The Honorable Supreme Court of India in the case of Navtej Singh Johar v.
Union of India passed a landmark judgment. A Bench headed by the former
Chief Justice, Honorable Justice Dipak Misra, read down the colonial law to the
extent to which it hampered individual freedoms and rights of the LGBTQ
community in this country.
Sexual orientation varies from one individual to the other. A general rule can
never be laid down. It's not always that a man is attracted to a woman or a
woman is attracted to a man. When Michael Kirby, a former judge of the High
Court of Australia and a former President of the International Commission of
Jurists, delivered the 2013 Tagore Law Lectures, his theme was 'Sexual
Orientation and Gender Identity 'a new province of law for India'. In 1999,
Justice Kirby had made it public that he was homosexual.
Homosexuality though attracts a unique sexual orientation but is certainly not
an offence. While most religions condemn it, a secular country is not expected
to be driven by religious bindings while making secular laws. Thus, finally in
September 2018, the Honorable Supreme Court of India vide its judgment in Navtej
Singh Johar v. Union of India struck down portions of Section 377 that
criminalized consensual sexual relations between same-sex couples.
The Supreme Court while delivering the judgment observed that when Section 377
was drafted, procreation was considered as the sole purpose of intercourse and
any deviation from such kind of sexual relations was thought of as unnatural. But the court explained that 'homosexuality' is no longer 'unnatural' and thus there is no point of covering it under the umbrella of
Thus, the present law under Section 377 doesn't punish individuals for
establishing consensual homosexual relations.
However, what really is Section 377 and why was it controversial? Let's discuss
The Indian Penal Code (hereinafter, 'the IPC') is the principle legislation
dealing with substantive criminal law in India. Various provisions punishing
various offences have been laid down under the IPC. One such law was Section
377. The law punished individuals for indulging in sexual relations 'against
the order of nature'. The problem with that provision was the absence of the
consent clause. Unlike Section 375 'Rape' that punishes individual for forceful
sexual relations with a woman against her will and without her consent, Section
377 punished anybody for having sexual relations against the order of nature,
with or without consent. However, before we move further on this discussion, we
need to understand two things viz., 'against the order of nature' and 'consent'.
Consent is a tricky issue. In various countries and various legislations even
consensual sexual relations outside marriage are an offence. In some countries
even forcing oneself on your wife is punishable. Hence, consent as the basis for
punishing the individual for a sex law varies from country to country and is
subjective. However, when we talk in context of India, considering the
individual freedom as enshrined under Article 21 of the Constitution, a person
shall have a right to indulge in consensual sexual relation until such relation
violates the rights of a third person. This would mean that a husband and a wife
shall not indulge in such relations outside marriage. Similarly, if two
individuals are entering into such relations with consent then it should not be
punishable in law.
That was precisely the issue with Section 377 that it punished individuals for
indulging in such relations against the order of nature
even when it was with
consent. This aspect of consent was finally resolved by the Honorable Supreme
Court of India in the judgment of Navtej Singh Johar which shall be discussed
Now, a person shall have a right to indulge in such relations wilfully and
consensually, even if they are against the order of nature.
Let's now look
into this aspect of the provision i.e. 'against the order of nature'.
Against The Order Of Nature
Section 377 used a very peculiar term for punishing individuals and that was
against the order of nature
However, what does it really mean? What is natural about sexual relations? God
has made human beings for various purposes and establishing sexual relations
also has a purpose. That purpose according to every religion and every belief
across the world is that such relations are established to procreate, to have
children. Thus, any such physical relation that will not ultimately lead to
legitimate children is condemned by all religions unanimously. Hence, obviously
since homosexual relations or bestiality in no way can naturally lead to
procreation of children, all such relations come under this umbrella of 'against
the order of nature'.
Now the next question which arises is why was this punishable? Every single
religion or community or society in this world, irrespective of how liberal it
may become, has not given up on its core principles. Whether this is good or
bad, I leave it for you to decide, however, this is a fact. And all religions
irrespective of how different they are, unanimously condemn, oppose and
criminalise such relations between individuals.
This was the basis of Section 377 as well that nobody could have imagined back
in the 1860s that people in the future will develop such kind of a sexual
orientation as well. Even in 1950 when we got our Constitution and we got
Article 21 and the right of life and personal liberty, nobody could have
imagined that establishing such sexual relations will become a part of that
liberty as well. This is exactly the reason why Section 377 remained in
existence without any change for so long.
The Case Of Suresh Kumar Koushal And The Begining Of Recongising Rights Of Homosexuals
On December 11, 2013, the Honorable Supreme Court of India reversed a liberating
and internationally acclaimed judgment of Delhi High Court after 4 years. The
judgment by the Delhi High Court delivered on 2nd July, 2009, though welcomed
by the public at large, was much criticized by the legal fraternity, claiming
that it was unlawful vide Section 377. The Supreme Court on appeal reversed the
decision saying that it was against the erstwhile provision under the Indian
Penal Code. However, the problem with the judgment of the Honorable Supreme
Court was the defunct provision under Section 377. The Supreme Court in its
judgment categorically specified that this matter shall be decided by the
There was much hue and cry about this for many years which was finally put to
rest in the year 2018.
The Case Of Navtej Singh Johar
The petitioner in the present case, Navtej Singh Johar, filed a writ petition in
the Supreme Court in 2016 challenging the constitutional validity of Section 377
seeking recognition of the right of sexuality, right to sexual autonomy and
right to choose a sexual partner as part of Article 21. Also it was prayed to
declare Section 377 as unconstitutional. Moreover, the petitioner argued that
Section 377 was violative of Article 14 as it was vague since carnal
was not defined in the provision. It was also argued that it was
violative of Article 15 as it discriminated on basis of a person's sexual
orientation and freedom of expression under Article 19 since it denied the right
to express one's sexual identity through speech and choice of sexual partner.
The Union of India submitted that it left the question of constitutional
validity of Section 377 to the wisdom of the court
The five judge bench of the Supreme Court in this matter unanimously held that
Section 377 insofar as it applied to consensual sexual conduct between
individuals, was unconstitutional.
So now, consensual homosexual relations are no more punishable under Section
Right Of Maintenance
Consensual homosexual relations are now perfectly valid as per the judgment of
the Honorable Apex Court and hence all such rights that are enjoyed by
heterosexual couples must be extended to homosexual couples as well. One such
right is the right to claim maintenance.
Section 125(1)(a) of the Code of Criminal Procedure recognizes the right of
a wife to claim maintenance from her husband. So obviously Section 125 is based
on the premise of a heterosexual relationship. It will not take into
consideration homosexual relationship.
This is something that the judiciary in this country must look into and
recognize a homosexual partner's right to maintenance.
- (2018) 10 SCC 1.
- Id., at 19.
- 377. Unnatural offences. � Whoever voluntarily has carnal intercourse
against the order of nature with any man, woman or animal, shall be punished
with [imprisonment for life], or with imprisonment of either description for
a term which may extend to ten years, and shall also be liable to fine.
Explanation- Penetration is sufficient to constitute the carnal intercourse
necessary to the offence described in this section.
- Naz Foundation v. Govt. of NCT, Delhi, 160 DLT 277.
- Suresh Kumar Koushal and Anr. v. Naz Foundation, (2014) 1 SCC 1.
- 21. Protection of life and personal liberty- No person shall be deprived
of his life or personal liberty except according to procedure established by
- 14. Equality before law- The State shall not deny to any person equality
before the law or the equal protection of the laws within the territory of
- 15. Prohibition of discrimination on grounds of religion, race, caste,
sex or place of birth (1) The State shall not discriminate against any
citizen on grounds only of religion, race, caste, sex, place of birth or any
(2) No citizen shall, on grounds only of religion, race, caste, sex, place
of birth or any of them, be subject to any disability, liability,
restriction or condition with regard to-
(a) access to shops, public restaurants, hotels and places of public
(b) the use of wells, tanks, bathing ghats, roads and places of public
resort maintained wholly or partly out of State funds or dedicated to the
use of general public.
(3) Nothing in this article shall prevent the State from making any special
provision for women and children.
[(4) Nothing in this article or in clause (2) of article 29 shall prevent
the State from making any special provision for the advancement of any
socially and educationally backward classes of citizens or for the Scheduled
Castes and the Scheduled Tribes.]
[(5) Nothing in this article or in sub-clause (g) of clause (1) of article
19 shall prevent the State from making any special provision, by law, for
the advancement of any socially and educationally backward classes of
citizens or for the Scheduled Castes or the Scheduled Tribes in so far as
such provisions relate to their admission to educational institutions
including private educational institutions, whether aided or unaided by the
State, other than the minority educational institutions referred to in
clause (1) of article 30.]
- The Code of Criminal Procedure, 1973, No. 2, Acts of Parliament, 1974
Written By: Syed Aatif - is a practicing advocate at Central Administrative
Tribunal, Delhi High Court and the Supreme Court of India.
Email: [email protected]