Section 377 which was actually based on the Buggery Act of 1533 considered sexual intercourse between homosexuals illegal and something which is ‘against the nature’. A petition was filed against this section by Naz Foundation in 2006 and this section was struck down in the matter of gay sex in 2009 by the Delhi High Court. However, in 2013 this judgement was overturned in the case of Suresh Kumar Kaushal vs. Naz Foundation where the court declared that the matter of whether section 377 should be amended or repealed should be left to the Parliament. Afterwards in the judgement of Justice K. S. Puttaswamy (Retd.) and Anr. vs Union of India And Ors, the court held that the Right to Privacy is protected as a fundamental right under articles 14 ,19 and 21. The Supreme Court, however, agreed to hear the Petitions to revisit the judgement of 2013. This case discussed is the same case where five individuals who belonged to the LGBTQ community challenged the Constitutionality of Section 377 in their writ petition and the whole case was viewed freshly by the Supreme Court.
- PARTIES – Navtej Singh Johar (Bharatanatyam dancer), Sunil Mehra(Journalist) , Ritu Dalmia(chef) , Aman Nath and Keshav Suri (hoteliers) and Ayesha Kapur(businesswoman) were the five petitioners of the case. Apostolic Alliance of Churches, Utkal Christian Foundation and Trust God Ministries served as the opposition against these petitions.
- EVENTS – These five people submitted a new writ petition on 27th April 2016 in the Supreme Court challenging the constitutional validity of Section 377 of the IPC. The petitions were against the judgement of Suresh Koushal vs. Union of India which in 2013 stated that only parliament has the authority to decriminalize homosexuality and not the judiciary. Advocate Manoj George and Senior Advocate KS Radhakrishnan represented the opposition. A constitution bench was formed on Jan 5, 2018 for hearing these petitions and to revisit the 2013 judgement. The five-member bench comprised of the then Chief Justice of India Dipak Misra, Justices R.F Nariman, D. Y. Chandrachud, A.M. Khanwilkar and Indu Malhotra.
- CLAIMS – The petitioners argued that due to Section 377, members of the LGBTQ community have been facing discrimination and abuse throughout their lives. They argued that this act is in violation of their fundamental rights. This section is in interference with their right to privacy and also violates their right to dignity, equality, liberty and right to freedom of expression. It was also submitted by the petitioners that due to its vague nature since it is nowhere defined in the section or the IPC or any other law that carnal intercourse is against the order of nature, Section 377 violates article 14 of the constitution. They further submitted that the court which is considered as the final arbiter of the constitutional rights should protect the constitutional morality rather than listening to or following the social stigmas set by the society and should disregard the social morality.
On the other hand, the respondents claimed that considering the matter of the constitutional and other legal rights of LGBTQ community, their gender identity and sexual orientation have already been brought to light and certain provisions have already been made and relief has been provided. Thus, no further relief is required as that would abuse privacy and personal rights. They claimed that Section 377 makes the said act punishable after considering the legal system and principles that have prevailed in ancient India. They further added people who engage in such sexual acts which Section 377 is making punishable are more susceptible to contracting HIV/AIDS. They submitted that making Section 377 unconstitutional will affect the social culture of the family system and the marriage institutions and homosexual activities for money will run rampant and corrupt the youth.
- Whether Section 377 is in violation of Article 19 which guarantees Right to freedom of speech and expression to all its citizens?
- Weather Section 377 is in violation of Article 21 guarantees Right to privacy to all its citizens?
- Weather Section 377 is constitutionally valid?
Taking up the issue 1, it can be said that Section 377 violates one of the fundamental rights which is the Right to freedom of expression because it imposes unreasonable restrictions on the people of LGBTQ community to express themselves in private. Sexual activity and intimacy in private with the consent of both the adult is a personal choice and it does not harm public decency or morality.
Taking up the issue 2, as also observed by the court in the case of S. Puttaswamy v. Union of India, Section 377 is denying the LGBTQ community the right to privacy. As stated in issue 1, Consensual sexual activity between two adults in private is a personal choice and it should not be in the jurisdiction of the state since it is not derogatory to public morality. Everyone should have the right to privacy so as to live their lives with dignity. By denying them Right to privacy just because they are in minority, will also be in violation of section 14 and 15 since a certain community of people are being discriminated and not given equal rights just because of their sexual orientation.
Finally coming to issue 3, it can be considered that Section 377 is indeed unconstitutional since it is violating some of the basic fundamental rights of a citizen such as Articles 14, 15, 19 and 21. However small a community may be, every person must have the right to choose their partners in intimate matters and thus if the same rights are given to the heterosexual section of the society, then LGBTQ community should be treated equally as well.
Any law should not prevent them from making their personal choice, until and unless it affects public order or morality. Here, consensual carnal intercourse between the people of the LGBTQ community does not cause any harm to children, women or any other section of the society. Neither does it disturb the public order, decency or morality and thus they should not be persecuted for that.
The court held that Section 377 which criminalized consensual sex between people of the same gender is unconstitutional since it violates Articles 14, 15, 19 and 21 of the Indian Constitution
The court overruled its decision in the case of Suresh Koushal v. Naz Foundation (2014).
The court declared that even though the LGBTQ community are in minority, the constitution provides them equal rights as the citizens of India. Thus, the members of the LGBTQ community will be entitled to the same rights as that of other citizens.
The court declared that the right to choose their partner and the ability to find fulfilment in sexual intimacies are intrinsic to the constitutional protection of sexual orientation and thus the LGBTQ community will have those rights and should not be subjected to discriminatory behaviour.
The court also declared that now Section 377 will be implemented only on non-consensual sexual acts against any adult or minor.
This was a landmark judgement which established that homosexuality is not something which is ‘against the nature’ and people of such community should be treated with respect and dignity. Through this judgement, the social stigma that homosexuality is a disease or a crime was broken. Such ideas still exist in the minds of many people, but at least legally, this judgement was able to change the status of the homosexuals in India. The court itself observed in this groundbreaking decision that “the purpose of having a Constitution is to transform the society for the better and this objective is the fundamental pillar of transformative constitutionalism.” There is still a long way to go in terms of the LGBTQ rights but for now, this judgement has paved a way for the future of the queer people.
Aastha Verma, Christ University, Bangalore.