Author: Yashmita, Student of Guru Gobind Singh Indraprastha University, Delhi
TO THE POINT
On the September 6, 2018, The Supreme Court of India declared that insofar as section 377 of Indian penal code,1860 criminalises consensual act of adults in private means the persons above the age of 18 years who are competent to consent, is violative of article 14,15,19 and 21 of the constitution of India. According to the Supreme Court sexual orientation was natural, innate, and immutable. However, the court clarified that consent must be free, voluntary and coercion. This historic judgement affirming the dignity, equality and right to privacy of the LGBTQ.
USE OF LEGAL JARGON
The legal jargon surrounds this judgement extensively employed.
Doctrine of proportionality: This doctrine applied to asses s whether the restrictions imposed by the section 377 of the Indian Penal Code were proportionate to the state aim or not. The court found that the doctrine of proportionality is disproportionate.
Vires: The court examined that the vires of the section 377 to stand in light of constitution.
Non-derogable rights: The court emphasized that certain fundamental rights (like right to dignity and privacy) cannot be taken away. It is held that the criminalization of consensual same-sex relations was an unreasonable restriction on individual autonomy and dignity, and that sexual orientation is an inherent aspect of identity, deserving of equal protection under the law.
Fundamental rights: the supreme court states and analyzed that how section 377 of Indian Penal Code violates the article 14,15,19 and 21 of the constitution of India. All these right guaranteed that every person shall be treated equally.
Doctrine of manifest arbitrariness: this doctrine applied to the section 377 of Indian Penal Code, finding it to be arbitrary as it lacked any intelligible differentia and was disproportionate.
The judgement effectively read down section 377 of Indian Penal Code, limiting its application to non-consensual acts, sex with minors while upholding its constitutional validity for these specific instances.
THE PROOF
There has the proof have the Supreme Court and stated that because of the section 377 of Indian Penal Code infringed the fundamental rights like-
Violation of Article 14 (right to equality): In this article it is stated that every person has the equality before the law. So basically section 377 of Indian Penal Code violates this right by discriminating by sex.
Violation of Article 15 (prohibition of discrimination): according to this article state and citizen cannot be discriminated on the basis of religion, caste, race, sex, place of birth or any of them. The court analyzed that ‘sex’ in article 15 include the sexual orientation, therefore the discrimination on this ground is unconstitutional.
Violation of Article 19 (freedom of expression): Section 377 curtailed Right to express sexual orientation is an integral part of the freedom of expression, the supreme court recognized.
Violation of Article 21 (right to life and personal liberty): Every person has right to choose their partner according to this article. The right to life means right to dignity and privacy. Consensual sexual part is the personal liberty and privacy, which section 377 of Indian Penal Code violated. According to the court sexual orientation is an essential attribute of privacy.
ABSTRACT
The Navtej Singh Johar case has significant role in the Indian legal history, this case recognizing the fundamental right of the LGBTQ+ community. The Supreme Court review the previous judgement of Suresh Kumar Koushal v. Naz Foundation, declared that section 377 of Indian penal code, which criminalized the consensual sexual acts between adults of the same gender was unconstitutional. The judgement was talking about principles of equality, discrimination, individual dignity and privacy and freedom of expression. According to Supreme Court affirmed that sexual orientation is an inherent part of an individual’s identity. It is the fundamental right of every person so the state cannot deny on it.
CASE LAWS
NAVTEJ SINGH JOHAR AND ORS. V. UNION OF INDIA ,2009
This land mark judgement given by the bench CJ Ajit Prakash and justice s. Murlidhar strike down the section 377 of India penal code. Court held that section 377 of Indian Penal Code, criminalized the consensual sexual acts violate the fundamental right of every individual.
SURESH KUMAR KOUSHAL AND ORS. V. NAZ FOUNDATION AND ORS. 2013
In this case Supreme Court held overruled the 2009 judgement of Naz Foundation of Delhi high, which had decriminalized the homosexuality by declaring section 377 of Indian Penal Code unconstitutional. Supreme court declared the validity of the section 377 of Indian Penal Code.
NATIONAL LEGAL SERVICES AUTHORITY (NALSA) V. UNION OF INDIA, 2014
This is landmark judgement for the LGBTQ+ community given by the judge K.S Radhakrishna & A.K Sikri, they give the grant recognition to the transgender persons and self-identification of gender, emphasizing principles of dignity and non-discrimination
K.S PUTTASWAMY V. UNION OF INDIA,2017
This landmark judgement given by the nine-judge bench, declared that right to privacy as a fundamental right under article 21 of constitution. The Johar judgement heavily relied on Puttaswamy to establish the unconstitutionality of section 377 of Indian Penal Code, emphasizing the privacy of consensual sexual acts.
CONCLUSION
The Navtej Singh Johar judgment is played significant role in LGBTQ+ community. By affirming the dignity, identity, and autonomy of LGBTQ+ community. This judgement is a powerful statement against discrimination and a recognition. The court’s emphasis on constitutional morality and transformative constitutionalism provides a robust framework for future jurisprudence aimed at protecting minority right and fostering a truly egalitarian society.
FAQ
What was section 377 of Indian Penal Code (IPC) about?
Section 377 of Indian Penal Code introduced in 1860, this section was inspired by the British law ‘The Buggery Act 1533’. In section 377 of Indian Penal Code criminalized the consensual sexual acts between same-sex adults.
What is the impact of this judgement on the LGBTQ+ community in India?
This judgement gave a monumental victory to the LGBTQ+ community rights in India. The court decriminalized section 377 of Indian Penal Code which criminalized the homosexuality. Affirmed the constitutional rights to equality, dignity, privacy, and freedom of expression for the LGBTQ+ individual and reduced the social stigma.
