BY – Shreya Garg
Supreme Court Bench: CJI Deepak Mishra, Justice A.M. Khanvilkar, Justice R.F Nariman,Justice D.Y. Chandrachud and Justice Indu Malhotra
Parties: Petitioner(s): Navtej Singh Johar & ORS
Respondent(s): Union of India, THR. Secretary, Ministry of Law and Justice Date of Judgement: 6 September, 2018 , Case citation: AIR 2018 SC 4321
Sec 377 of the IPC criminalised consensual carnal intercourse between persons of the same sex for being “against the order of nature,” prescribing imprisonment up to ten years or life including fine. On 6th September, 2018, a five-judge Bench of the Supreme Court unanimously struck down Sec 377 IPC to the extent it criminalised same sex relations between consenting adults, legalizing homosexuality an recognising LGBT rights. However, it remains in force in relation to non-consensual acts and bestiality.
Sec 377 is a Victorian-era law, based on the Buggery Act, 1533 of Britain. Its constitutionality was challenged in Naz Foundation V. Govt. of NCT Delhi, 2009. The Delhi H.C. held it to be in violation of right to privacy and personal liberty under Article 21 of the Constitution, which also violates equal protection guaranteed under Article 14. The Supreme Court, however, reversed the verdict and in Suresh Kumar Kaushal v. Naz Foundation held that the decision of decriminalising homosexuality could not be done by court but only Parliament. The petitioner, Navtej Singh, who identified as part of the LGBT community, filed a writ petition in the Supreme Court challenging its decision in Suresh Kumar Kaushal, constitutionality of Sec 377 and seeking recognition of the right to sexual autonomy and right to choice of a sexual partner to be a part of Right to life protected under Article 21 of the Constitution.
Whether Sec 377 IPC:
➢ violates right to expression under Article 19(1)(a) by criminalizing the gender expression of the LGBT community?
➢ is violative of Articles 14 and 15 of the Constitution as it discriminates against individuals on the basis of their “gender identity” and “sexual orientation”?
➢ is violative of right to privacy and dignity guaranteed under Article 21 of the Constitution by penalizing consensual acts between persons of same sex?
• Homosexuality, bisexuality, or any other sexual inclination is a normal occurrence, not a physical or mental disorder. It is a reflection of personal choice, and criminalising it will undermine Article 21 of the Constitution by compromising an individual’s dignity and gender identity.
• The LGBT community’s rights need to be recognised even if it constitutes for 7-8 per cent of Indian population.
• Sec 377 is based on Victorian-era morals and societal norms, in which sexual practices were only seen as a means of reproduction and nothing more. This Section is the reason that LGBT community has faced discrimination and abuse throughout their lives, and will continue to suffer if homosexuality is criminalised once more.
• If Sec 377 is kept in place without making any amendments, it will violate several fundamental rights of the LGBT community i.e. right to freedom of speech and expression. Right to equality, privacy, liberty and dignity.
• There is no reasonable classification between natural an unnatural sex, and the phrase” carnal intercourse against the order of nature” isn’t defined anywhere. As a result, Sec 377 is arbitrary and vague and thus, violates Article 14 of the Constitution.
• Sec 377 also violates Article 15 of the Constitution since it discriminates against the LGBT community based on the sex of their partners, which is prohibited under Article 15.
• It is the court’s responsibility to uphold each citizen’s fundamental rights including the LGBT community, despite the fact that the society does not accept them.
• If Sec 377 is declared unconstitutional, the family institution will be shattered. Furthermore, people indulging in same sex relations are more likely to get HIV/AIDS, increasing the number of AIDS victims in the country.
• Fundamental rights are not absolute, and decriminalising Sec 377 would be unacceptable to all the religions practised in India, thereby violating Article 25 of the Constitution. It should also be taken into account.
• It is also argued that the political, economic and cultural history of countries where consensual homosexual relations are legal are vastly different from that of a cosmopolitan and diversified country like India.
• Sec 377 does not violate Article 15 because it prohibits discrimination on the basis of sex and not sexual orientation.
• The Court recognised that everyone, including LGBTQ people have the right to freely express their choices and affirmed that homosexuality is not an aberration but a variation of sexuality. Sec 377, in particular stigmatises and discriminates against transgender people. The court noted that the Section criminalises private consensual acts that do not disrupt public order or harm public decency or morality. Such unreasonable restriction violates the fundamental right to freedom of expression under Article 19(1)(a) of the Constitution.
• The Court observed that Sec 377 arbitrarily punishes individuals engaging in same sex relations. It classifies and punishes individuals who engage in carnal intercourse against the order of nature to safeguard women and children. This object, however, has no reasonable nexus with the classification because unnatural offences are also punished separately under Sec 375 IPC and the POCSO Act. As a result of this discrimination it violates Article 14. Sec 377 is arbitrary as it does not distinguish between consensual and non-consensual sexual conduct between adults.
• Regardless of how miniscule is the LGBT community, they have a right to privacy, which includes physical intimacy. Their choice of partner may be different; it doesn’t mean that they will be prosecuted for the same. The right to choice is not absolute, however, right to choose a partner is a wholly personal choice that cannot be regulated. Sec 377 infringes on their human dignity and freedom of choice. Every individual has the liberty of choosing their sexual orientation and denying the same curtails the right to privacy protected under Article 21. The court ruled that the ambit of right to privacy must be widened to include and protect “sexual privacy.”
• The Supreme Court struck down Sec 377 as unconstitutional and arbitrary insofar as it criminalises consensual acts of adults in private as it violates Articles 14, 15, 19, and 21 of the Indian Constitution, overturning the decision in Suresh Kumar Kaushal v. Naz Foundation. It continues to govern non-consensual sexual acts against adults, all acts of carnal intercourse against minors, and acts of bestiality.
In Navtej Singh Johar case, the Supreme Court of India has taken a bold and substantial step towards a legal system that implements the egalitarian and incorporationist objectives of the Indian Constitution by using transformative constitutionalism. It endeavours to change the current status and social beliefs while upholding constitutional morality over morality of the society. This landmark judgement emphasizes that the society as a whole or even its miniscule part may aspire and prefer different things for themselves and they are perfectly competent to have such freedom to be different, subject to the provisions of the Constitution and any other law. After the SC decision in Puttaswamy case, the challenge to the vires of Sec 377 has been stronger than ever as it ruled that sexual orientation is also a facet of a person’s privacy and that right to privacy is a fundamental right under the Constitution. By decriminalising homosexuality, India joined other countries of the world which have legalised homosexuality with the change in time. Sec 377 of IPC was used as a weapon to target the LGBT community. The provision infringed their right to equality, dignity, fraternity, right to life and personal liberty and non-discrimination. These basic rights are the core values of Indian Constitution which the Court ensured by declaring over 150 years old British law arbitrary and unconstitutional. The LGBT people constitutes a miniscule fraction of India’s population cannot be a ground to deprive them of their fundamental rights guaranteed under Part III of the Constitution. However, living freely and comfortably in Indian Society remains a challenge for the community members, as society still doesn’t approve of them but this issue will be solved with time by creating awareness among people to accept reality and understand them as they also have equal rights as us. Gender identification is an essential component required for enjoying civil rights by the community. It is only with this recognition that many rights attached to sexual recognition would be available to the community viz. the right to marry in the coming future, paving the way for a better future.
(PDF) Navtej Singh Johar v. UOI, Indian kanoon