BEFORE THE

HONOURABLE SUPREME COURT OF INDIA

AT NEW DELHI

SURESH KUMAR KOUSHAL AND OTHERS

(APPELLANT)
V.
NAZ FOUNDATION AND OTHERS

(RESPONDENT)

CASE CONCERNING THE CONSTITUTIONAL VALIDITY OF SECTION 377 OF I.P.C

ON SUBMISSION TO THE HONOURABLE SUPREME COURT OF INDIA

-MEMORIAL FOR THE APPELLANT-

TABLE OF CONTENTS
1. List of Abbreviations.3
2. Index of Authorities..4-5
3. Statement of Jurisdiction6
4. State of Facts.7
5. Issues Raised.8
6. Summary of Arguments9-10
7. Arguments Advanced.11-28
1.0 WHETHER THE CURATIVE PETITION IS MAINTAINABLE OR NOT?
2.0 WHETHER OR NOT SECTION 377 IS VIOLATIVE OF ARTICLE 21, 19, 15 AND 14?
3.0 WHETHER OR NOT SECTION 377 SHOULD BE DECRIMINALIZED IN THE SPIRIT
OF THE CONSTITUTION?
8. Prayer.29

List of Abbreviations

&
AIR
Ch.
Cri Lj
IPC
MSM
Edn.

And
All India Report
Chapter
Criminal Law Journal
Indian Penal Code
Men having Sex with Men
Edition

AIDS

Human Immuno Deficiency

Virus
Section
Lesbian Gay Bisexual
Transgender
Non-Governmental
Organization
Acquired Immune
Deficiency Syndrome
Code of Criminal Procedure
Versus
Honourable
Others
Page NO
Supreme Court

SEC
LGBT
NGO
AIDS
CrPC
V
Honble
Ors.
PP
SC

INDEX OF AUTHORITIES
Statutes

The Constitution of India, 1950

Indian Penal Code, 1860

Books, Articles, Digest and Reports

Principle of Statutory Interpretation- J.P Singh (book)

Concise Oxford Dictionary (ninth edition, 1995).

 Black Laws dictionary.

Technical report India HIV/AIDS 2008

STATEMENT OF JURISDICTION
The Appelant invokes the Special Leave Jurisdiction of the Honble Supreme Court of India
under Article 136 of the Constitution of India for the grant of leave, assailing the order of
Honourable High Court of Delhi decriminalizing Section 377 of the Indian Penal Code and
holding it unconstitutional.

STATEMENT OF FACTS
1. An NGO working for sexual minorities and also for HIV/AIDS prevention filed a Writ
Petition in the High Court for grant of a declaration that Section 377 IPC (to the extent it
is applicable to and penalizes sexual acts in private between consenting adults) is
violative of Articles 14, 15, 19 (1) (a)-(d) and 21 of the Indian Constitution.

2. The High Court declared that Section 377, insofar as it criminalizes consensual sexual
acts of adults in private is violative of Articles 21, 14 and 15 of the Constitution. The
High Court outlined the enlarged scope of the right to life and liberty which also includes
right to protection of ones dignity, autonomy and privacy.

ISSUES RAISED
1.0 WHETHER THE SPECIAL LEAVE PETITION IS MAINTAINABLE OR NOT?

2.0 WHETHER SECTION 377 IS VIOLATIVE OF ARTICLE 21, 19, 15 AND 14?
3.0

WHETHER SECTION

CONSTITUTION?

377

SHOULD BE DECRIMINALIZED IN THE SPIRIT OF THE

SUMMARY OF ARGUMENTS
1.0 WHETHER THE SPECIAL LEAVE PETITION

IS MAINTAINABLE OR NOT?

In the light of the facts given the Special leave petition is maintainable as it involves a substantial
question of law wherein the lower court erred in deciding on the matter.
2.0 WHETHER OR NOT SECTION 377 IS VIOLATIVE OF ARTICLE 21, 19, 15 AND 14?

Section 377 of the IPC is not violative of the spirit of the articles 14, 15, 19 and 21.Section 377
IPC is gender neutral and covers voluntary acts of carnal intercourse against the order of nature
irrespective of the gender of a person committing the act. The section impugned in the petition
includes the acts of carnal intercourse between man and man, man and woman, woman and
women and submits that no Constitutional right vests in a person to indulge in an activity which
has the propensity to cause harm cannot be validated. Article 15 prohibited discrimination only
on the ground of gender and not on the ground of sexual orientation. This is evident from the fact
that Article 15(3) provided for special provisions for women and children, thereby implying that
Article 15 covered only women in its ambit. Homosexuality was prevalent in a minority. Section
377, however, did not talk about a minority and instead applied to all persons
3.0 WHETHER

OR NOT

SECTION 377

SHOULD BE DECRIMINALIZED IN THE SPIRIT OF THE

CONSTITUTION.
It is humbly submitted before the honble court there is also a historical background attached to
the Section. Ancient scriptures such as Quran and Bible also forbid the practice. The High Court
failed to look over the actual application of the Section. The Section was used for unnatural
offences tried over for Child Abuse and other cases. The extent to which Section 377 applied has
to look over the wide range of acts which can be termed as offence. The Section of IPC in
question restricts some of the rights to some extend but the restriction it puts on is for the
fortification of the society at large and comes under the ambit of reasonable restriction of Part III
of the Indian Constitution.

ISSUE 2. THAT SECTION 377 IS VIOLATIVE OF ARTICLE 14,15,19 AND 21?

2.1 SECTION 377 AS DEFINED BY THE COURT OF LAW OVER THE PRECEDENTS:
The appellant humbly submits that the Honble High Court of Delhi has erred in making
restrictive interpretation to the meaning of the Section 377. They have interpreted Section 377 as
a section which curtails basic human rights provided in Part III of the Indian Constitution. The

appellant humbly submits that Section 377 1 is not violative of the fundamental rights enshrined
under the Constitution of India.
The above section has been challenged it criminalizes the following activities:
1. carnal intercourse with a man, woman or animal.
2. that intercourse was against the order of nature.
The appellant humbly submits before the honble court that the rationale behind Section 377 is
that unnatural intercourse is a method of having sex that does not result in procreation. To clear
ambiguity in this section the appellant would like to give the meaning of some key words.. Here
carnal means; of the body or flesh; worldly and sensual; sexual 2.Dictionary meanings of
the words penetration and carnal, means any insertion into the body with the aim of
satisfying unnatural lust would constitute carnal intercourse.

Originally Section 377 IPC was

enacted by the legislature with the aim to protect social values and morals. Order of nature has
been defined as something pure, as distinguished from artificial and contrived. The Court failed
to understand the basic feature of nature involves organs, each of which had an appropriate place
and has been designated function assigned by nature. The organs work in tandem and are not
expected to be abused. If it is abused, it goes against the order of nature. The code of nature is
inviolable. What is pre-ordained by nature has to be protected, and man has an obligation to
nature. Arguendo, If Section 377 is decriminalized then Indias social structure and the
institution of marriage will be detrimentally affected and young persons will be tempted towards
homosexual activities.
1 377. Unnatural offences.--Whoever voluntarily has carnal intercourse against the order of nature with
any man, woman or animal, shall be punished with 1*[imprisonment for life], or with imprisonment of
either description for a term which may extend to ten years, and shall also be liable to fine. Explanation.Penetration is sufficient to constitute the carnal intercourse necessary to the offence described in this
section.
2 Concise Oxford Dictionary (ninth edition, 1995).
3 Blacks Law dictionary (9th Ed. 2009), available at West Law BLACKS.

2.2 THAT SECTION 377 DOES NOT DISCRIMINATE THEREFORE DOES NOT VIOLATE ARTICLE 14
The Appellant would like to humbly submit before the honble court that Article 14 says that
everyone is equal before the Law. It applies same to everyone who is under the law. If forbids
any classification. Section 377 IPC is gender neutral and talks about voluntary acts of carnal
intercourse against the order of nature irrespective of the gender of a person committing the act.
The section impugned in the writ petition includes the acts of carnal intercourse between man
and man, man and woman and woman and woman and submitted that no Constitutional right
vests in a person to indulge in an activity which has the propensity to cause harm and any act
which has the capacity to cause harm to others cannot be validated.
Section 377 of the Indian Penal Code, 1860 (IPC) does not classify people into groups but it only
describes an offence. What has been criminalized by Section 377 IPC is just the act, independent
of the sex of people or sexual orientation. Analyzing the terms under Section 377 of the IPC, the
word carnal meant of the flesh. It could cover sexual acts between men and men and woman
and woman. The term voluntarily had been intentionally left undefined as there was a
difference in the degree of the intention of the two persons engaging in sexual intercourse.
Honble High Court made subtle not accusatory: one, that sexual orientation is immutable and
two, that sexual orientation can be naturally demonstrated only in a way as contemplated in
Section 377 of the IPC. What has been criminalized by Section 377 IPC is just the act,
independent of the sex of people or sexual orientation (which means-a person's sexual identity in
relation to the gender to which they are attracted; the fact of being heterosexual, homosexual, or
bisexual.).
The principle underlying the guarantee of Article 14 is not that the same rules of law should be
applicable to all persons within the Indian Territory or that the same remedies should be made
available to them irrespective of differences of circumstances. It only means that all persons
similarly circumstanced shall be treated alike both in privileges conferred and liabilities imposed.
Equal laws would have to be applied to all in the same situation, and there should be no
discrimination between one person and another if as regards the subject-matter of the legislation
their position is substantially the same.
Assailing the finding of the High Court that Section 377 IPC violates Article 14; the section does
not create a clause and applies to both man and woman if they indulge in carnal intercourse
against the order of nature. No class was targeted by Section 377 IPC and no classification had

been made and, therefore, the finding of the High Court that this law offended Article 14 as it
targets a particular community known as LGBT is without any basis.
2.3 THAT SECTION 377 SHOULD NOT BE READ DOWN
In the case of Commissioner of Sales Tax, Madhya Pradesh, Indore and Ors. v. Radhakrishan
and Ors. 4 the Hon`ble Supreme Court has opined thatwhile considering the validity of a statute
the presumption is in favor of its constitutionality and the burden is upon him who attacks it to
show that there has been a clear transgression of constitutional principles. For sustaining the
presumption of constitutionality the Court may take into consideration matters of common
knowledge, matters of common report, the history of the times and may assume every state of
facts which can be conceived it must always be presumed that the Legislature understands and
correctly appreciates the need of its own people and that discrimination, if any, is based on
adequate grounds. It is well settled that courts will be justified in giving a liberal interpretation to
the section in order to avoid constitutional invalidity. These principles have given rise to rule of
reading down the section if it becomes necessary to uphold the validity of the sections.
The Court identified the limitations upon the practice of reading down while enunciating that the
State, in the exercise of its governmental power, has of necessity to make laws operating
differently on different groups or classes of persons within its territory to attain particular ends in
giving effect to its policies, and it must possess for that purpose large powers of distinguishing
and classifying persons or things to be subjected to such laws. Classification need not be
constituted by an exact or scientific exclusion or inclusion of persons or things. The Courts
should not insist on delusive exactness or apply doctrinaire tests for determining the validity of
classification in any given case. Classification is justified if it is not palpably
arbitrary.5Classification should never be arbitrary, artificial or evasive. The classification must
4 1979) 2 SCC 249

5 Minerva Mills Ltd. and Ors. v. Union of India (UOI) and Ors. (1980) 3 SCC 625

not be arbitrary but must be rational, that is to say, it must not only be based on some qualities or
characteristics which are to be found in all the persons grouped together and not in others who
are left out but those qualities or characteristics must have a reasonable relation to the object of
the legislation.
The Section in question i.e, 377 did not create any class and was applicable to both heterosexuals
and homosexuals equally. It criminalized the act and not the person. If the Hon ble High Court
decision is presumed to be correct, then any provision could be considered to violate Article 14,
e.g., prohibition against dowry, offence of murder, etc. There were 76 countries, which had
similar provisions, including 7 countries where homosexuality was punishable with death. It is
for the Legislature to decide whether to enact such laws or not. There was a presumption in favor
of the constitutionality of laws and the Legislature could create a reasonable classification if it
had a rational nexus with the object of the law. But Section 377 did not create any class and
therefore did not target a particular community.
2.4 THAT SECTION 377

DOES NOT DISCRIMINATE THEREFORE DOES NOT VIOLATE

ARTICLE

15:
The appellant would like to humbly submit before the honble Supreme Court there is an
misinterpretation by the Honble High Court in reading down the section 377 and making it
unconstitutional in the Spirit of Article 15. In the liberal and literal interpretation of Article 15 it
prohibits discrimination only on the ground of gender and not on the ground of sexual
orientation. This was evident from the fact that Article 15(3) provided for special provisions for
women and children, thereby implying that Article 15 covered only women in its ambit.
Homosexuality was prevalent in a minority. Section 377, however, did not talk about a minority
and instead applied to all persons. The section applies to every class of the society. The
restrictive interpretation as to it applies only to a class of LGBT is itself not a justiciable
phenomenon. Section 377 of I.P.C does not violate Article 15 of Indian Constitution.
(1) Section 377 prohibits an unnatural act irrespective to a particular gender.

This section doesnt talks about any specific gender it just prohibits an act which is unnatural and
inhuman in nature, this section laid that anyone who perform the unnatural intercourse to satisfy
the inhuman lust is prohibited so far irrelevant to his or her sexual orientation or gender. The
purpose of this act is to prohibit the unnatural sex not to discriminate on the basis of sex this
section doesnt talks about LGBT group.
Discrimination would only be possible if other than LGBT are not penalised in this section for
non penis-vagina sex but they are also any person irrelevant to his or her sexual orientation is
penalised for unproductive or unnatural sex as, anal sex between men and women is also
penalised it shows that there is no specific prohibition are laid down on LGBT, hence so the
section is not gender specific and no question of discrimination on the basis of sex arises.
The right to sexual orientation can always be restricted on the principles of morality and health.
By referring the constitutional assembly debates on Art. 15 to show that the inclusion of sexual
orientation in the term 'sex' was not contemplated by the founding fathers. The dissenting
opinion given by Justice Scalia and Justice Thomas in Lawrence v. Texas6 wherein it was stated
that promotion of majoritarian sexual morality was a legitimate state interest. Courts, by their
very nature, should not undertake the task of legislating. Irrespective of the Union Government's
stand, so long as the law stands on the statute book, there was a constitutional presumption in its
favor.
The second thing the right of personal liberty remains only personal up to that extent when it
does not lead any adverse effect on the society once any effect is laid down on the society the
personal right does not remain personal to its extent because it had also effected other than the
person who is enjoying it. The LGBT intercourse cannot be allowed under personal liberty
because it also had an adverse health and moral effects on the society. The LGBT sex is against
the moral of the society the Indian society is not ready to accept it as like others in Indian society
the percentage of LGBT is very less and hence still not have attained any righteous position in
the society. Society consider this against the laid morals and it hurts the morality of Indian
society so no private right can be so important that it should be allowed to hurt the morals of the
society.
Hence the rights are providing an adverse effect on the society and therefore are away from the
6 Lawrence v. Texas 539 US 558 (2003).

scope of private.
(2) LGBT sex violates the right to health of society.
Section 377 of IPC is a justified interference by "public authorities in the interest of
public safety and protection of health and morals."National Sentinel Surveillance Data 2005
estimated that HIV prevalence in "men who have sex with men" (MSM) is 8% while in general
population it is lesser than 1%. As deemed from data in MSM sex there is more scope of
HIV/AIDS and so leads an adverse effect on public health. Thus it is necessary to keep in view
the health of the society especially after right to health has been recognized as a part of right to
life by the apex court.7
It would be imperative to emphasized that anal intercourse between two homosexuals is a high
risk activity, which exposes both the participating homosexuals to the risk of HIV/AIDS and this
becomes even grave in case of a male bisexual having intercourse with female partner who may
not even be aware of the activity of her partner and is yet exposed to high risk of HIV/AIDS.

2.5 THAT THERE IS NO INFRINGEMENT WITH ARTICLE 19:

The appellant would like to humbly submit that all fundamental rights were subject to reasonable
restrictions, e.g., freedom of speech and expression was not absolute and objectionable materials
could be censored. Similarly, restrictions could be put on playing of loud music. Accordingly,
Section 377 prohibited what was a social evil and could be covered under the rubric of
reasonable restrictions. Higher prevalence of HIV amongst MSM showed that it was a high risk
activity and ought to be curbed for the greater societal good. In terms of morality, the Court
mentioned about the prevailing standards of decency.8
(1) Morality as a ground of restriction to fundamental rights.
High Court was not at all justified in striking down Sec. 377 of IPC on the specious
grounds of violation of Art. 14, 15 and 21 of the Constitution and submitted that the matter
7 Paschim Bangal Khet Mazdoor Samity v. State of West Bengal AIR 1996 SC 2426.
8 Bachan Singh v. State of Punjab (AIR 1980 SC 898),

should have been left to Parliament to decide as to what is moral and what is immoral and
whether the section in question should be retained in the statute book. It has to emphasized that
mere possibility of abuse of any particular provision cannot be a ground for declaring it
unconstitutional.
The best inference can be drawn from this United States Supreme Court Judgement wherein
they opine that a state that recognises difference does not mean a state without morality or one
without a point of view. It does not banish concepts of right and wrong, nor envisage a world
without good and evil The Constitution certainly does not debar the state from enforcing
morality. Indeed, the Bill of Rights is nothing if not a document founded on deep political
morality. What is central to the character and functioning of the State, however, is that the
dictates of the morality which it enforces, and the limits to which it may go, are to be found in
the text and spirit of the Constitution itself.9
Sec. 377 of IPC was enacted by the legislature to protect social values and morals. As per Black's
Law Dictionary the 'order of nature' has been defined as something pure, as distinguished from
artificial and contrived. He argued that the basic feature of nature involved organs, each of which
had an appropriate place. Every organ in the human body has a designated function assigned by
nature. The organs work in tandem and are not expected to be abused. If it is abused, it goes
against nature. The code of nature is inviolable. Sex and food are regulated in society. What is
pre-ordained by nature has to be protected, and man has an obligation to nature. Thus Section
377 in no manner stands in contravention of Article 19 of the constitution of India.

2.6 THAT ARTICLE 21 CAN BE REASONABLY RESTRICTED:

9 The National Coalition for Gay and Lesbian Equality v. The Minister of Justice 413 US 49 (1973),
136.

The appellant would to submit before the Honble Supreme Court that Article 21 talks about
Right to life and personal liberty. Through years and years of interpretation, Right to Privacy is
considered to be an inherit feature of this article which the Appellant claims to be violative
because of Section 377 of IPC.
The right to life was not absolute and might be curtailed in the interest of morality. India had its
own customs and traditions. Those of western civilization did not have to be dumped on India.
All fundamental rights operate in a square of reasonable restrictions. As for example there is
censorship in case of Freedom of Speech and Expression. 10 High percentage of AIDS amongst
homosexuals shows that the act in dispute covered under Section 377 IPC is a social evil and,
therefore, the restriction on it is reasonable. Those private, consensual sexual relations are
protected under the right to liberty under Article 21 under the privacy and dignity claim. The
article provides the same but in no way it protect the carnal sexual relationship in private
between two men or such other unnatural offense against the order of nature. The article protects
consensual sexual relationship between a man and a woman not the unnatural way.
The expression carnal intercourse is used in Section 377 IPC as distinct from the expression
sexual intercourse, which appears in Sections 375 and 497 IPC. Consent is no defense to an
offence under Section 377 IPC no distinction regarding age is made in the section. Kennedy
A.J.C. held11 that section 377 IPC punishes certain persons who have carnal intercourse against
the order of nature with inter alia human beings (if the oral sex committed in this case is carnal
intercourse), it is clearly against the order of nature, because the natural object of carnal
intercourse is that there should be the possibility of conception of human beings, which in the
case of coitus per osis impossible. Relying on Lohana12, it was held that oral sex fell within the
ambit of Section 377 IPC. References could be made to the Corpus Juris Secundum relating to
sexual perversity and abnormal sexual satisfaction as the guiding criteria. It was observed that

10 Article 19 of the Indian Constitution 1950

11 Khanu v. Emperor, AIR 1925 Sind 286
12 Calvin Francis v. Orissa, 1992 (2) Crimes 455,

Section 377 IPC implied sexual perversity it is evident that the tests for attracting the penal
provisions have changed from the non-procreative to imitative to sexual perversity.13
Article 21, which included the right to privacy, could be curtailed for general public good, since
no right was absolute or unrestricted under the Indian law. All rights could be curtailed for the
general public welfare. Right to life and liberty was not absolute and could be restricted in
accordance with the procedure established by law. The inter-relation between Articles 14, 19 and
21 and that the procedure established by law had to be fair, just and reasonable and one had to
look at the direct impact of the law on fundamental rights and not on incidental effects was
drawn by the apex court in the case of Maneka Gandhi v. Union of India 14.
Section 377 did not directly infringe Article 21 in any way. Decency or morality constituted one
of the grounds of reasonable restrictions on the freedom of speech and expression under Article
19(2). Section 292 of the IPC too sought to prohibit obscenity on the grounds of decency and
morality. There needed to balance between freedom of speech and public decency and morality.15
Here the Section 377 maintains that balance and helps to establish the balance.
Curtailment of the right to life, guaranteed by Article 21 of the Constitution, might only be done
by the procedure established by law. If a validly enacted law existed, no violation of Article 21
could be claimed. In past death penalty was challenged, as being in violation of the Constitution.
The law was however, upheld. In society, the law laid down the acceptable conduct. It was the
domain of the Parliament to decide what was acceptable and what was not. If indeed there was
harassment, it was because of a breakdown of the machinery of the State and not because of the
law. Further, if this was the threshold on which a law was to be struck down, then the whole of
the IPC should be stuck down.16
13 Fazal Rab Choudhary v. State of Bihar, AIR 1983 SC 323,
14 [(1978) 1 SCC 248],
15Ranjit D. Udeshi v. State of Maharashtra (1965 (1) SCR 65),
16 Mr. X v. Hospital Z [(1998) 8 SCC 896],

The appellant has further argued that Section 377 is violative of Article 21 because the Section
takes away the acts which are done in private and having consent of both the parties. Acts which
were consensual and private in nature could not be crimes were to be accepted, and then this
would open the door for allowing the offence of adultery to be challenged. Further, adult incest
between different sexes, group sex between persons of the same sex or different sexes and other
acts which were sexually immoral could be permissible. Attempt to commit suicide is also a
crime, even though the act was committed by the person voluntarily.17
Thus such harmful acts should be curtailed.The freedom of trade, commerce and intercourse
under Article 301 of the Constitution was held not to be available to the liquor trade because
liquor was a harmful substance.18
Section 377 was gender neutral and covered voluntary acts of carnal intercourse against the order
of nature. As the term voluntarily had been used, Section 377 would cover consensual sexual
act.19 Section 377 was restricted only to penile-anal intercourse, other acts of sexual perversity
would be left out. For example, in Childline India Foundation v. Allan John Waters, persons
were convicted of acts of fellatio. The expression order of nature could not be differently
interpreted in case of women or minors or Section 377 could not be given a restrictive
interpretation, since it was meant to cover all acts of sexual perversity.
Just because penile-non-vaginal sex was widely prevalent in society, it did not mean that it
should be decriminalized. By that logic, even rape, bribes, etc should not be offences. Further,
different acts were prevalent in different times and the Parliament had to decide which acts
would be made offences.
If section 377 is struck down then intercourse with animals would also be legalized. High court`s
judgment said consensual sexual acts by adults, not between adults. Consent could involve

17 GianKaur v. State of Punjab [1996 SCC (2) 648].

18 State of Punjab v. Devans Modern Breweries Ltd. (2004) 11 SCC 26

19 FazalRabChaudhary v. State of Bihar, [(1982) 3 SCC9]

money, so if the judgment were to stand, commercial sex, group sex, oral sex and other forms of
sex yet to be discovered would become permissible.
Scope of the Courts power to declare a statutory provision invalid.
While interpreting a provision, the Court only interprets the law and cannot legislate it. If
a provision of law is misused and subjected to the abuse of the process of law, it is for the
legislature to amend, modify or repeal it, if deemed necessary.20
There is a broad separation of powers under the Constitution, and the three organs of the
State - the legislature, the executive and the judiciary, must respect each other and must not
ordinarily encroach into each others' domain. The legislature is a democratically elected body
which expresses the will of the people, and in a democracy, this will is not to be lightly frustrated
or obstructed. The Court should, therefore, ordinarily defer to the decision of the legislature as it
is the best judge of what is good for the community.21
If two views are possible, one making the statute constitutional and the other making it
unconstitutional, the former view must always be preferred. Also, the Court must make every
effort to uphold the constitutional validity of a statute, even if that requires giving a strained
construction or narrowing down its scope vide Mark Netto v. State of Kerala & Ors.22 Also, it is
none of the concern of the Court whether the legislation in its opinion is wise or unwise.

20 Maulavi Hussein Haji Abraham Umarji v. State of Gujarat 2004 Cri.LJ 3860; Unique Butle Tube
Industries (P) Ltd. v. U.P. Financial Corporation & Ors. (2002) SUPP 5 SCR 666; Padmasundara Rao
(dead) & Ors. v. State of Tamil Nadu & Ors. (2002) 255 ITR 147 (SC).
21 Government of Andhra Pradesh v. P. Laxmi Devi AIR 2008 SC 1640.
22 Mark Netto v. State of Kerala & Ors. (1979) 1 SCR 609.

3.0 WHETHER

OR NOT

SECTION 377

SHOULD BE DECRIMINALIZED IN THE SPIRIT OF THE

CONSTITUTION?
3.1 Historical Validity.
The appellant would like to submit that Validity of the section 377 and committing carnal
intercourse against the order of nature could be seen as an activity which has been forbidden by
the various scriptures. Some of the examples of the Spirituals which forbid the practice are stated
below:
There are many religions that are followed all over the country. Every religion has their own text
in which their spirituals and law.
The Quran
The Quran contains seven references to "the people of Lut", the biblical Lot, but meaning the
residents of Sodom and Gomorrah (references 7:8084, 11:7783, 21:74, 22:43, 26:165175,
27:5659, and 29:2733), and their destruction by Allah is associated explicitly with their sexual
practices:
And (We sent) Lot when he said to his people: What! do you commit an indecency which
anyone in the world has not done before you? Most surely you come to males in lust besides
females; nay you are an extravagant people. And the answer of his people was no other than that
they said: Turn them out of your town, surely they are a people who seek to purify (themselves).
So we delivered him and his followers, except his wife; she was of those who remained behind.
And we rained upon them a rain; consider then what the end of the guilty was.
Narada Smriti
The Narada Smriti, written around 400 CE, forbids the marriage of homosexual men
(mukhebhaga men who perform oral sex on other men) to women: "These four [irsyaka,
sevyaka, vataretas, and mukhebhaga] are to be completely rejected as unqualified for marriage,
even for a woman who has been raped."23
Thus it is evident that Carna Intercourse or intercourse against the order of nature has always
been considered against the order of nature and forbidden and Section 377 is just an embodiment
of this.

23 Namit Sharma v. Union of India (2013)1 SCC 745.

3.2 THAT ACTUAL APPLICATION OF SEC. 377 HAS NOT TAKEN PLACE.
The appellant humbly submits before the Honble court its last contention. Section 377 IPC has
generally been used in cases of sexual abuse or child abuse, and it has hardly ever been used in
cases of consenting adults, which shows that criminalization of adult same- sex conduct does not
serve any public interest. The appellant demands that public health measures are strengthened by
de-criminalization of such activity, so that they can be identified and better focused upon but decriminalization of the act would at same time would de-criminalize the offences for which the
criminals were punished in the past would invite more and more people to commit the offences
which had been de-criminalized in the act.

PRAYER

Therefore in the light of issues involved, arguments advanced, reasons given and the authorities
cited this Honble court may be pleased:
To set aside the order of the High Court of Delhi and to declare, that, Section 377 of IPC
is constitutional as it is not violative of any fundamental rights guaranteed under the
Constitution of India.

Any other and further relief which this Honble court may be pleased to grant in the interests of
Justice and Equity. All of which is respectfully submitted.
For This Act of Kindness, the Appellant/Petitioner Shall Duty Bound Forever Pray.
Sd/(Counsels for the Appellant/Petitioner)