spot of the
Commonwealth of Nations?, European Human R ights Law R eview 21 (2009); Sumit
Baudh, Human Rights and the Criminalisation of Consensual Same-Sex Sexual Acts in the
Commonwealth, South and Southeast Asia (South and Southeast Asia Resource Centre on
Sexuality, Working Paper, May 2008).

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40 NUJS LAW REVIEW 4 NUJS L. R ev. 31 (2011)

IV.  THE ROOTS OF §377: CHRISTIAN

RELIGIOUS LAW, CONVERTED TO ENGLISH
CRIMINAL LAW, AND EXPORTED TO INDIA
§377 began in the Book of Leviticus, which forms part of the
Jewish Torah and the Christian Bible’s Old Testament. Chapter 20, Verse 13,
provides as follows:

“If a man also lie with mankind, as he lieth

with a woman, both of them have commit-
ted an abomination: they shall surely be put
to death ...”21

Reflecting the human rights standards and scientific knowl-

edge of the time when it was written, Leviticus also prescribes the death pen-
alty for cursing one’s parents, committing adultery, engaging in sexual activity
with an animal, or being a wizard, as well as for blasphemy:22

“He that blasphemeth the name of the Lord,

he shall surely be put to death, and all the
congregation shall certainly stone him.”23

There is a striking resemblance between these rules of

Jewish-Christian religious law, and parts of Islamic religious law (shari’a law)
that are condemned by human rights lawyers today, ie, the death penalty for
adultery, blasphemy or male-male sexual activity. The particular prohibition of
“a man ... [lying] with mankind” is so tainted by its origins in Jewish-Christian
religious law that, absent any showing of harm to Indian society caused by
this behaviour, I would argue that it has no place in the criminal law of India’s
“Secular Democratic Republic”.24 It reflects the hostile reaction of an ancient
Middle Eastern society to a perceived violation of a strict gender hierarchy (the
man penetrated by the other was “acting like a woman”), and to a perceived
threat to the expansion of the society’s population (the two men were “wasting
their sperm” by engaging in sexual activity with no procreative potential).

21
Leviticus, Chapter 20: Verse 13, available at http://etext.virginia.edu/toc/modeng/public/
KjvLevi.html (Last visited on February 15, 2011).
22
Id., Chapter 20: Verses 9, 10, 15, 16, 27.
23
Id., Chapter 24: Verse 16.
24
Constitution of India, 1950, Preamble. France’s decriminalisation of “sodomy” in 1791 was
part of a general repeal of criminal offences derived from Christian religious law. The penalty
for “sodomy” was “to sentence ... both the active one and the passive one, to be burned alive”.
See Homosexuality in Early Modern France 19–25, 77–79 (J. Merrick & B. Ragan, eds., 2001).

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 DECRIMINALISATION OF SAME-SEX SEXUAL ACTIVITY 41

How did the rule of Leviticus 20:13 make its way into the
Indian Penal Code?25 The rule was part of Christian religious law (canon law),
administered by the Roman Catholic Church in Western Europe, until King
Henry VIII rejected the authority of the Pope and established the Church
of England. Part of this conflict amongst Christians was the decision of the
Parliament of England, in 1533, to pass an Act entitled “The Punishment of the
Vice of Buggery”:26

“Forasmuch as there is not yet sufficient ...

Punishment appointed ... by the due Course
of the Laws of this Realm, for the detest-
able and abominable Vice of Buggery com-
mitted with Mankind or Beast ... it may be
enacted ... That the same Offence be from
henceforth adjudged Felony ... and that the
Offenders being hereof convict ... shall suf-
fer such Pains of Death ... as Felons be ac-
customed to do ...”

“Buggery” refers to penile-anal intercourse (male-male or

male-female), or penile-animal intercourse, as opposed to penile-vaginal in-
tercourse, the “natural” form, because it might have procreative potential if
contraception is not used. The fact that the English word “buggery” is derived
(through French) from the word “Bulgarian” is consistent with denying that
anal intercourse is a common sexual practice in every country, and with at-
tributing the practice to heretical foreigners (Eastern Europeans in the case of
France and England; “the West” in the case of India and other countries in the
Global South).

As part of Queen Mary I’s restoration of Roman Catholicism

in 1553, the Parliament of England repealed the offence of “buggery”,27 and re-
turned it to the realm of Christian religious law. Mary was, however, succeeded
in 1558 by her Protestant half-sister Queen Elizabeth I. In 1562, Parliament
revived the felony of “buggery” in English criminal law (emphasis added):

“Sithence which Repeal so had and made

[in 1553], divers evil-disposed Persons
have been the more bold to commit the
said most horrible and detestable Vice
25
Douglas Sanders, 377 and the Unnatural Afterlife of British Colonialism in Asia, 4 Asian
Journal of Comparative Law 1-8 (2009).
26
25 Henry VIII c. 6 (1533); made permanent by 32 Henry VIII c. 3 (1540).
27
1 Mary session 1, c. 1, §5: “all Offences made Felony ... by any Act ... of Parliament ... made
sithence the first Day of the first Year of the Reign of the late ... King Henry the Eighth, not
being Felony before, ... and all Pains and Forfeitures concerning the same, ... shall from hence-
forth be repealed, and utterly void and of none Effect.”

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42 NUJS LAW REVIEW 4 NUJS L. R ev. 31 (2011)

of Buggery ... to the high Displeasure of

Almighty God ... Be it enacted ... That the
said Statute [of 1533] ... shall ... be revived,
and from thenceforth shall stand, remain
and be in full Force, Strength and Effect for
ever, ... as the same Statute was at the Day
of the Death of the said late King Henry the
Eighth ...”28

It was this Act of 1562, making “buggery” a criminal offence

punishable by death, that was exported, directly or indirectly, to as many parts
of the British Empire as possible.29 In 1828, the 1562 offence was replaced,
for England30 and for all parts of India in which British criminal courts had
jurisdiction,31 by a new version, with identical wording and an identical death
penalty for England and India:

“every Person convicted of the abominable

Crime of Buggery, committed either with
Mankind or with any Animal, shall suffer
Death as a Felon”.

Whether or not any man in India was actually convicted of

“buggery” and sentenced to death, between 1828 and the entry into force of the
Indian Penal Code on January 1, 1862, this criminal offence applied, at least in
theory, to:

“all Persons and all Places ... over whom or

which the Criminal Jurisdiction of any of
His Majesty’s Courts of Justice erected or
to be erected within the British Territories
under the Government of the United
Company of Merchants of England trading
to the East Indies does or shall hereafter
extend”.32

28
5 Elizabeth I c. 17 (1562).
29
See Alok Gupta, This Alien Legacy: The Origins of ‘Sodomy’ Laws in British Colonialism,
Human R ights Watch, New York (2008); Sanders, supra note 25.
30
“An Act for consolidating and amending the Statutes in England relative to Offences against
the Person”, 9 George IV c. 31 (1828), §1 (repeal), §15 (new offence).
31
“An Act for improving the Administration of Criminal Justice in the East Indies”, 9 George IV
c. 74 (1828), §63 (new offence), §125 (repeal).
32
Id., §1. Aditya Bondyopadhyay has suggested (via e-mail on 14 Jan. 2011) that, in 1828, the
jurisdiction of British criminal courts probably did not extend much beyond the Presidency
towns of Bombay, Calcutta and Madras.

January - March, 2011

 DECRIMINALISATION OF SAME-SEX SEXUAL ACTIVITY 43

On October 14, 1837, the all-British “Indian Law Commission”

(consisting of Macaulay, Macleod, Anderson and Millett) submitted its draft
Penal Code to Lord Auckland, the British Governor-General of India. In this
draft, “buggery” had been replaced by two crimes under the heading “Of
Unnatural Offences”:

Ҥ361. Whoever, intending to gratify un-

natural lust, touches, for that purpose, any
person, or any animal, or is by his own
consent touched by any person, for the pur-
pose of gratifying unnatural lust, shall be
punished with imprisonment of either de-
scription for a term which may extend to
fourteen years and must not be less than
two years, and shall also be liable to fine.

§362. Whoever, intending to gratify un-

natural lust, touches for that purpose any
person without that person’s free and intel-
ligent consent, shall be punished with im-
prisonment of either description for a term
which may extend to life and must not be
less than seven years, and shall also be li-
able to fine.”33

This first draft of what became §377 was both worse and bet-
ter than the 1828 offence of “buggery”. It was worse because it criminalised,
not just penile-anal intercourse, but all touching of one person by another “for
the purpose of gratifying unnatural lust”. It was better because it removed the
death penalty, and substituted two different terms of imprisonment (two to four-
teen years, or seven years to life), depending on whether or not the “touched
person” had consented.34

The Indian Penal Code became an Act of the (British)

Governor-General in (his all-British Legislative) Council on October 6, 1860.35
The final version of §377 retained the caption “Unnnatural offences”, but
merged the two broad offences in the 1837 draft (presumably because consent
was later deemed irrelevant) into one narrower offence of “carnal intercourse
against the order of nature”. This offence was narrower than the 1837 draft,
because it required some form of penetration, as opposed to mere “touching”.
Compared with the 1828 offence of “buggery”, §377 was potentially broader,

33
A Penal Code prepared by the Indian Law Commissioners and published by command of the
Governor General of India in Council 47 (1838, reprinted in 2002).
34
See also Gupta, supra note 29, 16-20.
35
Act No. 45 of 1860 (of the Legislative Council for India, not the UK Parliament).

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44 NUJS LAW REVIEW 4 NUJS L. R ev. 31 (2011)

depending on what interpretation the courts would give to “carnal intercourse

against the order of nature”. §377, however, effected at least one improvement,
even though it probably inspired no celebrations at the time. From at least
January 1, 1862, it repealed (at least impliedly) the death penalty for “bug-
gery” that existed in some parts of India, and substituted a maximum penalty
of “transportation for life” to the Andaman Islands,36 which was replaced by
“imprisonment for life” in 1955.

Having been modified in Indian criminal law, what became

of the offence of “buggery” in English criminal law? The 1828 version was
repealed, along with the death penalty (from November 1, 1861),37 and replaced
by the Offences against the Person Act, 186138 §61:

“Whosoever shall be convicted of the

abominable Crime of Buggery, com-
mitted either with Mankind or with any
Animal, shall be liable, at the Discretion
of the Court, to be kept in Penal Servitude
for Life, or for any Term not less than Ten
Years.”

In 1885, “buggery” was supplemented by a new offence of

“gross indecency” between male persons,39 which probably gave the English
offences the same scope as the 1837 draft for India (in the case of male-male
sexual activity), by encompassing any touching for the purpose of “indecency”.
In 1895, the writer Oscar Wilde was convicted of “gross indecency” and given
the maximum sentence: two years in prison with hard labour.

“Buggery” and “gross indecency” were later united, under

the heading “Unnatural Offences”, as §12 and §13 of the Sexual Offences Act,
1956.40 The Wolfenden Committee’s Report of 1957 led to the Sexual Offences
Act, 1967,41 which decriminalised sexual activity between consenting men
aged 21 or more in private. That age (the age of majority in 1967) was reduced
to 18 in 1994,42 and then to 16 (the same age as for male-female and female-
female sexual activity) in 2000.43 Finally, the Sexual Offences Act, 2003,44 a

36
Law Commission of India, 39th Report (July 1968), 4, 9, available at http://lawcommis-
sionofindia.nic.in/1-50/Report39.pdf (Last visited on 15 Feb. 2011).
37
24-25 Victoria c. 95, §1 and The Schedule (9 George IV c. 31).
38
24-25 Victoria c. 100.
39
Criminal Law Amendment Act, 1885 (An Act to make further provision for the Protection of
Women and Girls, the suppression of brothels, and other purposes), 48-49 Victoria c. 69, §11.
40
1956 c. 69.
41
1967 c. 60.
42
Criminal Justice and Public Order Act, 1994, c. 33, § 143, 145.
43
Sexual Offences (Amendment) Act, 2000, c. 44 (the equal age is 17 in Northern Ireland).
44
2003 c. 42.

January - March, 2011

 DECRIMINALISATION OF SAME-SEX SEXUAL ACTIVITY 45

comprehensive reform of this area of English criminal law, abolished the “un-
natural offences” of “buggery” and “gross indecency”. In short, after appear-
ing in criminal statutes for most of the 470-year period from 1533 to 2003,
England’s equivalent of §377 no longer exists,45 and all offences that discrimi-
nate directly or indirectly on the basis of sexual orientation have been elimi-
nated from English criminal law.46

V.  TRENDS IN INTERNATIONAL AND

COMPARATIVE HUMAN RIGHTS LAW
Given that §377 is discredited by its roots in Christian reli-
gious law, and has been disavowed by its “creator” (England), one would hope
that a brief bill and a short debate in the Union of India’s Parliament would
be sufficient to ensure its amendment or repeal.47 Unfortunately, legislators in
most countries are reluctant to discuss sexual activity. Indeed, the first decrimi-
nalisation by an independent part of the former British Empire, in the U.S. state
of Illinois in 1961, took the form of enactment of a new Criminal Code, influ-
enced by the American Law Institute’s Model Penal Code, which did not crimi-
nalise private, consensual, adult sexual activity.48 There was therefore no need
to focus on the specific sexual acts that were being decriminalised. Fortunately,
in India and other democratic countries that take legal protection of human
rights seriously, minorities affected by discriminatory laws have a second op-
tion. They may go to a national court, and ask it to apply national constitutional
law, in the light of trends in international and comparative human rights law.

A. TREATING SEXUAL ORIENTATION AS A “SUSPECT

GROUND” OF DISCRIMINATION
The first trend of which the Supreme Court of India should
be aware is towards judicial treatment of “sexual orientation” as a “suspect
ground” of discrimination (ie, raising a strong presumption, under international
human rights treaties and national constitutions, against discrimination based

45
§69 of the 2003 Act creates a new offence of “intercourse with an animal”. The offences of
rape (§1), sexual assault (§3), and sexual activity with a child (§9) apply both to different-sex
and same-sex sexual activity.
46
See generally R. Wintemute, Sexual Orientation Discrimination in Individual R ights and
the Law in Britain 491-533 (C. McCrudden & G. Chambers eds., 1994); R. Wintemute, Sexual
Orientation and Gender Identity in Human Rights in the Community 175-199 (C. Harvey
ed., 2005).
47
Law Commission of India, 172nd Report (Review of Rape Laws) (March 25, 2000), 3.6, avail-
able at http://lawcommissionofindia.nic.in/rapelaws.htm (Last visited on February 15, 2011).
“We are of the opinion that §377 deserves to be deleted. After the changes effected by us in the
preceding provisions (§375 to §376E), the only content left in §377 is having voluntary carnal
intercourse with any animal. We may leave such persons to their just deserts.”
48
See William N. Eskidge, Jr., Dishonorable Passions: Sodomy Laws in A merica 118–127 (2008).

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46 NUJS LAW REVIEW 4 NUJS L. R ev. 31 (2011)

on sexual orientation, as in the case of discrimination based on race, religion

or sex). When courts adopt this presumption, they are recognising the analogy
between the history of discrimination suffered by gay men and lesbian women,
and the history of discrimination suffered by women and racial or religious mi-
norities. They might explain this presumption by viewing sexual orientation as
an “immutable status” (ie, gay men and lesbian women are “born this way” and
cannot be expected to change), or as a “fundamental choice” (ie, an individual’s
decision about which sexual orientation is right for them is, like their decision
about whether or not to practise the religion of their family or a new religion
or no religion, a deeply personal, private or intimate decision, which the ma-
jority must accept and respect, even if they find it difficult to understand).49
In deciding whether or not sexual orientation is a choice, and whether or not
it matters, heterosexual men and women should ask themselves whether they
ever consciously chose to be attracted to women or men. Similarly, they should
note that many gay men and lesbian women might find the sexual orientation of
heterosexual persons just as hard to understand.

The trend towards judicial treatment of sexual orientation as

a “suspect ground” of discrimination has influenced, and been influenced by,
the texts of national constitutions. Since 1989, it has become more common,
when a national constitution is drafted for the first time or amended, to include
“sexual orientation” or a similar ground in the provision on “equality before
the law”, “equal protection of the laws” or “non-discrimination”. The first na-
tional constitutions in the world to do so were South Africa’s 1993 transitional
Constitution,50 and 1996 final Constitution51:

“The state may not unfairly discriminate

... against anyone on one or more grounds,
including race, sex, ..., sexual orientation,
... religion....”

South Africa is a country in which the black African majority

has a long and bitter experience of racial discrimination. Those who adopted
the transitional and final Constitutions recognised the similarity between dis-
crimination based on race and discrimination based on sexual orientation.52 In
National Coalition for Gay and Lesbian Equality v. Minister of Justice (1998),
the Constitutional Court of South Africa noted the importance of constitutional
rights for lesbian and gay persons:
49
R. Wintemute, Sexual Orientation and Human R ights: The United States Constitution, the
European Convention, and the Canadian Charter (1997).
50
Constitution of the Republic of South Africa Act (No. 200 of 1993), §8(2).
51
Constitution of the Republic of South Africa (No. 108 of 1996), §9(3).
52
See Edwin Cameron, Sexual Orientation and the Constitution, 110 South A frican Law
Journal 450, 468-69 (1993) (the draft Bills of Rights of the two main black-majority political
parties, the African National Congress led by Nelson Mandela and the Inkatha Freedom Party,
both expressly prohibited discrimination based on sexual orientation).

January - March, 2011

 DECRIMINALISATION OF SAME-SEX SEXUAL ACTIVITY 47

“The impact of discrimination on gays and

lesbians is rendered more serious ... by the
fact that they are a political minority not
able on their own to use political power to
secure favourable legislation .... They are
... almost exclusively reliant on the Bill
of Rights for their protection. ... [They]
are a permanent minority in society and
have suffered in the past from patterns of
disadvantage.”53

South Africa was followed by the Fiji Islands in 1997,54

Ecuador in 1998, Portugal in 2004,56 and Bolivia in 2009.57 And at least 12
55

states or territories in countries with federal systems have added sexual orien-
tation or a similar ground (“sexual identity”) to the non-discrimination articles
of their constitutions: six in Brazil,58 five in Germany,59 and one in Argentina.60

At the international level, Article 21(1) of the Charter of

Fundamental Rights of the European Union (December 7, 2000), which was
intended to supplement the European Convention on Human Rights (November
4, 1950) in situations governed by EU law, provides:61

“Any discrimination based on any ground

such as sex, race, ... religion ... or sexual
orientation shall be prohibited.”

On December 1, 2009, the Charter became legally binding

and enforceable by the EU’s highest court (the Court of Justice of the European
Union, based in Luxembourg), under the new Art. 6(1) of the EU Treaty.

Because many national constitutions and international human

rights treaties were drafted long before the first challenges to discrimination

53
Case CCT 11/98, available at http://www.constitutionalcourt.org.za, ¶25-26, 28 (Last visited
on February 15, 2011).
54
Constitution Amendment Act 1997, § 38(2)(a).
55
Constitution, 1998, Article 23(3), replaced by Constitution, 2008, Articles 11(2), 66(9), 83(14).
56
Constitution, 2004 (amendment), Article 13(2).
57
Constitution (approved by referendum on 25 Jan. 2009), Article 14. II.
58
Mato Grosso, Constitution, 1989, Art. 10. III; Sergipe, Constitution, 1989, Art. 3.II; Federal
District, Organic Law, 1993, Article 2; Alagoas, Constitution, 2001 (amendment), Art. 2-I;
Santa Catarina, Constitution, 2002 (amendment), Art. 4-IV; Pará, Constitution, 2007 (amend-
ment), Art. 3-IV.
59
Berlin, Constitution, 1995, Article 10(2); Brandenburg, Constitution, 1992, Article 12(2);
Bremen, Constitution, 1947 (as amended on 4 Sept. 2001), Article 2; Saarland, Constitution,
1947 (as amended in Feb. 2011), Article 12; Thuringia, Constitution, 1993, Article 2(3).
60
Autonomous City of Buenos Aires, Constitution, 1 October 1996, Article 11.
61
See http://www.europarl.europa.eu/charter/pdf/text en.pdf.

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48 NUJS LAW REVIEW 4 NUJS L. R ev. 31 (2011)

based on sexual orientation, and are difficult to amend, lawyers must often
argue that the open-ended list of prohibited grounds of discriminations in a
constitution or treaty should be interpreted as implicitly including sexual orien-
tation, because of its similarity to the enumerated grounds. The European Court
of Human Rights in Strasbourg (France),62 which issues binding interpreta-
tions of the European Convention on Human Rights, affecting the 800,000,000
people living in the 47 member states of the Council of Europe,63 has developed
a substantial body of case-law establishing a strict justification test for cases
involving discrimination based on sexual orientation. In particular, the Court
has drawn analogies between sexual orientation and race, religion and sex.

In Smith & Grady v. United Kingdom (September 27, 1999),

the Court held that the dismissal of all lesbian and gay members of the armed
forces could not be justified by the hostility of their heterosexual colleagues
towards them:

“97. ... To the extent that they represent a

predisposed bias on the part of a hetero-
sexual majority against a homosexual mi-
nority, these negative attitudes cannot ...
amount to sufficient justification for the
interferences with the applicants’ rights ...,
any more than similar negative attitudes
towards those of a different race, origin or
colour.”

In Mouta v. Portugal (December 21, 1999), the Court con-

cluded that the sexual orientation of a gay father could not be treated as a nega-
tive factor in deciding whether or not to award him custody of his daughter
from a prior marriage to a heterosexual woman:

“36. ... a distinction based on ... the appli-

cant’s sexual orientation ... is not acceptable
under the Convention (see, mutatis mutan-
dis, the Hoffmann judgment ... [para.] 36
[in which a Jehovah’s Witness mother had
been denied custody of her children be-
cause of her religion]).”

Finally, in S.L. v. Austria (January 9, 2003), the Court stressed

that:

62
All cited judgments of the Court are available at http://www.echr.coe.int.
63
See http://www.coe.int. (Last visited on February 15, 2011). The European Union (http://eu-
ropa.eu) has 27 member states.

January - March, 2011

 DECRIMINALISATION OF SAME-SEX SEXUAL ACTIVITY 49

“37. ... sexual orientation is a concept

[implicitly] covered by Art. 14 [the non-
discrimination provision of the Convention]
... Just like differences [in treatment] based
on sex, ... differences [in treatment] based
on sexual orientation require particularly
serious reasons by way of justification ...”

At the national level, the Supreme Court of Canada held unan-

imously (9-0), in Egan v. Canada (1995), that sexual orientation is an “analo-
gous ground” under §15(1) of the Canadian Charter of Rights and Freedoms
(part of the Constitution of Canada), meaning that it is analogous to race, reli-
gion and sex, and that discrimination based on sexual orientation is implicitly
prohibited by §15(1). The majority observed that:

“[t]he historic disadvantage suffered by

homosexual persons has been widely rec-
ognized and documented. Public harass-
ment and verbal abuse ... is not uncommon.
[They] have been the victims of crimes of
violence ... [and] discriminated against ...
in ... employment and ... access to services.
... [S]tigmatization ... and ... hatred ... ha[ve]
forced many homosexuals to conceal their
orientation. This imposes its own associ-
ated costs in the work place, the commu-
nity and in private life.... [H]omosexuals,
whether as individuals or couples, form an
identifiable minority who have suffered
and continue to suffer serious social, politi-
cal and economic disadvantage.”64

The minority agreed on this point, but preferred an “immu-

table status” analysis:

“whether or not sexual orientation is based

on biological or physiological factors,
which may be a matter of some controversy,
it is a deeply personal characteristic that is
either unchangeable or changeable only at
unacceptable personal costs, and so falls

64
[1995] 2 S.C.R. 513 at 600-02, available at http://scc.lexum.umontreal.ca/en/1995/1995rcs2
513/1995rcs2-513.html (Last visited on February 15, 2011).

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50 NUJS LAW REVIEW 4 NUJS L. R ev. 31 (2011)

within the ambit of §15 protection as being

analogous to the enumerated grounds.”65

Similarly, the Supreme Court of California (USA) determined

in In re: Marriage Cases (May 15, 2008) that sexual orientation is a “suspect
classification” warranting “strict scrutiny” under the California Constitution.
The Court cited with approval judicial statements that “[l]esbians and gay men
. . . share a history of persecution comparable to that of Blacks and women”,
and that “[o]utside of racial and religious minorities, we can think of no group
which has suffered such ‘pernicious and sustained hostility’ ... as homosexu-
als”. Consequently, the government “bears a heavy burden of justification”:
classifications based on sexual orientation must be “necessary” to further a
“constitutionally compelling” government interest.66

B. GRADUAL ELIMINATION OF DISCRIMINATION

BASED ON SEXUAL ORIENTATION

The second trend that can be seen in international and com-

parative human rights law is the gradual elimination of legal and social dis-
crimination based on sexual orientation, as a result of the application of the
“suspect ground” presumption by courts and legislatures. This process of law
reform involves a number of steps, which tend to be taken in roughly the same
order, but may be stretched over a period of more than 200 years. The process
requires a society to evolve slowly from a position of rejecting and persecuting
its lesbian and gay minority, to one of accepting and respecting them as fellow
human beings and citizens, by granting them equal access to every opportunity
the society offers.

The first step is the one taken by the Legislative Council

when the Indian Penal Code came into force on 1 January 1862: repeal of the
Leviticus-inspired death penalty for same-sex sexual activity. The second step
is the one taken by the Delhi High Court in Naz Foundation, and currently
under review by the Supreme Court: decriminalisation of private, consensual,
adult, same-sex sexual activity. The third step is the removal of any remaining
discrimination from the criminal law, especially with regard to the age of con-
sent to sexual activity. The fourth step is the enactment of legislation prohibit-
ing discrimination based on sexual orientation (and in some countries, gender
identity) in employment, education, housing, and access to services, both in
the public and private sectors. The fifth and final step (which may be divided
into multiple smaller steps) is the reform of family law relating to marriage,

Id., 528.
65

See http://www.courtinfo.ca.gov/opinions/archive/S147999.PDF (106) (4-3) (Last visited on 15

66

Feb. 2011).

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 DECRIMINALISATION OF SAME-SEX SEXUAL ACTIVITY 51

adoption of children, and medically assisted procreation. To summarise, the

five steps are:

(1) repeal of the death penalty for same-sex sexual activity;

(2) decriminalisation of such activity (no fines or imprisonment);

(3) removal of all discrimination against such activity from the criminal
law;

(4) legislation prohibiting discrimination based on sexual orientation;

(5) reform of family law.

Would taking the second step (decriminalisation) mean that

India must quickly take the third, fourth and fifth steps? Not at all. Subject to
any decisions of international human rights tribunals or national courts with
which it must comply, each national government may take these steps at its own
pace. Although France took steps one and two in 1791, it is still a long way from
completing the fifth step in 2011, 220 years after decriminalisation. Similarly,
England and Wales decriminalised through the Sexual Offences Act, 1967, but
then took 36 years to complete the third step, through the Sexual Offences
(Amendment) Act, 2000 and the Sexual Offences Act, 2003. The fourth step took
the form of the Employment Equality (Sexual Orientation) Regulations, 2003
(implementing the European Union’s Directive 2000/78/EC) and the Equality
Act (Sexual Orientation) Regulations, 2007, dealing with education, housing
and access to services, both now replaced by the Equality Act, 2010. The fifth
step began with the Adoption and Children Act, 2002 (in force on December
30, 2005)67 and the Civil Partnership Act, 2004 (in force on December 5, 2005),
and continued with the Human Fertilisation and Embryology Act, 2008 (rel-
evant sections in force by April 6, 2010).68 Same-sex couples in England and
Wales, however, are still not able to marry.69

C. DECRIMINALISATION OF SAME-SEX SEXUAL

ACTIVITY

As recently as 1960, sexual activity between men was a crim-

inal offence in almost every part of the former British Empire,70 including all

67
§§49-51 and §144(4).
68
§§42-47 and §53-54.
69
See Ferguson & Others v. United Kingdom, Application No. 8254/11 (European Court of
Human Rights) (challenging the exclusion of same-sex couples from marriage and different-
sex couples from civil partnership).
70
Alok Gupta has pointed out an exception in Sudan. See Gupta, supra note 29, 21-22. § 293 of
the Sudan Penal Code, 1899, punished “carnal intercourse against the order of nature” with any
man or woman, but only if the act was committed “without his or her consent”. Sudan Penal

January - March, 2011

52 NUJS LAW REVIEW 4 NUJS L. R ev. 31 (2011)

50 states of the USA. The first decriminalisations were the result of legislation
in Illinois in 1961,71 England and Wales in 1967,72 and Canada in 1969.73 These
reforms implemented the American Law Institute’s Model Penal Code (1955
draft),74 or the Wolfenden Committee’s Report (1957),75 and were influenced by
the research of Dr. Alfred Kinsey,76 which had demonstrated that sexual activity
between men was much more common than had been believed. In 2011 (the 50th
anniversary of the repeal in Illinois, and the 200th anniversary of the French-
inspired repeal in the Netherlands), a clear majority of the member states of
the United Nations (112 out of 192 states or 58.3%) no longer criminalise.77
Laws criminalising same-sex sexual activity are now found mainly in three
categories of countries in Asia, Africa and the English-speaking Caribbean:
(a) countries occupied by the UK during the former British Empire (England
spread around the world its pre-1967 failure to separate Christian religious law
from secular criminal law); (b) countries with Muslim majorities that fail to
separate Islamic religious law from secular criminal law (the most populous
exceptions to this pattern are Indonesia and Turkey); and (c) low-income and
middle-income countries.78

Code, 1899 available at http://www.archive.org/stream/sudanpenalcode00sudaiala#page/n99/

mode/2up (Last visited on 28 Feb. 2011); Alan Gledhill, The Penal Codes of Northern Nigeria
and the Sudan, 433 (1963) (Gledhill cites the amended, 1925 version of the Sudan Penal Code,
in which §293 became §318, and §319 added a similar prohibition of non-consensual “gross
indecency”). This anomalous failure to criminalise, when the new British rulers first had the
opportunity to do so in 1899, is difficult to explain. Had the British drafters found male-male
sexual activity so common in Sudan, that they considered it necessary to adapt §377 of the
Indian Penal Code to suit local conditions? In any case, I would not describe this failure to
criminalise as the first decriminalisation in the former British Empire, because “decriminali-
sation” implies deliberate repeal of existing criminal sanctions by the legislature or courts
of an independent country (or a state or province of such a country). The temporary “non-
criminalisation” that took place in Sudan in 1899 would appear to have been a decision of the
British colonial rulers which, sadly, did not last after independence. Gupta cites, supra note
29, 22, Sudan’s “sodomy” law of 1991, which permits a death sentence after a third conviction.
71
Illinois, Criminal Code of 1961, Laws 1961, 1983 (in force on 1 Jan. 1962).
72
Sexual Offences Act 1967.
73
Criminal Law Amendment Act, 1968-69, Statutes of Canada 1968-69, c. 38, § 7.
74
Proposed Model Penal Code: Tentative Draft No. 4 (including “Sexual Offenses”), §207.5
(May 1955). See Eskridge, supra note 48.
75
Report of the Committee on Homosexual Offences and Prostitution, Cmnd. 247 (Sept. 1957).
76
Sexual Behavior in the Human Male (1948).
77
See ILGA, State-sponsored Homophobia: A world survey of laws prohibiting same-sex ac-
tivity between consenting adults, available at http://old.ilga.org/Statehomophobia/ILGA_
State_Sponsored_Homophobia_2010.pdf . (The 2010 report lists 76 UN member states with
criminal laws, and 3 UN member states where the law is unclear, to which I would add India).
(Last visited on February 28, 2011).
78
See, e.g., The World Bank, World Development Indicators 2006, available at http://devdata.
worldbank.org/wdi2006/contents/income.htm, p. 2, listing 54 “high income” countries, of
which only seven criminalise. Of these seven, six have Muslim majorities: Bahrain, Brunei,
Kuwait, Qatar, Saudi Arabia, and the United Arab Emirates. The exception is Singapore, a
former British colony with its own version of the Indian Penal Code (Last visited on February
28, 2011).

January - March, 2011

 DECRIMINALISATION OF SAME-SEX SEXUAL ACTIVITY 53

Although decriminalisation has often been the result of ac-

tion by the legislature (as in Illinois, England and Wales, and Canada), as early
as 1974, the Supreme Judicial Court of Massachusetts (USA) saw the potential
inconsistency between constitutional rights and criminal laws prohibiting pri-
vate, consensual, adult sexual activity. In Commonwealth v. Balthazar,79 the
Court did exactly what the Delhi High Court did in Naz Foundation, by “read-
ing down” a Massachusetts criminal statute (§35) that prohibited “commit[ting]
any unnatural and lascivious act with another person”. The Court said: “we
conclude that [this provision] must be construed to be inapplicable to private,
consensual conduct of adults”.80 In 2002, the Court clarified its judgment, de-
claring that its “holding[] in the Balthazar ... case[] concerning acts conducted
in private between consenting adults extend[s] to §34, as well”.81 §34 prohibits
“commit[ting] the abominable and detestable crime against nature, with man-
kind or with a beast”, and provides for imprisonment of up to 20 years.

The first decision of an international human rights tribunal

requiring decriminalisation was delivered 30 years ago. In Dudgeon v. United
Kingdom (October 22, 1981),82 the European Court of Human Rights ruled
that the unamended offences of “buggery” and “gross indecency”, found in
§61 of the Offences against the Person Act, 1861 and §11 of the Criminal Law
Amendment Act 1885 (both Acts still applied in Northern Ireland), violated
the right to respect for private life in Art. 8 of the European Convention on
Human Rights. The Court made it clear that no criminal prosecution or convic-
tion was necessary to give Jeffrey Dudgeon standing to challenge these crimi-
nal offences:

“the maintenance in force of the impugned

legislation constitutes a continuing inter-
ference with the applicant’s right to respect
for his private life (which includes his sex-
ual life) within the meaning of Art. 8(1) ...
the very existence of this legislation contin-
uously and directly affects his private life
... : either he respects the law and refrains
from engaging – even in private with con-
senting male partners - in prohibited sexual

79
318 N.E.2d 478 (Mass. 1974).
80
Id., 481.
81
Gay & Lesbian Advocates & Defenders v. Attorney General, 763 N.E.2d 38, 40 (Mass. 2002).
Similar decisions by the highest courts of U.S. states include State v. Pilcher, 242 N.W.2d
348 (Iowa 1976); State v. Saunders, 381 A.2d 333 (New Jersey 1977); People v. Onofre, 415
N.E.2d 936 (New York 1980); Commonwealth v. Bonadio, 415 A.2d 47 (Pennsylvania 1980);
Commonwealth v. Wasson, 842 S.W.2d 487 (Kentucky 1992); Gryczan v. State, 942 P.2d 112
(Montana 1997); Powell v. State, 510 S.E.2d 18 (Georgia 1998); Jegley v. Picado, 80 S.W.3d
332 (Arkansas 2002).
82
See http://www.echr.coe.int (Last visited on 15 Feb. 2011).

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54 NUJS LAW REVIEW 4 NUJS L. R ev. 31 (2011)

acts to which he is disposed by reason of

his homosexual tendencies, or he commits
such acts and thereby becomes liable to
criminal prosecution.”83

The Court then considered whether or not these criminal

offences could be justified by the UK Government, under Art. 8(2), as “nec-
essary in a democratic society” for the protection of “morals” or “the rights
and freedoms of others”. The Court set the UK Government a high standard,
noting that “necessary” does not mean “’useful’, ‘reasonable’, or ‘desirable’,
but implies the existence of a ‘pressing social need’ for the interference”, and
that “a restriction on a Convention right cannot be regarded as ‘necessary in a
democratic society’ - two hallmarks of which are tolerance and broadminded-
ness - unless ... it is proportionate to the legitimate aim pursued”. As for the
particular legal issue in Dudgeon, the Court said (emphasis added):

“The present case concerns a most inti-

mate aspect of private life [sexual life].
Accordingly, there must exist particularly
serious reasons before interferences on the
part of the public authorities can be legiti-
mate ...”84

The Court rejected the UK Government’s arguments that

the criminal offences could be justified, for two main reasons. The first was
“Western European consensus” against these offences, which was similar (al-
beit stronger) than the current “United Nations consensus” against them:

“in the great majority of the member States

of the Council of Europe [17 of 20 at the
time] it is no longer considered to be nec-
essary or appropriate to treat homosexual
practices ... as in themselves a matter to
which the sanctions of the criminal law
should be applied ...”

The second reason was the virtual absence of prosecutions in

Northern Ireland:

“the authorities have refrained in recent

years from enforcing the law in respect of
private homosexual acts between consent-
ing males over ... 21 ... No evidence has
¶41.
83

Id.,51-53.
84

January - March, 2011

 DECRIMINALISATION OF SAME-SEX SEXUAL ACTIVITY 55

been adduced to show that this has been

injurious to moral standards ... It cannot be
maintained ... that there is a ‘pressing social
need’ to make such acts criminal offences,
there being no sufficient justification pro-
vided by the risk of harm to vulnerable sec-
tions of society requiring protection or by
the effects on the public.”

As for the “proportionality” of the interference, which in-

volved balancing the harm to gay men (and, by ricochet, lesbian women), caused
by the existence of the criminal offences, against any benefits the offences pro-
vided to society, the Court concluded:

“such justifications ... for retaining the law

... are outweighed by the detrimental effects
which [its] very existence ... can have on
the life of a person of homosexual orienta-
tion like the applicant. Although members
of the public who regard homosexuality
as immoral may be shocked, offended or
disturbed by the commission by others of
private homosexual acts, this cannot on its
own warrant the application of penal sanc-
tions when it is consenting adults alone
who are involved.”85

Thus, the criminal offences were not “necessary” to protect

“the rights and freedoms of others”, given that only consenting adults and pri-
vate acts were involved, or a justifiable means of expressing the “moral atti-
tudes” of the heterosexual majority:

“Decriminalisation does not imply ap-

proval, and a fear that some sectors of the
population might draw misguided conclu-
sions in this respect from reform of the leg-
islation does not afford a good ground for
maintaining it in force with all its unjustifi-
able features.”86

The Court reaffirmed its reasoning in subsequent cases from

the Republic of Ireland and Cyprus (the two other Council of Europe mem-
ber states with similar laws in 1981): Norris v. Ireland (October 26, 1988) and
85
Id., 60.
86
Id. 61.

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56 NUJS LAW REVIEW 4 NUJS L. R ev. 31 (2011)

Modinos v. Cyprus (April 22, 1993). After the fall of the Berlin Wall and the
Iron Curtain in 1989-91, the political institutions of the Council of Europe (the
Committee of Ministers and the Parliamentary Assembly) insisted that all the
formerly Communist countries of Eastern Europe applying to join the Council
of Europe (the “club” of democratic, human-rights-respecting, European coun-
tries) had to ensure that their criminal law complied with Dudgeon. As a result,
laws like §377 have now been eliminated from all 48 European countries (the
47 Council of Europe member states and the not-yet-democratic country of
Belarus), except for part of Cyprus.87

The three judgments of the European Court of Human Rights

(Dudgeon, Norris and Modinos) were cited to the United Nations Human
Rights Committee in Toonen v. Australia (1994).88 Adopting reasoning similar
to that of the European Court in Dudgeon, the Committee concluded that the
state of Tasmania’s criminal offences of “unnatural sexual intercourse” (similar
to §377) and “indecent practice between male persons” (“gross indecency”),89
which no longer existed in Australia’s seven other states and territories, vio-
lated Article 17 (“No one shall be subjected to arbitrary or unlawful interfer-
ence with his privacy ...”) of the International Covenant on Civil and Political
Rights (to which India acceded on April 10, 1979). The distinctive feature of
the Committee’s reasoning is that a “public health argument” was made by
Tasmania, because HIV and its role in causing the AIDS epidemic had been
identified by scientists after the Dudgeon judgment in 1981. Even though it is
true that anal intercourse without a condom carries a risk of transmitting HIV,
the Committee unequivocally rejected this argument:

“the criminalization of homosexual prac-

tices cannot be considered a reasonable
means or proportionate measure to achieve
the aim of preventing the spread of AIDS/
HIV. The Government of Australia [which
disagreed with Tasmania] observes that
statutes criminalizing homosexual activity
tend to impede public health programmes
‘by driving underground many of the peo-
ple at the risk of infection’. Criminalization
of homosexual activity thus would appear
to run counter to the implementation of

87
The criminal law of Turkish-occupied Northern Cyprus (where the reform adopted in Southern
Cyprus does not, in practice, apply) is expected to be amended in 2011.
88
Communication No. 488/1992, Views of the Committee, adopted on March 31, 1994, document
dated April 4, 1994, available at http://www1.umn.edu/humanrts/undocs/html/vws488.htm
(see Views, footnote 1).
89
Tasmania, Criminal Code Act 1924, §§ 122-123.

January - March, 2011

 DECRIMINALISATION OF SAME-SEX SEXUAL ACTIVITY 57

effective education programmes in respect

of the HIV/AIDS prevention.”90

The Government of Australia complied very quickly with

Toonen, by introducing legislation in the federal Parliament that made the
Tasmanian laws unenforceable.91 Tasmania formally repealed them in 1997.92

The “public health argument” was also considered in Canada

by the Ontario and Québec Courts of Appeal, in challenges to the higher age
of consent to anal intercourse (18 v. 14 for vaginal intercourse at the time) in
§159 of Canada’s Federal Criminal Code. On its face, §159 is neutral as among
sexual orientations, by applying both to male-female and male-male anal inter-
course. In practice, however, anal intercourse is much more important in male-
male sexual activity than in male-female sexual activity, in which the generally
preferred alternative is vaginal intercourse. Thus, §159 was struck down by the
Québec Court of Appeal in R. v. Roy,93 and by the Ontario Court of Appeal in
R. v. M.(C.).94 Under §15(1) (equality and non-discrimination) of the Canadian
Charter, all three judges in Roy found indirect discrimination based on sexual
orientation, because of the disproportionate impact on gay men, as did Abella
J.A. (now Justice Abella of the Supreme Court of Canada) in M.(C.).95 Under
§1 (justification) of the Charter, all six judges held that “prevention of HIV
transmission” is not a proportionate justification for criminalisation of private,
consensual sexual activity above an age when it would otherwise be legal.96

Decriminalisation (repeal of a blanket ban on all private,

adult, consensual male-male sexual activity, even if the age of consent is not
equal) was achieved in Canada in 1969,97 New Zealand in 1986,98 and the whole
of Australia in 1994.99 The United States followed in 2003 when, in Lawrence
& Garner v. Texas,100 the Supreme Court struck down a Texas law banning
“deviate sexual intercourse” between persons of the same sex (and similar laws
in 12 or 13 other US states and Puerto Rico). Police entered a private apartment

90
Toonen, 8.5. See also International HIV/AIDS Alliance, “Enabling legal environments
for effective HIV responses: A leadership challenge for the Commonwealth” (2010), avail-
able at http://www.aidsalliance.org/includes/Publication/Enabling-legal-environments-for-
effective-HIV-responses.pdf. (Last visited on February 28, 2011).
91
Human Rights (Sexual Conduct) Act 1994 (No. 179 of 1994).
92
Criminal Code Amendment Act 1997 (No. 12 of 1997).
93
(1998), 125 Canadian Criminal Cases (3d) 442.
94
(1995), 98 C.C.C. (3d) 481.
95
The other two judges found direct discrimination based on age.
96
The age of consent was raised from 14 to 16 in 2008, but the age of 18 for anal intercourse has
not been lowered. It is arguably still in force outside of Ontario and Québec.
97
Supra note 73.
98
Homosexual Law Reform Act, 1986.
99
Supra notes 91-92.
100
539 U.S. 558 (26 June 2003), available at http://www.law.cornell.edu/supct/html/02-102.
ZO.html. (Last visited on February 15, 2011).

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58 NUJS LAW REVIEW 4 NUJS L. R ev. 31 (2011)

and found two men, John Lawrence and Tyron Garner (the petitioners before
the US Supreme Court), engaging in anal intercourse. They were arrested, held
in custody overnight, charged, convicted, and fined US$200 each.

Citing Dudgeon,101 the US Supreme Court found an unjus-

tifiable interference of the right to “liberty” in the due process clause of the
Fourteenth Amendment to the U.S. Constitution. Justice Kennedy, writing for
the majority, clearly identified the harm caused by the remaining criminal laws:

“When homosexual conduct is made crim-

inal by the law of the State, that declaration
in and of itself is an invitation to subject
homosexual persons to discrimination both
in the public and in the private spheres.”102

He also carefully defined the legal issue before the Court:

“The present case does not involve minors.

It does not involve persons who might be
injured or coerced or who are situated in
relationships where consent might not eas-
ily be refused. It does not involve public
conduct or prostitution. It does not involve
whether the government must give formal
recognition to any relationship that homo-
sexual persons seek to enter [eg, a right to
marry or to register a ‘civil union’]. The
case does involve two adults who, with
full and mutual consent from each other,
engaged in sexual practices common to a
homosexual lifestyle. The petitioners are
entitled to respect for their private lives.
The State cannot demean their existence
or control their destiny by making their
private sexual conduct a crime. Their right
to liberty under the Due Process Clause
gives them the full right to engage in their
conduct without intervention of the gov-
ernment. ... The Texas statute furthers no
legitimate state interest which can justify
its intrusion into the personal and private
life of the individual....”103
101
Id., 573, 576.
102
Id., 575.
103
Id., 578.

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 DECRIMINALISATION OF SAME-SEX SEXUAL ACTIVITY 59

In reaching this conclusion, the majority was greatly assisted

by comparative law:

“The right the petitioners seek in this case

has been accepted as an integral part of
human freedom in many other countries.
There has been no showing that in this
country the governmental interest in cir-
cumscribing personal choice is somehow
more legitimate or urgent.”104

Can Balthazar, Dudgeon, Roy, M.(C.), and Lawrence be dis-

missed as decisions from courts in the Global North? Can Toonen be dismissed,
even though it is the decision of an international human rights tribunal with
jurisdiction over both the Global South and the Global North, because the case
concerned Australia (a geographically southern but “economically northern”
member of the Global North)? First, there is no doubt that Toonen applies to
India, and that the UN Human Rights Committee would say so if an individual
case were brought to it from India (ie, if, hypothetically, India were to accede
to the Optional Protocol to the ICCPR). The Committee made it clear in 2007,
in X v. Colombia,105 that there is no “Global South exception” to Toonen. The
Egyptian and Tunisian members of the Committee, who dissented from the
majority’s decision requiring equal treatment of unmarried same-sex and dif-
ferent-sex couples, made it clear that they agreed with the principle of Toonen:

“[T]here is no doubt that [A]rticle 17 … is

violated by discrimination on grounds of
sexual orientation. The Committee … has
rightly and repeatedly found that protec-
tion against arbitrary or unlawful interfer-
ence with privacy precludes prosecution
and punishment for homosexual relations
between consenting adults.”

Second, national courts in Latin America, Africa, the Pacific

Islands, and Asia have reached the same conclusions as the UN Human Rights
Committee, the European Court of Human Rights, the U.S. Supreme Court,
and the highest courts of 9 U.S. states and two Canadian provinces. Possibly the
first national court in the Global South to do so was the Constitutional Court of
Ecuador in 1997.106 The Court declared unconstitutional Art. 516 of the Penal

104
Id., 577.
105
Communication No. 1361/2005, May 14, 2007 (equal treatment of unmarried different-sex and
same-sex couples).
106
Tribunal Constitucional, Case No. 111-97-TC (25 Nov. 1997), published in Registro Oficial,
Supplement, No. 203 (27 Nov. 1997).

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60 NUJS LAW REVIEW 4 NUJS L. R ev. 31 (2011)

Code, which provided: “In cases of homosexualism, that do not constitute rape,
the two participants shall be punished with imprisonment for 4 to 8 years.”107
Most gay men and lesbian women would find the Court’s reasoning insulting:

“in the area of science, it has not been de-

termined whether homosexual behaviour is
a deviant behaviour or is produced by the
action of the genes of the individual, rather
medical theory tends to find, that the be-
haviour is a dysfunction or hyperfunction
of the endocrine system, which means that
this abnormal behaviour should be the ob-
ject of medical treatment ... imprisonment
in jails, creates a suitable environment
for the development of this dysfunction.
Nevertheless, it is clear that even though
this behaviour must not be legally punish-
able, protection of the family and of mi-
nors, requires that it must not be a socially
exaltable behaviour ...”

The Court, however, reached a respectful conclusion:

“homosexuals are above all holders of

all the rights of the human person and
therefore, have the right to exercise them
in conditions of full equality ... that is to
say that their rights enjoy legal protection,
as long as in the exteriorisation of their
behaviour they do not harm the rights of
others, as is the case with all other persons
...”108

In 1998, a new court of the Global South reached the same

conclusion as the Constitutional Court of Ecuador, but did so using much more
detailed and respectful reasoning. In National Coalition for Gay and Lesbian
Equality v. Minister of Justice,109 the Constitutional Court of South Africa held
that the common-law crime of “sodomy” (anal intercourse) violated §9 (right
to be free from unfair discrimination), §10 (right to have human dignity re-
spected) and §14 (right to privacy). With regard to discrimination, the Court
reasoned as follows:

107
Author’s unofficial translation from the original Spanish version.
108
Id.
109
(9 Oct. 1998), available at http://www.constitutionalcourt.org.za, Case CCT 11/98 (Last vis-
ited on February 15, 2011).

January - March, 2011

 DECRIMINALISATION OF SAME-SEX SEXUAL ACTIVITY 61

“23. The discriminatory prohibitions on

sex between men reinforce already existing
societal prejudices and severely increase
the negative effects of such prejudices on
their lives. ‘Even when these provisions are
not enforced, they reduce gay men ... to ...
‘unapprehended felons’, thus entrenching
stigma and encouraging discrimination in
employment and insurance and in judicial
decisions about [child] custody ...’”

24. ... [S]uch provisions also ... ‘legitimate

or encourage blackmail, police entrapment,
[and] violence ...’

26. ... (a) ... Gay men are a permanent mi-

nority in society and have suffered in the
past from patterns of disadvantage. ...

(b) The ... purpose [of the prohibitions] is

to criminalise private conduct of consent-
ing adults which causes no harm to anyone
else [because it] fails to conform with the
moral or religious views of a section of so-
ciety. ...”

As for dignity and privacy, the Court found separate, inde-

pendent violations of constitutional rights (emphasis added):

“28. ... [T]he right to dignity ... requires us

to acknowledge the value and worth of all
individuals as members of our society. ...
[The crime of “sodomy”] punishes a form
of sexual conduct which is identified by our
broader society with homosexuals. Its sym-
bolic effect is to state that in the eyes of our
legal system all gay men are criminals. The
stigma thus attached to a significant pro-
portion of our population is manifest. But
the harm imposed by the criminal law is
far more than symbolic. ... [G]ay men are
at risk of arrest, prosecution and conviction
... simply because they seek to engage in
sexual conduct which is part of their ex-
perience of being human. ... [T]he sodomy

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62 NUJS LAW REVIEW 4 NUJS L. R ev. 31 (2011)

offence builds insecurity and vulnerability

into the daily lives of gay men. There can be
no doubt that the existence of a law which
punishes a form of sexual expression for
gay men degrades and devalues gay men
in our broader society…

32. Privacy recognises that we all have a

right to a sphere of private intimacy and
autonomy which allows us to establish
and nurture human relationships without
interference from the outside community.
The way in which we give expression to
our sexuality is at the core of this area
of private intimacy. If, in expressing our
sexuality, we act consensually and without
harming one another, invasion of that pre-
cinct will be a breach of our privacy....”

Unlike the Delhi High Court, the South African Court de-
cided to invalidate the entire offence of “sodomy” for future cases (arising after
October 9, 1998), probably because other provisions of South African criminal
law were available to cover non-consensual or public behaviour. For past cases,
however, that arose after the transitional, post-apartheid Constitution came into
force (April 27, 1994), the Court “read down” the “sodomy” offence in the same
way as the Delhi High Court:

“106. ... 1.2 ... [T]he [Court’s] order ...

shall not invalidate any conviction for the
offence of sodomy unless that conviction
relates to conduct constituting consensual
sexual conduct between adult males in pri-
vate committed after April 27, 1994 ...”

Since 2005, in addition to the Delhi High Court, four courts

in Asia and the Pacific Islands have issued judgments similar to (or even
broader than) that of the South African Court in National Coalition. In Nadan
& McCoskar v. State,110 Dhirendra Nadan (a Fijian man apparently of Indian
ancestry) and Thomas McCoskar (an Australian tourist) were sentenced to two
years in prison for private, consensual “carnal knowledge against the order of
nature” and “gross indecency”, both prohibited by the Fijian Penal Code. On
appeal to the High Court of Fiji, Judge Gerald Winter cited Dudgeon, Toonen,

110
[2005] FJHC 500 available at http://www.paclii.org/fj/cases/FJHC/2005/500.html. (Last vis-
ited on February 15, 2011).

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 DECRIMINALISATION OF SAME-SEX SEXUAL ACTIVITY 63

National Coalition and Lawrence, before concluding that the convictions were
unconstitutional. He “read down” the Fijian version of §377 as:

“inconsistent with the Constitution and

invalid to the extent that this law crimi-
nalizes acts constituting the private con-
sensual sexual conduct against the course
of nature between adults”.

In Hong Kong (a Special Administrative Region of the

People’s Republic of China), sexual activity between men was decriminalised
by the Crimes (Amendment) Ordinance in 1991. Two courts, have, however ex-
amined other discrimination against such activity in Hong Kong criminal law,
in relation to the age of consent and “non-private” sexual activity. In Leung v.
Secretary for Justice (2006),111 the Court of Appeal held that the discriminatory
age of consent of 21 for male-male “buggery” (v. 16 for male-female vaginal
intercourse) was contrary to the Hong Kong Bill of Rights and unconstitutional.
The Court rejected the argument that the offence was neutral among sexual
orientations:

“’[F]or gay couples the only form of sexual

intercourse available to them is anal inter-
course.’  For heterosexuals, the common
form of sexual intercourse open to them
is vaginal intercourse.  This is obviously
unavailable as between men.  It is clear
then that §118C of the Crimes Ordinance
significantly affects homosexual men in an
adverse way compared with heterosexuals. 
The impact on the former group is signifi-
cantly greater than on the latter.  I agree
with the following passage from the judg-
ment below : ‘Denying persons of a minor-
ity class the right to sexual expression in
the only way available to them, even if that
way is denied to all, remains discrimina-
tory when persons of a majority class are
permitted the right to sexual expression in
a way natural to them.  ... It is disguised
discrimination founded on a single base:
sexual orientation.’”

111
(September 20, 2006), available at http://legalref.judiciary.gov.hk/lrs/common/ju/judgment.
jsp (Quick Search, CACV 317/2005) (Last visited on February 15, 2011).

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64 NUJS LAW REVIEW 4 NUJS L. R ev. 31 (2011)

Similarly, in Secretary for Justice v. Yau Yuk Lung Zigo

(2007),112 the Court of Final Appeal found that criminalisation of male-male
anal intercourse “otherwise than in private” was discriminatory and unconsti-
tutional. Male-female vaginal intercourse in similar circumstances was only
subject to the neutral offence of “outraging public decency”, which would re-
quire proof that a third party might have seen the act and been offended. The
sexual act in question had been committed “in a car parked in a dark and iso-
lated spot at night”.113 Chief Justice Li said: “Homosexuals constitute a minor-
ity in the community. The provision has the effect of targeting them and is
constitutionally invalid.”114

Finally, and closest to India, on December 21, 2007, the

Supreme Court of Nepal issued a broad judgment (much broader than that of
the Delhi High Court) interpreting the Interim Constitution of Nepal as gener-
ally prohibiting discrimination based on sexual orientation or gender identity.115
Although the Court noted that “there is no any comprehensive law [in Nepal]
declaring the relation between homosexuals as crime”,116 the Court’s reasoning
would certainly apply to any form of discrimination in the criminal law:

“No one shall have the right to question

that how do two adults perform the sexual
intercourse and whether this intercourse is
natural or unnatural. If the right of privacy
is ensured to the sexual intercourse be-
tween two heterosexual individuals, such
right should equally be ensured to the peo-
ple ... having different gender identity and
sexual orientation as well.”117

VI.  CONCLUSION
It should now be clear that the reasoning of the Delhi High
Court in Naz Foundation is supported by a large body of persuasive authorities
from around the world: from the UN Human Rights Committee, from courts
in Asia, and from courts in Africa, Europe, North America, South America
and the Pacific Islands. Of course, these authorities are not enough on their

112
(July 17, 2007), available at http://legalref.judiciary.gov.hk/lrs/common/ju/judgment.jsp
(Quick Search, FACC 12/2006) (Last visited on February 15, 2011).
113
Id., 43.
114
Id., 29.
115
Sunil Babu Pant & Others v. Nepal Government, Writ No. 917 of 2007 A.D., available at http://
www.bds.org.np/publications/pdf_supreme_eng.pdf (English); http://www.bds.org.np/publi-
cations/Supremecourt.pdf (Nepali) (Last visited on February 15, 2011).
116
Id. 41.
117
Id., 40-41.

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 DECRIMINALISATION OF SAME-SEX SEXUAL ACTIVITY 65

own. But the Delhi High Court has backed up its conclusion with convinc-
ing arguments, based on the text and spirit of the Indian Constitution, and the
case law of the Supreme Court of India, as several authors demonstrated in the
2009 Special Issue of this law review.118 The Supreme Court should therefore
affirm the High Court’s “reading down” of §377, and extend it from the State
of Delhi to the whole of India. In doing so, the Supreme Court would bring the
Indian Penal Code into conformity with both the Indian Constitution and the
International Covenant on Civil and Political Rights, and make a very impor-
tant contribution towards improving respect for the human rights of lesbian and
gay persons, in India and many other countries in the Global South.

118
See, e.g., Tarunabh Khaitan, Reading Swaraj into Article 15: A New Deal for All Minorities,
2 Nujs L. Rev. 419 (2009); Pritam Baruah, Logic and Coherence in Naz Foundation: The
Arguments of Non-Discrimination, Privacy, and Dignity, 2 Nujs L. R ev. 505 (2009).

January - March, 2011