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Recently, a 5 Judge Constitution Bench of the Supreme Court of India, in Navtej Singh Johar and others vs. Union of India 2016, has passed a judgment dated 06.09.2018 (Judgment) whereby it decriminalized the act of consensual sexual relationship between adults, whether of the same gender or otherwise, in private and that it would not fall under the category of an unnatural offence under Section 377 Indian Penal Code 1860 as amended thereof (IPC). The Supreme Court in this Judgment overruled its earlier judgment in Suresh Kumar Koushal & Anr. v. Naz Foundation & Ors. 2014, where it held that Section 377 IPC is not unconstitutional as it does not violate the right to privacy, autonomy and dignity of a miniscule population comprising of lesbian, gay, bisexual and trans (LGBT) communities.

In this Judgment, the Supreme Court made the following observations:

That there is a need to move forward from the deeply embedded stereotypes, prejudiced notions and dogmatic social norms in our society so that there is no discrimination and social exclusion of any individual, community, etc.

That the natural identity of individuals and their inherent personality have to be respected and not belittled.

That a 2-Judge Bench of the Supreme Court in National Legal Services Authority v. Union of India and others 2014 recognized the transgender as a third gender, thereby recognizing their right to equality under Article 14 of the Constitution of India 1950 as amended thereof (the Constitution of India) and their right to life with dignity under Article 21 of the Constitution of India. It further observed that gender identification is very essential for enjoying civil rights by the LGBT community including their right to vote, right to own property, right to marry, right to claim a formal identity through a passport and a ration card, a driver’s license, right to education, employment, health so on.

That it is a constitutional duty to allow individuals/partners to behave and express themselves in a sexual relationship, with the consent of the other partner.

That it does not matter whether the concerned LGBT community comprises a miniscule of the entire population and that the Constitutional framers did not intend to protect the fundamental rights of only a majority population.

Further, the Supreme Court in Justice K S Puttaswamy (Retd.), and Anr vs. Union of India and Ors 2017, has held that right to privacy is a fundamental right under Article 21 of the Constitution of India.

Right to privacy and liberty:

Sexual orientation is an essential and innate facet of privacy and the right to privacy includes right of every individual including that of the LGBT to express their choices in terms of sexual inclination without the fear of persecution or criminal prosecution.

Further, sexual autonomy of individuals to choose their sexual partner is an important facet of liberty.

Therefore, to prevent or oppose the exercise of such right to privacy and/or liberty would mean to deprive them of their right to life and personal liberty under Article 21 of the Constitution of India.

That the discrimination and unequal treatment meted out to the LGBT community as a separate class of citizens indulging in carnal intercourse (alleged to be against the order of the nature) does not have reasonable nexus with the object it (classification) sought to achieve, i.e. protection of women and children from being subjected to carnal intercourse. Therefore, such a classification has been held to be unconstitutional for being violative of Article 14 of the Constitution of India.

Further, Section 377 IPC, to the extent that it criminalizes consensual sexual acts of whatever nature between competent adults, has a chilling effect on an individual’s freedom of choice. Therefore, it amounts to an unreasonable restriction on the fundamental right of freedom of expression including the right to choose a sexual partner under Article 19 of the Constitution of India. Moreover, Section 377 IPC has been used as a weapon to seclude and harass the LGBT community by the majority population.

Therefore, Section 377 IPC, to the extent that it penalizes consensual sexual activity between homosexuals, heterosexuals, lesbians, etc who are competent adults, has been held to be unconstitutional on the grounds that it is violative of the right to dignity and the right to privacy of such individuals. This may enable eradication of the prejudice and oppression caused to the discriminated class of people.

Therefore, the Supreme Court in this Judgment held Section 377 IPC, to the extent that it criminalizes consensual sexual acts between competent adults in private, as violative of Articles 14, 15, 19, and 21 of the Constitution of India.

Harini Daliparthy

Senior Legal Associate

The Indian Lawyer

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