CITATION: AIR 2018 SC 4321; W.P. (Crl.) No. 76 of 2018 D. No. 14961/2016
BENCH: CJI Dipak Misra, Justice A.M. Khanwilkar, Justice Rohinton Fali Nariman, Justice D.Y. Chandrachud and Justice Indu Malhotra
DECIDED: 6 September 2018
PETITIONER: Navtej singh Johar, Ritu Dalmia, Ayesha Kapur, Aman Nath, Sunil Mehra.
RESPONDENT: Ministry of Health, represented by Tushar Mehta
The central issue of the case was constitutional validity of Section 377 of IPC which was titled as ‘Unnatural Offences’ and said whoever voluntarily has carnal intercourse against the order of nature with any man, woman or animal, shall be punished with imprisonment for life, or with imprisonment of either description for a term which may extend to 10 years, and shall also be liable to pay a fine.
It basically impacted consensual sexual intercourse between persons of the same sex and was considered “against the order of nature”.
The battle for decriminalising Section 377 has been going on for 20 years, the controversy started in 1994 when the then inspector general of Tihar Jail, Kiran Bedi refused to provide condoms for inmates saying that it would encourage homosexuality and making it evident that inmate do indulge in it. Even then ABVA, an organisation fighting discrimination against those affected by HIV AIDs, filed a writ petition in Delhi HC, demanding that section 377 be recognized as unconstitutional. Eventually the petition got dismissed in 2001.
In 2009, the Naz Foundation filed a Public Interest Litigation in the Delhi HC, challenging the constitutional validity of Section 377 for violating article 14, 15, 19 and 21 of the Indian Constitution the Court ruled that punishing sexual activity between two consenting adults under Section 377 violates the right to equality, privacy and personal liberty of such persons.
But in 2013, the court reversed the Delhi HC verdict in the judgement of Suresh Kumar Koushal & Anr. v. Naz Foundation & Ors. and held that the decision of decriminalizing homosexuality can only be done by the Parliament and not the Court.
Whether Section 377 of the Indian Penal Code, 1860 insofar as it applied to consensual sexual conduct between adults was unconstitutional?
Whether the judgment in Suresh Kumar Koushal should be upheld or set aside?
ARGUMENT FROM PETITIONER
The petitioner argued that homosexuality, bisexuality or any other sexual orientation natural and based on lawful consent and that section 377 discriminates against LGBTQ community.
It was also contended that criminalising sexual orientation not only violet individual's dignity but also their right to privacy under article 21.
Transgender section got recognition as third gender and have been given certain rights under NALSA case yet their consensual activities are treated as an offence.
They relied on Justice K.S.Puttaswamy(Retd) vs Union Of India, 2018 and argued that a person's sexual orientation is a matter of privacy and that sexual orientation and privacy lay at the core of fundamental rights guaranteed under article 14, 19 and 21.
ARGUMENT BY RESPONDENT
The Respondent argued that fundamental rights are not absolute and that section 377 is not discriminatory as it criminalises the 'act and not the person'.
Section 377 applies to all kind of unnatural sexual conduct irrespective of sexual orientation and criminalized some forms of carnal intercourse by both heterosexual and homosexual couples.
Apart from the fact that declaring Sec 377 unconstitutional would completely destroy the family system, institution of marriage and social culture, cultural heritage of the country.
CASE OUTCOME AND JUDGMENT
The five-judge bench of the Supreme Court unanimously held that section 377 of Indian Penal Code, 1860 as unconstitutional.
The court relied on the NALSA Judgement which granted equal protection of laws to transgender person and that a person sexual orientation and gender identity is an integral part of person's identity.
It also relied on the judgement of Justice K.S.Puttaswamy(Retd) vs Union Of India, 2018 in which interrelation between privacy and autonomy was recognised and that a person's sexual orientation is a matter of privacy. It was it was also noted that it is important to widen a scope or privacy to incorporate a 'right to sexual privacy' to protect rights of sexual minorities.
The court also relied upon the judgement of Shakti Vahini vs Union of India ((2018) 7 SCC 192), and Shafin Jahan vs. Asokan K.M (AIR 2018 SC 1933) to reaffirm that article 19 and 21 guarantees the right to choose a life partner and the matter of individual liberty and dignity.
It was held that section 377 was irrational, arbitrary and violative of article 14 as it made consensual relationship in private space a crime and subjected the LGBTQ community discrimination and unequal treatment.
Section 377 was held unconstitutional but the other elements are it related to sex with minors non-consensual sexual act such as rape or bestiality remains in force. The court also mentioned that the consent should be free, voluntary and devoid of any duress or coercion.
The five-judge bench of the Supreme Court overruled the Suresh Kumar Koushal decision. It unanimously read down Section 377 and decriminalised same-sex relations between consenting adults. It applies to all citizens, and not just to the LGBT community.
It was one of the major landmark judgements of Supreme Court given in regard for the right of equality of LGBTQ community The LGBTQ community in India faced discrimination and unequal treatment for years.
This article is written by Simran Kumar of Bharati Vidyapeeth New Law College.