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Trending: Call for Papers Volume 3 | Issue 2: International Journal of Advanced Legal Research [ISSN: 2582-7340]

Section 377- Landmark Judgements related to Homosexuality in India

Introduction to Section 377 of the Indian Penal Code

Section 377 of the Indian Penal Code, 1860 deals with unnatural offences. The literal elucidation of this section implies that it makes buggery, sodomy, pedication, bestiality, paedophilia, tyke sexual abuses and homosexuality punishable by law. Thus, it prohibits every kind of sexual intercourse excluding the heterosexual penile-vaginal intercourse. In addition to that, the consent of the individuals who are part of the intercourse is immaterial in such cases. This section has attracted a lot of disagreement, argument, and contention resulting in controversy over the past decade and the demand to decriminalise homosexuality. The first petition for this cause was filed in the year 1994 by AIDS Bhedbhav Virodhi Andolan.
Timeline-
1861 → Section 377 of the Indian Penal Code, 1860 was introduced by the British India.
2009 → NAZ Foundation vs. Government of NCT Delhi
2013 → Suresh Kumar Koushal vs. NAZ Foundation
2014 → NLSA vs. Union of India and others
2017 → Justice Puttaswamy vs. Union of India
2018 → Navjot Singh Johar vs. Union of India

Definition of Section 377 in the Indian Penal Code

Section 377 of the Indian Penal Code, 1860 states-
Unnatural offences- Whoever voluntarily has carnal inter­course against the order of nature with any man, woman or animal, shall be punished with 1[imprisonment for life], or with impris­onment of either description for a term which may extend to ten years, and shall also be liable to fine.
Explanation.—Penetration is sufficient to constitute the carnal intercourse necessary to the offence described in this section.

Landmark Judgements related to Homosexuality in India

NAZ Foundation vs. Government of NCT Delhi, 2009

This case is also known as the ‘NAZ Foundation Case’. NAZ Foundation is an NGO which deals with health issues such as HIV, AIDS, etc.
This case raised an issue, whether to remove Section 377 of the Indian Penal Code, 1860 or not. The court dealt with this issue with two aspects.
Firstly, it laid down Article 21 of the Constitution of India, 1949, Right to life and stated that without dignity and privacy no individual can enjoy their Right to Life. Secondly, it laid down Article 14 of the Constitution of India, 1949 and Article 15 of the Constitution of India, 1949, Right to Equality and stated that Section 377 of the Indian Penal Code, 1860 is violative of Article 14 of the Constitution of India, 1949 as it unreasonably discriminates homosexuals as a class and criminalises their consensual intercourse. Moreover, discrimination based on sex is prohibited and violative of Article 15 of the Constitution of India, 1949. The term ‘sex’ used in Article 15 of the Constitution of India, 1949 does not only include biological sex but also sexual orientation.
The Delhi High Court held, the part of Section 377 of the Indian Penal Code, 1860 which criminalises homosexual act shall be declared unconstitutional. However, to amend or not to amend was left on the discretion of the Parliament. 

Suresh Kumar Koushal vs. NAZ Foundation, 2013

In this case, two arguments were raised. Firstly, homosexuality is a criminal offence, only parliament has the authority to decriminalise it and courts cannot interfere in this matter. Secondly, the right to privacy cannot be extended to such an extent that an individual can commit an offence under it.
It was held, the right to privacy does not cover homosexual acts.

NLSA vs. Union of India and others, 2014

This case is also known as the ‘Transgender Case’. In this case, a loophole was recognised which laid down that all the existing Indian laws only focuses on binary genders, which is either male or female and no provision is enacted for protecting the rights of the transgender community. As a result of which the transgender community has been continuously discriminated.
The Supreme Court recognised multi-faceted rights for the transgender community to deal with this loophole. This case gave the transgenders the right to self-identify their gender, equal treatment to all people, and legal recognition of gender identity.

Justice K.S. Puttaswamy vs. Union of India, 2017

This case is also known as the ‘Privacy Case’. In this case, the Supreme Court affirmed that the right to privacy is a fundamental right. To decide upon this case a bench of nine judges was constituted and over-ruled M.P. Sharma case and Kharak Singh case.
Justice Chandrachud said that this case is an opportunity for the Supreme Court to rectify its mistake committed in Suresh Kumar Koushal’s case. He further stated that sexual orientation is an essential attribute of privacy and is protected under many rights of Part 3 of the Constitution of India, 1949.

Navjot Singh Johar vs. Union of India, 2018

In this case, Section 377 of the Indian Penal Code, 1860 was partially declared as unconstitutional. The judgement was delivered on 6th September 2018 and de-criminalised all consensual sex among adults in private, including homosexual sex. This case composed of a constitutional bench of five judges namely Chief Justice of India (CJI) Deepak Misra, Justice Indu Malhotra, Justice Rohinton Nariman, Justice A.M. Khanwilkar, and Justice D.Y. Chandrachud.
The Supreme Court took the support of Article 14 of the Constitution of India, 1949 and stated that to criminalise consensual sex of two adults based on their homosexuality is neither a valid intelligible differentia nor a rationale nexus. It was further stated that such ambiguous and subjective norms based on morality shall be given up by the society.
The Supreme Court took Article 15 of the Constitution of India, 1949 as contention and stated that during the case of NAZ Foundation, the Delhi High Court’s approach which said ‘sex’ includes both biological sex and sexual orientation is appropriate, and this approach reflects the improved understanding.
Justice Chandrachud supported Article 19 of the Constitution of India, 1949 and stated that human sexuality cannot be defined narrowly and discrimination under LGBT ( Lesbian, Gay, Bisexual, Transgender) is unconstitutional. Article 19 of the Constitution of India, 1949 protects the right of every individual and allows them to express their identity with full freedom.

Lastly, the Supreme Court took the support of Article 21 of the Constitution of India, 1949 and stated that the right to life and liberty includes privacy, dignity, and autonomy. However, these rights can be curtailed by putting reasonable restrictions but not be applying Section 377 of the Indian Penal Code, 1860.
Rights recognised by the Supreme Court for the Transgender Community
The Supreme Court stated that under Article 14 of the Constitution of India, 1949, rights of all individuals are protected, it includes men, women, and transgender.
The Supreme Court stated that under Article 15 of the Constitution of India, 1949 and Article 16 of the Constitution of India, 1949, discrimination based on gender is prohibited. Thus, if there is any kind of discrimination based on sexual orientation then it is violative of Article 15 of the Constitution of India, 1949 and Article 16 of the Constitution of India, 1949.

The Supreme Court stated that Article 19(1)(a) of the Constitution of India, 1949 protects privacy, gender identity, integrity, etc. And, Section 377 of the Indian Penal Code, 1860 can also be protected under this Article.
The Supreme Court stated Article 21 of the Constitution of India, 1949 and laid down that the right to live with dignity includes the right to choose gender identity.

Conclusion

Hence, this article discusses the entire event of Decriminalization of Section377 of Indian Penal Code, 1860 in India through 5 Landmark cases including the recent Important Judgments of Supreme Court Of India. This Article elucidates Article 14 of the Constitution of India, 1949, Right to Equality; The Test of Intelligible Differentia and Rational Nexus; Article 15 of the Constitution of India, 1949, Prohibition of Discrimination on the Ground of Sex – Biological Sex and Sexual Orientation; Article 19 of the Constitution of India, 1949, Freedom of Speech and Expression, Freedom to Express Personal and Gender Identity and Article 21 of the Constitution of India, 1949, Right to Life and Liberty with  Dignity – The Privacy Attribute.

References

This article is written by Sneha Mahawar from Ramaiah Institute of Legal Studies.

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