Navtej Singh Johar Vs Union Of India -a techtonic shift in the life of LGBT community.
-by Muhammad Iftekhar Khan, student of Banaras Hindu University
Since the very beginning, a particular section of the society is struggling for their rights and dignity, whether it be the right to enjoy their personal spheres or right to present themselves publicly.
Interestingly the differentiation which is faced by them, in that they have no contribution of their own. these marginalised are just carrying the burden of differences which is created by the nature itself.
This is the situation of LGBT community in the whole world and the situation in the worlds largest democracy is no different. LGBT community includes lesbian, gay, bisexual and transgender etc. Despite being 7-8% of Indian population and after 76 year of independence, this particular community is not liberated in true sense. It is true that constitution of india has guaranteed several rights to every individuals, irrespective of the sex, in order to ehance themselves in wholesome manner but it is also true that some of the aspects like marriage, physical and emotional needs were not given due importance. The rights of this community were always subject to the so called societal norms and morality. In pursuance of this Indian legal system had penalized every kind of act which is against the order of the nature. i.e. there is no place for same sex relationship or same sex orientation in the Indian legal system.
The history of rights in India dates back to the colonial era when the British introduced Sec 377 of the IPC in 1860, which criminalized homosexual acts. This law remained in place even after India gained independence in 1947, and it continued to be used to discriminate against and prosecute LGBT individuals for over a century.
However the judgement given by the Honourable supreme court in case of Navtej singh Johar & others vs Union of India (AIR 2018 SC 4321) has brought tectonic shift and broaden the purview of the Right to Freedom of Speech and Expression and the rights guaranteed under Article 21 of the Indian constitution by including “Right to sexuality”, “Right to sexual autonomy” and “Right to choice of a sexual partner” in it . The apex court struck down the Section 377 of Indian penal code, which criminalises the any kind of sexual act between same sex.
According to Sec 377 of the IPC – Anyone who voluntarily does carnal intercourse against the order of nature with any man, woman or animal shall be punished with one-year imprisonment for life or with imprisonment extending up to 10 years, and shall also be liable to fine.
A writ petition was filed before a three-judge bench of the Supreme Court in 2016. In the prayer, the high profile petitioners Navtej Singh Johar, Ritu Dalmia, Ayesha Kapur, Aman Nath and Sunil Mehra who were a part of the LGBT community prayed for declaration of “right to sexuality”, “right to sexual autonomy” and “right to choice of a sexual partner” to be a part of right to life guaranteed by Article 21 of the Constitution of India. The petitioners prayed to declare Section 377 of the IPC as unconstitutional.
The issue was first objected by NGO Naaz Foundation and section 377 was declared unconstitutional at that time but it was challenged in 2014 in the case of Suresh Kumar Koushal vs Naaz foundation overturned the Delhi High court’s decision. However the SC passed a very vague judgement in this case stating that the decision of decriminalizing homosexuality should have been made by Parliament instead of courts. The courts can only do so if it is proved that the law infringes constitutional provisions. The court also highlighted that since less than 200 cases have arisen in more than a century, therefore it is not a sound to declare section 377 IPC violative of provision of Art 14, 15 & 21 of the Constitution. In conclusion, the SC said that Sec 377 does not suffers from the vice of unconstitutionality with no further elaboration, the same judgment was challenged in Navtej Singh case.
The main issue in this case was “Whether or not the non-recognition and subsequent denial of expression of choice by way of Section 377 was contrary to the judgement given in Suresh Kumar Koushal & Anr. v. Naz Foundation & Ors. And Whether section 377 IPC is violative of Article 15, Article 16 and Article 21 of the Constitution of India ?
Argument by petitioner
Any kind of sexual orientation including Homosexuality or bisexuality is a natural phenomenon and it cannot be considered as some form of crime and illness. And criminalizing these type of orientation destroys the persons dignity and contravenes the right to privacy guaranteed under Article 21 of the constitution of India. It also lowers the moral of the people and provides the reason to not to express themselves publicly which further invades their right to freedom of expression and speech guaranteed under Article 19 of the Indian constitution.
-LGBTQ community together constitute around 8% of the Indian popuplation and hence need to be protected in order for the holistic development of the society in an assilimilative manner.
-Even after getting recognition as third gender and have been given certain rights under NALSA case yet their consensual activities are treated as an offence.
-The petitioners argued to scrap off Section 377 IPC because it criminalizes consensual sex between homosexuals completetely. Instead of this sec 377 should be confined to offences of bestiality and non-consensual acts which is against the order of nature.
-Sec 377 violates several fundamental rights namely, right to dignity, right to equality, privacy, liberty and right to freedom of expression which is essential for any individual for their overall development.
-Since there is lack of intelligible differentia or reasonable classification between natural and unnatural sex, the section violates Art 14 of the constitution. As these terms are nowhere defined in the section or the statute, making it vague in nature and.
-The section violates Art 15 of the constitution as Art 15 includes sexual orientation and sec 377 is biased on the basis of sex of a person’s sexual partner.
Arguments by respondent
-The respondent argued that sec 377 constitutes abuse of the body organs which are undignified and derogatory, further it amounts to constitutional wrong and constitutional immorality.
-Several rights are already provided to the community by the court in NALSA case and any further reliefs asked by petitioners are mere abuse to privacy and personal liberty as it will transgress the public morality.
-Keeping in the view that these acts are more prone to HIV than heterosexuals and henceforth right to privacy should not be extended and these act were rightly criminalised
– It will destroy not only the family system, institution of marriage and social culture but also the political, economic and cultural heritage of the country, if any steps toward validation of the acts mentioned under section 377 are taken.
– Sec 377 does not violate the constitutional rights of a person because it is the duty of state to put reasonable restrictions on certain acts like carnal intercourse to protect the citizens from any offensive and injurious acts.
-Also it is not violative of Art 14 as the state has the power to identify the class for making laws under reasonable classification. And It does not violates Art 15 as the Article mentions the discrimination on ground of sex not on sexual orientation.
Further it is to be noted that it impact several personals laws in the country.
Judgment
The SC struck down the old law on which made carnal intercourse against order of nature and regarded it as a criminal offence. The court overruled its previous judgement given in Suresh Kaushal case and declared Sec 377 as unconstitutional and violative of Article 14,15,19 and 21 of the Constitution. However other portion of Section 377 relating to sex with minors, non-consensual sexual acts, and bestiality still remains in force.
The Supreme Court observed that as per the classification, section 377 imposes punishments on individuals engaging in carnal intercourse against the order of nature in order to protect women and children, but in reality sec 377 criminalizes and punishes sexual intercourse between the same gender which contradicts the classification made in sec 377. Also unnatural offences have been separately penalised under IPC and the POCSO Act. Sec 377 does not differentiate between consensual and non-consensual sexual acts between individuals. The court held that the unequal treatment of the LGBT community is violative of Article 14 of the Constitution amounting discrimination against the community. The court acknowledges that the LGBT community are normal humans and they have the right to express their choices without having any fear from society.
The court pointed that private consensual sexual activity between individuals of the same gender does not disturb the public order, decency or morality and imposing restrictions on the private acts of any person will violate the Right to Freedom of choice and sec 377 does the same.
Every individual has the right to choose their sexual orientation hence scope of the right to privacy must be widened to include sexual privacy. Thus section 377 contravenes the personal liberty of person engaging in a consensual sexual activity and this is violative of Article 21 of the Constitution as.
Most importantly court noted that if any section or provision of the law is challenged in the courts and is held violative of the fundamental rights of any section of the society then in that situation constitutional morality would prevail over social morality and would be taken into consideration for aiding the court to arrive at a fair and just decision and in no situation the rule of law should be hampered by the rules of social morality.
Conclusion
The Honourable Supreme Court of India had delivered landmarked judgment in this case by giving rights necessary for dignified life of LGBT community. One of the most significant impacts of decriminalization has been the increased visibility of LGBT individuals and their rights. It has led to a greater understanding and acceptance of same-sex relationships and sexual orientations, challenging the traditional societal norms and beliefs that have stigmatized LGBT individuals. This has also encouraged the LGBT community to come forward and openly identify themselves without fear of legal prosecution. The central theme of this judgment is that the aim of our Constitution is to transform society, not to entrench and preserve the majoritarian pre-existing values.
It is also important to note here that the rights guaranteed by the Honourable supreme court of India in this case is not a virgin concept, these rights were recognized even in ancient era, though not absolutely and there was absence of any legal restrictions to forbade the same.
In Mesopotamia, also known as cradle of civilization, same-sex relationships were so common, and it is evident from the artwork as well as literature, that they are depicted equally with those of the opposite sex.
In Greece, Rome, and several other cultures a freeman who “played the part of the woman” in a relationship was thought to have compromised his manhood, but no thought was given to the relationship itself. Ancient writers regularly pass over an individual’s sexual orientation unless it has some bearing on an event under consideration because sexual identity was a complete non-issue.
In the continuity if we talk about India, one of the oldest civilization in the world, numerous Hindu texts have portrayed homosexual experience as natural and joyful, the Kamasutra affirms and recognises same-sex relations, and several Hindu temples are having carvings depicting both men and women engaging in homosexual acts. But it doesn’t mean that there were no contradictory views relating to the same. People of a third gender, not fully men nor women, are mentioned in various hindu text but are not specifically defined. In general, they are portrayed as effeminate men, often cowardly, and with no desire for women. However, Hindu texts such as the Manusmriti, Vide Atri Smrti, Vide Baudhayana Dharmasutra, and the Vide Apastambha Dharmasutra do treat homosexuality as a sin, and in some cases legally punishable. In the Manusmriti, proposals are there for various punishments for homosexual acts in certain cases. Whenever any mature woman have sex with a maiden girl she was punished by having her head shaved or two of her fingers cut off, and made to ride on a donkey. In the case of homosexual male sex, the Manusmriti ordered the sexual union between two people (both homosexual and heterosexual) in a bullock cart as a source of ritual pollution. However Verses 8.369-370 of Manusmriti which prescribe punishment for a female having intercourse with a maiden are wrongly thought to be against same-sex activity between females. It is important to note that verse 8.367 contains a similar punishment for all those who do it regardless of gender.
India also did not have legal or moral restrictions on homosexuality for the general population prior to early modern period (Islam) and colonialism (Christianity), however certain dharmic moral codes forbade sexual misconduct but that is of both heterosexual and homosexual nature. Hinduism also describes a third gender that is equal to other genders and documentation of the third gender are found in ancient Hindu and Buddhist medical texts.
Hence it cannot be inferred that the rights of the community was completely denied in India. It was the Britishers who introduced the concept of criminalizing the so called “unnatural act” under Section 377 of IPC in 1860. And the Macaulay’s legacy has continued to exist for nearly sixty eight years after we gave ourselves a liberal Constitution.
Relevant Case laws
Suresh Kumar Koushal & Anr. v. NAZ Foundation & Ors. (2013), the Supreme Court reversed the order passed by the Delhi High Court holding that the NAZ Foundation had miserably failed to prove that section 377 was discriminatory to gays.
Nalsa vs Union of India (2014) , the Court held that the State and Governments must grant transgenders full recognition in the eyes of the law in order to have education and healthcare without being subjected to any kind of discrimination. The Court decided that Hijras, Eunuchs are to be treated as the “third gender”.
Justice K.S. Puttaswamy vs. Union of India (2017), SC ruled that Fundamental Right to Privacy is intrinsic to life and liberty and thus, comes under Article 21 of the Indian constitution.Also bodily autonomy was an integral part of the right to privacy and this bodily autonomy has within its ambit sexual orientation of an individual.
