This Case Summary is written by Reetambhar Kumar Das, a student at Adamas University, Barasat, Kolkata
“Equality means more than passing laws. The struggle is really won in the hearts and minds of the community where it really counts”- Barbara Gittings.
Section 377 of Indian Penal Code, 1860 was inserted in order to punish the offence of sodomy, buggery and bestiality. The offence basically consists of carnal intercourse beyond the nature, i.e. any intercourse which is not a penile-vagina intercourse. To punish someone under this Section two ingredients are necessary-
1. Carnal intercourse
2. against the order of nature.
This section also includes any unnatural intercourse with any man, woman or animal.
The provisions have been challenged before various courts in order to get the section decriminalized as well as the rights of the LGBTQ are recognized.
It is the duty of the State to protect the right and dignity of every person of our society. As we claim our country to be a developing country the society cannot remain unmindful to the theory of homosexuality which is researched by many scholars, biological and psychological science.
The case originated in the year 2009 when the Delhi High Court, in the case of Naz Foundation v. Govt. of N.C.T of Delhi held Sec 377 to be unconstitutional, in so far as it pertains to consensual sexual conduct between two adults of the same sex. Later in 2014, a two judge bench of the Supreme Court overturned the Delhi High Court decision. When the petition of 2014 was challenged before the three- judge bench in the year 2016 the Supreme Court held that a larger bench must answer the issues raised and thus the case was referred to five bench judges.
In the year 2016, Navtej Singh Johar who is a renowned dancer filed a writ petition before the Honourable Supreme Court in 2016 seeking recognition of the right to choose sexual partner to be a right under Article 21 of the Indian constitution. Furthermore claiming Sec 377 of Indian Penal Code should be declared unconstitutional as it was violative of Article 14 of the Indian Constitution.
On 6th September 2018, the judgment was given by a five bench judge bench comprising of CJI (now former) Dipak Misra, Justice R.F. Nariman, Justice D.Y. Chandrachud, Justice A.M Khanwilkar and Justice Indu Malhotra.
FACT OF THE CASE
A writ petition was filed by a dancer Navtej Singh Johar, who belonged to LGBTQ community. The Bench overruled Suresh kumar Koushal v. Naz Foundation and others (2013) judgment. In this particular case constitutional validity of Sec 377 of IPC was upheld. The Court not only did find that Suresh Koushal failed to recognize how Sec 377 violates fundamental rights, but further stated that it relied on a constitutionally impermissible rationale.
The issue regarding decriminalizing Sec 377 was first raised by an NGO named Naaz Foundation, which had in 2001 approached the Delhi High Court for decriminalizing sexual act between two consenting adults of the same gender. This 2009 judgment was overturned in 2013 by the Supreme Court.
The status of identity of the transgender was first luculent in the case of National Legal Services Authority v. Union of India and others.
ISSUES OF THE CASE
The main issue before the Court was to decriminalizing sec 377 IPC and to recognize the rights of LGBTQ community.
The issues are categorized as follows-
1. Whether judgment given in Suresh Kumar Koushal v. Naaz Foundation was proper or not.
2. Whether sec 377 of IPC violates Art 14 and Art 15 of Indian Constitution or not
3. Whether Sec 377 is against Right to privacy which is a fundamental right or not.
The petitioner of the case contented that homosexuality, bisexuality and other sexual orientations are equally natural and reflective of expression of choice and inclination founded on consent of two persons who are eligible in law to express such consent and it is neither a physical nor a mental illness, rather they are natural variations of expression and free thinking process of a person’s autonomy. Hence as a person’s dignity and decisional autonomy is hampered it is a clear violation of Art 21 of Indian Constitution. It is further argued that their growth of personality, relation building endeavour to enter into a live-in relationship or to form an association with a sense of commodity have become a mirage and the essential desires are crippled with violates Art 19 (1) (a) of Indian Constitution. Art 15 of the Indian Constitution is also violated because as the provision forbid discrimination on ground of “Sex” it would also include Sexual orientation of an individual.
On the other side Union of India submitted that as far as consensual acts of adults in private is left before the Court to decide. The Respondent of the present case has focused on the problem of contracting HIV/AIDS and the percentage of HIV/AIDS is more in homosexual persons than heterosexual persons. The Counsel for the defendant further focused on the shambles of the very institution of marriage and regarding the breakdown of social culture. The counsel further said that the main focus of a State is to protect its citizen from any harm or injuries and since carnal intercourse between two person is offensive and injurious it’s state’s responsibility to put reasonable restrictions to forbid such aberrant human behaviour by means of legislation.
Hence concluded by saying that Sec 377 is constitutionally valid and it’s not a violation of any individual’s right.
The findings in the case is as follows that the Honourable Court has focused more on individual’s right than on the upcoming consequences of decriminalizing homosexuality. As presently there lies no provision or remedy under any law to protect the rights of the homosexuals, we can say the judgment has turned out to be a dead one.
Article 14 and Article 15 talks of equality yet we find that even the Court tried to bring the community on equal footing yet they have stood as minority in the society.
The Court held that the Judgment passed in the case of Suresh Koushal case was not proper as the interpretation of the word “against the order of the nature” was misinterpreted.
The Honourable Court in the case of Navtej Singh Johar held that although the LGBTQ community holds only a minority position in our Indian society yet they too are entitled to enforce their fundamental rights guaranteed under Art 14, 19, 15, 21 of the Indian Constitution. The Court clarified that the act should be consensual between two adults i.e. who is above the age of 18 years and are competent enough to give consent.
The consent must be free consent, which must be voluntarily and without any coercion. Furthermore the provision of Sec 377 IPC will continue to govern non- consensual sexual acts against adults, all acts of carnal intercourse against minors and acts of bestiality.
Every coin has 2 sides, likewise the judgment suffers from no defects and gives a legal recognition to the LGBTQ community, yet we cannot overlook the consequences of decriminalizing Sec 377 IPC. This consequence left open the door for bad consequences which would follow in future.
Firstly the LGBTQ community people wanted not only legal recognition to their rights but also a legislation which would be beneficial to them. The general concept of intimacy was always there within four walls of the room, the only benefit that this judgment gave is to allow the community to speak freely about their rights in the society. But this has not much benefited the community at large as Indian society is far away in accepting such judgment with a happy face.
Secondly the judgment gave legal permission to have sexual intercourse and to choose sexual partner on its own, but the question lies do we find anywhere in the judgment the concept of socialization. The judgment is silent regarding marriage laws, divorce laws, maintaince laws, and the main thing i.e. custody law.
Special Marriage Act, 1954, Hindu Marriage Act, 1955, Parsi Marriage and divorce Act, 1936, Indian Divorce Act, 1869 talks about marriage between two heterogeneous persons. The Hindu Adoption and maintaince Act 1956 talks about adoption by a father or a mother. The maintaince under Hindu law talks about maintaince of Husband or wife, Sec 125 Criminal Procedure Code, 1973 talks about maintaince of wife. In India we donot have any law for protecting male from getting sexually harassed in workplace likewise we can least expect homosexuals getting any particular laws for themselves.
None of the legislation talks about Homosexual person’s right to marry, have children in adoption, maintaince if neglected by either partner, no legislation to protect against illegal demand for dowry, no statue for protecting them from domestic violence or the right to divorce if any dispute arises.
Thirdly the judgment is silent regarding any kind of reservation for LGBTQ community. Although The Transgender Persons (protection of rights) Bill, 2019 was passed to give right to Transgender person yet there lies no provisions for homosexual persons. It is common scenario that when any organization gets to know about the sexual orientation of a person with same sex he/she will be shown doors at very first instance in order to save the reputation of the organization hence we can get least expectation in getting reservation for homosexual persons.
Fourthly Sec 377 IPC was enacted to safe children from child abuse and from preventing sexual acts on children. But the Decriminalization of Sec 377 IPC would show path for more child abuse cases.
Fifthly legalizing anything would mean the State is encouraging that particular act. Legalizing Sec 377 would give a path for selling of one’s body for money and the state would do nothing as this Sec is decriminalized. This act of selling body would increase the chance of having more HIV/STD cases in future.
Lastly the question of “consent” still remained a grey area as it is very difficult to prove such consent between two adults and hence giving a pathway for more exploitation.
India has finally taken the step to decriminalize the old British era laws by stating that a person’s right is more important than what society thinks. It is true Indian society would never accept this judgment, yet we would hope for some day when our mentality regarding homosexuals would ultimately change and that day we can say that decriminalizing homosexuality has been worth and homosexuals have actually got their rights.