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Decriminalising Article 377: Boon or Ban? A Case Analysis on Navtej Johar v Union of India

The concept of homosexuality was prevalent in India during the ancient times. We can trace the queerness back to the Indian history, scriptures to the medieval prose, poetry, and architecture. For instance, King Bhagiratha was born to two mothers which was considered both, miraculous and monstrous to the same-sex intercourse. In the Chapter of Purushayita in Kamasutra, there is a mention about lesbians named "Swarinis".

These are a few of the many known gregarious instances prevalent in the ancient Hindu scripts, having mention of same-sex love but not marriages. Moreover, India has abundant visuals of homosexuality such as the Sun Temple in Konark, Orissa, exhibits the sculptures depicting few scenes from the Kamasutra. We have temples in Puri and Tanjore where explicit images of queer couples are sculpted.

There are mentions of homosexuality in memoires of many travelers and many Sufi poetries during the Mughal period. Sufi Saint Bulleh Shah had pre-modern notions of sexuality, and this was undying importance in his poems. Furthermore, the tale of Sarmad Kashani, Armenia merchant who later become a Sufi saint. During his trade in India, he fell in love with a Hindu buy, Abhai Chand. Later, he left his business and lived with the boy in Thatta (a city in Pakistan) as his student.

It is a very common misconception that homosexuality is against our cultural values and traditions. The afore mentioned instance prove that homosexuality existed in India long before the Britishers come to India. It is very important to understand the history of homosexuality in India will help us to formulate a logical argument and endow a sense of identity upon the LGBTQIA+ community in India.

Now coming to the issue, we face regarding homosexuality in a modern society should indeed be a concerning thought. In 1860's, the Britishers believed that sexual practices were against the order of nature, hence The Indian Penal Code,1860 included a provision which criminalized consensual same-sex intercourse.

In 2014, the Supreme Court of India held that transgenders will be considered as a third category of gender in India.

he paradigm in which we exist today is the result of oppressions inclusive of racism and sexism which spanned throughout the long-gone centuries and had an egregious effect on the individuals who identified themselves under the LGBTQIA+ community, barring their well-being, both, mentally and physically.

In retrospection of the dynamics in the modern society, Supreme Court of India pleased the LGBTQIA+ community with its progressive judgment constituting a 5-judge bench, cited as Navtej Singh Johar v Union of India, 2018

In the above-mentioned case, the main concern was Section 377 of Indian Penal Code 1860, states consensual intercourse against the order of nature shall be punished with imprisonment for life or imprisonment upto 10 years and is also liable to fine. In laymen language Section 377 of Indian Penal Code criminalizes consensual same- sex intercourse.

It was only after the dismissal of the PIL filed in 2001 by the Naz foundation in the case of Naz foundation vs Government of NCT, followed by the review petition which essentially challenged the constitutional validity of Section 377 for violating Article 14,15,19 and 21of The Indian Constitution. Court rules that punishing sexual activity between 3 consenting adults under section 377 violates right to privacy, personal liberty of such individuals.

The judgement held in Naz Foundation case was appealed before the Supreme Court in Suresh Kumar & Anr. vs Naz Foundation & Ors. It reversed the Naz foundation verdict and held that only the parliament could decriminalize homosexuality. The court also gave the Doctrine of Progressive Realization of Right, which states, the march of a progressive society should only be forward.

The court upheld the verdict of Justice K.S Puttuswamy vs Union of India which guaranteed the fundamental right to privacy and observed that Section 377 affects only a "miniscule minority" which can't be the grounds to deny the right to privacy. It was observed that minorities face discrimination due to their ideas and beliefs which don't align with the majorities. This judgment was violative of the personal rights and equal protection.

Navtej Johar, Ritu Dalmia, Ayesha Kapur, Aman Nath, and Sunil Mehra from the LGBTQ community filed a writ petition challenging the constitutionality of Section 377 under the Indian Penal Code. It also examined whether Section 377.

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The petitioner argued that homosexuality isn't a kind of illness, but it is the reflection of personal choice. Such criminalization is a violation of Article 21 of the Indian Constitution as it effects the dignity and the gender identity of the individuals. The main argument of the petitioner was that Section 377 is a product of the Victorian era, where sexual activates were recognized solely for reproductive purposes. Retaining Section 377 will lead to the violation of the freedom of expression, right to privacy and more importantly, right to equality. Statically speaking, 7-8% of Indian population consider themselves to be a part of LGBTQIA+ community and thus, a need for recognition of their individual rights arises. The individuals of LGBTQIA+ community are exposed to the same dejectedness as the victims of inter-caste marriages; the right to choose their partner.

It is the duty of the court to protect their fundamental and constitutional rights. The petitioner also pointed out a fallback in Section 377 by highlighting that this section violates Article 15 as it discriminates based on the sex of an individual and that of their partners. Latterly, Section 377 gives no implications to the term "carnal intercourse against the order of nature" and the main drawback is that there is no reasonable classification between natural and unnatural sexual acts.

The respondents in their rebuttal emphasized on the possibility that the entire family system in India would get destroyed post the decriminalization of Section 377. They pointed out that this would lead to individuals opting for homosexual activates as a source of income, which may lead to them being victims of HIV/AIDS, and thus, such a paradigm, if it arose, will end up corrupting the young individuals. The main argument which was presented implied that fundamental rights are not absolute and such a decision, if made, would violate Article 25 of the Indian Constitution, as decriminalizing would leave all the practicing religion objectionable. The intent of criminalizing carnal intercourse against order of nature is to protect citizens form the brutal consequences to come, and to promote the objectives of the Criminal Laws in India. Article 15 prohibits discrimination on the basis of sex, and not sexual orientation. Hence, Section 377 is not violative of Article 15 of Indian constitution.

On 6th September 2018, the court delivered a unanimous verdict. The Court observed that Section 377 imposed arbitrary punishment on individuals engaging in same-sex relationships. In support of this argument, the Court noted that the section categorized and penalized those engaging in "carnal intercourse against the order of nature", supposedly to protect women and children. However, the Court found no reasonable connection between this objective and the classification used. The Court pointed out that "unnatural offences" were already separately penalized under Section 375 and the POCSO Act. Therefore, the Court concluded that the unequal treatment of LGBTQIA+ individuals violated the right to equality enshrined in Article 14.

Furthermore, the Court identified a clear instance of arbitrariness in Section 377's failure to distinguish between consensual and non-consensual sexual acts between adults. The Court argued that the Section targeted individuals exercising specific sexual choices, treating them as inferior and perpetuating prejudices and stereotypes with detrimental social consequences. This, the Court held, violated Article 14, the bedrock principle of non-discrimination.

The Court challenged the legal validity of Section 377's classification of sexual acts into "natural" and "unnatural." The judgment argued that the naturalness of an act should not be the sole criterion for its legality or social acceptance. The Court asserted that criminalizing an act solely on the grounds of being unnatural or morally wrong requires a compelling justification. In the absence of such justification, Section 377's classification was deemed inadequate.

The judgment acknowledged the fundamental right of all individuals, including those identifying as LGBTQIA+, to express their personal choices freely and without fear. It recognized same-sex sexual orientation as a natural variation within human sexuality. Furthermore, the Court emphasized that Section 377 unfairly stigmatizes and discriminates against transgender individuals.

The Court then examined whether public order, societal decency, and morality constituted legitimate justifications for restricting the right to express one's sexuality as guaranteed by Article 19(1)(a). It concluded that Section 377 criminalized consensual acts occurring in private spheres, which neither disrupted public order nor offended public decency or morality.

The Court emphasized that sexual activity should not be judged solely through the lens of morality, particularly when it is not solely for procreation. Any unreasonable restrictions on private conduct would have a chilling effect on individual autonomy.

Based on this reasoning, the Court determined that Section 377 was disproportionate and violated the fundamental right to freedom of expression.

The Court further asserted that Section 377 infringed upon human dignity, decisional autonomy, and the fundamental right to privacy. It recognized that every individual possesses the liberty to choose their sexual orientation, seek companionship, and engage in private sexual acts. Since Section 377 inhibited this personal liberty, it violated the protections enshrined in Article 21. The Court noted that this section also contributed to the social ostracization of LGBTQIA+ individuals and prevented them from fully realizing their individuality.

The judgment concluded by highlighting that denying the right to determine one's sexual orientation curtailed an individual's right to privacy. Consequently, the Court advocated for an expanded interpretation of the right to privacy, encompassing and safeguarding "sexual privacy."

The Court defined "constitutional morality" as the core principles and ethical values enshrined within the Constitution, fostering an inclusive society. The judgment recognized the Constitution as an instrument for social progress. When evaluating whether a criminal statute violates fundamental rights, the Court emphasized that the guiding principles should be those of constitutional morality, not prevailing societal norms. In instances where a court with constitutional authority finds a provision to be in violation of constitutional morality, the provision must be struck down.

This judgment carries considerable persuasive weight for nations that persist in penalizing and criminalizing homosexual acts, as it advocates for the decriminalization of consensual sexual activities among same-sex couples. Additionally, it holds significant importance in contemporary society by acknowledging the rights of individuals identifying as a third gender, affording them the opportunity to address the injustices and persecution they have endured from societal norms. This legal recognition underscores a critical shift in societal understanding, affirming that sexual orientation is not a mental disorder or a source of stigma, but rather a natural disposition where individuals may experience attraction towards others regardless of gender.

Moreover, the judiciary has demonstrated a commitment to upholding the principles enshrined in the Constitution through the application of "transformative constitutionalism." Failure to address ongoing discriminatory practices against this community would signify a dereliction of duty by the Indian courts, dashing the hopes of many individuals.

Additionally, the verdict endeavors to dismantle oppressive societal structures, akin to the landmark case of Arun Kumar v. The Inspector General of Registration 2019. In this instance, the court affirmed the validity of a marriage between a Hindu transwoman and a Hindu man under Section 5 of the Hindu Marriage Act, 1955, emphasizing the importance of recognizing love beyond mere physical appearance as mandated by the law.

This ruling is poised to mitigate instances of police harassment and societal discrimination, empowering the community to advocate for more progressive legislation in their favor.

The verdict underscores the imperative of adapting to evolving societal norms, prompting amendments to legislation to facilitate acceptance of societal transformations. By rectifying a fundamental flaw in constitutional reasoning, the judgment addresses the pervasive pressure faced by individuals from this community to conform to societal norms, often resulting in silence and a lack of understanding from others. The sensitization brought about by this ruling contributes to the upliftment of society, fostering inclusivity within a diverse and pluralistic Indian society.

Several national and international initiatives have been undertaken to promote the inclusion and advancement of the LGBTQIA+ community. The International Labour Organization has issued a document titled "Inclusion of LGBTQIA+ persons in the world of work," offering recommendations for enhancing their opportunities and ensuring equitable treatment in workplaces globally. Moreover, The Transgender Persons Act of 2019 delineates the definition of a transgender person, mandates their recognition, prohibits discrimination against them, and establishes a National Council for transgender persons under Section 16. The Act also outlines certain governmental and educational obligations towards transgender individuals.

Complementing this legislation, The Transgender Persons (Protection of Rights) Rules of 2020 were formulated, leading to the launch of the National Portal for Transgender Persons.

Additionally, the development of the 'Garima Greh Shelter Home' scheme aims to provide safe housing for transgender individuals. The principles enshrined in the Constitution are intended to catalyze and ought to strive towards effecting changes in societal attitudes. In addition to safeguarding individual rights over the long term, transformative constitutionalism endeavors to provide ample opportunities for social, economic, and political development. It endeavors to affect a transition from an antiquated society to a pragmatic one.

In conclusion, the journey towards acknowledging and safeguarding the rights of the LGBTQIA+ community in India has been arduous, marked by centuries of oppression, discrimination, and legal battles. However, the landmark verdict delivered by the Supreme Court in Navtej Singh Johar v Union of India in 2018 represents a significant milestone in this ongoing struggle for equality and justice.

The judgment not only decriminalized consensual same-sex relationships but also affirmed the fundamental rights of individuals to privacy, autonomy, and dignity regardless of their sexual orientation or gender identity. By striking down Section 377 of the Indian Penal Code, the Court recognized the inherent injustice and arbitrariness of laws that perpetuate discrimination and stigma against marginalized communities.

Moreover, the verdict epitomized the principles of constitutional morality and transformative constitutionalism, emphasizing the role of the judiciary in challenging oppressive societal norms and fostering inclusivity within a diverse and pluralistic society. It underscored the imperative of adapting legislation to reflect evolving societal norms and ensuring equitable treatment for all individuals, irrespective of their sexual orientation or gender identity.

Furthermore, the judgment served as a catalyst for broader societal change, prompting national and international initiatives to promote the inclusion and advancement of the LGBTQIA+ community. From legislative reforms to social welfare schemes, efforts have been made to address the systemic barriers and discrimination faced by this marginalized group.

As India continues its journey towards becoming a more inclusive and progressive society, it is imperative that the principles enshrined in the Constitution guide our actions and policies. By upholding the values of equality, dignity, and justice, we can strive towards a future where every individual, regardless of their sexual orientation or gender identity, is treated with respect and afforded the same rights and opportunities as their fellow citizens.

In essence, the Navtej Singh Johar verdict represents not only a legal triumph but also a moral victory, signaling a new era of hope and acceptance for the LGBTQIA+ community in India. It is a testament to the resilience and courage of those who have fought tirelessly for equality and justice, and a reminder of the power of collective action in shaping a more inclusive and equitable society.

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