This article is written by Amandeep Kaur. The author has discussed in detail the long journey of Section 377 of the Indian Penal Code (IPC), its history, challenges faced, and finally the decriminalisation of Section 377. This article has been further updated by Shefali Chitkara. The author has tried to explain certain terms that were used in the judgement, like privacy and freedom of expression, more clearly by referring to various judgements that followed the aforementioned judgement. Further, the author has tried to explore the aftermaths of the judgement, the Yogyakarta principles and the significance of the judgement. The author has also mentioned a few initiatives that were taken by the government for the upliftment of the LGBTQIA+ community.

Table of Contents

Introduction to struggle of the LGBTQIA+ community

India is among the 28 Asian countries to legalise homosexuality and recognise LGBTQIA+ rights. The judgement passed in Navtej Singh Johar and others v. Union of India (2018) has brought a change in the lives of many people in the country. Prior to this remarkable judgement, the community did not have such rights, as homosexuality was criminalised under Section 377 of the Indian Penal Code, 1860 (hereinafter referred to as IPC).

People have the misconception that the whole of Section 377 of the IPC has been struck down by the court in the present judgement, but the same is not true. Section 377 is still valid to the extent that it criminalises the non-consensual sexual intercourse between persons of the same sex. However, the court has decriminalised this section to the extent that it punishes consensual sexual acts between the members of this community. This provision was technically applicable to unlawful sexual acts by heterosexuals as well, but it was widely used to prosecute and harass queer community members. 

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Many petitions were filed against this provision in the early 1990s, but the same were continued to be dismissed by the courts. Finally, Naz Foundation, an NGO which addresses issues of sexuality and HIV/AIDS prevention filed a petition, which was heard by the Delhi High Court as a matter of public interest in 2006. The Naz Foundation, which initially contested the constitutional validity of Section 377, referred to the 2001 incident in Lucknow. In this case, HIV prevention workers distributing condoms to homosexuals were arrested on charges of conspiring to commit an offence. In this way, it was continued to be misused to even punish consensual sexual acts of adults of the same sex. However, on the other side, some organisations that challenged the unconstitutionality of Section 377 in the Supreme Court in the Suresh Kaushal case have argued that the decriminalisation of homosexuality would be detrimental to the institution of marriage and involve young people in such homosexual activities. 

In the present case, a writ petition challenging the constitutionality of Section 377 was filed by five individuals from the community, namely, Navtej Singh Johar, Ritu Dalmia, Ayesha Kapur, Aman Nath, and Sunil Mehra. 

Historical background of Section 377 IPC

Homosexuality was not considered a crime or penalised in ancient India. There have been many instances that proved this point, such as:

  • Khajuraho Temple is a famous temple situated in Madhya Pradesh and is decorated with many sculptures reflecting the sexuality of ancient India. It was built in the 10th century by rulers of the Rajput Chandela Dynasty. There may not be any other temple in India that depicts all the emotions of human nature. These sculptures also display homosexual acts, which proves the existence of homosexuality even at that time.   
  • Manusmriti, a law code that was followed by a majority of the people at that time. It prescribed punishment for homosexual acts performed by either man or woman. It proved the existence of homosexuality; however, it did not approve such acts. 
  • Arthashastra, popularly known as Kautilya’s Arthashastra could be taken as another proof of the existence of homosexuality during that period, as the manual imposed a duty on the king to penalise those who indulged in homosexual acts. 

Who criminalised homosexuality

This is a question that every person of the LGBT community is curious to know. IPC was framed by the British Colonial Rulers in the 19th century. The whole code was based on the then existing British laws and was full of complications, and Section 377 was one of them. Section 377 of the IPC was framed according to the Buggery Act, which was a law of the 16th century. 

The Buggery Act, 1533

This legislation has categorized all homosexual acts, sexual activities involving animals, and sodomy as unnatural offences. This Act was passed by the Parliament of England in 1533, when King Henry VII was ruling. It has defined buggery as any act that is against the will of God. All these unnatural offences were punishable by death under this Act. Thomas Macaulay, who was heading the first law commission of India had brought this law to India as Section 377 of the IPC.   

Challenges to Section 377 IPC

NGO- AIDS Bhedbhav Virodhi Abhiyan (ABVA)

The very first challenge faced by Section 377 was in 1994. A petition was filed by the NGO for the first time in the Delhi High Court for decriminalising this section. After observing homosexuality in the Tihar Jail, the workers of the NGO wanted to distribute condoms among the inmates, however, the superintendent of Tihar Jail who was Kiran Bedi at that time disapproved this as it would encourage homosexuality. Subsequently, this petition was dismissed in 2001. In response to the same, a review petition and then a Special Leave Petition was filed which has been dealt in the case below.

Naz Foundation v. Government of NCT and Ors. (2009)

Facts of the case

Earlier, a PIL filed by the Naz Foundation in 2001 was dismissed. Also, a review petition filed by them was again dismissed for challenging the constitutional validity of Section 377, which criminalises homosexuality. In response to this, a SLP was filed in 2006 in this case. This NGO was working for the prevention of HIV/AIDS and therefore had interaction with such sections which also included homosexuals. According to the NGO, this section of society was extremely vulnerable to HIV, as this particular section faced discrimination and abuse from the public and was also neglected by public authorities. According to the petitioner, Section 377 of the IPC is also violating some of the fundamental rights of homosexuals, such as Articles 14, 15, and 21 of the Indian Constitution. 

Issues raised

  • Whether Section 377 of the IPC is violative of Articles 14 and 15?
  • Whether Section 377 of IPC is violative of Article 21?
  • Whether Section 377 of IPC is unconstitutional?

Arguments from the petitioner’s side 

  • According to the petitioner, Section 377 of the IPC, which criminalises homosexuality, is outdated and needs to be modified according to the needs and wants of modern society. 
  • Section 377 is also violative of the right to life under Article 21 of the Indian Constitution as private consensual sexual relations are also covered under the ambit of the right to privacy which is protected under Article 21. 
  • Section 377 also discriminates on the basis of sex, i.e., based on their sexual orientation, as mentioned in Article 15, which violates another fundamental right of homosexuals.
  • Moreover, Section 377 of the IPC, which penalises “unnatural sexual acts,” has no rational connection to the classification created between procreative and non-procreative sexual acts.
  • On the above-mentioned arguments, it is submitted by the petitioner that Section 377 of the IPC which criminalises private, consensual sexual activity between two adults, needs to be scrapped. 

Arguments from the respondent side

  • According to the affidavit submitted by the Ministry of Home Affairs, Government of India, Section 377 was included in the IPC in order to prevent cases of child sexual abuse. They have also submitted that such acts cannot be considered legitimate just because two adults have consented to them. Moreover, interference by public authorities is permissible in private and family life for public safety and protection of health and morals.
  • The National Aids Control Organisation (NACO) has agreed to the contention made by the petitioner, i.e., that the homosexual community is extremely vulnerable to HIV/AIDS. According to their report, there are 25 lakh homosexuals who are under the high-risk behaviour group. NACO has also mentioned various methods to be adopted in order to control the high numbers of this community getting infected with HIV in their affidavit. 
  • Respondent No. 8 is a coalition of 12 organisations that represents child rights, women’s rights, human rights, health concerns, as well as the rights of same-sex desiring people, including all those who identify as “lesbian, gay, bisexual, transgenders, hijra, and kothi persons”. Respondent No. 8 supports the contentions of the petitioner and urges the need to end discrimination under Section 377.  

Judgement

  • It was held that where a person prefers consensual sexual intercourse with another person of the same gender, it is totally that person’s choice, and invasion by any third party into this matter will be a breach of privacy and a violation of Article 21. Article 12 of the Universal Declaration of Human Rights (1949), Article 17 of the International Covenant of Civil and Political Rights (1966) and the European Convention on Human Rights (1950) were also referred to by the court. 
  • Section 377 denies another right i.e., the. right to live with dignity, as provided under Article 21, by criminalising the identity of a person based on their sexuality. 
  • Homosexuals constitute a separate and considerable section of society which is denounced by Section 377. This community is forced to live according to society and is often exposed to harassment, exploitation, and humiliation by people around them. 
  • Several countries, like the US, England, Australia and Canada, have already decriminalised consensual sexual acts among homosexuals and unnatural acts.  
  • A desire to delete Section 377 was also expressed by the Law Commission in its 142nd report. According to this, Section 377 was only meant to criminalise non-consensual sex and child abuse, but now, after amendments in Section 375 to Section 376E in the IPC, there is no need to have Section 377 in the Indian Penal Code. 
  • Section 377 is now meant to target a particular community and discriminate against them on the basis of their gender and sexual identity, which is unfair and thus violative of  Article 14 of the Indian Constitution.
  • The court also noted that sexual orientation is a ground parallel to sex, and Article 15(2) of the Indian Constitution prohibits discrimination on the basis of sexual orientation. 
  • The court declared Section 377 of the IPC as unconstitutional as it violates Articles 14, 15 and 21 of the Indian Constitution. However, Section 377 will continue in cases of non-consensual sexual acts and sexual acts involving minors, i.e. a person below 18 years of age.  

Suresh Kumar Koushal and Ors. v. NAZ Foundation and Ors. (2013)

Appeal

This case is filed as an appeal against the above-mentioned judgement on Section 377 of the IPC, i.e., against the case of NAZ Foundation v. Government of NCT and Ors.

Issues raised

  • Whether Section 377 of the IPC violates Articles 14 and 15 of the Indian Constitution?
  • Whether Section 377 of the IPC violates Article 21 of the Indian Constitution?
  • Whether Section 377 of the IPC is unconstitutional?

Arguments from the appellant side 

  • The statistics that the NACO represented in the previous case are not sufficient to prove that Section 377 of the IPC is the reason behind the vulnerability of the LGBTQIA+ community to HIV/AIDS and that decriminalisation of the section will lead to a reduction of such cases. 
  • Section 377 does not discriminate on the basis of sexual orientation and is gender neutral as it refers to all the genders involved in the acts mentioned in the respective section. They also argued that this section refers to carnal intercourse and such acts, which have the tendency to cause harm to both individuals participating in such an act. Therefore, Section 377 is not violative of Article 21 of the Indian Constitution, i.e., the right to privacy and dignity guaranteed under it, but is just protecting the people of the country from being exposed to incurable diseases such as HIV/AIDS.
  • Section 377 is not a hindrance to the personality development of homosexuals or does not affect their self-esteem in any way. The High Court in the previous judgement made a wrong observation as its observation is based on the reports prepared by academicians, which cannot be relied upon. Hence, Section 377 does not breach Articles 14 and 15 of the Indian Constitution. 
  • Another argument made was that Section 377 was enacted in the IPC in order to protect social values and morals. The appellants also referred to the “order of nature” and have discussed in detail that each and every organ of a human body is assigned some functions that, if abused, go against nature and will lead to the obstruction of the Indian social culture and structure.   
  • The founding fathers of the Indian Constitution never intended to include sexual orientation within the term ‘sex’. Moreover, considering the principles of health and morality of the people of the country, restrictions can be imposed on the right to sexual orientation.  
  • Indian courts do not have the right to legislate any statute. The Delhi High Court, instead of striking down Section 377, would have left the task of deciding the constitutionality of Section 377 to Parliament.

Arguments from the respondent side

  • Article 21 guarantees human rights and individual autonomy, and therefore, sexuality is covered under its domain, which is being violated by Section 377. Scientific observations have proved that consensual sex between people of the same gender is not against the “order of nature”. Moreover, this section deprives the LGBTQIA+ community of living with full moral citizenship. 
  • Section 377 also diminishes the human dignity of individuals by making them criminals based on their sexual personality. Moreover, criminalising sexual acts between homosexuals also violates their right to health protected under Article 21, as such a section of society is impaired by health services and is therefore more vulnerable to HIV/AIDS.
  • The expression ‘carnal intercourse against the order of nature’ which has been used by the appellants over and over again has not been defined anywhere in the statute. Moreover, this section is vague and arbitrary in nature, as the people it is targeting do not even know the true intention of this section because no clear prohibition has been specified by it.   
  • Section 377 marks a difference between carnal intercourse against the order of nature and carnal intercourse, which is not against the order of nature, but there is no such legislation guiding this point, which makes the difference arbitrary. Therefore, in the absence of any legislative guidance, it is supposed to be decided by the Court.   
  • Another important argument made was that the Court should take into consideration changing values and society. Social values and morals laid down 50-60 years ago cannot be the same now. Change is the law of nature, and Section 377 is a pre-constitutional statute that needs to be looked upon by the judicial officers of law.

Judgement

  • The High Court and the Supreme Court have the authority to declare any law enacted before or after the Constitution of India as void if it violates any of the rights mentioned in Part III of the Constitution. 
  • Declaring any law as unconstitutional is one of the last options available to the High Court and the Supreme Court, and if any law is declared unconstitutional, then it is the duty of the courts to give an appropriate remedy that is in favour of the constitution. 
  • The Apex Court also mentioned that both the High Court and the Supreme Court do not have to strike down legislation or law just because it is not used or the beliefs of society have changed. The courts can strike down a law only if it is proven beyond a reasonable doubt that it is infringing on constitutional provisions. 
  • It was noted that Section 377 is a gender neutral provision and does not target any particular group of society but criminalises those acts which if committed by a person irrespective of their age or consent, will constitute an offence.    
  • The writ petition filed in the Delhi High Court by the respondents in this case lacked various aspects, such as cases that involved harassment and assault on sexual minorities by the public and public authorities. Moreover, it did not mention any incidents of discriminatory behaviour by state agencies towards homosexuals which led to the denial of their human rights.
  • The Bench of the Delhi High Court overlooked the small fraction of the country constituting lesbians, gays, bisexuals and transgenders. Considering the fact that people prosecuted for committing an offence in the past 150 years do not even amount to a total of 200, it cannot be declared that Section 377 of the IPC is violative of Articles 14, 15 and 21 of the Indian Constitution. 
  • If any law is misused by police authorities or any other state authority, it doesn’t mean that it is ultra vires or unconstitutional. Every court must consider only relevant factors while deciding the constitutionality of any legislation. 
  • The  Supreme Court after hearing the arguments from both sides, concluded that Section 377 of the IPC is not unconstitutional and does not violate any right contained in the Indian Constitution. 

Navtej Singh Johar and ors. v. Union of India and ors. (2018)

This judgement has not only been a transformation for millions of lives but also a stepping stone towards a progressing society. The five-judge bench overruled the Suresh Kaushal judgement as mentioned above by focusing on the doctrine of progressive realisation of rights and holding that the goal of a progressive society should always be looking forward.

Appeal 

This case is an appeal against the judgement given by the Supreme Court in the previous case of 2013.

Coram

CJI-Dipak Misra, Justice A.M. Khanwilkar, Justice Rohinton Fali Nariman, Justice D.Y. Chandrachud, and Justice Indu Malhotra.

Issues raised 

The main issue here was about the constitutionality of Section 377 of the IPC.

The court dealt with these major issues in finally upholding the constitutionality or unconstitutionality of Section 377 IPC:

  1. Whether it violates Articles 14 and 15 of the Indian Constitution for discriminating against individuals on the basis of sexual orientation or gender identity?
  2. Whether it violates Article 21 by penalising consensual acts between the members of that community?
  3. Whether it violates Article 19(1)(a) by criminalising the gender expression of the whole community?

Submissions from the petitioner side

  • Homosexuality is very natural and not any kind of illness. It is a reflection of personal choice, and its criminalisation will lead to the violation of Article 21 of the Indian Constitution by affecting the dignity and gender identity of an individual. 
  • Non-acceptance of the community by society at large does not mean that any member of that community is an alien, and therefore there is a need for recognition of the rights of the LGBTQIA+ community, which constitute 7-8% of the Indian population. 
  • Section 377 is a product of the Victorian era, where sexual activities were considered a reproductive process only. This section is the sole reason that the whole community is suffering discrimination and abuse and will continue to suffer if homosexuality is criminalised again.
  • If Section 377 is retained under the IPC without making any changes, it would lead to the violation of various fundamental rights of the community, like right to freedom of expression, the right to privacy, and the right to equality.  
  • It was also mentioned that people who choose inter-caste marriages are the same as people who choose a partner of the same sex, as it is their right to choose. Society may disapprove of inter-caste marriages, but it is the obligation of the court to enforce the constitutional rights of every citizen. The position of the LGBTQIA+ community is the same; even though the majority disapproves of them, it is the duty of the court to protect their constitutional and fundamental rights. 
  • There is no reasonable classification between natural and unnatural sexual acts, and even the expression “carnal intercourse against the order of nature” used in Section 377 is not defined anywhere. Thus, Section 377 is arbitrary and violates Article 14.
  • The section is also violative of Article 15, as it discriminates on the basis of the sex of their partners, which is prohibited under this Article. 

Submissions from the respondent side 

  • It was submitted that decriminalisation of Section 377 would destroy the entire family system in India, and many corrupt young Indians would take this as a trade and start using homosexual activities for money. Moreover, individuals indulging in such activities are often more likely to contract HIV/AIDS.
  • They also contended that the political, economic and cultural heritage of countries where consensual homosexual acts have been decriminalised is very different from a very diverse country like India.
  • Further, fundamental rights are not absolute, and decriminalisation will leave all the religions practised in the country as objectionable and will lead to the violation of Article 25 of the Indian Constitution, which also needs to be given due consideration. 
  • They also submitted that, despite decriminalising the section, clarifications can be added to define every word that is controversially mentioned in the section. The section will then target only those people who are doing non-consensual acts.
  • Furthermore, the main reason behind criminalising carnal intercourse against nature is to protect citizens from the harmful consequences in order to promote the objectives of the criminal laws of our country. 
  • Article 15 prohibits discrimination on the basis of sex and not sexual orientation, therefore, Section 377 of the IPC is not a violation of Article 15. It is also not violating Article 14, as the section only mentions a particular offence along with its punishment.

Judgement

  • The court stated that it doesn’t matter how minuscule the LGBTQIA+ section is; they too have the right to privacy, which includes individual autonomy and sexual orientation. Their choice of partner might be different, but that does not mean they will be punished for it. Section 377 does curtail their human dignity and their personal choice, therefore violating their right to privacy which is covered under Article 21.
  • The main objective of retaining Section 377 under the IPC is to protect women and children from being abused and harassed by non-consensual carnal intercourse, but consensual carnal intercourse, which is performed by the LGBT community, is neither injurious to children nor women. Moreover, non-consensual acts have already been referred to as an offence under Section 375 of the IPC which implies that Section 377 is redundant and discriminatory and targets only one section of society and is therefore violative of Article 14 of the Indian Constitution, rendering it unconstitutional.
  • Our Constitution is liberal, and it is not possible that the right of choice will be absolute. Therefore, a few restrictions have been imposed on this right as well. However, the right to choose a partner for sexual relationships is completely a matter of personal choice which cannot be restricted. Whereas, Section 377 of the Indian Penal Code restricts the right of this community to choose a partner for sexual activities and is therefore irrational and arbitrary. 
  • Public order, decency and morality are the grounds which can impose reasonable restrictions on the fundamental right of expression under Article 19(1)(a). Any act done in affection by any member of this community in public does not in any way disturb the public order or moral values until it is decent enough and is not obscene for the society at large. However, Section 377 is again unconstitutional in the sense that it does not connect with the criteria of proportionality and violates the fundamental right of expression of the LGBTQIA+ community.
  • The Supreme Court declared that Section 377 is unconstitutional to some extent as it violates Articles 14, 15, 19 and 21 of the Indian Constitution and therefore overruled the judgement given in Suresh Koushal and ors. v. Naz Foundation and ors. It also declared that Section 377 would punish only non-consensual sexual acts committed against any adult, sexual acts against any minor and even bestiality. 

Highlights of the judgement in Navtej Singh Johar v. UOI

  • Section 377 only affects a miniscule minority, and there cannot be any reason to deny the right to privacy to such a minority community.
  • The objective is to prescribe a punishment for such individuals who engage in carnal intercourse against the order of nature, with the aim of protecting women and children. However, there is no rational nexus of this objective with the classification on the basis of sex under Section 377, since unnatural offences are already made punishable under Section 375 and also under the Protection of Children from Sexual Offences Act (2012).
  • The court has also noted that the arbitrariness of this section is also reflected as it does not distinguish between consensual and non-consensual sexual acts which have been done for other offences.
  • The court also noted that the consensual private sexual acts of the members of this community neither disturb public order nor public decency and morality. Therefore, it violates even the fundamental right to freedom of expression under Article 19(1)(a) of the Indian Constitution.
  • Constitutional morality, not societal morality, must guide a decision on whether any provision of an Act violates the fundamental rights.
  • The Yogyakarta principles on the application of international law in relation to issues of sexual orientation and gender identity have to be applied by Indian courts as a part of Indian law.
  • Since homosexuality is natural and is not unique to humans, this group cannot be penalised for having carnal intercourse against the order of nature under Section 377 of the IPC.
  • Procreation is not the only reason for which people come together; it is the freedom of choice of two consenting adults, and if they choose otherwise, it cannot be said to be against the order of nature.
  • The members of the queer community are entitled to all constitutional rights and liberties as other citizens of society.
  • The members of this community are entitled to all the benefits, including equal citizenship without any discrimination and equal protection of the law. 
  • As per Section 3 of the Mental Healthcare Act, 2017, “mental illness” has been determined in accordance with nationally and internationally accepted medical standards and homosexuality is neither a mental disorder nor a mental illness, it is a normal human sexuality.
  • Even medical and scientific authorities have established that consensual sexual intercourse between homosexuals is not against the order of nature and could not fall under Section 377. 
  • Sexual autonomy and orientation are intrinsic parts of the identity and dignity of an individual.
  • When there is no reason for the state to continue the existing provision of the law penalising homosexual couples who have caused no harm to others, it is clear that the provisions of the constitution have been transgressed. 
  • The basic characteristic of any crime is that it should injure a third party or society, but the consensual private sexual acts of the queer couple neither cause any injury to any third person nor cause any threat to society. 
  • This delay in recognising that homosexuality is a completely natural condition was on account of ignorance of the majority, due to which it owes an apology to the queer community for the delay in providing justice. 
  • The consensual sexual relations of homosexual adults cannot be in any way classified along with the offences of bestiality, sodomy, and non-consensual sexual relations. 
  • The fundamental rights are available equally to majority and minority groups, and fraternity being enshrined in the Preamble aims at accommodating differences of ideology and culture to protect and promote diversity.
  • The court noted the difference between Sections 375 and 377 of the Indian Penal Code and stated that the difference lies in the element of consent, but the same discriminates between hetrosexuals and homosexuals. Thus, the punishment should be for non-consensual acts and not consensual acts. 
  • “Cessante Ratione Legis Et Cessat Ipsa Lex” which means when the reason for a law ceases, then the law itself ceases. This is the rule of law, and Section 377, being the product of the Victorian era, deserves to be abolished since the rationale has long since disappeared. 
  • By penalising and criminalising consensual sexual acts of homosexual couples, this section has become an easy way of prosecuting and even persecuting the members of this community without any reason.

Individual autonomy and reformation 

The court, through this judgement, has reaffirmed that an adult individual has the autonomy to choose their partner; this autonomy is viewed as liberty, which demands no interference in anyone’s private life. It has paved the way towards the reformation of orthodox opposite-sex relations by giving legal recognition to queer relationships. Such recognition is much needed in order to extend the ancillary rights that flow from them, including the right to inherit property, seek maintenance on divorce, and seek remedy in cases of domestic violence. 

The law now seeks to protect individual autonomy in every aspect of life, including the right to choose whom to marry. In the case of Shafin Jahan v. Asokan (2018), the Kerala High Court granted custody of a 24 year old girl to her father as she was allegedly brainwashed for marriage by a Muslim man. But this was reversed by the Supreme Court, and the court observed that she did not suffer from any mental incapacity and thus had the right to choose. 

The Yogyakarta Principles

The Yogyakarta principles prohibit discrimination on the grounds of gender identity and sexual orientation, and India is a signatory to these principles. Though these are not binding, it is our duty to respect the international treaties and fulfil the international obligations under Articles 51 and 253 of the Indian Constitution, the court in the case of National Legal Services Authority v. Union of India, (2014) has also relied on these principles. In the present case as well, the court noted that Section 377 does not conform to these principles and is thereby liable to be struck down. 

These principles were outlined in Yogyakarta, Indonesia, in 2006 by twenty-nine human rights experts from all over the world. 

Application of interpretation of statute in Navtej Singh Johar v. UOI

The Hon’ble Supreme Court has applied the Golden Rule of Interpretation while interpreting Section 377 of the IPC in order to bring justice, as the same would not be possible under the literal rule of interpretation. The Supreme Court made a reference to the interpretation of the word ‘sex’ under Article 15 in National Legal Services Authority v. Union of India (2014), as per which the word includes both gender and biological attributes. Thus, discrimination on the ground of sex would also mean discrimination on the ground of gender identity. The word includes people who do not recognise themselves as male or female as well. 

While interpreting, the court refused to consider the doctrine of presumption of constitutionality of a statute of such old laws as they have not been made by democratic powers, i.e., there can be no such presumption attached to a pre-constitutional law like the Indian Penal Code. Further, the court had used external aids to construction, like foreign constitutions, laws, and the views of different jurists on this subject matter. The same can be referred to by Indian courts to find confirmation of the conclusion reached by it. 

Significance of the judgement in Navtej Singh Johar v. UOI

For decriminalising consensual sexual acts of same-sex couples, this judgement holds persuasive value in other countries which have continued to penalise and criminalise homosexuality till now. Moreover, nothing can be more significant in these times than the court of law recognising and giving equal rights to a third gender by giving them an equal chance of raising their voices against the injustice and torture they have faced from society. Society is now in a position to understand that sexual orientation is no longer a mental illness or stigma but a natural condition wherein anyone can be attracted to any other person, whether of the same gender or a different gender. 

Further, the judiciary has upheld the values of the Constitution through the principle of “transformative constitutionalism.”. If the discriminatory practices against this community persist, then the Indian court would be said to have failed in their duty towards the people, which would lead to killing the hopes of many people. 

Furthermore, the judgement has tried to break the oppressive structures of the society. Another instance which is well-known for the same is the case of Arunkumar v. The Inspector General of Registration (2019). In this case, it was held that a marriage between a Hindu transwoman and a Hindu man would be valid under Section 5 of the Hindu Marriage Act, 1955 and that sometimes to see the obvious, one needs to look at the love and not just the physical vision of something as demanded by law. This judgement will help to eliminate all sorts of police harassment and discrimination by society and the community will now be able to push for more progressive laws in their favour.

A tribute to transformative constitutionalism

The judgement has proved that one needs to grow with the changing society, and with the same objective, even amendments are made to the statute to accept and make people accept transformations. The judgement has helped correct a basic error of constitutional reasoning. Everywhere, the people from this community are forced to behave or act in a certain way than they actually are, and this has resulted in mere silence, denying the other members the opportunity to understand them. The sensitisation through this judgement has proved to be uplifting for the society thereby making them a part of a diverse, plural Indian society.

The principles and ideals that are given under the Constitution are meant to bring about and must aim at bringing about changes in societal beliefs. Along with recognising the rights of individuals in the long run, transformative constitutionalism also aims at providing adequate opportunities for people to develop socially, economically, and politically. It focuses on a transformation from an archaic society to a pragmatic society.

Two-pronged test under Article 14 of the Indian Constitution

The two-pronged test is performed to see whether there is any violation of Article 14 of the Indian Constitution. In order to determine the violation, the courts have to check if there is a rational nexus with the object sought to be achieved by such a law. The court has to see whether the law is under-inclusive or over-inclusive. A law is under-inclusive if it fails to consider all those who are part of a problem. However, the same is over-inclusive if it regulates even those who are not part of the problem. This determination is dependent on the rational nexus test.

Judgments referring to Navtej Singh Johar v. UOI

State of Tamil Nadu and another v. National South Indian River Interlinking Agriculturalist Association (2021)

Facts of the case

In this case, the State of Tamil Nadu formulated a scheme which granted loan waivers to small and marginalised farmers as they suffered greater harm because of a lack of capacity. This was challenged before the Madras High Court, but the High Court called the scheme to be arbitrary and directed the appellants to grant the same benefit to all the farmers, irrespective of their landholdings. This was then challenged by the appellants before the Supreme Court.

Issue raised

  1. Was the scheme formulated by the State of Tamil Nadu for granting loan waivers to small and marginalised farmers constitutionally valid? 
  2. Was it a reasonable classification under Article 14?

Judgement given

The Supreme Court noticed that the purpose behind such a scheme is to restore the hopes of the small farmers and uplift them, and this objective of promoting the welfare of small and middle class farmers to secure social justice has already been recognised under Article 38 of the Indian Constitution. Any of the climate changes and unexpected natural calamities affect farmers with small holdings more as compared to those with large holdings. Also, the small farmers belong to economically weaker sections of society. Thus, the scheme was specially meant for them and is totally justified. To examine the two-pronged classification test under Article 14 in the present case, the court looked for the Navtej Singh Johar judgement, i.e., “the law cannot be tested on the anvil of majoritarian morality but on constitutional morality”. 

Supriyo v. Union of India (2023)

Facts of the case

The petitioners, being members of the LGBTQIA+ community in this case, have requested that the Supreme Court recognise their right to marry regardless of their sexual orientation under the Special Marriage Act, 1954, the Hindu Marriage Act, 1955, and the Foreign Marriage Act, 1969, by enforcing the fundamental rights under Articles 14, 15, 19 and 21 of the Indian Constitution. They demanded protection against discrimination and also the right to dignity, equality, autonomy, and freedom of expression. The extension of the right to marry and the right to adopt for non-heterosexual couples was opposed due to the societal and cultural history of our nation, and the other reason was opposition by the majority of the people.

Issues raised

  1. Is the right to marriage available to the LGBTQIA+ community, and can their marriages be recognised?
  2. Is their exclusion under the Special Marriage Act, 1954, amounting to discrimination under Article 14 of the Indian Constitution? 

Judgement 

The matter was brought to the court after the Supreme Court recognised their individual autonomy and gender identity and gave them the right to choose their partner in the Navtej Singh Johar case. Now, their demand for recognising their marriage under the prevalent laws to bring them on equal footing with heterosexual couples was rejected by the court for being a subject of Parliament. Further, by 3:2, they ruled against allowing for adoption by homosexual couples. According to all the judges, only the Parliament has the power to make laws on same-sex marriages. Also, if a transgender person wants to marry a heterosexual person, their marriage can be recognised under the prevailing laws. Further, they have no right to a civil union without any legal framework. The challenge to the Special Marriage Act was also dismissed. Judges have also agreed to the establishment of a High-Powered Committee to examine the aspects of same-sex marriages and directed the States to ensure that the rights of such couples are not violated and to secure them against any involuntary medical treatment.

Recently, on November 1, 2023, one of the petitioners filed a review petition with the Supreme Court for being self-contradictory and unjust. 

Aishat Shifa v. State of Karnataka and Ors. (2023)

Facts of the case

In this case, the university in Udupi banned a hijab-wearing girl from entering the university for violating school conduct, which prevented her from attending classes. The university allowed the wearing of hijabs on campus but did not allow them to attend lectures. The Karnataka Education Act,1983, also stated that all students shall act in a fraternal manner, and this Act also gives power to the government to issue instructions to universities in this regard. The government issued an order dated February 5, 2022, which stated that uniforms as mandated by the state government should be worn and that students who follow certain religious principles were found to have made a negative impact on equality in universities. This order of the government was appealed before the High Court of Karnataka but was dismissed. The same was then appealed in the Supreme Court.

Issues raised

  1. Is the government order dated 5th February, 2022 arbitrary and contrary to Articles 14 and 15 of the Indian Constitution?
  2. Does the compulsory requirement for students to wear a prescribed uniform violate the fundamental rights under Article 19(1)(a) and 21 of the Indian Constitution?
  3. Is wearing a hijab an essential religious practice under Article 25 of the Indian Constitution?

Judgement given

A split opinion was delivered by the two-judge bench of the Supreme Court in the appeal. Justice Hemant Gupta had affirmed the decision of the High Court of Karnataka, and Justice Sudhanshu Dhulia favoured the appellants. Due to this split verdict, the case has now been referred to a larger bench of the Supreme Court. According to Justice Sudhanshu Dhulia, apart from the Essential Religious Practice test, the court should look more into the freedom of conscience of the people. The court referred to the Bijoe Emmanuel case and also the case of Navtej Singh Johar (the present case) for highlighting the importance of individual autonomy, personal choice, and reasonable accommodation. There cannot be denial of education merely because someone is wearing a hijab, and the same cannot be a public order problem. According to him, wearing a hijab is purely a matter of choice under our constitutional framework, and it is not a matter of essential religious practice but of conscience and belief. 

X v. Principal Secretary, Health and Family Welfare Department, Government of NCT of Delhi and Another (2022)

Facts of the case

In this case, there was a 25 year old pregnant woman who approached the Delhi High Court to ask for the termination of her 23 week pregnancy. She was unable to proceed with the pregnancy since she was financially incapable and also unmarried, and her partner had also declined to marry her. She requested to end her pregnancy as per Rule 3-B(c) of the Medical Termination of Pregnancy Rules (MTP Rules), 2003 and Section 3(2)(b) of the Medical Termination of Pregnancy Act, 1971. The High Court stated that the woman was legally disqualified under the Act to do so. Therefore, on 21st July, 2022, she filed an appeal before the Hon’ble Supreme Court.

Issue raised

Can an unmarried woman end her 23 week pregnancy under Rule 3-B of the MTP Rules, 2003, or it discriminates against an unmarried woman to a safe and legal abortion?

Judgment

The Supreme Court has stated that there is no proper reason not to include unmarried or single women under the Medical Termination of Pregnancy Rules and excluding them would contravene Article 14 of the Indian Constitution. The freedom of choice is available to both, an unmarried woman and a married woman, and both of them have reproductive autonomy and dignity under Article 21 to make decisions. In ruling about the individual autonomy of a married or unmarried woman, the court also referred to the decision in the Navtej Singh Johar case, which also talked about transformative constitutionalism. Further, the court also noted that if a married woman had non-consensual sexual intercourse with her husband, then the pregnancy in such cases can also be ended without their husband’s consent. 

Similarly, this judgement has also been praised for recognising individual autonomy and disregarding all discrimination on any ground. This is an example of transformative or progressive reforms in the statutes to uphold the rights of the people. 

Initiatives taken for the LGBTQIA+ community

There are few initiatives taken at national and global levels for the inclusion and upliftment of the community. A document by the International Labour Organisation has been released on “Inclusion of LGBTQIA+ persons in the world of work” for providing recommendations for their upliftment and equal opportunities at the workplace and providing them equal treatment as well. There is also the Transgender Persons Act, 2019, which defines a transgender person, provides for their recognition and prohibition against discrimination and also provides for a National Council for transgender persons under Section 16. The Act also provides for certain obligations of the government and other educational institutions towards transgender people. The Transgender Persons (Protection of Rights) Rules, 2020, were also formulated, under which the National Portal for Transgender Persons was launched. A scheme for ‘Garima Greh Shelter Home’ for Tansgender Persons was also developed to provide them with safe shelter. 

Conclusion

So, now that homosexuality has been decriminalised by the Hon’ble Supreme Court of India, the reaction of society is still a challenge for the whole LGBTQIA+ community. Unfortunately, there are few organisations even now, such as the All India Muslim Personal Law Board and the Jamaat-e-Islami Hind, that have expressed their disappointment towards the verdict given by the Apex Court on Section 377. There also exist organisations and parties, namely, Amnesty International, the RSS, CPI(M), and the UN, that are satisfied with the given verdict. According to the surveys conducted by various LGBTQIA+ activists in different parts of the country, life is much better and simpler for the LGBTQIA+ community. Every society needs time to accept any change. The time is not far when society will accept the LGBTQIA+ community and all their rights.

The court read down Section 377 to exclude consensual sexual acts between same-sex adults, but the section will continue to apply to non-consensual sexual acts, sexual acts against children, and also bestiality. The courts have always been used to unlock social progress, and as an example, they have struck down the deep-rooted stigma of criminalising homosexuality as an unnatural offence. Through this judgement, the court has helped to recognise the members of the community as well as their fundamental rights, and now it is the time to reconsider their marital rights in light of the case of Shakti Vahini v. Union of India (2018), wherein the court held that the right to choose a partner is a part of the right to life under Article 21. Also, the right to marry has already been recognised under Article 12 of the European Convention on Human Rights, Article 16(1) of the Universal Declaration of Human Rights, 1949, Article 23(2) of the International Covenant on Civil and Political Rights, 1966, and Article 23(1)(a) of the United Nations Convention on the Rights of persons with disability, 2006.

This judgement has addressed decades long battles against marginalisation and discrimination of this community. There has been a continuous demand for justice by these members, and even the courts have stood for them, but now it is time for Parliament as well to fulfil their demands in order to uphold constitutional values. Though the path to transform the law and suppress oppressive social structures is difficult and long, with this judgement, nothing is impossible now. 

Frequently Asked Questions (FAQs)

Which section criminalised homosexuality?

Section 377 of the IPC criminalises homosexuality as an offence against the order of nature.

Has Section 377 been struck down after the Navtej Singh judgement?

No, Section 377 has been partially struck down and partially held valid, through which it still criminalises non-consensual sexual acts among homosexuals.

Which judgement upheld the constitutional validity of Section 377?

Suresh Kumar Kaushal v. Naz Foundation reversed the judgement given in Naz Foundation v. Government of NCT, Delhi and held that Section 377 is constitutionally valid and not violative of our Constitution.

Which rule of construction was applied by the court in the present case?

The court applied the golden rule of interpretation in the present case of Navtej Singh Johar v. Union of India.

Which organisation started with the struggle to decriminalise homosexuality?

Naz Foundation was the NGO which started with this struggle by filing a petition before the Delhi High Court in 1994.

Are the marriages of homosexuals recognised under the Hindu Marriage Act or the Special Marriage Act?

No, their marriages have still not been recognised under any Indian law, and they have filed a review petition against the same before the Hon’ble Supreme Court.

Which all fundamental rights were violated when members of LGBTQIA+ community were punished under Section 377?

The court has noted in the present judgement that the criminalisation of homosexuality violated Article 14, 15, 19(1)(a), and 21 of the Indian Constitution.

Are bestiality and sexual acts against children still criminalised under Section 377 of the IPC?

Yes, since Section 377 was partially struck down, it still makes bestiality and sexual acts committed against the children against the order of nature a punishable offences.

What was the major reason behind this struggle?

This struggle was aimed at ending the discrimination and harassment against the queer community and granting them all the rights that heterosexuals have. 

References

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