Section 377 Decriminalized

Social Issues Transgender

In Navtej Singh Johar v/s Union of India case the 5 judges Constitutional Bench, headed by Chief Justice declared the parts of Section 377 of the IPC unconstitutional thus decriminalizing homosexuality.

The ruling declares that Section 377 violates Articles 14, 15 and 21 insofar as it penalises any consensual sexual relationship between two adults in private, be it homosexual, heterosexual, lesbian or transgender persons.Provisions of Section 377 remain applicable in cases of non-consensual carnal intercourse with adults, all acts of carnal intercourse with minors, and acts of bestiality.

Background on Section 377 of IPC and related Judicial Pronouncements :

Section 377 of the Indian Penal Code, 1861, (IPC) came into force in 1861 during the British rule to criminalise sexual activities “against the order of nature”, including homosexual activities. In July 2009, in Naz Foundation case the Delhi High Court had decriminalised homosexuality among consenting adults, holding it in violation of Article 14, 15 and 21 of the Constitution of India. The Supreme Court in 2013 in the Suresh Kumar Koushal versus Naz Foundation case overruled the Delhi High Court’s order on the basis of the fact that “miniscule fraction of the country’s population constitute LGBTQ,” and that in over 150 years less than 200 people were prosecuted for committing offence under the section.Thus, the Supreme Court reinforced the criminalisation of homosexuality.

Highlights of the verdict :

Sexual autonomy and Right to Privacy: A person’s sexual orientation and autonomy to choose his/her sexual partner is an important pillar and an in segregable facet of individual liberty. It is an expression of identity protected in various ways by Article 14, 15 and 21. Discrimination on the basis of sexual orientation is violation of freedom of choice and expression (Article 19). Restrain on State Action: Expression of intimacy is at the heart of right to privacy. Right to sexual orientation is a vital personal right falling within the private protective sphere and realm of individual choice and autonomy. The state has no business to intrude into these personal matters. This also includes right of persons of the community to navigate public places on their own terms, free from state interference. Section 377 of the IPC: Observing it as “capricious and irrational”, the court said that Section 377 fails to make a distinction between consensual and non-consensual sexual acts between competent adults making it manifestly arbitrary. This is violative of the right to equality that includes the right against arbitrariness. Moreover, it does not take into account that consensual sexual acts between adults in private space are neither harmful nor contagious to society. Rule of Law instead of Rule by the law: Court observed that Section 377 provides for rule by the law instead of the rule of law. The rule of law requires a just law which facilitates equality, liberty and dignity in all its facets. Rule by the law provides legitimacy to arbitrary state behaviour. Section 377 “infringed” on the fundamental right to non-discrimination, to live a life of dignity, and privacy guaranteed in the Constitution. Constitutional morality: It must seek to make a society pluralistic and inclusive. Any attempt to impose a homogeneous, uniform, consistent and a standardised philosophy would violate constitutional morality. It is the responsibility of all three organs of the State to curb any propensity of popular sentiment or majoritarianism. Against Majoritarianism: While rejecting the logic in Suresh Koushal case(2013) that the LGBTQI community forms only a tiny part of the population, the SC said that Constitution is not for just the majority, the fundamental rights are guaranteed to “any person” and “any citizen”, and the sustenance of these rights does not require majoritarian sanction. Health aspect: Homosexuality is neither mental illness nor moral depravity. The SC quoted the Indian Psychiatric Society’s view that “homosexuality is not a psychiatric disorder”, and that same-sex sexuality is a normal variant of human sexuality, much like heterosexuality and bisexuality. Moreover, India’s new mental illness law does not consider homosexuality to be a mental illness.

Analysis of the judgement :

Court pronounced that LGBTQ possess full range of constitutional rights, including sexual orientation and partner choice, LGBTQ has equal citizenship and equal protection of laws. It will help in enforcing principles of social justice, based upon the importance of diversity and human rights. Court has added a new test of constitutional morality to examine the constitutionality of laws enacted by Parliament. The verdict enlarges the scope of personal freedom by giving preference to constitutional morality over social morality. Transformative constitutionalism, that is, treating the Constitution “dynamic, vibrant and pragmatic”, responsive to its citizens, and not a lifeless text. Right to Sexual Health: The verdict highlights both negative and positive obligations of the state to ensure the health and well-being of LGBTQ individuals.Negative obligations amount to the state’s non-interference with the right to health.Positive obligations entail access to health services and treatment facilities. It asks for sensitive counsellors and health workers “to help individuals, families, workplaces and educational and other institutions” to understand sexuality and foster equality, non-discrimination and a respect of human rights.In addition, it would help efforts at HIV/AIDs prevention which was hindered due to stigma and fear of prosecution among homosexuals and transgender persons. The SC also emphasised that attitudes and mentality have to change to accept the distinct identity of individuals and respect them for who they are rather than compelling them to become who they are not. The SC urged the government to broadcast this judgement and organise public awareness campaign to eliminate stigma against LGBTQ people. Government officials, police, should be given periodic sensitisation campaigns. The SC also apologised to the India’s LGBTQ people (lesbian, gay, bisexual, transgender, queer) and their families, for the delay in providing redressal for the ignominy and ostracism they have suffered.

Concerns yet to be addressed :

Since the ruling would not be retrospective, so people convicted under Section 377 are left without any effective remedy. According to data from the National Crime Records Bureau (NCRB) between 2014 and 2016, there were 4,690 cases of persons being booked under Section 377. Decriminalising gay sex is only the first step towards creating a more equal society. A 2016 survey by Mission for Indian Gay and Lesbian Empowerment (MINGLE) revealed one in five LGBT employees were discriminated against at the workplace. Such discrimination has economic costs too. A 2014 World Bank report said India loses $31 billion due to stigma and exclusion of the community. Court judgments or laws cannot remove social prejudices on their own. The recent judgment on mob lynching is an example. India’s social and political groups will have to show the courage and will power to realise the judgement on ground. Supreme Court judgment has merely decriminalised homosexuality, but it has not altered the civil law/Personal laws on it. The validation of homosexual marriages, inheritance and adoption require legislation on which Parliament has to work.

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