Decriminalization of Homosexuality

The vision of our constitutional fathers while making the Indian Constitution was that it remain fluid and dynamic to the ever changing needs and demands of the Indian Society. They envisioned a living document that was flexible but bounded within the morality of the Constitution.

This was evident from Supreme Court recent judgement in Navtej Singh Johar vs. Union of India case where it overturned its own judgement taken in NAZ foundation vs. Suresh Kumar Koushal case regarding legality of Section 377 of Indian Penal Code.

What is Section 377 of IPC?

Section 377 of IPC penalizes carnal intercourse which is against the order of “nature”. This archaic British law dates back to 1861 and criminalises sexual activities against the order of nature and the ambit of this law extends to any sexual union involving penile insertion.

Supreme Court Observations

Earlier, in NAZ foundation vs. Suresh Kumar Koushal case, the Supreme Court upheld Section 377 of IPC citing only a “miniscule fraction of the country’s population” belonged to the LGBTQ community and reinforced criminalisation of homosexuality. This judgment by the apex court was highly criticised by the LGBTQ community in India and was seen as a setback for human rights.

However later, a nine judge bench in Navtej Singh Johar vs. Union of India the court took an all inclusive approach, commenting that the number of people deprived of their fundamental right is meaningless. Social Justice means justice for all and is not exclusive to some. While delivering verdict the court commented,

• The idea of “natural” sex was manufactured as a majoritarian view to suppress the history of prevalence of sexual minorities
• Section 377 creates unreasonable classification which is violative of fundamental rights
• The objective of the stated law “to protect women and children from being subjected to carnal intercourse” is found to be void.
• The Law does not discriminate between consensual and non consensual sexual acts between competent adults
• Section 377 inflicts life imprisonment, which is disproportionate
• Modern psychiatric studies have shown that members of the LGBTQI community are not persons suffering from mental disorders

However, Section 377 of the IPC has not entirely been struck down. It still covers bestiality and non-consensual intercourse. Since the court struck down the provision as far as it applies to consenting adults, the provision still presumably applies to consensual sexual intercourse among minors of the same gender. Under Section 375 of the IPC, as amended in 2013, even consensual sexual intercourse among heterosexual minors, if the girl is under 18 years of age, is considered to be rape.

Significance of the Judgement

• Recognises freedom of sexual orientation and right to dignity of every individual
• The court recognized that classifying a sexual act as “natural” or “unnatural” is self discriminatory citing that for a person his/her sexual orientation itself is natural.
• Recognizes the fact that constitutional morality must prevail over “social morality”. Here social morality implies finding sexual intercourse between man and women as natural.
• Recognizes the fundamental rights provided under Right to Equality, Freedom of Speech and Expression and Right to Life and Personal Liberty (Article 14, 19(1)(a) and 21)
• Recognizes that the law inflicts a stigma on the members of the LGBTQ community
• Recognizes the fact that the law is rooted in the belief that the sole aim of sexual intercourse in procreation
• Showcased judiciary as the custodian of rights of vulnerable individuals and minorities.

Way Forward

• The central government’s stance needs to change on the issue of Section 377 as it considers same-sex relationships to be fundamentally against religious and social customs as well as against laws governing marriages and inheritances. The belief that any change to these laws would have a profound impact on the very concept of family in the Indian context needs to be belied.
• The need to the hour is to recognize that society’s morality changes with time and laws should keep pace with it.
• K S Puttaswamy case vs. Union of India judgement highlighted that right to privacy is an integral part of Article 21 (Right to life and personal liberty) and hence striking down Section 377 is in lines with the earlier judgement.
• Similarly, National Legal Services Authority v. Union of India Judgment recognised transgender people as ‘third gender,’ possessing rights, including marriage, adoption, divorce, succession and inheritance. Hence Section 377 was violative of this judgement and thus was removed.
• As two judges clearly noted, Section 377 has also violated the Right to Health as it criminalizes homosexual intercourse and stigmatises the right to seek medical advice making them more susceptible to sexually transmitted diseases. This issue was also addressed.
• The judgement encouraged the lower courts to take future stances which are against the majoritarian view in order to protect personal freedoms and individual liberties. This needs to be celebrated.