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Updated: Jun 19, 2020


Sharda University, Uttar Pradesh

Case-Number:WP (Crl.) 76/2016; WP (C) 572/2016; Judges: Rohinton Nariman, Indu Malhotra, D.Y. Chandrachud, Ajay Manikrao Khanwilkar, Dipak Misra. BACKGROUND This section earlier categorized consensual sexual intercourse between the same-sex as an ‘unnatural offence’ which is against the order of nature. It prescribes a punishment of 10 years imprisonment. Before this case, there were many petitions filed in the courts: 1. AIDS Bhedbhav Virodhi Andolan (ABVA) vs High Court of Delhi The first petition filed in 1994 by AIDS Bhedbhav Virodhi Andolan (ABVA )in Delhi HC against Section 377. In 1994, a medical report estimated that there was same-sex sexual activity amongst 90 percent of prisoners in New Delhi and expressed concern over possible HIV risks. As a result, experts recommended that condoms be distributed to prisoners. But Prison officials refused to implement the recommendation since they viewed it as giving sanction to homosexual activity that was a criminal offense under the law. ABVA was already working for the prevention of HIV/AIDS and the rights of HIV positive people. ABVA started as a group of volunteers from various backgrounds, around 1988, who worked together for improving the living conditions of sex workers in Delhi’s red-light area, G.B. Road. Their focus soon broadened to advocating for rights for those who were HIV positive, especially after a group of women from G.B Road was forcefully tested by doctors from AIIMS, with the help of the police. The ABVA highlighted how vulnerable groups like sex workers faced harassment, both from society for being involved in prostitution and from legislation that was meant to function as safeguards but only made them more helpless. After filing a writ petition against the Indian state ABVA demanded to withdraw section 377 and declared void and unconstitutional because it discriminated against individuals and infringed right to Privacy under Article 21 of the Indian Constitution. But HC dismissed the writ petition in 2001 by stating that Instead of using this as a platform to launch its legal Campaign against Section 377 by ABVA, State was more concerned over the HIV/ AIDS pandemic and its rising numbers in India and this being a private individual matter of the LGBT Community, litigation cannot be entertained as a PIL by NGOs. 2. Naz Foundation vs Govt of NCT of Delhi and Others WP(C) No. 7455/2001 Jurisdiction: High Court of Delhi at New Delhi Date of Decision: 2 July 2009 This is a landmark Indian case decided by a two-judge bench consisting of Chief Justice Ajit Prakash Shah & Justice S Muralidhar of the Delhi HC, which held that treating consensual homosexual sex between adults as a crime is a violation of fundamental rights protected by India’s Constitution. FACTS: The Naz Foundation India, a non-governmental organization, working with gay men, filed a PIL in Delhi HC in 2001. This is a second PIL against Section 377 of IPC. This foundation is committed to HIV-AIDS intervention and prevention, which makes it illegal to engage in any "unnatural" sexual act, defined as a sex other than heterosexual intercourse. challenged the constitutionality of Article 377 under Article 14, 15, 19, and 21. It reflects an antiquated understanding of the purpose of sex, namely as a means of procreation, and has no place in modern society. The Foundation cited an instance in 2001 in Lucknow where HIV prevention workers, who were distributing condoms to homosexual men, were arrested on the allegation that they were conspiring to commit an offense. The Naz Foundation also argued that the provision was being misused to punish consensual sex acts that are not Peno-vaginal and calling for the legislation of homosexuality. However the NAZ Foundation did not ask the law to be repealed & declared void, unlike ABVP Petition of 1994. In 2004, the Delhi HC dismissed the original writ petition, arguing that petitioners had no Locus Standi in the matter. Subsequently, the petitioners filed a review petition with the HC, asking that the case was a public interest case and hence should be reconsidered by the Court. This was also dismissed, petitioners appealed to the Supreme Court against the decision of the HC. In 2006, on civil appeal, the Supreme Court of India set aside the dismissal and ordered the Delhi High Court to hear the petition on the merits by citing the fact that it is an issue of public interest. The petitioner argued that Section 377 encouraged discriminatory attitudes, abuse, and harassment of the gay community, and significantly impaired HIV/AIDS prevention efforts and access to treatment. The National AIDS Control Organisation (NACO) under the Ministry of Health supported the petitioners in their response. In July 2009, a Delhi HC decides to strike down section 377, by stating that, First no Right can be exercised without dignity and privacy guarantee by Article 21 of the Indian Constitution and hence it infracts Article 21. Secondly it was stated by HC that section 377 is violative of Article 14 because it unreasonably discriminates homosexuals as a class. Article 15 prohibits discrimination based on certain characteristics including sex. The courts also held that the word ‘Sex' not only includes Biological Sex but also Sexual Orientation and therefore discrimination on this ground is also violative of Article 15. The court also noted that the right to life also includes the right to health and declares a commitment on the part of India to address the needs and rights of groups with a high risk of contracting HIV/AIDS. In sum, the Court did not strike down Section 377 as a whole but stated that the judgment would hold until Parliament chose to amend the law. The section 377 was declared unconstitutional and insofar criminalize consensual acts of adults in Private violates Article 14,15 and 21 of the Indian Constitution. Several organizations and individuals challenged the HC Judgement in the Supreme Court. This triggered a series of protests by religious groups 3. Suresh Kumar Kaushal vs Naz Foundation In 2013, The SC overruled the Delhi HC’s Judgement and held that decision of decriminalizing homosexuality can only be done by the Parliament and not by any court. The Apex Court can’t take over the work of the legislature. Right to privacy under Article 21 doesn’t include elements of Section 377 and the declaration made by the bench of HC is legally unsustainable. If homosexuality is legalized the institution of marriage and social structure would break down. The Apex courts in return said that homosexuals are in minority in the country and laws needn’t be changed for their interests and thereupon it was declared that section 377 was a pre-constitutional law. So it was held to be Constitutionally valid and it again came into force.

4. NALSA vs UOI AIR 2014 SC1863 National Legal Service Authority vs UOI is a landmark decision by SC that legally recognize persons who fall outside the Male/ Female binary, to be a third gender. Under this SC legally recognized transgender persons for the first time and discussed their fundamental rights as they are available in the same manner as they are to the males and females under Part 3 of the Indian Constitution. Further it also declared that Hijras and eunuchs can also be categorized as the third gender. Fundamental Rights: A. The court noted that Article 14 was framed in gender-neutral terms (MEN.WOMEN & TRANSGENDER) B. Under Article 15 & 16, no gender-based discrimination is allowed. It also includes no discrimination on the ground of Sexual Orientation. C. Article 19(1)(a) includes Privacy, Gender identity, and integrity. This also framed in gender-neutral terms. D. Article 21-The Court interpreted dignity to include the right to choose Gender Identity, which allowed a person to lead a dignified life. Thus the courts held that transgender persons were entitled to fundamental rights under Article 14,15,16,19(1)(a) & 21 of the Indian Constitution. 5. Navtej Singh Johar vs UOI This is a historical judgment of the Supreme Court of India, On 6th September 2018, a five-judge Bench decriminalized all consensual sex among adults in private, including homosexual sex. The court determines the constitutionality of Section 377 of the Indian Penal Code. It held that section 377 which criminalized “carnal intercourse against the order of nature” declared the law unconstitutional and struck down section 377. On 27 April 2016, the petition filed by a Bharatnatyam dancer Navtej Singh Johar, who was a dancer and identified himself with the LGBT (Lesbian, Gay, Bisexual & Transgender) community and five other people in the court seeking inclusion as right to sexual autonomy and right to choose the sexual partner within the ambit of right to life under article 21. The SC on January 5, 2018, formed a constitutional bench for hearing the challenge to section 377 in a deep manner, even though the curative petition was pending before the Court and petitioners claimed that the issue which SC raised in the Suresh Kaushal case. It challenged section 377 on the ground that it violated the fundamental rights under Article 14,15,16.19(1)(a) and 21 of the Indian Constitution. It as outlined by the petitioners that the language of section 377 is vague. It violates Article 14 because there was no intelligible differentia or reasonable classification between natural and unnatural consensual sex. It was violative of Article 15 since it discriminated based on the sex of a person’s sexual partner based on sexual orientation which was struck down in the Suresh Kaushal case. Article 19(1)(a) is also violative because it denied the right to express one’s sexual identity through speech and choice of romantic/sexual partner. And the most important Article 21 right to Privacy as it subjected the LGBT community to fear that they would be humiliated because of ‘a certain choice or manner of living’ or lifestyle. The verdict was hailed as a landmark decision for LGBT rights in India, they are now legally allowed to engage in consensual intercourse. This decision overturns the 2013 ruling in Suresh Kumar Koushal's case. The grounds were taken by the court that since the LGBT Community is in minority in the country, their interests and rights can’t be ignored. The constitution is for every individual in the country, regardless of whether it is a part of a minority group or that of the majority. Every individual is entitled to the right to equal treatment. By taking the support of Article 14 court found that criminalizing any consensual sex between adults especially based on homosexuality there is no valid Intelligible differentia or reasonable nexus is violative of right to equality. Naz foundation passed a judgment where court reasoned that discrimination based on biological sex as well as sexual orientation is violative of Article 15. It held that the choice of whom to partner, the ability to find fulfillment in sexual intimacies, right to self-identity and the right not to be subjected to discriminatory behavior are intrinsic to the Constitutional protection of sexual orientation is a fundamental right of every individual irrespective on the ground that they only affect a minuscule section of the society. By Taking advantage of Puttaswamy Case 2017 where Right to Privacy under Article 21 was declared a fundamental right. The court ruled that section 377 violates the right to life & liberty, dignity, and autonomy of personal choice under Article 21. Finally, it held that Section 377 amounts to an unreasonable restriction on the right to freedom to expression since consensual intercourse in private does not in any way harm public decency or morality, and intimacy between consenting adults of the same sex is beyond the legitimate interests of the state. This section is inhibiting an LGBT individual’s ability to fully realize their identity by violating Article 19(1)(a). It decriminalizes consensual sexual acts but such consent must be free, completely voluntary in nature, devoid of any coercion. As a result of declaring section 377 unconstitutional, homosexuals can now live in a more dignified environment and can express themselves freely.

However other portions of Section 377 relating to sex with minors, non-consensual sexual acts, and bestiality remain in force.

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