Partial struck down of Sec 377

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In the Supreme Court of India
Criminal Original Jurisdiction
Case No:
Writ Petition (Criminal) No. 76 of 2016
Petitioner:
Navtej Singh Johar
Respondent:
Union of India Secretary, Ministry of Law and Justice
Date of Judgement:
Decided on 27th August 2018
Bench:
Chief Justice Dipak misra, Justice Rohington Nariman, Justice D Y Chandrachud, Justice A M Khanvilkar and Justice Indu Malhotra

Synopsis:

Section 377 of the IPC (Indian Penal Code) deals with unnatural offences. It makes the Sexual activities against the order of nature illegal. On 6th September 2018, a five judge bench struck down section 377 to consensual homosexual sex between adults as unconstitutional but declared that section 377 remains in force relating to sex with minors, non-consensual sex acts and bestiality.

Facts

In the year 2001, NGO Naz Foundation and AIDS Bedhabhav virodh Andholan filed petitions in Delhi High court seeking legislation of homosexual intercourse between consenting adults. However both the petitions were dismissed in the court.

In July 2009, the Delhi High court decriminalized sex between consenting adults of the same gender, holding it in violation of Article 14, 15 and 21 of the Indian constitution.

Article 14 of the Indian constitution deals with right to equality that included equality before law and equal protection of law. Article 15 interdicts discrimination based on religion, race, caste, sex or place of birth. Article 21 is regarding  right to life and personal liberty.

The high court judgment was reversed by the Supreme Court in 2013 as it was considered to be legally unsustainable. The Supreme Court further quashed the review petition filed by NAZ foundation.

In the year 2014 the Government of India was directed by the Supreme Court to declare Transgender as third gender (other than male and female) and include them in the OBC quota.

In 2016, LGBTQ (Lesbian, Gay, Bisexual, Transgender, and Questioning) activists filed five petitions in the Supreme Court claiming their rights to sexuality, sexual autonomy, choice of sexual partner, privacy, dignity and equality along with other fundamental rights guaranteed under part III of the Indian Constitution are being violated by section 377 of IPC.

In August 2017, the Supreme Court upheld right to privacy as a fundamental right under the Indian constitution. It was further observed that sexual orientation is an essential attribute of privacy.

The five judge constitution bench started hearing petitions challenging Section 377 of IPC in 2018 and on September 6 2018 the Supreme Court upheld that under section 377 of IPC homosexual acts are no more offences but in case of sex with minors, non-consensual acts and bestiality they are illegal and are punishable for unnatural offences. 

Issue

  • Whether Section 377 of IPC violates Right to equality under Art.14 of the Indian Constitution?
  • Whether Section 377 of IPC violates freedom of speech and expression enshrined under Art.19 of the Indian Constitution?
  • Whether Section 377 of IPC violates Right to life and personal liberty including right to dignity under Art.21 of the Indian Constitution?
  • Whether discrimination based upon sexual orientation under section 377 makes it violative of Art.15 of the Indian constitution?
  • Whether Section 377 is arbitrary as it makes consensual relationship a crime on the grounds of it being against the order of the nature?

Arguments

Arguments in favour of Petitioner:

The arguments advanced in favour of the petitioner are as follows:

  • Homosexuality, bisexuality and other sexual orientations are natural expression of choice. They are based on inclination founded on consent of persons who are competent to give such consent. And making it a criminal offence is against individual dignity, right to reputation, right to shelter, decisional autonomy, and right to choose a partner of one’s choice, sexual orientation and right to privacy under Art 21 of the Indian Constitution. 
  • Right to Equality under Art. 14 as a fundamental is being violated. Right to equality means equal treatment of all citizens before law. While it allows for a distinction to be drawn between different categories of individuals, it also mandates that such a distinction must be based upon intelligible differentia and must have a rational nexus with the object sought to be achieved. It is contended that was no intelligible differentia between people who engage in natural intercourse and those who engage in unnatural intercourse.
  • Violation of right against discrimination under Art.15. It prevents the state from discriminating against any citizen on the grounds of sex, religion, race, caste, or place of birth. Any ground of discrimination, whether direct or indirect, which is found on a particular understanding of the role of sex constitutes discrimination under Art.15.
  • Right to freedom of speech and expression under Art.19. Consensual carnal intercourse among adults in a private space does not, in any way, harm public decency or morality. Consequently, Section 377 does not qualify as a reasonable restriction on an individual’s freedom of speech and expression.
  • Right to privacy- Art.21 of the Indian constitution deals with right to life and personal liberty that includes right to live with dignity and right to privacy. Section 377 of IPC violated these rights to live with dignity and privacy.
  • Sexual orientation is not a matter of choice but is innate, and something that is natural cannot be criminalized.
  • Right to privacy includes decisional privacy which is an ability to make intimate decisions primarily consisting of an individual’s sexual or procreative nature and decisions in respect of intimate relations.
  • Right to choose a partner is a fundamental right. Section 377 criminalizes choosing a same sex partner.
  • The rights of LGBT are not fully realized because their expression of sexuality is not allowed to be expressed by criminalizing them under Sec 377.
  • It labels innocent citizens as criminals. Having an alternate sexuality does not make people inferior and it definitely shouldn’t make them feel like they are doing something wrong. Nobody likes to be victimized just because of who they are.
  • Principle of Fraternity. Fraternity is the constitutional principle of respect for other person’s dignity in light of their differences. Section 377 violates the principle of fraternity and criminalizes LGBT people for their differences. Section 377 of IPC is arbitrary as it makes consensual relationship a crime on the ground of being unnatural and against the concept of fraternity as enshrined in the preamble of our constitution.

Arguments in favour of respondents

The arguments in favour of respondents are as follows:

  • Section 377 does not violate Art.15 of the constitution as the said article prohibits discrimination on the grounds of caste, sex, place of birth but not sexual orientation.
  • The idea of a person being born with a particular sexual orientation is wrong and is not supported by science.
  • Section 377 of IPC does not violate Art.14 of the Indian constitution as it only defines a particular offense and its punishment thereof that is within the jurisdiction of the state to determine who should be as a class for the purpose of legislation.
  • Section 377 has been incorporated after consideration of the ancient Indian principles and the prevalent legal systems thus this section is relevant legally, morally, medically as well as constitutionally.
  • Section 377 acts as a means to prevent HIV/AIDS and if the section is struck down, it will result in rapid spread of AIDS.
  • Fundamental rights are not absolute and there is nothing unreasonable under section 377 of IPC.
  • The rights of LGBT (as recognized under the NALSA Judgment) are not fully realized because their expression of sexuality is not allowed to be expressed by criminalizing them under Sec 377.
  • Section 377 criminalizes an act irrespective of gender or sexual orientation of the person concerned. This does not amount to discrimination as the laws based on biological reality can never be unconstitutional.
  • Decriminalization of Section 377 would shamble the family system and detrimentally affect the institution of marriage.

Judgement

The Judgement with regard to this case was pronounced on 6th September 2018.The significant points considered in the judgment include the following aspects:

  • It is not only the duty of the state and judiciary to protect the fundamental right of human dignity but also the public at large owe a responsibility to respect each other’s dignity, showing respect for another’s dignity is a constitutional duty. It’s an element of constitutional fraternity.
  • Apart from orientation, the emotional behavior of an individual to seek intimacy in the same gender may bring two persons together in a biological pattern. It has to be treated as consensual activity and reflective of consensual choice.
  • The indeterminacy and vagueness of the terms carnal intercourse and order of nature renders section 377 constitutionally infirm as violating the equality clause under Art.14 of the Indian constitution.
  • Section 377 of IPC fails to make distinction between consensual and non-consensual sexual acts between competent adults and also fails to take into account that the consensual sexual acts between adults in private space are not harmful to the society in any way.
  • Homosexuality is neither a mental disorder nor a mental illness. The treatment of homosexuality as a disorder has a serious consequence on the psychological aspects and well-being of an LGBT person.
  • Section 377 has a major detrimental impact on the right to health of those persons who are susceptible to contracting HIV – men who have sex with men (“MSM”) and transgender persons. It has had far reaching consequences for this “key population”, pushing them out of the public health system.
  • International human rights treaties and jurisprudence impose obligations upon States to protect all individuals from violations of their human rights, including on the basis of their sexual orientation. International agreements including UDHR, ICCPR and the ICESCR establish that the criminalization of consensual acts between same sex adults in private contravenes the right to equality, privacy and freedom from discrimination.
  • International and domestic courts have developed a strong body of jurisprudence against discrimination based on sexual orientation. In 1967, England and Wales decriminalized same sex relationships among consenting adult males in private. This was followed by countries like Scotland.

Finally, after considering the above aspects the five judge bench of the apex court passed a Judgement that rendered Section 377 of IPC unconstitutional with regard to consensual homosexual sex between adults is no more a crime but the provisions with regard to this section apply to sex with minors, non-consensual sex and bestiality

Case comments

The judgment took a very reformative stand by declaring that the LGBT persons are entitled to all fundamental and constitutional rights like all other citizens, including the liberties protected by the constitution.  Further, they are entitled to all the benefits of an equal citizenship without discrimination and equal protection of law.

Added to this is the concept of Transformative Constitutionalism that has been taken to a new level, which may pave the way for a number of amendments and reformation in the legal realm of the country bringing changes in consonance with those in the global society.

Anyhow, the judgment proved to be successful to a great extent in building confidence in the public however small or trivial the number of members of a community may be, the judiciary of this country will stand for them and protect their rights.

Edited by J. Madonna Jephi

Approved & Published – Sakshi Raje

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Sree Ramya
I am Sree Ramya from University College of Law, OU Pursuing BA.LLB. The sphere of Criminal Law, Corporate Law, ADR and Environmental law attract me the most. Whenever I get any free time i like reading books, mostly autobiographies and magazines and I write poems on contemporary social issues. Apart from this I like watching movies and playing chess. I love taking part in quiz and essay competitions added to this I like to attend seminars and conferences on any socio-legal, socio-political and socio-scientific issues. I am a good listener with a lot of patience and I follow the principle of “Speak less and listen more”.