SEMINAR PAPER-II

GAY RIGHTS - A COMPARATIVE STUDY

Submitted by: Siddharth Dalabehera,

B.A. L.L.B. (Constitutional Law Honours), 3rd Year,

6th Semester, Roll No. 1283092.

School of Law, KIIT University

Bhubaneshwar, Odisha.
 TABLE OF CONTENTS

CHAPTER-I...............................................................................................................................1

CHAPTER II..............................................................................................................................2

CHAPTER III.............................................................................................................................9

CHAPTER IV..........................................................................................................................12

CHAPTER V............................................................................................................................16

BIBLIOGRAPHY....................................................................................................................18

1
 CHAPTER-I

INTRODUCTION

For the past century, gay rights have been debated and fought over in
hope to give equal rights to all people. Although gay relationships and
feelings were recognized as far into history as the 7th Century BC, the
true activism has increased since the beginning of the 20th century. As
time has progressed, gay rights have become a widely spread issue across
many countries. Gays are subject to human rights abuse in countries in
every region of the world. The violations they face include killing as well
as imprisonment, torture, and abuses aimed specifically at sexual
minorities, such as practices aimed at forcibly changing their sexual
orientation.1.

The researcher over here focuses over a comparative study of

constitutional rights, the gays have in three countries ; U.S.A., South Africa
and India.

1 http://www1.umn.edu/humanrts/edumat/hreduseries/TB3/intro.html (last visited : March 25th,

2015)

2
 CHAPTER II

GAY RIGHTS IN U.S.A.

The Supreme Court has recently only heard gay rights cases. Moreover,
the plaintiffs in 1986 suffered a big defeat in the first case, Bowers v.
Hardwick2. The Court has since overruled Bowers but its gay rights
jurisprudence is still muddled.

Indeed, gay marriage rivals abortion as one of the most controversial

constitutional issues in the United States even though the U.S. Supreme
Court has not decided the question.3 In the United States, same-sex
marriage is recognized by the Federal Government and has been legalized
in 36 U.S. states. But in states of Mississippi, Missouri, Arkansas, South
Dakota, Nebraska and Texas still don't recognise same-sex marriage. Such
states have passed laws or constitutional amendments specifying that
marriage is between a man and a woman.

American Courts have split on gay marriage while increasingly upholding

other rights for gay people. American cases focus more on privacy
because the equal protection clause provides no special protection for gay
people. Indeed, the U.S. Supreme Court's greatest victory for gay people
was substantive due process case, Lawrence v. Texas.4

Bowers v. Hardwick

In 1986, the Supreme Court in Bowers v. Hardwick5 ruled that there was
no fundamental right to engage in homosexual sodomy. The majority
2 Bowers v. Hardwick, 478 U.S. I 86 (1986).

3 Jay Lindsay, "Courts a tough Road to Gay Marriage," Associated Press Sep. 28, 2007,
http://miamiherald.typepad.com/2007/09/courts-a-tough-.html(last visited : March 25th, 2015)

4 539 U.S. 558 (2003).

5 Supra (1).

3
opinion, written by Justice Byron White, argued that the Constitution did
not confer "a fundamental right to engage in homosexual sodomy." A
concurring opinion by Chief Justice Warren E. Burger cited the "ancient
roots" of prohibitions against homosexual sex, quoting William
Blackstone's description of homosexual sex as an "infamous crime against
nature", worse than rape, and "a crime not fit to be named." Burger
concluded: "To hold that the act of homosexual sodomy is somehow
protected as a fundamental right would be to cast aside millennia of
moral teaching." The issue in Bowers involved the right of privacy. Since
1965's Griswold v. Connecticut6 the Court had held that a right to privacy
was implicit in the Due Process Clause of the Fourteenth Amendment to
the United States Constitution. In Bowers, the Court held that this right did
not extend to private, consensual sexual conduct, at least insofar as it
involved homosexual sex.

The dissent, authored by Justice Harry Blackmun, framed the issue as

revolving around the right to privacy. Blackmun's dissent accused the
Court of an "overall refusal to consider the broad principles that have
informed our treatment of privacy in specific cases." In response to
invocations of religious taboos against homosexuality, Blackmun wrote:
"That certain, but by no means all, religious groups condemn the
behaviour at issue gives the State no license to impose their judgments
on the entire citizenry. The legitimacy of secular legislation depends,
instead, on whether the State can advance some justification for its law
beyond its conformity to religious doctrine."

Romer v. Evans

In 1996, the Court in Romer v. Evans,7 struck down a Colorado

constitutional referendum nullifying state or local laws protecting gay
people. Justice Anthony Kennedy said the referendum reflected animosity
toward gay people, depriving them alone of discrimination protections
6 381 U.S. 479 (1965).

7 517 U.S. 620 (1996).

4
received by others, and thus amounting to a per se violation of the
constitution. The majority opinion in Romer stated that the amendment
lacked "a rational relationship to legitimate state interests". The state
constitutional amendment failed rational basis review. In dissent, Justice
Antonin Scalia reasoned that if homosexual sodomy could be barred,
removing legal protections from the group that engages in that activity
was rational.

Lawrence v. Texas.

In 2003, Kennedy authored Lawrence8, which overruled Bowers. In the 63

ruling the Court struck down the sodomy law in Texas and, by extension,
invalidated sodomy laws in 13 other states, making same-sex sexual
activity legal in every U.S. state and territory. Kennedy reasoned that
Bowers mischaracterized the issue as whether gay people could engage in
sodomy. The question was more general, namely whether gay people can
make intimate personal choices without state interference. Interestingly
he emphasized the Fourteenth Amendment's liberty provision more than
the right to privacy. Kennedy found support for his Lawrence opinion in the
post- Bowers trend of state repeal of anti-sodomy laws. Kennedy also
relied on international institutions, such as the European Court of Human
Rights, which said that laws against sodomy violate evolving notions of
personal freedom.

Kennedy underscored the decision's focus on consensual adult sexual conduct in a private
setting:

"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 easily 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 homosexual persons seek to enter."

Lawrence explicitly overruled Bowers, holding that it had viewed the

liberty interest too narrowly. The Court held that intimate consensual

8 Supra (3).

5
sexual conduct was part of the liberty protected by substantive due
process under the 14th Amendment. Kennedy's opinion, however, never
declared a level of scrutiny or whether a fundamental right was involved.
These omissions may have been necessary to retain the votes of other
Justices, but they left doctrinal puzzles.

Prof. Laurence Tribe has written that Lawrence "may well be remembered
as the Brown v. Board of Education9 of gay and lesbian America". 10
Jay
Alan Sekulow of the American Center for Law and Justice has referred to
the decision as having "changed the status of homosexual acts and
changed a previous ruling of the Supreme Court... this was a drastic
rewrite".

Watkins v. United States Army

In Watkins v. United States Army.,11 The court held that homosexuals

constitute a "suspect class" and that the court must apply "strict scrutiny"
to determine whether there is a compelling state interest that justifies a
statute or regulation that distinguishes homosexuals as a category. Using
that analysis, the panel held that the exclusion of homosexuals from
military service violated the equal protection clause of the Fourteenth
Amendment. It specifically addressed only exclusion based on someone's
sexual orientation (homosexuality as status), not exclusion based on
behaviours associated with one's sexual orientation (homosexuality as
conduct)

Goodridge v. Dept. of Public Health.

9 347 U.S. 483 (1954).

10 Tribe, Laurence H. (2004). "Lawrence v. Texas: The 'Fundamental Right' That Dare Not Speak Its
Name". Harvard Law Review. 117:189495.

11 875 F.2d 699 .

6
Goodridge v. Dept. of Public Health12, is a landmark state appellate
court case dealing with same-sex marriage in Massachusetts. The
November 18, 2003, decision was the first by a U.S. state's highest court
to find that same-sex couples had the right to marry. the opinion said:
"We declare that barring an individual from the protections, benefits, and
obligations of civil marriage solely because that person would marry a
person of the same sex violates the Massachusetts Constitution."

The misconception that "'marriage is procreation, confers an official

stamp of approval on the destructive stereotype that same-sex
relationships are inherently unstable and inferior to opposite-sex
relationships and are not worthy of respect." The marriage of a man and a
woman as the "optimal setting for child rearing", is irrelevant and denying
marriage licenses to one class of persons does not affect the marriage
patterns of the other class. " The Court concluded that

"It cannot be rational under our laws, and indeed it is not permitted, to
penalize children by depriving them of State benefits because the State
disapproves of their parents' sexual orientation.

The marriage ban works a deep and scarring hardship on a very real
segment of the community for no rational reason. The absence of any
reasonable relationship between, on the one hand, an absolute
disqualification of same-sex couples who wish to enter into civil marriage
and, on the other, protection of public health, safety, or general welfare,
suggests that the marriage restriction is rooted in persistent prejudices
against persons who are (or who are believed to be) homosexual....
Limiting the protections, benefits, and obligations of civil marriage to
opposite-sex couples violates the basic premises of individual liberty and
equality under law protected by the Massachusetts Constitution."

In re Marriage Cases

12 798 N.E.2d 941 (Mass. 2003).

7
In re Marriage Cases,13 was a California Supreme Court case where the court held that laws
treating classes of persons differently based on sexual orientation should be subject to strict
judicial scrutiny, and that an existing statute and initiative measure limiting marriage to
opposite-sex couples violate the rights of same-sex couples under the California
Constitution and may not be used to preclude them from marrying.

"Under this state's Constitution, the constitutionally based right to marry properly must be
understood to encompass the core set of basic substantive legal rights and attributes
traditionally associated with marriage that are so integral to an individual's liberty and
personal autonomy that they may not be eliminated or abrogated by the Legislature or by the
electorate through the statutory initiative process."

The Supreme Court of California joined the Supreme Judicial Court of Massachusetts as the
second state to have its highest court rule prohibitions on same-sex marriage unconstitutional,
although for somewhat different reasons. and later on a series of such judgments followed in
many states until the recent historic judgment of United States v. Windsor14 was passed by the
US Supreme Court in 2013.

13 43 Cal.4th 757 (2008)

14 570 U.S. (2013) (Docket No. 12-307),

8
 United States v. Windsor

This is a landmark civil rights case in which the United States Supreme Court held that
restricting U.S. federal interpretation of "marriage" and "spouse" to apply only
to heterosexual unions, by Section 3 of the Defense of Marriage Act (DOMA), is
unconstitutional under the Due Process Clause of the Fifth Amendment; Justice
Kennedy wrote:

"The federal statute is invalid, for no legitimate purpose overcomes the purpose and effect to
disparage and to injure those whom the State, by its marriage laws, sought to protect in
personhood and dignity.

The particular case at hand concerns the estate tax, but DOMA is more than a simple
determination of what should or should not be allowed as an estate tax refund. Among the
over 1,000 statutes and numerous federal regulations that DOMA controls are laws
pertaining to Social Security, housing, taxes, criminal sanctions, copyright, and veterans'
benefits.

DOMA's principal effect is to identify a subset of state-sanctioned marriages and make them
unequal. The principal purpose is to impose inequality, not for other reasons like
governmental efficiency. The liberty protected by the Fifth Amendment's Due Process Clause
contains within it the prohibition against denying to any person the equal protection of the
laws which equal protection guarantee of the Fourteenth Amendment makes that Fifth
Amendment right all the more specific and all the better understood and preserved. The class
to which DOMA directs its restrictions and restraints are those persons who are joined in
same-sex marriages made lawful by the State. DOMA singles out a class of persons deemed
by a State entitled to recognition and protection to enhance their own liberty

By seeking to displace this protection and treating those persons as living in marriages less
respected than others, the federal statute is in violation of the Fifth Amendment."

9
 CHAPTER III

GAY RIGHTS IN SOUTH AFRICA

One of the most important areas of the South African Constitutional

Court's jurisprudence is gay rights. The court has ruled for the plaintiffs in
several cases, even invalidating same-sex marriage restrictions. Given the
racist legacy of apartheid, it is surprising that these cases are more
prominent than the Court's racial discrimination cases. It raises the
question of why the South African Court made this area a cause cause
clbre.

The unique feature of South African Constitution is that it was the first to
recognize sexual orientation discrimination as presumptively unfair. 15
During the constitutional drafting, gay advocacy groups played an active
and successful role pressing for discrimination protections. Since adoption
of the South African Constitution, gay rights advocates have promoted
their cause through political activism and a strategic litigation campaign
waged by the National Coalition for Gay & Lesbian Equality (NCGLE).

Now we need to analyze certain landmark cases in South African Gay

Rights Jurisprudence:

The Sodomy Case

The first Constitutional Court decision on gay rights struck down statutory
and common law restrictions on homosexual male sodomy. The Court in
1998 in National Coalition for Gay and Lesbian Equality v. Minister of

15 Sec 9(3), The Constitution of South Africa.

10
Justice16ruled that these laws violated principles of equality, dignity, as
well as the rights to privacy. The Court explained that such laws reinforces
already existing societal prejudices and severely increases the negative
effects of such prejudices. The Court further held that such a law was a
'dignity violation'. The Court relied for support on decisions from the
European Court of Human Rights (ECHR) and Supreme Court of Canada.
The Court rejected the application of Bowers17 case as the South African
Constitution contains express prohibition of unfair discrimination on
grounds of sexual orientation and express privacy which is absent in
United States' Constitution. Moreover, the Court pointed out that
American scholars had harshly criticized the Bowers decision.

The Immigrant Same-Sex Partner Case

In 1999, the Court examined whether the government could treat the
government an immigrant spouse better than the immigrant same-sex
partner of a South African in National Gay and Lesbian Coalition for Gay
and Lesbian Equality v Minister of Home Affairs.18 Justice Ackermann ruled
that this unequal treatment constituted illegal discrimination. The Court
said that the law only " affords protection only to conjugal relationships
between the heterosexuals and excludes any protection to a lifetime
protection to a life partnership which entails a conjugal same-sex
relationship open to gays and lesbians in harmony with their sexual
orientation" The Court added that South African statutes have increasingly
recognized same-sex partnerships. The Court said that "procreative
potential is not a defining characteristic of conjugal relationships." The
Court also said that changing the law would not endanger traditional
marriage.

Judges and Their Same Sex- Partners

16 1999 (I) SA 6 (CC).

17 Supra (4).

18 2000 (2) SA I (CC).

11
In July 2002, the Court decided Satchwell v. Republic of South Africa,19
ruling in favor of a judge who claimed that her same-sex partner should
receive identical benefits to those received by the spouses of her married
colleagues. One interesting aspect of the decision is the Constitutional
Courts' emphasis on African culture. " In certain African traditional
societies woman-to-woman marriages are not unknown." The Court said
that the Constitution cannot impose obligations towards partners where
those partners have themselves failed to take up obligations. The Court
said that the "partner in a permanent same-sex life partnership" should
also receive benefits where "such partners...have undertaken and
committed themselves to reciprocal duties of support".

Adoption by Gay Couples

Later in 2002, the Court in Du Toit v. Minister of Welfare 20ruled

unconstitutional a statute that banned gay couples from being guardians
for children. This overturned a lower court decision holding that only one
member of same-sex couples could be a guardian. The constitutional
court emphasized on the importance of "family life" in South Africa as well
as the "child's best interests". The Court further added that the statute
"surely defeats the very essence and social purpose of adoption which is
to provide the stability, commitment, affection and support important to a
child's development, which can be offered by suitably qualified persons,"
including gay couples. The law's "non-recognition of the first applicant as
a parent, in the context of her relationship with the second applicant and
her relationship with the siblings, perpetuates the myth of family
homogeneity based on one father/one mother model. It ignores
19 2002 (6) SA I (CC).

20 2003 (2) SA I98 (CC).

12
developments that have taken in the country, including the adoption of
the Constitution. The Court also addressed the absence of a regulatory
mechanism to protect these children if same-sex partnerships were to
break up.

Gay Marriage

The Constitutional Court's 2005 endorsement of gay marriage in Minister

of Home Affairs v. Fourie21 may be the most internationally prominent
ruling. There were two issues in Fourie. First, the common law defined
marriage as the "union of one man with one woman , to the exclusion,
while it lasts , of all others. Second the Marriage Act 25 of 1961(" Marriage
Act") required the marriage officers to ask the marrying parties a question
that was worded in a way that excluded same-sex couples (e.g. the
question assumed that a man was marrying a woman). Both the judges of
the appeal bench agreed that the common law discriminated on the basis
of sexual orientation but they disagreed on what to do with the Marriage
Act. Justice Edwin Cameron pointed out that the gay people should aim for
domestic partnership recognition and that marriage could remain the
paradigm for heterosexuals.

In contrast, Judge Farlam argued that the court should address the
Marriage Act question because it was inseparable from the common law
issue. Moreover, nothing in the Marriage Act endorsed the common law
definition of marriage. He held that both that the common law should be
developed and that the Marriage Act could and should be read there and
then in updated form so as to permit same-sex couples to pronounce the
vows. Justice Sachs explained that marriage provides security, and its
unavailability forces gay couples to "live in a state of legal blankness". He
then rejected several arguments against same-sex marriage. First ,
marriage is not about procreation as many heterosexual couples do not
have children. Indeed that argument demeans older married heterosexual
couples and those with physical limitations. Second, any religious

21 2006 (I) SA 524 (CC).

13
objection to gay marriage can't undermine secular government policy. But,
he surprised many by suspending the implementation of gay marriage for
one year to allow Parliament to establish a regulatory scheme. Sachs cited
separation of powers concerns and the goal of preventing legal chaos.
This was criticized by many jurists who believed that chaos would occur
by legalizing gay marriage and said that any risks were outweighed by a
continuing rights violation. Sachs actually knew that the altering an
important institution ;like marriage, with all of its bureaucratic,
governmental, and religious dimensions, would require changes in
paperwork, procedures, social expectations, and more. He was trying to
provide time for those changes.

The Civil Union Act

With the Fourie decision , it looked as if South Africa would join Belgium,
Canada, the Netherlands, Spain and Massachusetts as the only
governments in the world legalizing gay marriage. But things didn't go as
gay marriage advocates planned. Parliament's initial civil union bill only
authorized civil partnerships for same-sex couples, not marriage. Gay
marriage advocates said that allowing only civil unions would perpetuate
their status as second-class citizens and the bill being equivalent to
"separate but equal". Ultimately the bill was amended to allow adult
couples of any type to marry or enter into civil partnerships.

The court's boldness in these gay rights cases is striking and this forms
the very basis of the gay rights jurisprudence of South Africa.

CHAPTER IV

GAY RIGHTS IN INDIA

14
In contrast to U.S.A and South Africa the scene of Gay rights in India is
very bleak or we can also say non-existent. Homosexuality is mostly a
taboo subject in Indian civil society and for the government as
homophobia is very prevalent in India. Public discussion of homosexuality
in India has been inhibited by the fact that sexuality in any form is rarely
discussed openly. Homosexual intercourse was made a criminal offence
under Section 37722 of the Indian Penal Code, 1860. So there is no
question for other rights like marriage, adoption etc to exist in such a
scenario.

Section 377

Section 377 of the Indian Penal Code which was enacted during the British
administration in India in 1860. Section 377 created an offence of
voluntarily having carnal intercourse against the order of nature with
any man, woman or animal, punishable by up to ten years imprisonment
or a fine. The section seems neutral in that it criminalizes certain sexual
acts and not people and their identities. However, it has never been used
against consenting heterosexual persons and has been misused against
homosexual persons. The primary problem with the provision of law is that
it does not take into consideration age or consent. Therefore, it
criminalizes adult consensual same sex acts. The fight against section 377
has been going on since 2001 before the courts. It started with the
petition by Naz Foundation before the High Court of Delhi.

Naz Foundation v. Govt. of NCT of Delhi

In its 2009 decision23, the High Court found in favour of the NAZ
Foundation and accepted its arguments that consensual same-sex sexual
relations between adults should be decriminalised, holding that such
criminalisation was in contravention of the Constitutional rights to life and
personal liberty, equality before the law and non-discrimination. In

22 Section 377, The Indian Penal Code , 1860.

23 WP(C) No.7455/2001.

15
reaching its decision, whilst the court placed a great deal of emphasis on
domestic judgments, the court also relied on comparative law in reaching
its decision, referring to judgements from various jurisdictions including
the European Court of Human Rights, the United Kingdom, the Republic of
Ireland, South Africa and the USA.

The Court also held that Section 377 offends the guarantee of equality
enshrined in Article 14 of the Constitution, because it creates an
unreasonable classification and targets homosexuals as a
class. Public animus and disgust towards a particular social group or
vulnerable minority, it held, is not a valid ground for classification under
Article 14. Article 15 of the Constitution forbids discrimination based on
certain characteristics, including sex. The Court held that the word "sex"
includes not only biological sex but also sexual orientation, and therefore
discrimination on the ground of sexual orientation is not permissible under
Article 15. The Court also noted that the right to life under Article 21
includes the right to health, and concluded that Section 377 is an
impediment to public health because it hinders HIV-prevention efforts.24
The Court did not strike down Section 377 as a whole. The section was
declared unconstitutional in so far it criminalises consensual sexual acts of
adults in private. The Court concluded that:

Section 377 criminalises the acts of sexual minorities, particularly men

who have sex with men. It disproportionately affects them solely on the
basis of their sexual orientation. The provision runs counter to the
constitutional values and the notion of human dignity which is considered
to be the cornerstone of our Constitution.

Suresh Kumar Koushal v NAZ Foundation

24 http://www.equalrightstrust.org/ertdocumentbank/Case%20Summary%20Suresh%20Kumar
%20Koushal%20and%20another%20v%20NAZ%20Foundation%20and%20others.pdf (Last visited:
March 25th 2015).

16
The Supreme Court in this case25 reversed the judgment of the Delhi High
Court and held that section 377 does not violate the constitution and is
therefore valid. The Supreme Court reasoned its judgment on several
grounds. First, it held that all laws enacted by Parliament are presumed to
be valid under the Constitution. This means that in order to hold a law to
be invalid, it must be shown, through evidence, that the law is violating
the Constitution. The Supreme Court held that there is not enough
evidence to show that S.377 IPC is invalid under the Constitution. The
Court held that there is very little evidence to show that the provision is
being misused by the police. Also, just because the police may be
misusing a law, does not automatically mean that the law is invalid. There
must be something in the nature of the law itself that is unconstitutional.
According to the Supreme Court, the law can be implemented without
misuse. It was also argued before the Supreme Court that because S.377
applies to certain sexual conduct, it essentially means that all forms of
sexual expression by LGBT people would be unnatural. This would mean
that any sexual conduct by such people would be illegal. Therefore, S.377
prohibits all sexual expression of LGBT persons. The Supreme Court
disagreed with this argument and held that S.377 speaks only of sexual
acts and does not speak about sexual orientation or gender identity. This
would mean that even heterosexuals indulging in acts covered under
S.377 would be punished. Therefore, the section does not target LGBT
persons as a class.

Further, the Supreme Court held that the Delhi High Court in its anxiety to
uphold the so called rights of LGBT persons had relied on cases from other
countries. They are of the opinion that cases from other countries cannot
be directly used in the context of India. Therefore, important cases from
South Africa, Fiji, Nepal, USA etc where homosexuality was decriminalized
was not taken into account by the Supreme Court.

25 Supreme Court of India: Civil Appeal No. 10972 of 2013

17
Laws are presumed to be valid therefore the responsibility of changing
laws is with the parliament. In this case also parliament is free to consider
deleting or changing S.377. The Supreme Court also said that despite so
many years the Parliament has not changed the law in spite of having
ample opportunities to do so.

In reviewing the reading down of the Section 377 by the High Court, the
Supreme Court stated that the High Court had overlooked the fact that a
miniscule fraction of the countrys population constitute lesbians, gays,
bisexuals or transgenders and that over the last 150 years, fewer than
200 persons had been prosecuted under Section 377, concluding from this
that this cannot be made sound basis for declaring that section ultra
vires the provisions of Articles 14, 15 and 21 of the Constitution. In light
of the above factors considered, the Supreme Court reversed the decision
of the Delhi High Court and upheld section 377.

It concluded that Section 377 does not suffer from the vice of
unconstitutionality with no further elaboration. The judges noted that
whilst the court found that Section 377 was not unconstitutional, the
legislature was still free to consider the desirability and propriety of
deleting or amending the provision.

Criticisms of SC Judgment

The decision of the Supreme Court was received by a wave of protests

spanning across the country. The decision of the Supreme Court is wrong
because of several reasons.

The Supreme Court held that the LGBT community is an extremely tiny
and insignificant minority. This is wrong on the basis of data as well.
However, even if the population of LGBT people is in fact tiny, it does not
affect the question of harassment or constitutional rights. The violation of
the right of one person is as serious as that of millions of people.

The Supreme Court has failed in its decision to understand the scale of
misuse of S.377 by the police against people of the LGBT persons.

18
However, this is wrong because it does not include the number of police
complaints, arrests or harassment on the basis of this Section. There are
several well-known instances of abuse and harassment by the police
which the Supreme Court fails to consider.

The Supreme Court is wrong in its application of laws from other

countries. It does not consider the fact that same-sex acts have been
decriminalized in a lot of countries, including the UK and the USA. The
Supreme Court should have considered the decisions from other countries
as it always has been doing. In this case, the Supreme Court ignored
foreign decisions.

The Supreme Court held that the law applies only to certain acts and not
to the identities of people. However, this is wrong because it means that
for members of the LGBT community, any way in which they could
express themselves sexually becomes a criminal act. This is not so for
heterosexual people who can have sexual intercourse without violating
the law.

The Supreme Court held that the law should be changed by Parliament
and not the Court. However, the Supreme Court was never asked to
change the law! It is the duty of the Court to restrict or strike down a law
which is against the Constitution. The Supreme Court had to do that in this
case, which it failed to do.26

CHAPTER V

CRITICAL APPRAISAL

When we compare the three jurisdictions we see that the gay rights jurisprudence is in a
nascent stage in India. India has to take a note of the landmark decisions from both the
jurisdictions in order to develop its own regime of rights for gays. Gay rights are the new

26http://orinam.net/377/wp-content/uploads/2013/12/sec377_summary_Gowthaman.pdf (Last
visited: March 25th 2015).

19
facade of human rights and Indian constitution which has provisions for equality needs to
give equal rights to gays as well.

The Indian society is still not ready to accept gays but if Section 377 excludes consensual sex
then definitely the gays won't be considered to be criminals in their own country.

BIBLIOGRAPHY

MARK S. KENDE, Constitutional Rights in Two worlds South Africa and

United States,( 1st Ed., 2009), Cambridge University Press.

PAUL BREST, STANFORD LEVINSON, JACK M. BALKIN, AKHIL REED AMAR,

REVA B. SIEGEL, Processes of Constitutional Decision Making, (5th
Ed.,2006), Aspen Publishers.

DONALD P. KOMMERS, JOHN E. FINN, GARY J. JACOBSON, American

Constitutional Law, (3rd Ed., 2010), Rowman & Littlefield Publishers Inc.

20
MASSEY, American Constitutional Law Powers and Liberties (2nd Ed.,
2005), Aspen Publishers.

21