ACRONYMS AND ABBREVIATIONS

AIDS - Acquired Immune Deficiency Syndrome

Art. - Article

HC - High Court

HIV - Human Immunodeficiency Virus

IPC - Indian Penal Court

J. - Justice

LGBT - Lesbian, Gay, Bisexual, Transgender

MP - Member of Parliament

NALSA - National Legal Service Authority

NGO - Non Government Organisation

SC - Supreme Court

SCC - Supreme Court Cases

SCR - Supreme Court Reports

Sec. - Section

UK – United Kingdom
 LIST OF CASES

1. A.D.M. Jabalpur v Shivakant Shukla, 1976 SCR 172

2. Kharak Singh v State of Uttar Pradesh, (1964) 1 SCR 332
3. M.P. Sharma v Satish Chandra, (1954) SCR 1077
4. NALSA v Union of India, (2014) 5 SCC 438
5. Naz Foundation v Government of NCT of Delhi, (2016) 15 SCC 619
6. Suresh Kumar Koushal v Naz Foundation, (2014) 1 SCC 1
 TABLE OF CONTENTS

Title Pg. No.

1. Introduction 1.
2. Literature Review 2.
3. Statement of Research Problem 3.
4. Research Questions, Research Objectives and Methodology 4.
5. Discussions 5.
6. Conclusions 13.
7. References 14.
 CHAPTER 1: INTRODUCTION

Privacy is one of the indistinct subject that the society of India has chanced upon. It has been
contemplated that over the past few years, there have been lot of debates and discussions
regarding the restrictions and non-recognition of this right in the Constitution. This has raised
a perverse dilemma among the jurists that if an individual has a right to life, then does that
mean they have a right to live by their choices away from public scrutiny. There exists no
legislative framework for this right to privacy. One of the hurdles that have been faced by the
judiciary is to legalise the act of consensual intercourse among the same gender. In a recent
case which is K. Puttaswamy v. Union of India, the Supreme Court upheld the validity of IPC
Section 377 which criminalises carnal intercourse against the nature (homosexuality).

In India, the laws regarding right to privacy have not been made into a framework. The right
to privacy is an essential part of right to life and personal liberty under Article 21 and as a part
of freedoms guaranteed by Part III of the Constitution. This right has developed over the past
decisions which have been taken by the judiciary. Right to Privacy has become a fundamental
right now after the case of K. Puttaswamy.

To a similar approach, the laws for homosexuality in the Indian Penal Code, 1860 have a very
complex history. The Section 377 has included criminalisation of carnal intercourse which is
as follows: “377. Unnatural Offences.— Whoever voluntarily has carnal intercourse against
the order of the 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 be liable to fine. Explanation. — Penetration is sufficient to constitute the carnal
intercourse necessary to the offence described in this section.”1

Lots of debates and discussions are going on whether to decriminalise homosexuality or not
but recently it has been decided that Section 377 will be scrapped.

1
Indian Penal Code, 1860

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 CHAPTER 2: LITERATURE REVIEW

The literature that was used in compiling this research project was helpful in every sense
including factual learning and drawing various interpretations that eventually helped in
strengthening of the arguments made and questions raised. The book by Shakuntala Devi,
namely, 'World of Homosexuals', helps us to understand the views of people of India regarding
homosexuality and other queer rights. She was the first to raise such an issue which needed to
be looked upon the most. Her efforts didn't go unnoticed and thus, various people accumulated
to fight the battle against section 377.

Similarly, through various ancient books like Ramayana and Mahabharata, it is evident that the
concept of two people indulging in a carnal intercourse was never against the order of the
nature, and the same is also noticed through various ancient paintings, thus, all this literary
works of art and poetry helps us to develop and analyse the idea of why criminalising of section
377 or the way it is being interpreted has been done at the first in the modern era.

In another book by Gabriel Garcia Marquez, namely, 'One Hundred Years of Solitude' again
we have the pivotal relationships between and among men, but the very pivot of the action that
propels the multi-generational epic forward is the homosexual panic wrought by the incest that
begets the story. Thus, through his works and imagination we may have seen the reality of life
which helps us understand what is better for the society and eventually, helped in formulating
research work.

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 CHAPTER 3: STATEMENT OF RESEARCH PROBLEM

The research problem that will be addressed concerns the privacy laws and queer rights in
India. The qualitative study views the contemporary scenario, in order to understand the
different judgements and law concerning the above subject matter. Section 377 of the Indian
Penal Code, 1860, which enumerates the offence of homosexuality is also explained, in order
to understand the meaning of the same, and to connect it to the right to life and personal liberty,
as enumerated in article 21. The rationale of the study is to understand not only the queer rights,
but also the analysis of the landmark judgement of K. Puttaswamy v. Union of India along with
other cases which are Naz Foundation v. Government of NCT of Delhi and Ors and Suresh
Kumar Koushal v. Naz Foundation.

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 CHAPTER 4

4.1: RESEARCH OBJECTIVES

The research objectives of the subject matter are as following:-

1. To understand the privacy laws and queer rights in India.

2. To understand the role of K.Puttaswamy and other cases in challenging Section 377.
3. To analyse the struggle of right to privacy in India.

4.2: RESEARCH QUESTIONS

The research questions which have been explored in order to achieve the research objectives
are as following:-

1. Is the interference of state through Art. 377 coming under the violation of Art. 21?
2. What will be the impact of K. Puttaswamy case on the matter of queer rights?
3. What privacy laws and queer rights can be interrelated for a better understanding?

4.3: RESEARCH METHODOLOGY

This research is based on the data which is secondary in nature which include sources such as
reports, journals, websites etc. but are not restricted to the same. The approach is done to derive
a conclusion in the form of statements through the analysis of the data taken into consideration.
Majority of research work has been done via. Articles, Journals, Reports and Studies available
on the internet. Other sources of learned authors have also been referred.

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 CHAPTER 5: DISCUSSION

5.1: QUEER RIGHTS IN INDIA

India being a country with a diversity as vast as the stars in the sky has always been known for
it's culture and history. Queer is an umbrella term used to refer a diverse community of the
world which includes people categorically differentiated in LGBT (Lesbian Gay Bisexuals
Transgender) groups. Homosexuality can be traced from ancient times through many sources.
These sources include images engraved in the form of sculptures, paintings and rock carving
on the walls of various archaic temples that depicts the rich Indian history. Also, evidences
from Arthashastra and epics like Ramayana, Mahabharata suggests that homosexuality was
practiced earlier and was never considered as a shame to the society in the way it is being
criminalised in the current scenario of our nation and the constitution.

The Britishers came to India and ruled it for about 200 years and it was in their reign when in
section 377 of Indian Penal Code in 1861, they introduce criminalization of sexual activities
"against the order of nature' which arguably included homosexual activities. Britishers left the
nation back in 1947 creating a law about 150 years ago which is still being practiced by our
nation whereas the same got decriminalized by British back in 1967, just 20 years after they
went back from India and the most recent amendment to which was made by British in 2014
by legalising gay marriages in England, Wales and Scotland. It is clear to say, that
homosexuality is not a western import but homophobia is, as is evident when British introduced
in various other colonies.

Section 377. “Unnatural offences: whoever voluntarily has carnal intercourse against the order
of nature with any man, woman or animal shall be punished with imprisonment for life, or with
imprisonment of either description for a term which may extend to ten years, and shall also be
liable to fine.”

Shakuntala Devi through her book 'World Of Homosexuals", tried to raise the issue for the very
first time in India, of discrimination against Queer by expressing her views, one of which was,
"The time is overdue now, when rather than pretending that homosexuals don’t exist, or hoping
to eradicate them by the sheer weight of disapproval or prison sentences, we face the facts
squarely in the eye and find room for them."

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Various attempts were then made by people of the group concerned here to find rights for
themselves, many conferences were called upon, first of which was in 1981, the All India Hijra
Conference held in Agra where 50000 members of the same community came through.
Eventually, in 1994 hijras were given voting rights as the third gender, i.e. Transgenders in
India. But that did not ensure all rights to the LGBT group and the struggle continued. In 1994
the first petition challenging the existence and representation of section 377 as it is accepted
was filed by AIDS Bhedbhav Virodhi Andolan which eventually got dismissed.

Though facing many obstacles the fight against section 377 never stopped and is still an
ongoing battle. In 2001 a Non-Government Organization NAZ Foundation filed a PIL in the
Delhi High Court challenging Section 377. Initially, the PIL got dismissed as the bench of
judges said that they had no locus standi but the same was repealed by Supreme Court and the
case was sent back to Delhi High Court which eventually ruled in favour of the NAZ foundation
and thus, decriminalizing section 377 by giving a verdict which conveyed that criminalizing of
such activities is against the fundamental rights given to an individual of the nation and it
directly violated Article 21 of the Indian Constitution that gives 'Right To Life' to all
individuals of the Indian society. Effectively that meant sec 377 was decriminalized but not
legalised yet. According to the judiciary of India it was duly noted that the power to change the
laws of India resided with the parliament and thus, on December 11, 2013 Supreme Court of
India set aside order passed by Delhi High Court in 2009 and again criminalized Queer rights.
However, the bench duly noted that the parliament should debate and decide on the matter. In
2014 SC dismissed the review petition filed by central government, NAZ foundation and other
Non-Government Organizations to against it's previous verdict on section 377 of IPC. In their
explanation the bench particularly focused on the strength of these communities and thus
stating that a very small part of Indian population constituted to such communities which
includes LGBT group.

The parliament of India saw a bill being introduced to decriminalize section 377 of the IPC in
December 2015, but was rejected by the majority of its members. By this time, the country that
gave us the law had already passed a law that allowed two people of same sex to get married.
Though, the decriminalization of homosexuality was already done in 1967 but this order
allowed every individual of their country to have equal rights on the same context as above.

Realising the same, it is fair to say that India's march forward towards acquiring equal rights
for Queer is protracted and needs to be looked upon urgently. Court decision of same sex sexual

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activity, marriage, recognition of couples, step child adoption and joint adoption is still
pending. Only two states (Kerala and Tamil Nadu) have allowed transgender to adopt but it
also raises a question that why the two states with more than 70% literacy rate have allowed
the same. Is it the education? or Is it really the culture?

There is certainly something wrong with a country where a person because of his or her sexual
orientation isn't allowed to serve the army which is the highest honour for a native citizen. Pride
is the positive stance against discrimination and violence toward LGBT people to promote their
self-affirmation, dignity, equal rights, increase their visibility as a social group, build
community and celebrate diversity. Pride as opposed to shame and social stigma, is the
predominant outlook that most LGBT rights movements carry throughout the world.

On August 24 2017, India’s SC has given the country’s LGBT community the freedom to
safely express their sexual orientation. An individual sexual orientation is protected under the
country’s right to privacy law. However, the SC did not directly overturn any laws
criminalizing same sex relationships. So, at this point the legislation stands in a convoluted
paradox: LGBTQIA people are allowed to express their sexual orientation, but homosexual
acts still remain criminalized by IPC. The structure of their rights should be amended as soon
as possible to justify the country's constitution moto which feels pride in calling itself a diverse
secular country.

5.2: PUTTASWAMY CASE AND PRIVACY

Puttaswamy case was one such case which posed a challenge whether privacy is a fundamental
right or not which lead to origination of numerous questions and endless debates. In 2012,
Retired Karnataka HC Judge, KS Puttaswamy filed a petition against the Aadhar project and
enrolment. According to Puttaswamy, the Aadhar scheme was being enforced without due
discussions in the Parliament. When the citizens of India are registered themselves in the
Aadhar project, they will be assigned with 12-digit number that aligns to specific biometric
data like finger prints and eye scans. The primary objective of Aadhar project was to maintain
the personal identity and biometric information of all the citizens of India. So K. Puttaswamy
filed a petition over the unconstitutionality of Aadhar Scheme on the basis that it violates the
right to privacy of an individual. Puttaswamy was of the views that right to privacy should be
a fundamental right but with some reasonable restrictions. It was held through cases of M.P.

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Sharma v. Satish Chandra2 and Kharak Singh v. State of Uttar Pradesh3 which comprised of
Eight Judges bench and Four Judges bench respectively that right to privacy is not protected
by the Constitution. For addressing the petition filed by K Puttaswamy a Five-Judge bench
ordered that the matter shall be heard by a Nine-Judge bench which were J. Khehar, J.
Chandrachud, J. Chelameshwar, J. Bobde, J. Nazeer, J. Agrawal, J. Nariman, J. Sapre and J.
Kaul. Numerous different opinions arose out for the matter which were given by these judges.
The primary distress of K. Puttaswamy was that the Indian Constitution does not consist of an
explicit right to privacy. However, Art. 21 of Indian Constitution states that no person shall be
deprived of his life or personal liberty except according to procedure established by law.

It is very important to understand the opinions of the Judges to analyse the judgement. J.
Chandrachud held that Privacy in an essential part to lead a dignified life. Dignity and privacy
are interconnected and a person cannot live a dignified life in the absence of privacy. It was in
this case that right to privacy got a recognition in the Indian Constitution. It has now been made
one of the fundamental right under Article 21 of the Indian Constitution. It was justified that
Judiciary has not laid down a new right but extended the right which prevailed in the Indian
Constitution which was related to the human dignity. The case of M.P. Sharma and Kharak
Singh was also overruled and right to privacy was given a place under the fundamental rights.

Moreover in this case, the Court also overruled the decision made in the landmark case of
A.D.M.Jabalpur v. Shivkant Shukla 4. This was the case during Indira Gandhi’s emergency
period in 1975 which was the darkest phase of Indian politics. It denied the citizens the right
to approach the court for challenging detention during the period of emergency. It went against
the fundamental right of the people. Art. 21, right to life with liberty and dignity was affected
after the decision of A.D.M. Jabalpur. The judgement of this case was regarded as the darkest
law of the county. However, several verdicts after 1976 have impliedly overruled the decision
of this case but then the notable fact is that Justice Chandrachud overruled the decision of his
father in this judgement.

Along with these two decisions made in this case, SC also challenged the validity of Sec 377
of IPC. This section deals with unnatural offences. It criminalises sexual activities ‘against the
order of nature’, arguably including homosexual activities. From Aadhar project, SC’s Privacy

2
(1954) SCR 1077
3
(1964) 1 SCR 332
4
(1976) SCR 172

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Judgement also gave rise to a new issue related to Sec. 377 which goes against the right to
privacy.

5.2.1: FORECOMINGS FOR SEC. 377

Every person has the right to live their life the way they want to. Every person has freedom of
choice to choose their life in a dignified manner. Every person has the right to be treated in an
equal manner without being harassed in public place. It is important to give a proper recognition
to queer people in our Indian society. Queer people should have the right to live their life just
like an ordinary person. Queer movements in India never had an easy relation with privacy. It
always challenged section 377 of IPC. Art. 14, 15 and 21 which talks about right to equality,
prohibition of discrimination on grounds of religion, race, caste, sex, place of birth or any of
them and protection of life and personal liberty respectively are violated when we look Section
377 of IPC. After right to privacy became a part of the fundamental right, it is a highly debated
issue to decriminalise Sec. 377 of IPC. It is required to give equal rights and protection to queer
people and ensure respect of individual’s privacy and autonomy.

Gabriel Garcia Marquez had rightly said- ‘All human beings have three lives: public, private
and secret’.

The legal history of LGBT in India was never in rest as there has always been an initiative to
decriminalise sex with persons of the same gender. Several organisations have made efforts for
decriminalisation of SEC. 377. One such organisation was Naz Foundation which expressed
their support for decriminalising homosexuality in the case of Naz Foundation v Government
of National Capital Territory of Delhi.

This landmark Indian case decided by Two-Judge bench of the Delhi High Court held that
treating consensual sex between adults of same gender as a crime is a violation of fundamental
rights protected by India's Constitution. The case resulted in the decriminalisation of
homosexual acts involving consenting adults throughout India. The court also held that Sec.
377 violates Art. 14 as it does not provide equal protection to homosexual people and classified
them as a separate group in our society which hurts their sentiments. Art. 15 talks about
discrimination of sex and it specified that it does not only specify sex but also sexual
orientation. The court also mentioned that it violates Right to Health under Art. 21 and
concluded that SEC. 377 is a hindrance to public health because it hinders HIV prevention

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efforts. However, SEC. 377 was not removed from the Constitution but on the contrary was
only declared unconstitutional. It was decriminalised and stated that judicial intervention is not
required in this issue but tt was later challenged in the SC of India. In 2013, Suresh Kumar
Koushal filed a petition against the decision made in Naz Foundation case. In Suresh Kumar
Koushal v Naz Foundation and others5, SC overturned the Naz Foundation case and again
recriminalized Sec. 377. The petitioner argued that SEC. 377 does not classify any particular
group or gender so it is not violating Art. 14, 15 and 21 of the Indian Constitution. It was also
argued that the social structure and social life of the people will be affected. Finally they
submitted that it was not the task of the Judiciary to legislate and the matter should be left to
the Parliament whether Sec. 377 should be made legal or not. SC accepted and overruled the
decision made in Naz Foundation case. They observed that SEC. 377 was the only law that
criminalises paedophilia and crimes like sexual abuse and assault.

This decision was criticized by large group of people. Even politicians raised their voice in
favour of decriminalization. Congress MP Shashi Tharoor has introduced Private Member’s
Bill twice in Lok Sabha but it was never passed. Many voice were also raised within the
Government. Even the finance minister, Arun Jaitley favoured decriminalization of
homosexuality. However it was in the case of Puttaswamy that this issue once again came into
the picture with lots of debates and discussions throughout the country. The question which
arises is that, whether Indian society is at the stage of accepting homosexual people without
harassing them?

J Chandrachud rejected the judgement made in Koushal’s case after his judgement made right
to privacy a fundamental right. It was purely violating SEC.377. In February 2016, a Three
Judge Bench of the court decided to hear the matter once again and expanded SEC.377.
Puttaswamy case has opened the doors to new possibilities of laws and has also brought a deep
impact in the Indian History. According to J Chandrachud, if an individual is in public space,
it does not mean that their personal choice will be infringed. No individual should be treated in
an undignified manner. Gender is an important part of a person’s identity because to some
extend an individual is recognised by the gender. What if we don’t recognise the third gender?
What if we don’t give equal opportunities and privilege to the third gender? India being a
democratic country which protects the rights of the people, it is important to protect the right
of homosexual people in our country. Person’s identity is a part of fundamental right to dignity.

5
(2014) 1 SCC 1

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Court held that a person should be categorised under three genders: Female, Male and Third
gender regardless of gender assigned to them at the time of their birth.

Puttaswamy has challenged the constitutionality of Sec. 377. J Chandrachud finds sexual
orientation to be an essential element to the right to privacy. He argued in these two levels.
Firstly, it is difficult to prove actual prosecutions under Section 377 when it comes to
consensual sex. The National Crime Records Bureau have started compiling information on
Sec.377 in 2014. Approximately about 1,347 complaints have been filed under Sec.377 by
2015. However no freedom is given to an individual in the public space. Privacy of an
individual is a natural, inherit and inalienable rights which cannot be infringed. It is required
to maintain the human condition with utmost dignity and respect. They must have their own
personal space irrespective of being in the third gender category. Secondly lots of affidavits
are placed by queer people and even by their family members. The family of the queer person
always fear about their future.

Looking at the Habeas Corpus case, many cases of runaway queer lovers are witnessed and
they are forced to return through the filing of Habeas Corpus petition. By doing so Court
interferes in person’s personal choice and now we can argue after the victory of Puttaswamy
case which made Right to privacy a Fundamental right. It gave more strength to the issue of
Sec. 377 which never got a platform to protect queer people in India. Now it became an unrest
issue till it gets solved.

The most significant case which deals with the transgender rights was National Legal Service
Authority (NALSA) v Union of India6. It became the reference case for all other case related
to transgender people. NALSA was the petitioner and it filed a petition with an aim to provide
free legal aid services to the people who are socially and economically backward. Transgender
people were also regarded as socially and economically backward. It was an urgent need to
provide a platform for them. Equal opportunities and a dignified life and respect was required.
So NALSA filed a petition and the result turned out to be positive. In this case, SC gave
recognition to the transgender people as the ‘third gender’ category. It was from this case that
they got the right of self-identification. This was a major initiative taken by India regarding
gender equality. Apart from this, Court also held that as they are regarded as the ‘third gender’
and are deprived of the opportunities available to other gender even transgender people are
entitled to get reservations in admission to educational institutions and government jobs. This

6
(2014) 5 SCC 438

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was a way of protecting the rights of the transgender people and providing them a scope for
leading a life dignity and liberty.

Thus, Puttaswamy case gave rise to the issue of Sec. 377 which deprives transgender people
from their right to privacy even after it being the fundamental right of India. Lots of attempts
are being made to decriminalise Sec. 377. The debates and discussions regarding this is still
going on. This critical issue of decriminalising Sec. 377 got a platform only after the petition
filed by J Puttaswamy which is regarded to be the most effective case filed in the history of
India.

5.2.2: PRESENT SCENERIO

Though there has been a landmark judgement on Right To Privacy by Supreme Court of India
which contradicts certain rights that were previously not granted to Queer Group but still, a lot
of debating has been on-going between the three organs of the government that are trying to
bring upon a change. Considerable time had elapsed since these groups are fighting for their
rights, though the section 377 might not get repealed or void completely but certain remedies
could be provided to these people in order to live a life with rights equally provided to every
individual of the country. Supreme Court just increases its bench to hear the matter which
shows their integrity and interest to provide equal rights to people of India through procedure
carried out by law so that rights are granted to its citizens through the rule of law and not by
arbitrariness. IN recent the achievement of Judiciary regarding Triple Talaq have given us a
positive view even regarding this section. However, it was from the case of NALSA that we
gave recognition and better opportunities to queer people and now it’s high time to truly
provide their Right to privacy with personal liberty in a manner that consciousness of the
constitution is not shrunken and people receive the rights through the rule of law.

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 CHAPTER 6: CONCLUSION

As we have discussed earlier, the laws governing the private and personal choices of the people
in the country are highly controversial in nature. The very fact that, Section 377 of the Indian
Penal Code, does not allow unnatural consensual intercourse that is against the nature of
mankind, itself is enough to prove this point. The fundamental right to equality, Article 14 of
the Indian Constitution is violated on the grounds that, Queers are being unjustly classified.
Article 15 of the Indian Constitution, which prevents discrimination on the grounds of certain
characteristics, including “sex” (Sex, here is not just limited to gender, but also extends to
sexual orientation of an individual) is violated. The fundamental right to life and personal
liberty as per Article 21 of the Indian Constitution is also being violated as it prohibits free
choices of the citizens of the nation. Thus, we can elucidate the impression that, Section 377
of the Indian Penal Code is a highly debatable and a volatile topic in today’s scenario and can
turn for the better (or worse) depending upon the powerplay at hand.

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