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Decriminalization of consensual sex between adults - An Analysis of Naz Foundation Case

Written by: Joyjyoti Mahanta - Student of Law, Haldia Law College
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In an unprecedented decision, the Delhi High Court annulled the law that criminalizes adult homosexual relations. Pronouncing the order in Naz Foundation (India) Trust v. Government of NCT, Delhi and Others, Writ Petition (Civil) No. 7455 of 2001, a division bench of Chief Justice A.P Shah and Justice S. Murlidhar said We declare that Section 377 IPC, in so far it criminalizes consensual sexual acts of adults in private, is violative of Articles 21, 14 and 15 of the Constitution.

About the Naz Foundation case

In 2001, Naz Foundation filed a public interest litigation before the Delhi High Court challenging the constitutional validity of Section 377 of the Indian Penal Code, 1860. The Delhi High Court dismissed the Petition in 2004 holding that the question was merely academic and there did not lay a cause of action. A subsequent review petition was also dismissed.

Naz Foundation then filed a Special Leave Petition before the Supreme Court of India challenging the orders of the Delhi High Court. On 03.02.2006, the Supreme Court set aside the order the Delhi High Court and remanded the case back to the Delhi High Court for a decision on the merits of the case. In 2nd July 2009, the Delhi High Court annulled the law that criminalizes adult homosexual relations, ending an eight year old legal battle for gay rights. Again On 20th July, 2009 one Mr. Suresh Kumar Koushal’s file a Petition in the Supreme Court against the Delhi High Court judgment which decriminalized consensual sex between adults under Section 377.

Violation of Constitutional provisions

Criminalization of homosexual conduct is unreasonable and arbitrary

Section 377 IPC's legislative objective of penalizing “unnatural sexual acts” has no rational nexus to the classification created between procreative and non-procreative sexual acts, and is thus violative of Article 14 of the Constitution of India. Infringement of, the right to equal protection before law requires the determination of whether there is a rational and objective basis to the classification introduced. There should be a just and reasonable nexus between the classification and the object sought to be achieved by the legislation. Section-377 of IPC, its legislative objective is to criminalize all the sexual activities which are against the order of nature, thus punishing the unnatural sex. Section-377 assumes that natural sexual act is that which is performed for procreation. Hence, it thereby labels all forms of non-procreative sexual act as unnatural.

This gives a very narrow view to the distinction between the procreative and non-procreative sexual act. Hence, the legislative intent of creating a public code of sexual morality has no rational nexus with the classification created. Further the very object of the section is vague, unreasonable, and arbitrary and based up on the stereotyped notion that sex is only for procreation. Now if this presumption is accepted is correct then, what justifies the policies of family planning and the use of the contraceptive devices “Sex” as used in Article15 cannot be read restrictive to “gender” but includes “sexual orientation” and, thus read, equality on the basis of sexual orientation is implied in the said fundamental right against discrimination. Criminalization of predominantly homosexual activity through Section 377 IPC is discriminatory on the basis of sexual orientation and, therefore, violative of Article 15.

The prohibition against homosexuality in Section 377 IPC curtails or infringes the basic freedoms guaranteed under Article 19 (1)(a) (b) (c) & (d); in that, an individual’s ability to make personal statement about one’s sexual preferences, right of association/assembly and right to move freely so as to engage in homosexual conduct are restricted and curtailed.

The prohibition of certain private, consensual sexual relations (homosexual) provided by Section 377 IPC unreasonably abridges the right of privacy and dignity within the ambit of right to life and liberty under Article 21. Right to privacy is implicit in the right to life and liberty and guaranteed to the citizens, in order to be meaningful, the pursuit of happiness encompassed within the concepts of privacy, human dignity, individual autonomy and the human need for an intimate personal sphere require that privacy – dignity claim concerning private, consensual, sexual relations are also afforded protection within the ambit of the said fundamental right to life and liberty given under Article 21.

In Maneka Gandhi v. Union of India, (1978) 1 SCC 248, a seven-Judge Bench decision, P.N. Bhagwati, J. (as his Lordship then was) held that the expression “personal liberty” in Article 21 is of the widest amplitude and it covers a variety of rights which go to constitute the personal liberty of man and some of them have been raised to the status of distinct fundamental rights and give additional protection under Article 19.

Public morality is not the province of criminal law and Section 377 IPC does not have any legitimate purpose. Section 377 IPC makes no distinction between acts engaged in the public sphere and acts engaged in the private sphere. It also makes no distinction between the consensual and non-consensual acts between adults. Consensual sex between adults in private does not cause any harm to anybody. Thus it is evident that the disparate grouping in Section 377 IPC does not take into account relevant factors such as consent, age and the nature of the act or the absence of harm caused to anybody. Public animus and disgust towards a particular social group or vulnerable minority is not a valid ground for classification under Article 14. Section 377 IPC targets the homosexual community as a class and is motivated by an animus towards this vulnerable class of people.

Finally, I want to conclude by saying that homosexuality is not an offence; it is just a way of pursuit of happiness, a way to achieve sexual happiness or desire. I can see absolutely no reason, apart from blind prejudice, which prevents two gay people going through a civil ceremony which will give them the rights and securities which heterosexual couples enjoy. Marriage is a sign of commitment and love. If two men or two women want to show that commitment, how does that destroy or damage the ideals of marriage.

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# Ranbow Rights:
The decision of the US Supreme Court in Obergefell et al v. Hodges, Director, Ohio Department of Health, et al (2015) US No. 14-556, regarding the constitutionality of same-sex marriages is a welcome one.
# Law & Morality Debate in the Context Of Suicide & Homosexuality
# Same Sex Relationship - Time for Legal Recognition in India
# Decriminalization of Homosexuality In India
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Right of Foreign Homosexuals to have a Surrogate Child in India:
A recent news piece that has caught everyone’s eye is that an Israeli homosexual couple has got a surrogate child from India. Everywhere, people seem to be pleased about it, but when analyzed legally, it leaves us in a very befuddled state of mind.


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