This Case Summary is written by Mariyah Saifuddin Sariya, a student at MMM’s Shankarrao Chavan Law College, Pune

Decriminalizing All Consensual Sex Among Adults, Including Homosexual Sex.

SYNOPSIS

Section 377 of the Indian Penal Code (IPC) imposes criminal liability on the one who ‘voluntarily has carnal intercourse against the order of nature’. When the said Section 377 was questioned before the Supreme Court of India with ‘consent’ as the crux of the arguments, the Court decided to de- criminalize certain acts as described in the following case analysis.

Thus, The Supreme Court of India, through this judgement, reiterated its pace with changing times and mindset of the people of the developing society.

BACKGROUND

‘The Navtej Johar’ case is not the first case in India to be dealing and revolting for the rights the homosexuals. A similar case example can be taken that too spoke up for the same issue and that is- ‘National Legal Services Authority. Vs. Union of India & Ors.’ also popularly known as NALSA Case, wherein the Court was dwelling upon the status of identity of the transgenders. There are number of similar people like Navtej Johar who have upfronted regarding this issue but their voices weren’t given an opportunity to be heard publicly. Below are the two important precedents mentioned in this case that has dealt with the issue-

• Naz Foundation. Vs. Govt. of NCT, Delhi

The aforementioned foundation is an NGO that filed a lawsuit in Delhi High Court seeking legislation of homosexuality as criminalization of homosexuality led to hindrances in its initiative. The High Court dismissed the petition on the grounds of no locus standi (appearance in the court) of the petitioner. The Apex Court said in a statement that Section 377 of the Indian Penal Code, creates unreasoned classification and target the homosexuals. 

The word ‘SEX’ under Article 15 of the Indian Constitution, includes the term ‘sexual orientation’ as well, and since Article 15 prevents discrimination based on Sex, Section 377 is found to be violating Article 15. Also, because the homosexuals often hide their identity due to the criminalization of homosexuality, adequate treatment is not provided. Thus, Section 377 was declared as ‘unconstitutional’ so far as it criminalizes consensual sexual acts of adults in private.

Suresh Kumar Kaushal. Vs. Naz Foundation

The petitioner of the aforementioned case, Suresh Kaushal, challenged the decision of the Apex Court that was delivered in the Naz Foundation case wherein the Apex Court legalized homosexuality. The petitioner contended that the documentary evidence provided by the Naz Foundation was unreliable and also further stated that if homosexuality is legalized, the broad Institution of Marriage and the Social Structure would fractionate and demolish. 

Further, the respondent, Naz Foundation, re- stated the arguments and after the courtroom trial for the same, the Apex Court held Section 377 to be constitutionally valid. 

FACTS

Navtej Singh Johar (petitioner) filed a Writ Petition before a three- judge bench of the Supreme Court of India seeking inclusion of right to ‘right to sexuality’, ‘right to sexual anatomy’, and ‘right to choose of a sexual partner’, within the ambit of right to life guaranteed under Article 21 of the Constitution of India. It was also sought by the petitioner to declare Section 377 of the Indian Penal Code as unconstitutional. Whereas, Union of India (respondent) left the question of the constitutional validity of Section 377 to the wisdom of the court.

This made the Apex Court, that was earlier led by a bench of three-judge, decide to get the matter transferred in the hands of the larger bench, that is led by five-judge, to address the matter. Thus, when the petition was transferred to the larger bench, Section 377 came to be stroked down as the acts of homosexuality allegedly appeared to be against the concept of constitutional dignity.

ISSUE BEFORE THE COURT

1. Whether Section 377 was contrary to the judgement given in the case of ‘Suresh Kumar Kaushal & Anr. Vs. Naz Foundation & Ors.’?
2. Whether Section 377 of IPC is violates Articles 14 and 15 of the Indian Constitution?
3. Whether Section 377 violates the right to privacy under Article 21 of the Indian Constitution?

CONTENTONS/ ARGUMENTS

 [A] The arguments put forth by the Petitioners are as follows:

1. Bisexuality, Homosexuality and other sexual orientations are equally natural to all persons as a expression of choice and are founded on consent of legally qualified persons.

2. Making sexual orientations a criminal offence is against the well- established principles of an individual’s dignity and autonomy. Cases that are put forward for the reference base by the petitioners are-

 [Shakti Vahini. Vs. UOI & Ors.], [S. Puttaswasmy and Anr. Vs. UOI & Ors.], [Common Cause – A Registered Society Vs. UOI & Anr.], etc.

3. The LGBT (lesbian, gay, bisexual, transgender) community needs to be recognized and be provided equal legal protection in the society as similar to as those extended to partners in live-in-relationships, irrespective of they being minority.

4. Section 377 violates Article 14 as it is vague when it comes to the term “carnal intercourse against the order of nature” to which added, no intelligible differentia or reasonable classification exist as long as sex is consensual between the partners.

     Ref. [Anuj Garg & Ors. Vs. Hotel Association of India & Ors.]

5. Sexual autonomy and right to choose a partner of one’s choice is inherent under Article 21 of the Indian Constitution. But on the other side it is seen, a person’s right to reputation is also taken away under Section 377, which is a facet of Article 21 of the Indian Constitution.

6. Section 377 hampers the ability of the LGBT’s community to realize their constitutional rights to shelter; People belonging to LGBT community seek assistance of private sources and face consequences of the social morality. It is also arbitrary and is against the concept of fraternity as enshrined in the Preamble of our Constitution.

     Ref- [Shayara Bano. Vs. UOI & Ors.]

The arguments put forth by the Respondents are as follows:

1. Acts like abusing one’s organs as prescribed under Section 377, are undignified and derogatory and would amount to constitutional wrong and constitutional immorality.

2. Therein, the acts mentioned in Section 377 rightly makes it punishable and now in 2018, the said Section is more relevant legally, medically, constitutionally and morally.

3. Declaring Section 377 as unconstitutional, would hamper the family system and the marriage institution of the society.

4. Despite the fact that various consensual acts are de- criminalized in various parts of the world, India cannot afford to de- criminalize the same due to its different political, economic and cultural mechanisms.

5. Similar issues pertaining to the constitutional recognition and the rights of the LGBTQ community has been exhaustively considered in the NALSA judgment along with the fact that they will be granted with no further reliefs.

6. Section 377 implementing irrespective of one’s gender or sexual orientation, doctrine of manifest arbitrariness is of no application as the law is not clearly arbitrary. Also, the said Section does not violate Article 14 as it defines a particular offence along with its punishment which makes this argument a reasonable classification.

SUMMARY OF THE JUDGEMENT

When the Writ Petition was submitted before the three-judge bench, the overviewed the Suresh Koushal case wherein the larger-judge bench overturned the Naz Foundation judgement. It was this time when the three-judge bench felt the need to transfer the petition into the hands of the larger-judge bench since it required intensive scrutinization regarding Section 377.

After considering the petitions and scrutinizing through various aspects, the learned five-judge bench stated that hindering an individual from practicing public and personal sources, violates the equality principle enshrined in the Article 14 of the Indian Constitution. Stating this, the judgement has been delivered in the favor of the petitioner, Navtej Singh Johar, and unanimously held that Section 377 was unconstitutional as far as it criminalized consensual sex between the two adult partners of either same/different gender.

Any judgment given by ta five-judge bench, is a binding precedent on all courts in India. Thus, the judgement can be considered as the ultimate verdict. 

ANALYSIS

Chronologically, the case ‘Naz Foundation. Vs. Govt. of NCT, Delhi’, observed that Article 15 prohibits discrimination on several crucial grounds. Thus, Section 377 was declared as unconstitutional by the Court considering Article 14, 15 and 21 of the Indian Constitution. As mentioned earlier, this case was father overturned in ‘Suresh Kumar Kaushal Vs. Naz Foundation’, by another Delhi High Court bench.

It has been established by the Judiciary that the rights guaranteed as Fundamental rights under Article 14 and 21, are timeless rights of ‘liberty’ and ‘equality’. Here comes the concept ‘Transformative Constitutionalism’ which made it a requirement to recognize the right of LGBT community under Article 14, 19 and 21 of the Indian Constitution.

Section 377 has created a chilling effect on the acceptance and judicial judgement. If such treatment is continued to persist in the society, the judiciary system would fail in the discharge of their duty and would curtail the citizens belief in the Indian Judiciary. Keeping in mind the constitutional morality, Section 377 should not smother nonsexual sex between two adults.

Furthermore, the Petitioner contended Section 377 as violator to article 14 guaranteeing the right to equality because there existed ‘no intelligible differentia’.

To summaries, the five-judge bench unanimously struck down Section 377 of the IPC. LGBT individuals are now legally allowed to engage in consensual intercourse. The four judgments unanimously cited violations in reading down Section 377. They found 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. They ruled that Section 377 violates the rights to life, dignity and autonomy of personal choice under Article 21. 

Finally, they found that it inhibits an LGBT individual’s ability to fully realize their identity, by violating the right to freedom of expression under Article 19(1)(a).

CONCLUSION

After all the court hearings, it can be said that the judgment has taken a very reformative stand by declaring that the members of the LGBT community are entitled like all other citizens to an extent where they get all the liberties protected by the Indian Constitution. We can imagine what a momentous moment they all might be experiencing after years of their struggle. 

They are no more going to get denied to enjoy their services since they have now constitutionally joined the clan of equal citizenship, no discrimination and equal protection of law. Moreover, this judgment has definitely taken forth the concept of Transformative Constitutionalism to a whole new level, which may now pave the way for a number of amendments and reformation in the legal realm of the country.

The judgement will boost their confidence and motivation to face the world that a LGBT person ever needed. They have received a confirmation that no matter what, the judiciary of this country will stand for them and protect their rights.

Speaking about the overall analysis, the judgment would have been more impressive and pleasing if it also attempted to make suggestions or provisions for the social and economical inclusion and development of the community.

In my opinion, having suffered at the hands of not only the society but also family and being termed ‘untouchables’, it was high time that our Honorable Supreme Court adopted a bold and a progressive and accepted LGBT community as a ‘normal’ part of the Indian society.

To conclude, I would quote Marsha. P. Johnson, “No pride for some of us without liberation for all of us”.