This article is written by Kumari Shalini, a student at Lloyd Law College, Gr. Noida. This article delves into the case of Naz Foundation v. Govt. of NCT of Delhi and discusses the steps taken by the government to uphold the rights of the LGBTQ community.
It has become very common to see two genders of the same sex, referred to as ‘homosexuals’, develop an infatuation for each other, and gradually feel connected. However, homosexuality has been taboo in our society, considered “unfaithful” and “immoral”. Sexuality has always been viewed as a challenging issue in present times. In the 21st century, where society has become quite liberal, it fails to a great extent in considering the legal rights of gays, lesbians, transgenders, etc. It is broadly recognized that sex and sexually-oriented minorities experience social and political underestimation in many social orders. The degree of this is a profound factor, contrasting across nations, states, and international areas. Such underestimation brings about types of separation like mental and actual maltreatment, rape, misuse, disregarding, constrained heterosexual marriage, and transformation treatment. This can prompt social and political seclusion and a higher predominance of psychological well-being issues.
In light of this, the Supreme Court of India, on September 6, 2018, legitimized Section 377 of the Indian Penal Code, 1860 making gay sex legal. The SC, in its verdict, mentioned that consensual sex between adults in private space, not harming women or children, cannot be denied as it stands as a matter of individual choice. Based on this case is a documentary by Sridhar Rangayan – ‘Breaking free’, which lucidly gives sufficient evidence through personal experiences of an individual from their real-life journey. It shows that the law is being misused by the police, other officials, and blackmailers to torture and even rape the people of the LGBTQ community.
Naz Foundation v. Government of NCT of Delhi – an overview
The case of Naz Foundation v. The Government of NCT of Delhi (2009) is one of the first case laws wherein Section 377 of the IPC was held unconstitutional, as it discriminated against the LGBTQ community of the country and violated their privacy as individuals. This case was the first milestone in the journey of decriminalizing Section 377 and providing respite to the LGBTQ societies. They sought legislation, which permitted the homosexual majors to have intercourse. Section 377 of the IPC had been introduced during the British period; – the offence under Section 377 of the IPC existed for almost sixty-eight years after we gave ourselves a liberal Constitution. Gays, lesbians, transsexuals, and bisexuals continue to be denied genuine equivalent citizenship even after seventy years of freedom.
In 2009, Naz Foundation, a non-governmental organization challenged the constitutionality of Article 377 under Articles 14,15,19, and 21 of the Indian Constitution under the steady gaze of the Delhi High Court. The foundation argued that Section 377 of the IPC mirrors outdated comprehension of sex which is not welcomed in society. This case constituted a five judge-bench headed by Chief Justice Deepak Mishra and justices RF Nariman, AM Khanwilkar, DY Chandrachud, and Indu Malhotra. The foundation referred to an occurrence in 2001 in Lucknow, where HIV anticipation labourers, who were appropriating condoms to gay men, were captured on the claim that they were plotting to commit an offence. The Naz Foundation additionally said that the arrangement was being abused to turn down consensual sex that is not peno-vaginal.
In the first instance, the Delhi High Court refused to consider the petition by saying that the petitioner did not have any right to come before the court on this matter. However, the Supreme Court, after hearing from the Naz Foundation, said that it has the right to file the Public Interest Litigation (PIL) before the High Court.
The Delhi High Court concluded that Section 377 of the IPC cannot be used to punish two consenting adults for sex, as this violates the basic fundamental right to privacy which is an intrinsic element of Article 21. The Honourable Delhi High Court also held that categorizing people based on sex violates another basic fundamental right, i.e, Article 14 of the Constitution, which states that all of us, by virtue of being human beings, enjoy the same human rights and have equal access to them.
After this landmark judgment, many curative petitions were filed against this ruling. In the petitions, many organizations and social groups argued that the right to privacy does not give the privilege to commit any offence. Also, many of them argued that decriminalisation of Section 377 of the IPC would be a catastrophe for the institution of marriage and this will persuade young minds towards homosexuality and will hamper society’s growth.
Former Chief Justice of India Deepak Mishra, while penning down the judgment of the Navtej Singh Johar case (2018), quoted on behalf of Justice A.M. Khanwilkar and himself:
“Not for nothing, the great German thinker, Johann Wolfgang von Goethe, had said, ―I am what I am, so take me as I am and similarly, Arthur Schopenhauer had pronounced, ― “No one can escape from their individuality”. In this regard, it is remarkable to quote a few lines from John Stuart Mill – But society has now fairly got the better of individuality, and the danger which threatens human nature is not the excess, but the deficiency of personal impulses and preferences. The emphasis on the unique being of an individual is the salt of his/her life. Denial of self-expression is inviting death. Irreplaceability of individuality and identity is a grant of respect to self. This realization is one‘s signature and self-determined design. One defines oneself. That is the glorious form of individuality.”
Views of the Ministry of Home Affairs (MHA)
The term homosexuality was coined in the late 19th century and used to describe sexual intercourse between members of the same sex. It was declared unnatural by the colonial rules and laws. Section 377 of the IPC has not only been about anal sex or simply intercourse alone, but it applies to homosexuality in general; their mental health, companionship, and an overall healthy relationship between the two partners, which is essential for a stress-free life. In the Naz Foundation case, the affidavit filed by the Ministry of Home Affairs in the Supreme Court had made it clear that it would not make any demands to declare Section 377 of the IPC unconstitutional, which criminalises same-sex relations between two consenting adults in private.
A much peculiar feature of this case is that contradictory affidavits had been filed by the two wings of the Union of India. The Ministry of Home Affairs sought to justify the withholding of Section 377 on the following grounds: firstly, being it provides prosecution of the individual for the sexual abuse of children, secondly, if removed, it will bring about more delinquent behaviour from the youth and would thereby affect the public interest and social behaviour.
On behalf of the Ministry of Home Affairs, Government of India, Shri Venu Gopal filed an affidavit and argued that Section 377 does not go under any constitutional fragility. He further stated that an unlawful act cannot be termed legitimate just because the victim consents to it, and that this provision is not violative of Articles 14 and 21 of the Constitution. According to him, it provides punishment for unnatural sex offences and carnal intercourse against the order of nature and does not make any difference between procreative and non-procreative sex.
View of the Ministry of Health & Family Welfare (MOHFW)
The Ministry of Health and Family Welfare was against the retention of Section 377 of the IPC and presented their affidavits to remove this Section. The Ministry of Health and Family Welfare, in conjunction with NACO (National Aids Control Organization), had filed the affidavit through Shri. M.L. Soni, under Security to the Government of India. He indicated that the strategies adopted by NACO for the prevention and control of the disease HIV/AIDS includes the identification of groups at higher risk and equipping the necessary tools for protection and medical care. The informant asserted that the National Sentinel Surveillance Data of 2005 estimated that the occurrence of HIV in ‘men who have sex with men’ (MSM) is 8%, while when compared with the general population, it is only 1%. The MSM population was estimated at 25 lakh in January 2005. Shri Soni also stated that NACO has developed various programmes for undertaking intercedes among the MSM population and that for the prevention of HIV/AIDS, there is a need for an atmosphere where people indulging in such occurrences may be encouraged not to hide information and avail of the NACO services.
The above-mentioned argument was also made before the Supreme Court by ASG Mohan Jain who in the favour of MoHFW, argued that “because of their risky sexual behaviour, MSM and female sex workers are at a high risk of getting HIV/AIDS as compared to normal human beings”. The Ministry of Health and Family Welfare stated that the continuance of Section 377 has hampered the efforts to prevent HIV/AIDS and has also increased the practices of unprotected sex.
The outcome of the landmark case
Former Chief Justice A.M. Khanwilkar mentioned that the most common argument against criminalizing homosexuality is claiming that the essential purpose of sex is to procreate. In light of this argument, Justice Deepak Mishra wrote:
“With the passage of time and evolution of the society, procreation is not the only reason for which people choose to come together, have live-in relationships, or even marry. They do so for a whole lot of reasons including emotional companionship, and strong bonds. Homer Clark writes-The most significant function of marriage today seems to be that it furnishes emotional satisfactions to be found in no other relationships. For many people, it is a refuge from the coldness and impersonality of contemporary existence. In the contemporary world where even marriage is now not equated to the procreation of children, the question that would arise is whether homosexuality and carnal intercourse between consenting adults of the opposite sex can be tagged as ‘against the order of nature.’ It is the freedom of choice of two consenting adults to perform sex for procreation or otherwise and if their choice is that of the latter, it cannot be said to be against the order of nature. Therefore, sex, if performed differently, as per the choice of the consenting adults, does not make it against the order of nature”.
Thus, the Supreme Court, ruled that gay sex among consenting adults is not a criminal offence. It held that Lesbians, Gays, Bisexuals, and Transgenders possess the same constitutional rights as the other citizens of this country. It termed homosexuality as a biological phenomenon, and any discrimination on this ground would violate fundamental rights.
Regardless of such landmark judgments by the Indian judiciary, India’s sexual minorities still face discrimination in the business, medical sphere and in getting individual rights. This makes them incongruent with the nation’s living, liberal and comprehensive Constitution. It devoids them of their rights and hinders their social growth. Justice Anthony Kenedy, the judge of the US Supreme court, said in Obergefell v. Hodges (2015) that we cannot compromise on the basic human right of marriage and cannot deny them to same-sex people.
The LGTBQ community needs an anti-discrimination law that empowers them to build productive lives and relationships irrespective of gender identity or sexual orientation and place the duty to change on state and society, not the individual. Article 15 of the constitution states that there should be no discrimination based on sex and gender. If we aim to truly eradicate gender discrimination from society, we would have to extend the scope of Article 15 and add grounds of non-discrimination including sexual orientation and gender identity.
The Constitution is perceived and portrayed as a flare of fundamental rights. But in this race, the LGBTQ Community is still far away from the winning line. If we have to normalize the LGBTQ society and their rights, the power and responsibility should be left not only to the government officials, the main strain should be on the civil society to accept the rights of the LGBTQ community and accept them as they are.
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