AUTHOR: VIBHOR SHRIVASTAVA, BBALLB (5TH YEAR), ALS, GWALIOR, AUMP.
ABSTRACT:
The case of Navtej Singh Johar v. Union Of India is a watershed moment in the long struggle when it comes to LGBTQ+ rights In September 2018, Supreme Court of India in a landmark judgement decriminalized homosexuality by declaring Section 377 of the Indian Penal Code (IPC) of 1860 as unconstitutional as it had earlier criminalized consensual homosexual acts under the broad definition of “unnatural offences”.
The Navtej Singh Johar case threw open some of the most critical discussions around constitutional morality, transformative constitutionalism, right to privacy, equality and dignity, health and freedom of expression. The pronouncements were in direct conflict with the decision of the Supreme Court earlier in Suresh Kumar Koushal v. Naz Foundation, overruling by implication the judgment in that case and re-establishing the constitutionalism of fundamental right of trans community while simultaneously applauding acceptance towards various sexual identities within society.
In this Legal Journal, we will explore the historical journey of Section 377 and how Indian society has evolved, both socio-culturally as well legally through remarkable pronouncements by the Judiciary in the case of Navtej Singh Johar.This case becomes a critical reminder of the elemental human need for identity and self-respect and how sexual orientation and the right to have a choice in selection of partner flows from the freedom central to life, liberty, and human dignity. The judgement was a unanimous ruling by the Supreme Court and lead to legal and social change in the lives of LGBTQ+ people in India.
INTRODUCTION:
Homosexuality and human rights are interrelated and debatable factor, Current international legal, societal and philosophical connections and contradictions. This is especially the case in many territories where homosexuality is punishable by law and is socially banned as well, partly by the so-called natural impulses’ theory that considers homosexuality to be ‘unnatural ‘’ and ‘Against the Order of Nature’. ‘Reasons like that stem from long year prejudices and religious enforcements of everybody’s sexual orientations calling homosexuality sinful or immoral.
This complex relationship has led to discussions as well as people’s activism aimed at protecting human rights across the entire globe. They also posit that sexual orientation and gender identity bear an inner core to the human being hence should be embraced by the conventional human rights standards. These advocates challenge the legal provisions that seek to illegalize homosexuality since they deny rightful subjects’ rights to privacy, equality, and non-discrimination.
SECTION 377 OF INDIAN PENAL CODE:
There are provisions pertaining to unnatural offences under Section 377 in the Indian Penal Code, 1860. Back when having sexual intercourse with someone of the same sex was also regarded as a criminal offense, it was seen as one of the most “draconian” requirements in the Indian legal system. Section 377 which is a Cognizable, Non -bailable and Non-compoundable offence states that;
“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 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.”
INTERPRETATION OF SECTION 377:
Section 377 of IPC, 1860 uses ‘whoever’ and is as a result a gender-Neutral one. The phrase ‘carnal’, approach ‘of the body’ and ‘sexual intercourse’ indicates the contact between a male and a female’s sexual organs. As also evident from the explanation provided within the section that a certain degree of penetration, no matter how small is a pre-requisite of commission of Unnatural Offence under sec 377. However, the ‘order of nature’, another expression used within the section, is neither defined in it nor in another provision of IPC or any other statute or legislature. Section 377 of the IPC treats consent as irrelevant for unnatural offences, making the consenting party equally culpable. The section’s vague language has made it difficult to objectively define what constitutes an act against the order of nature, leading to significant debate and confusion. The Black’s law dictionary defines the term ‘natural’ as “A fundamental quality that distinguishes one thing from another; the essence of something or Something pure or true as distinguished from something artificial or contrived.” If we analyse and study the human anatomy it is unequivocal that each and every muscle, gland, vein, cell and organ have some or other crucial and fundamental function to perform which helps in the survival of the human body which suggests that using any organ for a cause aside from its fundamental function is unnatural. In Khanu v Emperor (AIR 1925 SIND 286), the court observed that “Section 377 punishes certain persons who have carnal intercourse against the order of nature with inter alia human beings. Is the act here committed one of carnal intercourse? If so, it is clearly against the order of nature, because the natural object of carnal intercourse is that there should be the possibility of conception of human beings which in the case of coitus per os is impossible. Intercourse may be defined as mutual frequent action by members of independent organisation.”
According to this logic, penile-vaginal sex is taken into consideration as natural, and all different forms of intercourse are deemed unnatural and extensively it includes oral and anal intercourse, as well as penetration into synthetic orifices like mouth, or between palms, fists or thighs, etc . Moreover, section 377 criminalizes homosexuality, deeming it unnatural, which conflicts with the worldwide recognition of the Right to freedom and privacy. Due to its arbitrary nature and infringement on fundamental rights, and particularly the vague language of section 377 the Homosexual acts are classified under this section as an unnatural offence, sparking numerous controversies and raising questions about its constitutional validity.
BRIEF HISTORY OF UNNATURAL OFFENSES:
The origins of Section 377 can be traced back to the British colonial era in India. The Indian Penal Code was drafted by Thomas Macaulay in 1835, and after plethora of revisions and modifications it was enacted in 1860 and with it came into force section 377 which was originally drafted in the bill of 1838. The law sought to govern certain of the unnatural sexual acts While it did not specifically name homosexual acts, it made them illegal. The Buggery Act of 1533, in Britain during the reign of King Henry VIII to a great extent enacted how Section 377 evolved. It defined buggery as an unnatural sexual act against the will of God and man. It outlawed a number of practices, such as anal penetration, bestiality, and in a loose sense, homosexuality. Indian legislation in formulating Section 377 following the footsteps of British India. In 1967 homosexuality was decriminalized in the United Kingdom, India had been sustaining this Archaic law. Important developments on the legal front have been registered with Indian courts as far as Section 377 is concerned including a landmark verdict by Hon’ble Supreme Court in 2018 making strides toward LGTBQ+ rights activism.
ANALYSIS OF NAVTEJ SINGH JOHAR CASE:
NAVTEJ SINGH JOHAR & ORS. V. UNION OF INDIA, THROUGH SECRETARY, MINISTRY OF LAW AND JUSTICE (AIR 2018 SUPREME COURT 4321)
Facts:
The set of petitions challenged the constitutionality of Section 377 of the Indian Penal Code, 1860 (“IPC”) on the specific ground that it criminalises consensual sexual intercourse between adults of the same sex in private. The case of Navtej Singh Johar v. Union of India was primarily concerned with the constitutionality of Section 377 of the Indian Penal Code, which criminalises “carnal intercourse against the order of nature”. The petition was filed in 2016 by dancer Navtej Singh Johar and other prominent figures who identify as part of the LGBT community. They demanded recognition of the right to sexuality, sexual autonomy and choice of sexual partner as part of the right to life under Article 21 of the Indian Constitution. The petitioners argued that Section 377 violates Articles 14 (right to equality), 15 (non-discrimination) and 19 (freedom of expression). They argued that the law discriminates against LGBT people, restricts their freedom to express their sexual identity, violates their privacy and forces them to live in fear and exclusion. Various non-governmental and religious organisations intervened in the case and presented arguments both in support and against the plaintiffs’ claim.
Issues Involved:
Does Section 377 of the Indian Penal Code violate the fundamental rights guaranteed under Articles 21, 19 and 14and 15 of the Constitution?
Is Section 377 vague and arbitrary?
Does Section 377 prohibit LGBT people from expressing their sexual orientation or engaging in sexual activities in private?
Arguments:
The petitioner argued that Section 377 violates their fundamental rights guaranteed under Articles 21, 19 and 14 of the Constitution as it criminalises consensual sexual intercourse between adults of the same sex in private.
The petitioners contended that Section 377 is vague and arbitrary as carnal intercourse against the order of nature is neither defined in the Section nor in the IPC or any other law.
While Section 375 permits consensual penetration (the definition of “penetration” includes oral and anal sex), Section 377 criminalises the same penetration irrespective of the of presence or absence of consent. The LGBT community argues that Section 377 prohibits them from expressing their sexual orientation or engaging in sexual activities in private and that this decision affects the most intimate sphere of a human existence.
The applicants also argued that sexual orientation and privacy are core fundamental rights guaranteed under Articles 14, 19 and 21 of the Constitution. They seek to interpret Section 377 as pertaining to the LGBT community to only cover zoophilia and non-consensual acts with the coming into force of the Criminal Law (Amendment) Act, 2013. The Protection of Children from Sexual Offences Act, 2012 (POCSO Act) has broadened the scope of sexual coercion to include non-penis sexual coercion and also criminalised non-consensual sexual acts between children, thereby creating a significant gap in the law on sexual offences. Sexual violence in India is closing in on itself.
The petitioners contended that the Delhi High Court in Nas Foundation has referred to and analysed the constitutional concept of morality and ultimately struck down Section 377 of the IPC which clearly provides that consensual sexual intercourse between homosexual and heterosexual persons cannot be criminalised.
They further contended that Section 377 violates Article 14 of the Constitution as the said section is vague in the sense that unnatural sexual intercourse is not defined either in that section or in the IPC or in any other law.
It is further argued that if the word ‘gender’ has to be replaced by ‘sexual orientation’, a constitutional amendment would be necessary and The Court while interpreting Section 377 of the Indian Penal Code has observed that only a small portion of the population of the country is lesbian, gay, bisexual or transgender and over the last 150 years, 200 people have been charged under Section 377 of the Indian Penal Code. Hence, this is not a valid basis for applying Section 377 of the Indian Penal Code to the provisions of Articles 14, 15 and 21 of the Constitution.
Verdict:
The Supreme Court, while considering its decision in the Suresh Kumar Kaushal case, held that Section 377 is vague and arbitrary as carnal knowledge against the order of nature is not defined in this section or in any other law under the IPC and the LGBT community was unjustly denied its fundamental rights as there was no distinction between consensual and non-consensual sexual activity. The Court further based on precedents such as the NALSA and KS Puttaswamy judgment, recognised that sexual orientation and gender identity are integral to a person’s identity and that the right to sexual orientation is part of the right to privacy also Section 377 prohibits LGBT people from expressing their sexual orientation and engaging in sexual activity in private, a decision which is the most intimate sphere of their lives. The Court rejected the notion that public policy could justify discrimination against the LGBT community and emphasised that any restriction on privacy must meet the tests of lawfulness, legitimate state interest and reasonableness. Therefore, Section 377 is subjective in nature and therefore cannot be justified as a reasonable restriction under Section 19(2) on the basis of public or societal morality. Ultimately, a five-judge bench unanimously declared Section 377 unconstitutional because it criminalizes consensual sexual intercourse between adults in private, while affirming the constitutional guarantees of equal protection and the right to personal liberty of the LGBT community. Thus, the Court struck down Section 377 of the IPC for violating the fundamental rights guaranteed under Articles 21, 19 and 14 and 15 of the Constitution to such extent where its consensual in nature and such consent must be free, voluntary, and free of duress or coercion. The Court held that consensual relations between adults, whether heterosexual or homosexual, should not be criminalised and that section 377 0f Indian Penal Code would still be applicable where there are non-consensual acts of carnal intercourse which are against the order of nature whether done by heterosexuals or homosexuals.
AFTERMATH OF THE CASE:
In Supriyo @ Supriya Chakraborty & Anr. vs Union of India November 2022, a queer couple alleging that the inability of two same-sex couples to marry violated their fundamental rights challenged the provisions under special marriage act regarding “civil unions”. In October 2023, the court ruled that the Marriage Act currently does not include same-sex couples and that this exclusion is not unconstitutional. The Special Marriage Act remains limited to heterosexual marriages. The court found that same-sex couples have no inherent right to marry or enter into civil Unions, and left such changes to the legislative authorities. Though the case is not directly in nexus with the case of Navtej singh johar or section 377 of IPC,1860 but it is this very case and the decision that section 377 would not be applicable to consensual homosexual acts the LGBTQ+ can now approach the Courts regarding the legal recognition or protection of other queer rights such as same -sex marriage, live in relationship, succession, adoption, etc as happened in Supriyo @ Supriya Chakraborty & Anr. vs Union of India 2022, Jyoti and Anr v. State of U.T. 2023 and various other similar instances.
CONCLUSION:
“Cessante Ratione Legis Et Cessat Ipsa Lex” means that when the reason for a law ceases to exist, the law itself ceases to apply. This is the rule of law and Section 377, a product of the Victorian era, deserves to be repealed as its basis has long since ceased to exist. Many have mistakenly believed that Section 377 of the IPC has been completely struck down by the court in this judgment, but that is not true. Section 377 remains valid in that it criminalizes non-consensual sexual intercourse between members of the same sex. However, the court has decriminalized it to the extent where consensual sexual intercourse takes place between members of this community.
FREQUENTLY ASKED QUESTIONS (FAQS)
Which Law criminalizes homosexuality?
Section 377 of the Indian Penal Code (IPC) criminalize any carnal intercourse as an offence done against the order of nature.
Which judgment confirmed the constitutionality of Section 377?
Suresh Kumar Kaushal v. Naz Foundation set aside the judgment in the case of Naz Foundation v. Government of NCT of Delhi and held that Article 377 is constitutionally valid and not unconstitutional.
What fundamental rights were violated when members of the LGBTQIA+ community were punished under Section 377?
The Court, in its current judgment, has held that criminalisation of homosexuality violates Articles 14, 15, 19(1)(a) and 21 of the Constitution of India.
After the judgment in Navtej Singh case, was Section 377 revoked?
No, Section 377 has been partially repealed and partially effective and non-consensual sexual intercourse between homosexual persons continues to be criminalized.
Is Same-sex marriages recognised under Indian laws after section 377 was decriminalised in India ?
No, Same-sex marriage is not recognised under any law in India as declared in the case of supriyo Chakraborty.
Does Section 377 of the IPC still criminalise zoophilia or sexual activity with a child?
Yes, even if Section 377 is partially repealed, the section will continue to criminalise sodomy and sexual activity with a child against the order of nature.
REFRENCES:
indiankanoon.org › doc › 335563Lohana Vasantlal Devchand And Ors. vs The State on 24 July, 1967
