Section 377 of the Indian Penal Code (IPC) criminalised consensual sexual intercourse between persons of the same sex for being “against the order of nature”. In 2009, before the Delhi High Court, the Naz Foundation (India) Trust (“Naz”) challenged the constitutionality of Section 377 for violating Articles 14, 15, 19 and 21 of the Constitution. The court ruled that punishing sexual activity between two consenting adults under Section 377 violates the right to equality, privacy and personal liberty of such persons.
This decision was appealed before the Supreme Court and in 2013, the Court reversed the Naz verdict in Suresh Kumar Koushal & Anr. v. Naz Foundation & Ors. (“Koushal”). It held that only the Parliament could decriminalize homosexuality.
Five individuals from the LGBTQ communities (Navtej Singh Johar, Ritu Dalmia, Ayesha Kapur, Aman Nath and Sunil Mehra) filed a new writ petition challenging the constitutionality of Section 377.
ISSUES & DECISION:
The Court deliberated on the soundness of the Koushal decision. It also considered whether Section 377 violates:
- Article 14 as it discriminates against individuals on the basis of their “sexual orientation” and “gender identity”?
- The right to autonomy and dignity under Article 21 by penalizing private consensual acts between same-sex persons?
- The right to expression under Article 19(1)(a) by criminalizing the gender expression of the LGBTQI+ community?
The Decision in ‘Koushal’
All five judges overruled Koushal. The Court drew on the doctrine of progressive realisation of rights to hold that rights should not be revoked. The march of a progressive society should only be forward.
The Court also noted the guarantee of a fundamental right to privacy in Justice K. S. Puttaswamy (Retd.) vs Union Of India and held that Koushal’s finding that Section 377 affected only a ‘miniscule minority’ cannot be the basis to deny the right to privacy. It observed that minorities face discrimination because their views and beliefs do not align with the majority and the Koushal decision violated the right of all persons to equal protection.
The Litmus Test for Survival of Section 377
The Supreme Court tested the constitutionality of Section 377 against the principles of equality, liberty, dignity under Articles 14, 19 and 21.
- Right to Equality and Non-Discrimination: The Court observed that Section 377 arbitrarily punishes individuals who engage in same sex relationships. To substantiate this, the Court noted that Section 377 classifies and punishes individuals who engage in carnal intercourse against the order of nature to protect women and children. However, this objective has no reasonable nexus with the classification, as unnatural offences have also been separately penalised under Section 375 and the POCSO Act. Therefore, the Court held that the unequal treatment of LGBT individuals violates Article 14.Further, the Court held that Section 377 is manifestly arbitrary as it does not distinguish between consensual and non-consensual sexual acts between adults. It targeted people exercising certain choices and treated them as “less than humans” and encouraged prejudices and stereotypes accompanied by debilitating social effects. This violates Article 14, which is the very basis of non-discrimination.
- Freedom of Expression: The Court acknowledged that all persons, including LGBTQI individuals, had the right to express their choices without any fear. It recognized same-sex sexuality as a normal variant of human sexuality. In particular, the Court noted that Section 377 stigmatises and discriminates against transgender persons.Next, the Court tested whether public order, decency and morality are reasonable grounds to restrict the right to freedom of expression of sexuality under Article 19(1)(a). It noted that Section 377 criminalises private consensual acts which neither disturb public order, nor injure public decency or morality. Sexual acts cannot be viewed solely from the lens of morality where they are seen to be purely for procreation. An unreasonable restriction on acts within a person’s private space will have a chilling effect on freedom of choice.For these reasons, the Court held that Section 377 is disproportionate and violates the fundamental right to freedom of expression.
- Right to Life and Personal Liberty: The Court held that Section 377 violates human dignity, decisional automony and the fundamental right to privacy. Every individual has the liberty to choose their sexual orientation, seek companionship and exercise it within their private space. As Section 377 inhibits the exercise of personal liberty to engage in voluntary sexual acts, it violates Article 21. It socially ostracises LGBT persons and does not permit full realisation of their personhood.Denying the right to determine one’s sexual orientation curtails the right to privacy of an individual. Therefore, the Court held that the scope of the right to privacy must be widened to incorporate and protect ‘sexual privacy’.
“the Order of Nature”
Section 377 criminalises ‘unnatural sex’ which is “against the order of nature”. The Court held that such a classification between natural and unnatural intercourse is not legally valid. Naturalness should not determine the legality or acceptance of a phenomenon. Penal consequences for an act that is unnatural or wrong cannot be imposed without sufficient justification.
The Court described ‘constitutional morality’ as the ideals and morals of the Constitution and the values that create an inclusive society. It recognized the Constitution as a tool to transform society. A decision on whether a penal provision violates fundamental rights must be guided by the principles of constitutional morality and not societal morality. Where a constitutional court finds that a provision violates constitutional morality, it must be struck down.
The Court observed that India is a signatory to the Yogyakarta Principles which prohibits discrimination on the grounds of sexual orientation and gender identity. NALSA vs. Union of India also relied on these principles, though they are not binding, to uphold the right of non-discrimination on the grounds of gender identity. Relying on the Yogyakarta Principles and NALSA, the Court held that Section 377 does not conform with India’s international obligations.
The Court upheld the right to equal citizenship of all members of the LGBTQI community in India. Thus, it read down Section 377 to exclude consensual sexual relationships between adults, whether between same-sex individuals or otherwise. Section 377 will continue to apply to non-consensual sexual activity against adults, sexual acts against minors and bestiality.
The five-judge bench of the Supreme Court overruled the Koushal decision. It unanimously read down Section 377 and decriminalised same-sex relations between consenting adults. It applies to all citizens, and not just to the LGBT community. This judgment holds immense persuasive value for other nations which continue to criminalise homosexuality.