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58. Since 1967 the process of change has informed legal attitude towards sexual orientation. This process has culminated in the de-criminalisation of sodomy in private between consenting adults, in several jurisdictions. The superior courts in some of these jurisdictions have struck down anti-sodomy laws, where such laws remain on the statute book. In 1967 in England and Wales and in 1980 in Scotland sodomy between consenting adult males in private was de-criminalised. However, in Northern Ireland the criminal law relating to sodomy remained unchanged. In 1982, in pursuance of the decision of the ECHR in Dudgeon v. United Kingdom (supra), sodomy between adult consenting males in private was de-criminalised in Northern Ireland. The same conclusion was reached in 1988 in Norris v. Ireland (supra) and Ireland repealed sodomy laws in 1993. Laws prohibiting homosexual activity between consenting adults in private having eradicated within 23 member-states that had joined the Council of Europe in 1989 and of the 10 European countries that had joined since (as at 10th February, 1995), nine had de-criminalised sodomy laws either before or shortly after their membership applications were granted. In Australia, all the States with the exception of Tasmania, had by 1982 de-criminalised sexual acts in private between consenting adults and had also passed anti- discrimination laws which prohibited discrimination on the ground, amongst others, of sexual orientation. Tasmania repealed offending sections in its Criminal Code in 1997 in view of the decision of United Nations Human Rights Committee in Toonen v. Australia. Consensual sexual relations between adult males have been de-criminalised in New Zealand. In Canada, consensual adult sodomy ("Buggery") and so-called "gross indecency" were de- criminalised by statute in 1989 in respect of such acts committed in private between 21 years and older which was subsequently brought down to age of 18 years or more. In United States of America though the challenge to sodomy laws was turned down in Bowers v. Hardwick (supra), but subsequently in Lawrence v.Texas, the sodomy laws insofar as between consenting adults in private were struck down. A number of open democratic societies have turned their backs to criminalisation of sodomy laws in private between consenting adults despite the fact that sexual orientation is not expressly protected in the equality provisions of their constitutions. Homosexuality has been de-criminalised in several countries of Asia, Africa and South America. The High Court of Hongkong in its judgments in Leung T.C.William Roy v. Secy for Justice, dated 24th August, 2005 and 20th September, 2006 struck down similar sodomy laws. To the same effect is the judgment of the High Court of Fiji in Dhirendra Nandan & Another v. State, Criminal Appeal Case No. HAA 85 & 86 of 2005, decided on 26th August, 2005. Nepalese Supreme Court has also struck down the laws criminalising homosexuality in 2008 [Supreme Court of Nepal, Division Bench, Initial Note of the Decision 21.12.2007].

      MORALITY AS A GROUND                 OF     A    RESTRICTION       TO
     FUNDAMENTAL RIGHTS

75. As held in Gobind (supra), if the court does find that a claimed right is entitled to protection as a fundamental privacy right, the law infringing it must satisfy the compelling state interest test. While it could be "a compelling state interest" to regulate by law, the area for the protection of children and others incapable of giving a valid consent or the area of non-consensual sex, enforcement of public morality does not amount to a "compelling state interest" to justify invasion of the zone of privacy of adult homosexuals engaged in consensual sex in private without intending to cause harm to each other or others. In Lawrence v. Texas (supra), the Court held that moral disapproval is not by itself a legitimate state interest to justify a statute that bans homosexual sodomy. Justice Kennedy observed:

83. In the 172nd report, the Law Commission has recommended deletion of Section 377 IPC, though in its earlier reports it had recommended the retention of the provision. In the 172nd report, the Law Commission of India, focused on the need to review the sexual offences laws in the light of increased incidents of custodial rape and crime of sexual abuse against youngsters, and inter alia, recommended deleting the section 377 IPC by effecting the recommended amendments in Sections 375 to 376E of IPC. The Commission discussed various provisions related to sexual offences and was of considered opinion to amend provisions in the Indian Penal Code, 1860; the Code of Criminal Procedure, 1973; and Indian Evidence Act, 1872. In the Indian penal Code, recasting of 375 IPC has been recommended by redefining it under the head of 'Sexual Assault' encompassing all ranges of non consensual sexual offences/assaults, which in particular penalize not only the sexual intercourse with a woman as in accordance with the current 'Rape Laws'; but any non-consensual or non-willing penetration with bodily part or object manipulated by the another person except carried out for proper hygienic or medicinal purposes.

THE CLASSIFICATION BEARS NO RATIONAL NEXUS TO THE OBJECTIVE SOUGHT TO BE ACHIEVED

91. The petitioner's case is that public morality is not the province of criminal law and Section 377 IPC does not have any legitimate purpose. Section 377 IPC makes no distinction between acts engaged in the public sphere and acts engaged in the private sphere. It also makes no distinction between the consensual and non-consensual acts between adults. Consensual sex between adults in private does not cause any harm to anybody. Thus it is evident that the disparate grouping in Section 377 IPC does not take into account relevant factors such as consent, age and the nature of the act or the absence of harm caused to anybody. Public animus and disgust towards a particular social group or vulnerable minority is not a valid ground for classification under Article 14. Section 377 IPC targets the homosexual community as a class and is motivated by an animus towards this vulnerable class of people.