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Introduction

Section 377 of the Indian Penal Code imposes criminal liability on anyone who “voluntarily has carnal intercourse against the order of nature”. When the said Section was questioned before the Supreme Court of India with ‘consent’ as the crux of the arguments, the Court decided to de-criminalise certain acts as described in the following analysis and the same has been hailed as a landmark precedent. The Supreme Court, by way of the judgement of Navtej Singh Johar & Ors. v. Union of India & Ors[1], reiterated its pace with changing times and mind-set of the people.


Facts of the Case

The matter in the case arose in 2009 when the Delhi High Court, in Naz Foundation v. Govt. of N.C.T. of Delhi, held Section 377 to be unconstitutional, in so far as it pertained to consensual sexual conduct between two adults of the same sex. In 2014, a two-judge bench of the Supreme Court, in the case of Suresh Kumar Koushal v. Naz Foundation, overturned the Delhi HC decision and granted Section 377 “the stamp of approval” When the petition in the present case was filed in 2016 challenging the 2014 decision, a three-judge bench of the Supreme Court opined that a larger bench must answer the issues raised. As a result, a five-judge bench heard the matter and a writ petition was filed before a five-judge bench of the Supreme Court on 08.01.2018.

In the prayer, the petitioners pray for declaration of “right to sexuality”, “right to sexual autonomy” and “right to choice of a sexual partner” to be a part of the right to life guaranteed by Article 21 of the Constitution of India. It was also prayed by the petitioners to declare Section 377 of the Indian Penal Code as unconstitutional. The three-judge bench of the Apex Court decided that the matter was required to be addressed by a larger bench. Thus, when the petition was transferred, the learned five judges of our Supreme Court struck down Section 377 in as long as it criminalized consensual sex.

Issues

The main issue, in this case, was whether or not the non-recognition and subsequent denial of expression of choice by way of Section 377 were contrary to the judgement given in Suresh Kumar Koushal & Anr. v. Naz Foundation & Ors.[2]

Summary

When the writ petition was first presented by Navtej Singh Johar, before the three-judge bench, the bench referred to the Suresh Koushal case in which the Supreme Court overturned the Naz Foundation judgement. The three-judge bench considered that there were many aspects to be considered regarding Section 377 determination of “order of nature”, social morality, rights of sections of people, constitutional foundations, consenting adults, etc. Thus, the judges deemed the case fit to be considered by a larger bench. Considering the petitions and examining the same through various aspects, the learned five-judge bench of the Apex Court gave its judgement in favour of the petitioner and unanimously held that Section 377 was unconstitutional as far as it criminalized consensual sex between two adults of same or different sex. As the judgement was given by a five-judge bench, it is a binding precedent on all courts in India.

Analysis

The issue arose legally in 2009 when the Delhi High Court in Naz Foundation v. Government of NCT of Delhi &Ors.[3]observed that Article 15 of the Constitution prohibits discrimination on various grounds. Thus, the Court declared Section 377 unconstitutional in view of Articles 14, 15 and 21 of the Constitution of India. However, this judgement was overturned in Suresh Kumar Koushal & Anr. v. Naz Foundation &Ors.[4] by the apex Court wherein it was held that prohibition of acts under Section 377 only regulated sexual conduct regardless of gender identity and sexual orientation of a person. Section 377 would apply irrespective of age and consent, for the Section did not criminalize a particular people or identity or sexual orientation and only identified certain acts which, when committed, would constitute an offence. However, by way of precedents, it has been established that the rights guaranteed as Fundamental Rights such as Article 14 and 21 of the Constitution of India are dynamic and timeless rights of ‘liberty’ and ‘equality’ and it would be against the principles of our Constitution to give them a static interpretation without recognizing their transformative and evolving nature of our social fabric and conditions. Further, the concept of constitutional morality is also of very high importance. Nevertheless, Section 377 in its original form created a distressing effect on the acceptance and judicial judgement. If this happens or if such a treatment to the LGBT community is allowed to persist, then the Indian courts, which are under the obligation to protect the fundamental rights of citizens, would be failing in the discharge of their duty. A failure to do so would reduce the citizens’ belief in the judiciary of their country. The role of the Court assumes further importance when the class or community whose rights are in question are those who have been the object of humiliation, discrimination, separation and violence by not only the State and the society but also at the hands of their very own family members and friends. The development of law cannot further struggle for the realisation and attainment of the rights of such members of the society. Thus, in view of constitutional morality as well, Section 377 should not cover consensual sex between two adults, though of the same sex. On the argument of the LGBT community being statistically minor, as advanced by the respondents, fundamental rights apply to citizens irrespective of their numbers in the population. The Court, on this point correctly said, “The idea of number, in this context, is meaningless; like zero on the left side of any number”. Furthermore, the Petitioners contended that Section 377 violated Article 14 guaranteeing the right to equality because there existed ‘no intelligible differentia’. The same contention is true as what is ‘natural’ varies from time to time; especially in today’s times when sex is not only equivalent to the generation of offspring. With regards to violation of Article 15, the contention stands true as well because ‘sex’ is the term at which sexual orientation and genders are defined. Article 15 has perpetually been assumed stereotypical of sex as ‘male and female and heterosexuals’. Thus, Article 15 must cover in its ambit the LGBT community as well. In respect of Article 19, Justice Misra and Justice Khanwilkar specifically pointed out that such expression of sexual orientation does not violate decency or morality, because these concepts are not majoritarian in character. The Segment also violated Article 21 for the right to life includes right to privacy of consensual acts and right to choose a sexual partner, irrespective of either party’s sex. Sexual autonomy is also to be in the ambit of Article 21. The aspect of the right to privacy as upheld in the K.S. Puttaswamy case is also an important point of consideration.[5] The apex Court in the Puttaswamy judgement held that denying the LGBT community its right to privacy on the ground that they form a minority would be violative of their fundamental rights. Thus, keeping in view the Constitutional rights of a citizen, they must be extended to the LGBT community as well. Additionally, keeping in mind the precedent set by the NALSA judgement that gender identity was intrinsic to one’s personality and denying the same would be violative of one’s dignity, the Section must have been decriminalised much sooner. The Supreme Court correctly based its judgement on the aspects covered in the above analysis and de-criminalised consensual sexual acts of two adults and termed the acts as “natural”.[6] To summarise the above analysis in a sentence: the Supreme Court held that sexual orientation forms a part of the right of expression under Article 19 and is an important part of the right to privacy.

Conclusion

Thus the decision of the Apex Court de-criminalising consensual sexual acts between two adults, irrespective of their gender or sexual orientation, was correct. In so far as, the Court retained bestiality, sex with minors and non-consensual sexual activity within the ambit of Section 377, the decision was apt to prevent any loopholes or abuse of law. Thus, the Court overruled Suresh Kumar Koushal decision as well. Having suffered at the hands of society as well as family and being termed as ‘untouchables’, it was high time that our Supreme Court adopted a progressive and open mind and accepted the LGBT community as a part of the Indian society.


[1]AIR 2018 SC 4321

[2](2014) 1 SCC 1

[3](2009) 111 DRJ 1

[4](2014) 1 SCC 1

[5]K.S. Puttaswamy & Anr. v. Union of India &Ors. (2017) 10 SCC 1

[6] National Legal Services Authority v. Union of India, (2014) 5 SCC 438

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