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Navtej Singh Johar v. UOI- Judgment which Decriminalized Homosexuality

This article is written by Amandeep Kaur, a student of Symbiosis Law School, Pune. The author in this article has discussed in detail the long journey of section-377 of IPC, its history, challenges faced and finally decriminalization of section-377. 

Introduction

India has acquired a place among the 28 countries of Asia to legalize homosexuality and to recognize LGBT rights. The judgment passed in Navtej Singh Johar v. Union of India has changed the life of many in the country. Prior to this judgment, the Lesbian Gay Bisexual Transgender Community didn’t have such rights as Homosexuality was a punishable offence under sec-377 of the Indian Penal Code, 1860.

Historical Background of Section-377

Homosexuality was never a crime or punishable in ancient India. There are many instances which prove this point. Following are some of the instances:

Who criminalized homosexuality?

This is a question which every person of the LGBT community is curious to know. Indian Penal Code 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 sec-377 was one of them. Section-377 IPC was framed according to the Buggery Act which was a law of the 16th century. 

The Buggery Act, 1533

This act defined homosexual acts, sodomy, sexual activities involving animals as unnatural offences. The Parliament of England passed this Act in 1533 under the kingship of King Henry VII. This act defined buggery as an act which is against the will of God. Under this act, unnatural offences were punishable by death. The very first law commission of India which was under Thomas Macaulay brought this law in India and drafted it as sec-377 of Indian Penal Code of 1860.   

Challenges to Section-377

NGO- AIDS Bhedbhav Virodhi Abhiyan (ABVA)

The very first challenge faced by Sec 377 was in 1994. This NGO filed a petition in the Delhi High Court for decriminalizing this section. The facts were that after observing homosexuality in the Tihar Jail the workers of the NGO wanted to distribute condoms among the male inmates. The then superintendent of Tihar Jail, Kiran Bedi disapproved this as according to her, this would have encouraged homosexuality. This petition was then dismissed in 2001.

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

Facts of the case- it was a special leave petition filed by Naz Foundation, a Non-Governmental Organisation in 2006 as a PIL filed by it in 2001 which was dismissed in 2004 followed by a review petition which was again dismissed for challenging the constitutional validity of sec-377 of IPC which criminalizes homosexuality. 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, abused from public and was also neglected by public authorities. According to the petitioner sec-377 of IPC is also violating some of the fundamental rights of homosexuals such as Article 14, 15 and 21. 

Issues raised

Arguments from the Petitioner side 

Arguments from the Respondent side

Judgment Given

Suresh Kumar Koushal and Ors. Vs. NAZ Foundation and ors.

Appeal- This case is an appeal against the previous judgment on section-377 of IPC i.e. against the case NAZ Foundation vs. Government of NCT and Ors.

Issues raised

Arguments from the Appellant side 

Arguments from the Respondent side

Judgment given

 Navtej Singh Johar and ors. Vs. Union of Indian and ors.

Appeal- This case is an appeal against the judgment 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.

Issue raised– The main issue here raised was about the constitutionality of section-377 of IPC.

Submissions from Petitioner side

Submissions from Respondent side 

Judgment given

Conclusion

So now homosexuality has been decriminalized but the reaction of society and different organisations is still a challenge for the LGBT community. Though there are organisations such as All India Muslim Personal Law Board and the Jamaat-e-Islami Hind who expressed their disappointment towards the verdict given by the Apex Court on section-377. There also exist organisations and parties who are satisfied with the given verdict, namely, Amnesty International, RSS, CPI(M) and UN. According to the surveys conducted by various LGBT activists in different parts of the country, life is much better and simple for the LGBT group. Every society needs time to accept any change. The time is not so far when the society will accept the LGBT community and their rights.