Section 377 of the Indian Penal Code 1860 criminalizes “carnal intercourse against the order of nature.” History is replete with instances of the State having used the provision to rip-off the dignity and autonomy of individuals who engaged in sexual activity with persons of the same sex. A colonial provision which reflected Victorian morality continued in the statute after Independence.
Section 377 was also weaponized against gender non-conforming persons. Intimate relationships and activities were subject to public ridicule and judicial scrutiny. By criminalizing sexual behavior of homosexual and gender non-conforming persons, the State stripped them of their identity and personhood. Those who defied the mandate of the law and dodged prosecution were socially ostracized.
Background
In Naz Foundation v. Government of NCTD[1], a Division Bench of the High Court of Delhi read down Section 377 of the IPC to exclude consensual homosexual sexual activity between adults.
On appeal, a two-Judge Bench of Supreme Court in Suresh Kumar Koushal v. Naz Foundation[2] reversed the judgment of the High Court of Delhi. A writ petition seeking to declare the right to sexuality, the right to sexual autonomy, and the right to choice of a sexual partner as a part of the rights guaranteed under Article 21 of the Constitution and to declare Section 377 of the IPC to be unconstitutional was listed before a three-Judge Bench of Supreme Court.
The petitioners argued that the matter must be referred to a five-Judge Bench in view of the decisions of Supreme Court in National Legal Services Authority v. Union of India[3] and Justice KS Puttaswamy v. Union of India.[4]
In NALSA (supra), Supreme Court held that the state must recognize persons who fall outside the male-female binary as ‘third gender persons’ and that they are entitled to all constitutionally guaranteed rights. It also directed the Union and State Governments to grant legal recognition to the self-identified gender of transgender persons, including when they identify as male and female.
In Justice KS Puttaswamy (9J) (supra), the Court held that the Constitution protects the right of a person to exercise their sexual orientation. The three-Judge Bench referred the judgment of the Court in Suresh Kumar Koushal (supra) to a larger Bench. The three-Judge Bench also observed that the “order of nature” referred to in Section 377 of the IPC is not a constant but is guided by social morality as opposed to constitutional values, and that a section of the population should not remain in a constant state of fear while exercising their choices.
This Court answered the reference in Navtej Singh Johar v. Union of India[5], holding that Section 377 is unconstitutional to the extent that it criminalizes consensual sexual activities by the LGBTQ community. It held that:
(i) Section 377 violated Article 14 because it discriminated between heterosexual persons and non-heterosexual persons, although both groups engage in consensual sexual activities[6];
(ii) While Article 14 permits reasonable classification based on intelligible differentia, a classification based on an ‘intrinsic and core trait’ is not reasonable; Section 377 classified individuals on the basis of the core trait of ‘sexual orientation’[7];
(ii) Article 15 prohibits discrimination based on ‘sex’ which includes within its meaning sexual orientation as well[8] and Section 377 indirectly discriminated between heterosexual persons and the LGBTQ community based on their sexual orientation; and
(iii) Section 377 violated Article 19(1)(a) because Section 377 inhibited sexual privacy.[9]
Justice DY Chandrachud, observed that the right to sexual privacy also captures the right of the LGBTQIA+ community to navigate public places free from State interference. The community does not face discrimination merely based on their private ‘sexual’ activities. It extends to their identity, expression, and existence.
The Court declared that the members of the LGBTQIA+ community are entitled to the full range of constitutional rights including the right to choose whom to partner with, the ability to find fulfilment in sexual intimacies, the benefit of equal citizenship, and the right not to be subject to discriminatory behaviour.
The Court in Navtej (supra) went beyond decriminalizing the sexual offence. It recognized that persons find love and companionship in persons of the same gender; protected the class against discriminatory behavior; and recognized the duty of the State to end the discrimination faced by the queer community.
[1] (2009) 160 DLT 277
[2] (2014) 1 SCC 1
[3] AIR 2014 SC 1863
[4] AIR 2017 SC 4161
[5] 2018 1 SCC 791
[6] Chief Justice Dipak Misra in Navtej Singh Johar
[7] Justice Indu Malhotra in Navtej (supra)
[8] Justice DY Chandrachud in Navtej (supra)
[9] Chief Justice Dipak Misra and Justice DY Chandrachud in Navtej (supra)