Chetana Prakash, SLS, Hyderabad
Manasi Pawaskar, GLC Mumbai
Saket Pathak, MNLU
Puru Pratap Singh
The abrogation of the archaic law borrowed from the British which had been incorporated and implemented in the Indian Penal Code even after seventy-one years of freedom was a major victory for the LGBT community. The LGBT community still has miles to go in terms of acquiring basic civil rights but the Court’s recognition that this Victorian-era law has no place in today’s society has ushered in new hope in the slow wheel of change.
The principal issue of the case, constitutional validity of Section 377 of the Indian Penal Code, 1860, which stated that when an individual has voluntary, carnal intercourse, which is against the order of nature with any man, woman or animal shall be punished with imprisonment for life, or with imprisonment of either description for a term which may extend to ten years, and shall also be liable to a fine; originated in the case of Naz Foundation v. Govt. of N.C.T. of Delhi. In this case, Section 377 was held unconstitutional to the extent of consensual sexual conduct between two adults of the same gender by the Delhi High Court. Five years later, in 2014, the Supreme Court overturned the Delhi High Court’s decision in the case of Suresh Kumar Koushal v. Naz Foundation, granting Section 377, “the stamp of approval”.
In the present case, the petitioner, Navtej Singh Johar, a dancer who identified himself as a part of the LGBT community, filed a Writ Petition in the Supreme Court seeking recognition of the right to sexuality, sexual autonomy and the right to choice of a sexual partner to be part of the right to life guaranteed by Art. 21 of the Constitution of India. In addition to that, he sought a declaration that Section 377 was unconstitutional.
The issue that was raised in this case was:-
Whether Section 377 of the Indian Penal Code, 1860 should be decriminalized so as to pave way to confer to the LGBTQ their fundamental rights or should it remain criminalized?
RULE OF LAW
The provisions of law that were taken into consideration in order to determine the final judgement thus decriminalizing Section 377 of the Indian Penal Code, 1860 is Article 14, Article 15, Article 19 and Article 21 of the Constitution.
In this case a landmark judgement was passed by five judge bench of the Supreme consisting of the then Chief Justice of India Dr. Dipak Mishra, Justice A.M. Khanwilkar, Justice Rohinton Fali Nariman, Justice D.Y. Chandrachud and Justice Indu Malhotra. The issue that was of utmost concern with regards to criminalizing or decriminalizing the sexual act between two consenting adults of the same sex in private which was previously criminalized as per Section 377 of the Indian Penal Code, 1860 was debated and decided upon by the five-judge bench in this case. In reaching the final decision the Hon’ble Supreme Court relied on the precedents passed and the various rights that are guaranteed to the citizens under the Constitution. Referring to the judgment passed in the case of National Legal Services Authority v. Union of Indiathe Apex Court was of the opinion that gender identity is an inevitable part of a person’s identity and denial to recognize this integral part of a person’s identity would lead to the violation of the fundamental rights. Relying on the judgment passed by the Apex Court in the case of K.S. Puttaswamy v. Union of India the learned judges in this case took into consideration the judgment given in the case that “denial of upholding of rights to the LGBTQ community on the sole basis that they were a minority is only violative of their fundamental rights”. The learned judges were of the opinion that Section 377 of the Indian Penal Code, 1860, discriminates on the basis of gender and that carnal intercourse in private between consenting adults of the same sex is a fundamental right of the LGBTQ community and hence they cannot be deprived of their fundamental right.
Chief Justice Dipak Mishra and Justice Khanwilkar relied on the “principles of transformative constitutionalism and progressive realization of rights which lead to the inception of the judgement that the human rights of the LGBTQ community has to be recognized irrespective of the fact whether they have the support of the majoritarian government or not”.
Justice Nariman was of the opinion that Section of the Indian Penal Code, 1860, was of the “Victorian principle” which has long vanished and that the Centre should come up with policies in order to uplift the LGBTQ community and the police and other officials should be more sensitized to the plight faced by the community in order to protect them from facing the wrongs inflicted upon them by the society.
Justice Chandrachud was of the opinion that Section 377 would not only result in effacing the identity of the LGBTQ community but would also preclude them from the health care services with regards to the sexually transmitted diseases.
Justice Malhotra was of the opinion that “homosexuality is not an aberration but a variation of sexuality and further stated that the right to privacy does not only include the right to be left alone but also extends to spatial and decisional privacy”.
Taking into consideration the precedents and the fundamental rights of the LGBTQ Community the learned Judges of the Apex Court unanimously passed the historic judgement and decriminalized Section 377 of the Indian Penal Code, 1860 and brought an end to the years of debate with regards to the sceptical and biased nature of Section 377 of the Indian Penal Code, 1860.
This case is a landmark decision of the Supreme Court of India in 2018 that decriminalized all consensual sex among adults, including homosexual sex. This case overturned a previous (2013) ruling in Suresh Kumar Koushal v. Naz foundation by Supreme Court of India which challenged the constitutional validity of section 377 under article 14, 15, 19 and 21. The court had to decide the constitutionality of Section 377 of INDIAN PENAL CODE, 1860 which criminalized homosexual acts or consensual sexual intercourse between same sex people as an “unnatural offence”. It prescribed a punishment of 10 years imprisonment previously. While the previous act criminalized all anal sex and oral sex between opposite-sex couples, it largely impacted same-sex relationships. However the Supreme Court declared the law unconstitutional as it criminalizes consensual sexual conduct between adults of the same sex in a landmark judgment for LGBT rights in India. The main elements of Section 377 relating to sexual activities with minor, non-consensual sexual acts like rape and bestiality remain in force. Navtej Singh Johar case was the first case where the petitioners argued that they had all been directly aggrieved due to Section 377 alleging the act to be a direct violation of fundamental rights. The court held that criminalization of sexual acts between consenting adults violated the right to equality guaranteed by the Constitution of India. The verdict in case also noted that LGBT community is entitled to equal citizenship and protection under law, without discrimination under right to equality.
The group Human Rights Watch welcomed the decision with its South Asia director labelling the judgment as “hugely significant”. Amnesty International also praised the judgment. The judgment was also welcomed by United Nations stating that this ruling would be the first step towards guaranteeing the full range of fundamental rights to LGBT people. It was suggested by Global News that similar colonial laws in South Asia could be declared unconstitutional following this verdict. Global news also cited that the nations of Bangladesh, Myanmar and Pakistan face problems with LGBT community suffering from public shame and discrimination, restricting homosexuality. The dean of the National University of Singapore Faculty of Law also congratulated India on the verdict. Singaporean diplomat Tommy Koh wrote on Facebook that Singaporean LGBT activists should also take the opportunity to overturn section 377A of the penal code. Interestingly about 123 countries around the world have never penalized or have decriminalized homosexuality while 57 countries have actively criminalized same-sex relations. The court unanimously cited that Section 377 discriminates against individuals on the basis of their sexual orientation and/or gender identity, violating articles 14 and 15 of the Constitution. Section 377 also violates the right to life, dignity and autonomy of personal choice under article 21 and right to freedom of expression under article 19(1)(a).
 Indian Penal Code, Section 377  Navtej Singh Johar v. Union of India. (2018, November 27). Retrieved from https://globalfreedomofexpression.columbia.edu/cases/navtej-singh-johar-v-union-india/  (2014) 5 SCC 438  (2017) 10 SCC 1 https://globalfreedomofexpression.columbia.edu/cases/navtej-singh-johar-v-union-india/  Id.  Id.  https://www.bbc.com/news/world-asia-india-45429664  https://indiankanoon.org/doc/168671544/  http://globalnews.ca/news/4430721/india-gay-sex-supreme-court-pakistan-bangladesh/  https://www.nst.com.my/world/2018/09/409289/inspired-india-veteran-singapore-diplomat-calls-gays-challenge-sex-ban  Id.  https://www.scobserver.in/court-case/section-377-case