Facts
In 2009, the case of Naz Foundation v. Government of NCT of Delhi [1] declared that Section 377 of the Indian Penal Code, 1860 was unconstitutional. Consenting sex between two same-sex adults should be free from legal intervention. Unfortunately, the case of Suresh Kumar Koushal v. Naz Foundation [2] overruled the previous decision by the Delhi High Court. In 2016, a petition challenged the 2014 decision. The Supreme Court felt that a 5-judge bench should be set up to hear the matter. The petition was filed in 2016 by an activist/dancer called Navtej Singh Johar, who belonged to the LGBTQ community. He sought for the protection of the rights like right to sexuality, right to sexual autonomy and the right to choose a partner. This would obviously involve striking down a colonial-era law that contradicts all this.
Issues
1. Whether Section 377 amounted to violation of Article 14 and 15? (Yes.)
2. Whether Section 377 contravenes Article 21? (Yes.)
3. Whether Section 377 should be completely struck down on account of unconstitutionality? (No.)
Several curative petitions were filed challenging the Supreme Court judgement. While the curative petitions against the Suresh Koushal judgment were pending, 5 individuals from the LGBTQ communities – noted Bharatnatyam dancer Navtej Singh Johar, restaurateurs Ritu Dalmia and Ayesha Kapur, hotelier Aman Nath and media person Sunil Mehra filed a fresh writ a petition for scrapping Section 377 IPC in so far as it criminalised consensual sex between same-sex individuals.
The Supreme Court on January 5, 2018, formed a constitution bench for hearing the challenge to Section 377 in a comprehensive manner, even though the curative petiton were pending before the Court. This could be due to the observations made in the 9 judge decision in the Right to Privacy case which hinted at the inherent wrongness of the reasoning and decision in Suresh Koushal. The 5 judge bench of Chief Justice Dipak Misra, Justice A.M. Khanwilkar, Justice D.Y. Chandrachud, Justice R.F. Nariman and Justice Indu Malhotra heard the matter from July 10th, 2018.
On 6th September, 2018 the five-judge Bench partially struck down Section 377 of the Indian Penal Code, decriminalising same-sex relations between consenting adults. LGBT individuals are now legally allowed to engage in consensual intercourse. The Court has upheld provisions in Section 377 that criminalise non-consensual acts or sexual acts performed on animals.
The four judgments unanimously cited fundamental rights violations in reading down Section 377. They found that Section 377 discriminates against individuals on the basis of their sexual orientation and/or gender identity, violating Articles 14 and 15 of the Constitution. Further, they ruled that Section 377 violates the rights to life, dignity and autonomy of personal choice under Article 21. Finally, they found that it inhibits an LGBT individual’s ability to fully realize their identity, by violating the right to freedom of expression under Article 19(1)(a).
Summary of Arguments
Article 21 of the Indian Constitution has encompassed a variety of rights like reproductive rights for women, right to privacy, etc. The petitioner contended that Article 21 includes a significant aspect- rights cannot be denied because they belong to only a minority of the population. Even though present data suggest that LGBTQ+ people make up only 14% of the Indian population, many more are closeted because of the fact their life is like living a crime. Section 377 contradicts Article 14 because right to choose a partner comes under right to equality and equal protection before the law. It also contradicts Article 15 because people cannot be discriminated on the basis of protected characteristics like sexual orientation.
Religious bodies felt that the right to privacy should not be absolute and that allowing Section 377 to be struck down is derogatory of Article 25, which talks about freedom of conscience and propagation of religion. Others said it encourages the propagation of AIDS/HIV.
Analysis
I wholeheartedly agree with the petitioner’s arguments. To offer some counter-arguments to the respondent’s side, marriage is simply a legal contract. People of the LGBTQ+ community having the freedom to enter into their relationships does not interfere with the sanctity of marriage in any way. Those who are in heterosexual relationships can get married without having to reduce the rights of the LGBT community. It is not a binary concept, where we have one or the other. The religious organisations actually concede to the point that marriage is a fundamental right in India. Therefore, I believe that LGBTQ+ and non-binary individuals should also have the right to a marital union. Right to privacy as long as it does no harm others is not a problem. AIDS/HIV does not only spread through sexual contact, but any bodily fluid. Destigmatising the disease should be done by contraceptives and other methods by health professionals. It does not mean we should not allow consenting adults of the same-sex to express their intimacy from one another. Homosexuality is not a product of Western culture; it existed freely amongst our religious scriptures in the pre-colonialism era. The reason why Section 377 has been partially struck down because of that bestiality is still considered unnatural. This is simply because animals cannot give consent. Some scholars argue that striking down of sodomy is harmful to people who don’t consent to it. My rebuttal to that is that sodomy without consent is vaguely covered in the IPC under rape, but this only applies to women. This is why we need gender-neutral laws when it comes to non-consensual and non-penetrative intercourse. Right to freedom of expression and sexual autonomy should be awarded to non-cisgender people without having to struggle in my opinion. Judiciary should not overturn this judgment in the future. In my opinion, we have a long way to go, and we haven’t even scratched the surface of the deep-seated inequality and protectionist nature of our laws.
References:
1. Naz Foundation v. Government of NCT of Delhi, 160 Delhi Law Times 277.
2. Suresh Kumar Koushal v. Naz Foundation, Civil Appeal No. 10972 of 2013.
About author –
This case analysis is authored by Anjali Baskar, 2nd year BBA LLB student at School of Law, Christ University, Bengaluru.
