This Case Summary is written by YAZHINI B, a student at School of Excellence in Law
- Rights of the homosexual persons was dealt 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
- Section 377 of the Indian penal code punished those who voluntarily has carnal intercourse against the “order of nature”. This rule was introduced on the British-India era modelled on the Buggery act of 1533.
- Even before this famous case that dealt with the rights of homosexuals, there were cases that dealt with the constitutional validity of the 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 Article 14,15,19 and 21. The court held that targeting the 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 with Article 15 and hence Section 377 of Indian Penal code cannot be used to punish consensual adults having sexual relationship since it is in violation with 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 and held Section 377 of Indian Penal code to be constitutionally valid since the section punishes only certain acts and not any particular class of people and hence there was no discrimination.
- Many curative petitions were filed against the Supreme court judgement made in Suresh Kumar Koshal case.
FACTS OF THE CASE:
- A Writ Petition was filed by Navtej Singh Johar and 4 other members from the LGBTQ community for scrapping Section 377 IPC in so far as it criminalised consensual sex between homosexual individuals.
- The petitioner highlighted the fact that criminalizing the consensual relationship between same sex adults creates an inferior perception about them by the society there by affecting their everyday lives and chances of getting employment.
- The petitioners invoked Equality, right to privacy, right to sexuality and sexual anatomy and discrimination against particular class of people against the Section 377 of Indian Penal Code
- After hearing the plea, the Supreme court held that using Section 377 of Indian Penal Code to victimize homosexuals as unconstitutional, stating that relationship between consenting adults cannot be a crime and the court partially struck down the section in its decision.
1. Whether Section 377 of the Indian penal code violates 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 Article 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?
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 a inferior perception about them in the society.
- Having consensual relationship with same sex adult is not “against the order of nature” but a natural feeling that is innate.
- Section 377 of Indian Penal Code discriminates against a particular class of people and hence it is in violation with Article 14 if the Indian Constitution
- They highlighted the recognition of sexual orientation and gender identity in “NALSA” judgment.
- Sexual autonomy and right to choose a partner of one’s choice is inherent under Article 21 of the Indian Constitution
- They contended that Section 377 of Indian Penal Code is arbitrary and should be struck down by quoting “Shayara Bano vs. Union of India ” case.
- They made submissions to the fact that Article 15 gives 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.
The key arguments placed by the respondents are,
- Individuals indulging in homosexual activities are more likely to contract HIV which will increase the percentage of AIDS victim in the country.
- Only the sexual acts which results in reproduction would constitute order of nature and the homosexual relationship is against the order of nature.
- Section 377of IPC is not violating Article 15 since it prohibits discrimination on the basis of sex but not on sexual orientation.
- Section 377of IPC is not violatingArticle14 since the section targets and punishes only a certain act and not certain class.
- 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
- The five judge bench overruled the decision made in the Suresh Kumar Koshal case and held that choice of whom to partner and the ability to find fulfilment in sexual intimacies and the right not to be subjected to discriminatory behaviour are intrinsic to the constitutional protection of sexual orientation.
- Justice Indu Malhotra emphasised that gender identity, sexual orientation is integral to one’s personality, and is a basic aspect of self-determination, dignity and freedom quoting K.S. Puttaswamy & Anr. v. Union of India. She stressed on the fact 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. 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 the 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 an equal citizenship, without discrimination, and to the equal protection of law.
Every person in this world deserves to choose their sexual partners and sexual preferences. Even though the LGBTQ community comprises only a small fraction in the whole population, discrimination against them has to 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 the society . The struggle of LGBTQ community for recognition of their rights is happening for a long period of time, though the Section 377 has decriminalized the same sex relations , they are still fighting for the legal recognition of their marriage. It is time for the society to accept the LGBTQ community and to let them live with dignity , since for a society to get uplifted every section of the society has to be uplifted.