Section 377 and Supreme Court Landmark judgment

Introduction

Every Man has certain basic, natural inalienable rights and it is the function of the state to acknowledge those rights, so that human life may be preserved.  In India citizen’s rights are protected under Part III, which provides for “Fundamental Rights” and it duty of the judiciary to assist citizens to enforce their Fundamental rights. Fundamental Rights are all those rights which are essential for development of every individual and helps not only in protection but also in prevention of Human Rights violation. These Rights are called Fundamental because these are basic to every person and apply to each and every citizen of India irrespective of Race, Caste, Religion and Gender.

In 2018 Supreme Court declared that section 377 is unconstitutional which means that homosexual activity between consenting adult will no longer be a criminal offences. This case is important because SC interpreted the meaning of Article 14 and 15 which gives equality to each and every citizen of India which means discrimination on the basis of sexual orientation is not valid.

Unnatural Offences

 Section 377 describes Unnatural offences and criminalizes sexual activity “against the order of nature.” It says whoever has a carnal intercourse with any man, women, or animal, voluntarily, against the order of nature shall be punished, and defines this offence as cognizable, non-bailable and non-compoundable. Thus consensual sexual act between adults of same sex shall also be punished under this section.

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Whoever commits this offence shall be punished for imprisonment for a term of Ten years and will be liable for fine.

LGBTQ

This word stands for Lesbian, gay, bisexual and transgender. The word Queer stands for all the people who question their identity. LGBTQ community is also known as Queer community and Rainbow community. LGBTQ activists believed that section 377 violated their fundamental right of “equal citizenship and equal protection before the law” as it discriminated them on the ground of sexual orientation.

According to activists Section 377 violates following fundamental rights:

Article 14 Right to Equality – Article 14 states that it is the duty of the state to ensure that no citizen is denied of his Right of equality before law and equal protection from law residing within the territory of India.

Article 15 No discrimination – Discrimination on the basis of race, caste, gender, sex, and religion is prohibited, this section also gives state a power to make special provision for women and children of socially and economically backward class.

Article 21 Right to life and personal liberty – Article 21 guarantees right to live with Human dignity and says that No one should be deprived of his Right to life and personal liberty, every individual has a Right to protect their life.

History of Section 377 in India

In 1991, AIDS Bhedbhav Virodhi Andolan took an initiative to fight against Section 377 and they published a book called Less than Gay: A Citizens Report which talks about Section 377 and problems related with it.  In 2001 public interest litigation was filed by LGBTQ activists with the help of Naz Foundation in Delhi’s High Court with the prayer of legalizing homosexual intercourse between consenting adults.

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In 2009, Delhi High court bench of Chief Justice Ajit Prakash Shah and Chief Justice S Murlidhar gave a landmark judgment by decriminalizing section 377 stating that it violates Article 14 and says that every citizen has equal opportunity of life and is equal before the law.

 In 2013 Supreme Court Two Judge Bench in Suresh Kumar Kaushal v. Naz Foundation struck down the judgment given by Delhi High court and Section 377 was enforced again. Then Union Government filed a review petition stating that Supreme Court judgment is violating Article 14, 15 and 21.

In 2017 Supreme Court Nine Judge bench in Justice K.S. Puttaswamy v. Union of India held that Right to Privacy is a Fundamental Right enshrined under Article 21 and said that the decision laid down in Suresh Kaushal Judgment is incorrect and Discrimination against an individual on the basis of Sexual Orientation violates of Right to Privacy.

Navtej Singh Johar and anr v. Union of India 2018

Bench: Chief Justice Dipak Misra, Justices D. Y. chandrachud, Indu Malhotra, Rohinton Nariman and Ajay khanwilkar.

In this case writ petition was filed by five LGBTQ community members Navtej Singh Johar, Sunil Mehra, Aman Natha, Ayesha Kapur and Keshav Suri alleging that section 377 should be declared unconstitutional because it violates Fundamental rights of LGBTQ community. 

Held:

It was held that Gay Sex among consenting adults is no more a criminal offence as Section 377 violates constitutional rights of LGBTQ community; it violates Article 14, 15, 21. Fundamental Rights are for everyone also for LGBTQ even if they consist of minor section of society.

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Right to sexuality, Right to choice of a sexual partner, Right to sexual autonomy are also parts of Right to life guaranteed under Article 21, Respect for the individual choice is the essence of liberty and said that Homosexuality is a natural condition and there should be no discrimination on the basis of it. Apex court further held that decision given by Delhi high court in 2009 was correct and application of section 377 will be restricted to only animal.

Conclusion:

Preamble of India which is soul of our constitution states that the objective of preamble is to secure Justice, Equality, liberty to all citizens. Equality means absence of discrimination against any person. It provides for equality in status and equal opportunity to all people of this country. Decriminalizing homosexuality among consenting adults is a landmark step which makes this section unconstitutional because it violates Fundamental Rights of citizen. This decision will be remembered as historic in India. It is a true win of Humanity. Giving citizens a right to be who they are is the essence of Life. Now LGBTQ will need not to hide their sexuality from this whole world, this is the true meaning of EQUALITY and being treated as Equal.

Author: Pooja Rathore,
Delhi Metropolitian Education, 3 year , student

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