Writ Petition (Criminal) No. 76 of 2016 was filed for declaring right to sexuality, right to sexual autonomy and right to choice of a sexual partner to be part of the right to life guaranteed under Article 21 of the Constitution of India and further to declare Section 377 of the Indian Penal Code (for short, IPC) to be unconstitutional. Section 377 of the IPC categorized consensual sexual intercourse between same sex people as an “unnatural offence” which is “against the order of nature”. It prescribed a punishment of 10 years imprisonment.
Before the Hon’ble High Court of Delhi challenged the constitutionality of Article 377 under Article 14, 15, 19 and 21 by Naz Foundation (India) Trust. The Trust contended that Section 377 to be unconstitutional, in so far as it pertained to consensual sexual conduct between two adults of the same sex.
In Suresh Koushal (supra), this Court overturned the decision of the Delhi High Court in Naz Foundation (supra) thereby upholding the constitutionality of Section 377 IPC and stating a ground that the LGBT community comprised only a minuscule fraction of the total population and that the mere fact that the said Section was being misused is not a reflection of the vires of the Section. Such a view is constitutionally impermissible.
The petitioners in present writ have further contended that Section 377 is violative of Article 14 of the Constitution as the said Section is vague in the sense that carnal intercourse against the order of nature is neither defined in the Section nor in the IPC or, for that matter, any other law. There is, as per the petitioners, no intelligible differentia or reasonable classification between natural and unnatural sex as long as it is consensual in view of the decision in Anuj Garg &ors v/s. Hotel Association of India and ors. Which lays down the principle that classification which may have been treated as valid at the time of its adoption may cease to be so on account of changing social norms.
The petitioners herein rendered as section 377, is manifestly arbitrary and over-broad and for the said purpose, immense inspiration has been drawn from the principles stated in Shayara Bano v. Union of India & ors, for making consensual relationship a crime on the ground that it is against the order of nature suffers from manifest arbitrariness at the fulcrum.
It is the case of the petitioners that Section 377 violates Article 15 of the Constitution since there is discrimination inherent in it based on the sex of a person’s sexual partner as under Section 376(c) to (e), a person can be prosecuted for acts done with an opposite sex partner without her consent, whereas the same acts if done with a same-sex partner are criminalized even if the partner consents. The petitioners have drawn the attention of this Court to the Justice J.S Verma Committee on Amendments to Criminal Law which had observed that sex occurring in Article 15 includes sexual orientation and, thus, as per the petitioners, Section 377 is also violative of Article 15 of the Constitution on this count.
It was argued with astuteness by petitioners that Section 377 has a chilling effect on Article 19(1)(a) of the Constitution which protects the fundamental right of freedom of expression including that of LGBT persons to express their sexual identity and orientation, through speech, choice of romantic/sexual partner, expression of romantic/sexual desire, acknowledgment of relationships or any other means and that Section 377 constitutes an unreasonable exception and is thereby not covered under Article 19(2) of the Constitution. To buttress the said stance, reliance is placed upon the decision in S. Khushboo v. Kanniammal &ors wherein it has been held that law should not be used in such a manner that it has a chilling effect on the freedom of speech and expression. Additionally, the view in NALSA case has also been strongly pressed into service to emphasize that the said decision clearly spells out that the right under Article 19(1)(a) includes ones right to expression of his/her self- identified gender which can be expressed through words, action, behaviour or any other form
Outcome
The Supreme Court of India collectively held that Section 377 of the Indian Penal Code, 1860, which criminalized ‘carnal intercourse against the order of nature’, was unconstitutional in so far as it criminalized consensual sexual conduct between adults of the same sex.
That the petition, filed by the petitioner herein i.e. Navtej Singh Johar, challenged Section 377 of the Indian Penal Code on the ground that it violated the constitutional rights to privacy, freedom of expression, equality, human dignity and protection from discrimination. The Court reasoned that discrimination on the basis of sexual orientation was violative of the right to equality, that criminalizing consensual sex between adults in private was violative of the right to privacy, that sexual orientation forms an inherent part of self-identity and denying the same would be violative of the right to life, and that fundamental rights cannot be denied on the ground that they only affect a minuscule section of the population.
The Supreme Court declared that section-377 is unconstitutional as it violates Articles 14, 15, 19 and 21 of the Indian Constitution and therefore overruled the judgment given in Suresh Koushal annd ors. vs. Naz Foundation and ors. Moreover, it also declared that section-377 will be governing only non-consensual sexual acts committed against any adult and minor.
it is, however, clarified that such consent must be free consent, which is completely voluntary in nature, and devoid of any duress or coercion
The LGBT persons deserve to live a life unshackled from the shadow of being unapprehended felons
Conclusion
- Decriminalized homosexuality.
- Dismissed the position taken by SC in Suresh Kumar Koushal case (2013) that the LGBTQ community constitute a minuscule minority and so there was no need to decriminalise homosexual sex.
- Sexual minorities in India are one step closer to living with dignity.
- LGBTQ Community will be able to come out in the open with their sexual preferences.
- Discrimination faced by them in accessing health and their harassment by Police will cease.
- Decriminalisation has also been associated with more self-acceptance as well as psychological and emotional security among LGBTQ Community.
So now homosexuality has been decriminalized but the reaction of society and different organizations is still a challenge for the LGBT community.
Supreme Court of India that decriminalised all consensual sex among adults in private, including homosexual sex. It is an important step to empower people with right of choice, and inherent right to privacy and dignity with the freedom to live without fear.
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