“The natural identity of an individual should be treated to be absolutely essential to

his being." This is so obvious that it should not need saying. This identity is protected
in various ways by Article 14 of the Constitution, granting equality before the law,
Article 15, which prohibits discrimination on grounds of religion, race, caste, sex or
place of birth, and Article 21, which guarantees protection of life and personal liberty.
And article 19 (freedom of speech and expression and to form associations and
unions).

The landmark 2009 Delhi high court case, Naz Foundation vs. Government of NCT of
Delhi and Ors, makes this clear.

Constitutional morality and the public morality of the Raj that informs Section 377
have the same roots. The Indian Constitution draws heavily from western
constitutions, products of the Judeo-Christian tradition, as Justice D.Y. Chandrachud
points out in his judgment. From Augustine of Hippo to Thomas Aquinas, early
theologians built the foundations of Western law with the morality of their religious
tradition. The condemnation of homosexuality started with this tradition, crossed
over into ecclesiastical law and finally into secular law. Modern fundamental rights
followed the same trajectory to a point. Slavery had no place in Augustine’s city of
God and Aquinas held individuals to possess inalienable natural rights. The
Enlightenment and rationalism, however, refined and expanded this strand of
thought. The moralities diverged.

“There is an unbridgeable divide between the moral values on which it (Section 377)
is based and the values of the Constitution. What separates them is liberty and
dignity." It is Parliament’s job to watch that divide. In practice, it doesn’t work out
that way. Lawmakers traffic in electoral logic, not the constitutional variety. If 2009
could be laid at the Congress’s door, the Bharatiya Janata Party owns 2015: It voted
against the introduction of a private member’s Bill by Shashi Tharoor to decriminalize
homosexuality. Its declining to contest the current case is a half-step at best, for
which both Chandrachud and Justice R.F. Nariman have chided it in their judgments.
The credit for pushing it to do that much at least goes to the LGBTQ community and
its supporters who have waged a long, brave campaign.
“One may decide to enact, one may decide not to.. (the court) is not going to wait for
a majoritarian government to protect the fundamental rights of the citizens." (ye uski
line ka reply)

Some ‘scientific’ research published by a Washington-based organisation, that claims

how ‘the gays’ are destroying The Great Indian Family. You know, the backbone of
heteronormativity? Because God forbid a situation where a child must undergo the ‘trauma’ of
being raised by two loving mums! (reply)

we’ve been reading Section 377 all wrong this whole time, because ain’t nobody got problems
with gay people, they just shouldn’t be having any sexy times, cause like society will burn to the
ground or whatever. But advocate Arvind Datar had already argued otherwise, saying it was the
basis for blackmail, extortion and all kinds of harassment against LGBTQ people. (reply)

you can’t justify scrapping a law that affects only a few people. And the analogy he used had me
choking on my damn rainbow velvet cake. He asked the court if it would consider abolishing the
police, because of corruption inside the institution? that even Fundamental Rights are subject
to public health, morality and decency.

(reply) I have only one response that is section 377 mouth is the organ to eat and anus is the
organ to excretion. This are not sexual organ. Therefore, such acts are against biology and
against the oreder of nature.

Ichciw
 1. The natural identity of an individual should be treated to be absolutely essential to his being.
What nature gives is natural. That is called nature within. Thus, that part of the personality of a
person has to be respected and not despised or looked down upon. The said inherent nature and
the associated natural impulses in that regard are to be accepted. Non-acceptance of it by any
societal norm or notion and punishment by law on some obsolete idea and idealism affects the
kernel of the identity of an individual. Destruction of individual identity would tantamount to
crushing of intrinsic dignity that cumulatively encapsulates the values of privacy, choice, freedom
of speech and other expressions. It can be viewed from another angle. An individual in exercise
of his choice may feel that he/she should be left alone but no one, and we mean, no one, should
impose solitude on him/her.

The eminence of identity has been luculently stated in National Legal Services Authority v. Union of
India and others1 , popularly 1 (2014) 5 SCC 438 7 known as NALSA case, wherein the Court was
dwelling upon the status of identity of the transgenders. gender identity is one of the most fundamental
aspects of life which refers to a person‘s intrinsic sense of being male, female or transgender or
transsexual person. A person‘s sex is usually assigned at birth, but a relatively small group of persons
may be born with bodies which incorporate both or certain aspects of both male and female physiology.
genital anatomy problems may arise in certain persons in the sense that their innate perception of
themselves is not in conformity with the sex assigned to them at birth and may include pre-and
postoperative transsexual persons and also persons who do not choose to undergo or do not have access
to operation and also include persons who cannot undergo successful operation.

2. ―The discrimination on the ground of ―sex‖ under Articles 15 and 16, therefore, includes
discrimination on the ground of gender identity. The expression ―sex‖ used in Articles 15 and 16
is not just limited to biological sex of male or female, but intended to include people who
consider themselves to be neither male nor female.‖ 7. Dealing with the legality of transgender
identity.
The self-identified gender can be either male or female or a third gender. Hijras are identified as
persons of third gender and are not identified either as male or female. Gender identity, as
already indicated, refers to a person‘s internal sense of being male, female or a transgender, for
example hijras do not identify as female because of their lack of female genitalia or lack of
reproductive capability. This distinction makes them separate from both male and female
genders and they consider themselves neither man nor woman, but a ―third gender

It s dwelling upon the rights of transgenders, laid down that gender identification is an essential
component which is required for enjoying civil rights by the community. It is only with this
recognition that many rights attached to the sexual recognition as ―third gender‖ would be
available to the said 9 community more meaningfully viz. the right to vote, the right to own
property, the right to marry, the right to claim a formal identity through a passport and a ration
card, a driver‘s licence, the right to education, employment, health and so on. Emphasising on
the aspect of human rights, he observed there seems to be no reason why a transgender must
 be denied of basic human rights which includes right to life and liberty with dignity, right to
privacy and freedom of expression, right to education and empowerment, right against violence,
right against exploitation and right against discrimination. The Constitution has fulfilled its duty
of providing rights to transgenders. Now it is time for us to recognise this and to extend and
interpret the Constitution in such a manner to ensure a dignified life for transgender people. All
this can be achieved if the beginning is made with the recognition of TG as third gender.‖

Suresh Kumar Koushal and another v. Naz Foundation and others

3. in his concurring opinion, referred to the decision in Mosley v. News Group Newspapers Ltd. 5 to
highlight that the emphasis for individual‘s freedom to conduct his sex life and personal
relationships as he wishes, subject to the permitted exceptions, countervails public interest.
The further submission that was advanced by Mr. Datar was that privacy of the individual having
been put on such a high pedestal and sexual orientation having been emphasized in the NALSA
case, Section 377 IPC cannot be construed as a reasonable restriction as that would have the
potentiality to destroy the individual autonomy and sexual orientation. It is an accepted principle
of interpretation of statutes that a provision does not become unconstitutional merely because
there can be abuse of the same. Similarly, though a provision on the statute book is not invoked
on many occasions, yet it does not fall into the sphere of the doctrine of desuetude. However,
Suresh Koushal's case has been guided by the aforesaid doctrine of desuetude.

4. the rights of the lesbian, gay, bisexual and transgender (LGBT) community, who comprise 7- 8%
of the total Indian population, need to be recognized and protected, for sexual orientation is an
integral and innate facet of every individual‘s identity. A person belonging to the said community
does not become an alien to the concept of individual and his individualism cannot be viewed
with a stigma. The impact of sexual orientation on an individual‘s life is not limited to their
intimate lives but also impacts their family, professional, social and educational life. As per the
petitioners, such individuals (sexual minorities in societies) need protection more than the
heterosexuals so as to enable them to achieve their full potential and to live freely without fear,
 apprehension or trepidation in such a manner that they are not discriminated against by the
society openly or insidiously or by the State in multifarious ways in matters such as employment,
choice of partner, testamentary rights, insurability, medical treatment in hospitals and other
similar rights arising from live-in relationships which, after the decision in Indra Sarma v. V.K.V.
Sarma 6 , is recognized even by the ―Protection of Women from Domestic 6 (2013) 15 SCC 755
19 Violence Act, 2005‖ for various kinds of live-in relationships. The same protection, as per the
petitioners, must be accorded to same sex relationships.

Shakti Vahini v. Union of India and others7 and Shafin Jahan v. Asokan K.M.8 wherein it has been
clearly recognized that an individual‘s exercise of choice in choosing a partner is a feature of dignity and,
therefore, it is protected under Articles 19 and 21 of the Constitution.