This Case Summary is written by YAZHINI B, a student at School of Excellence in Law

SYNOPSIS:

• The rights of homosexual persons were dealt with in this historic case, which sought to decriminalize private homosexual relations and to declare Section 377 of the Indian Penal Code to be unconstitutional as it was in violation of Articles 14, 15, 19, and 21 of the Constitution.
• Section 377 of the IPC was struck down on September 2018 by a Five judge bench to the extent of criminalising homosexual relations between consenting adults, but the provisions of Section 377 will continue to govern  non-consensual sexual acts against adults and all acts of carnal intercourse against minors and the acts of bestiality

BACKGROUND:

• Section 377 of the Indian penal code punishes those who voluntarily has carnal intercourse against the “order of nature”.  This rule was introduced in the British-India era and modelled on the Buggery Act of 1533.
• Even before this famous case that dealt with the rights of homosexuals, some cases dealt with the constitutional validity of Section 377 of IPC and recognizing the identity of transgender.

• Naz Foundation Vs Government Of Nct Of Delhi, July 2009:

A public interest litigation was filed before the Delhi High Court by Naz Foundation India Trust challenging the constitutionality of Section 377 under Articles 14,15,19, and 21. The court held that targeting homosexuals contravenes the equal protection guaranteed under Article 14. Since the term ‘Sex’ in Article 15 includes ‘Sexual orientation’ also, discrimination based on sexual orientation is in Violation of Article 15 and hence Section 377 of the Indian Penal Code cannot be used to punish consensual adults having sexual relationships since it is in violation with the right to privacy and liberty guaranteed under Article 21 of the constitution.

• After the decision made in this aforementioned case, numerous organizations and individuals challenged the judgement. In the case of Suresh Kumar Koushal & Anr vs Naz Foundation, the supreme court reversed the judgement made by the Delhi high court. It held Section 377 of the Indian Penal Code to be constitutionally valid since the section punishes only certain acts and not any particular class of people; hence, there was no discrimination.
• Many curative petitions were filed against the Supreme Court judgement made in the Suresh Kumar Koshal case. 

FACTS OF THE CASE:

• A Writ Petition was filed by Navtej Singh Johar and 4 other members of the LGBTQ community for scrapping Section 377 IPC in so far as it criminalised consensual sex between homosexual individuals.
• The petitioner highlighted that criminalizing the consensual relationship between same-sex adults creates an inferior perception of them by society, thereby affecting their everyday lives and chances of employment.
• The petitioners invoked Equality, right to privacy, right to sexuality and sexual anatomy and discrimination against a particular class of people against Section 377 of the Indian Penal Code 
• After hearing the plea, the Supreme Court held that using Section 377 of the Indian Penal Code to victimize homosexuals was unconstitutional, stating that the relationship between consenting adults cannot be a crime, and the court partially struck down the section in its decision.

ISSUES:

1. Whether Section 377 of the Indian penal code violates the right to autonomy and dignity under Article 21 by penalizing personal consensual acts between same-sex individuals?

2. Whether Section 377 of the Indian penal code violates Articles 14 and 15 by allowing discrimination based on sexual orientation?

3. Whether Section 377 of the Indian penal code violates Article 19(1)(a) by criminalizing the gender and sexual expression of persons belonging to the LGBTQ community?

4. Whether Section 377 of the Indian penal code contradicts to the judgement given in the case of Suresh Kumar Kaushal & Anr. Vs. Naz Foundation & Ors?

PETITIONERS CONTENTIONS:

The key arguments placed by the petitioners are,

• Penalizing same-sex relations under Section 377 of the Indian penal code affects the rights of the LGBTQ community in various aspects of their life and also creates an inferior perception of them in society.
• Having a consensual relationship with same-sex adults is not “against the order of nature” but a natural feeling that is innate.
• Section 377 of the Indian Penal Code discriminates against a particular class of people, and hence it is in violation of Article 14 of the Indian Constitution
• They highlighted the recognition of sexual orientation and gender identity in the “NALSA” judgment.
• Sexual autonomy and the right to choose a partner of one’s choice is inherent under Article 21 of the Indian Constitution

• They contended that Section 377 of the Indian Penal Code is arbitrary and should be struck down by quoting the “Shayara Bano vs Union of India ” case.
• They made submissions to the fact that Article 15 provides protection against discrimination on the ground of sex which includes sexual orientation.
• They argued that Section 377 violates the ability of the LGBTQ community to express themselves openly under Article 19(1)(a)of the Indian Constitution.

RESPONDENTS CONTENTIONS:

The key arguments placed by the respondents are,

• Individuals indulging in homosexual activities are more likely to contract HIV, increasing the percentage of AIDS victims in the country.
• Only the sexual acts which result in reproduction would constitute the order of nature, and the homosexual relationship is against the order of nature.
• Section 377 of the IPC is not violating Article 15 since it prohibits discrimination based on sex but not on sexual orientation.
• Section 377 of IPC does not violate Article 14 since the section targets and punishes only a certain act, not a certain class.

DISPOSITION:

• The Court delivered its verdict on 6th September 2018. The five-judge Bench partially struck down Section 377 of the Indian Penal Code to the extent of criminalising homosexual relations between consenting adults, and the provisions of Section 377 will continue to govern non-consensual sexual acts against adults and all acts of carnal intercourse against minors and the acts of bestiality

ANALYSIS:

• The five-judge bench overruled the decision made in the Suresh Kumar Koshal case. It held that choice of whom to partner and the ability to find fulfilment in sexual intimacies. The right not to be subjected to discriminatory behaviour is intrinsic to the constitutional protection of sexual orientation.
• Justice Indu Malhotra emphasised that gender identity and sexual orientation is integral to one’s personality and are a basic aspect of self-determination, dignity and freedom quoting K.S. Puttaswamy & Anr. v. Union of India. She stressed that Section 377 criminalizing “carnal intercourse against the order of nature” compels LGBT persons to lead closeted lives. She emphasised that Sexual orientation is an innate part of the identity of LGBTQ individuals. The sexual orientation of a person is an essential attribute of privacy. Its protection lies at the core of Fundamental Rights guaranteed by Articles 14, 15, and 21.
• Justice DY Chandrachud emphasised that members of the LGBT community are entitled, like all citizens, to the full range of constitutional rights, including the liberties protected by the Constitution and members of the LGBT community are entitled to the benefit of equal citizenship without discrimination, and to the equal protection of the law. 

CONCLUSION:

Every person in this world deserves to choose their sexual partners and sexual preferences. Even though the LGBTQ community comprises only a small fraction of the population, discrimination against them must be monitored and curbed.  The judgement made in the Navtej Singh Johar case upheld the rights of the LGBTQ community people and made a big step towards a positive perception of the community in the eyes of society. The struggle of the LGBTQ community for recognition of their rights has been happening for a long period of time;. However, although Section 377 has decriminalized same-sex relations, they are still fighting to legally recognise their marriage. It is time for society to accept the LGBTQ community and to let them live with dignity since, for a society to get uplifted, every section of society has to be uplifted.