Author : Avishi Srivastava, Shri Navalmal Firodia Law College
Introduction
The Constitution of India is the Supreme Law of the land . It was drafted by the Drafting Committee of the Constituent Assembly .It was a work of 2 years 11months and 18 days.The constituent assembly adopted the constitution on 26 November 1949 and it came into effect on 26 January 1950.Originally the constitution consisted of 395 Articles,8 schedules and 22 parts. At present it consist of 448 Articles,12 Schedules and 25 parts.Â
The Indian constitution consists of the following basic features: Fundamental Rights(Part III (Art 12- Art 35)),Fundamental Duties(Part IVA-Art 51A),Independence of Judiciary(Article 50),Directive Principle of State Policy(Part IV Art 36- Art 51),Judicial Review, Preamble, Parliamentary Form of Government, Single Citizenship, Adult Suffrage(Part II Art 5- Art 11),Separation of Power, Division of Powers.
The Fundamental Rights provides for the basic rights granted to the citizen of India .These rights can not be violated if violated they shall be challenged in the court.
Some articles such as Article 14 :Everyone is equal before the law,Article 15: Prohibition of discrimination on the grounds of religion,race, caste ,sex and place of birth,and Article 21 :Right to life and personal liberty are some of the most important provisions that have been challenged in the courts due to their widespread nature and understanding.
On the other side we have the Indian Penal Code of 1860,which lays down the provision for official Indian Criminal Law(now replaced by BNS) consisting of Section 377-Unnatural offences was challenged in this case.
Facts of the Case
On 27th April 2016 , five people had filed a writ petition in the Supreme Court challenging the constitutionality of Sec 377 of IPC
The petitioner stated that the issues raised in the petition were different and curative from those which were raised in Suresh Kumar Koushal vs Naz Foundation (2013) in which Sec 377 of IPC was declared constitutionally valid.
The Naz Foundation had been earlier referred to a 5 bench judge in order to decide whether to consider the petition or dismiss it.
The petitioners included dancer Navtej Singh Johar, journalist Sunil Mehra, Chef Ritu Dalmia, hostelers Aman Nath and Keshav Suri, and businesswoman Ayesha Kapur.
The petitioners have argued that they were directly affected because of the criminalization of Sec 377 which led to the direct violation of Fundamental Rights for the LGBTQ+ Community.
The opposition to decriminalization petitions was led by Apostolic Alliance of Churches, Utkal Christian Council and Trust God Ministries.
Advocate Manoj George represented Apostolic Alliance of Churches and Utkal Christian Council while Senior Advocate KS Radhakrishnan represented Trust God Ministries.
The NDA Government had a neutral stance over the matter leaving the decision in the hands of the Hon’ble Supreme Court.
The petition was placed before the former Chief Justice of India Justice TS Thakur,Justice SA Bhode,and Justice AK Bhushan on 29th June 2016.An order was passed to pose the matter before Justice Deepak Misra since a curative petition was already pending before the constitution bench.
On 8th January 2018 the case was to be heard by the Chief Justice Bench which passed an order that the case shall be heard by the constitution bench.
The matter was heard on 17th January 2018 by the constitution bench of the Supreme Court.
On 10th July the Supreme Court commenced hearing of the pleas challenging the constitutionality of Sec 377.
The bench ended its hearing on 17th July and reserved its verdict. It asked both the sides to submit their written submissions for their claims by 20th July 2018.
Legal Issues
The main issue was the constitutionality of Section 377 of IPC
Whether it violates Article 14 and 15 of the Indian Constitution for discrimination on the basis of gender identity and sexual orientation?
Whether it violates Article 21 by penalizing consensual acts between the people of the community?
Whether it violates Article 19 (1)(a) by criminalizing the gender expression of the community?
Courts Decision
The courts stated that the LQBTQIA+ also have the right to privacy including individual autonomy and sexual orientation .Their choice of partner can be different but it does not amount to punishment. Sec377 of the IPC violates the Right to Privacy under Article 21 of the Indian Constitution.
The main objective of retaining Section 377 was to protect the women and children from carnal intercourse caused against their will however carnal intercourse that is performed with the consent of both the partners in LGBTQIA+ community is not injurious to women or child. Sexual intercourse without the consent of child and women has been covered under Section 375 of IPC and Protection of Child from Sexual Offences Act 2012.Section 377 is discriminatory and targets only one section of the society violation Article 14 and 15 of the Indian Constitution.
The constitution is liberal and does not pose any possibility to restrict the right to choose.However there are some restrictions imposed on this right as well although the right to choose a partner for sexual intercourse is a matter of personal choice.Sec 377 restricts this right of the community to choose their partner.
Section 377 does not connect with proportionality and violates the fundamental right of freedom of expression of the community.
The Supreme Court declared that Section 377 violates Article 14,15,19,and 21 of the Indian Constitution and hence is unconstitutional to some extent .It overturned the decision taken in the case of Suresh Kumar Koushal &ors vs Naz Foundation &ors. It also declared that Section 377 would deal with non consensual acts.
Legal Reasoning
The majority opinion was of the view that Section 377 indeed violated the fundamental rights of the LGBTQIA+community.The objective of this section was to punish the individuals involved in sexual intercourse without mutual consent of the partner with the aim of the protection of women and children.Section 375 already deals with non consensual acts which implies that Section 377 is violative of the basic rights.
The previous cases cited by the court in its decision is the Suresh Kumar Koushal & Ors vs Naz Foundation & Ors in which it was held that any individual found involved in activities of carnal intercourse with a women or a child shall be punished under Section 377 of IPC.The case had led to the criminalization of Section 377.This case however overturned the decision by stating that carnal course performed with the consent of the partner is not a crime and the Section mainly targeted upon the protection of women and children from non consensual intercourse.
The statutes involved in this case are the Indian Penal Code of 1860 and Protection of Child from Sexual Offences Act 2012.
Impact of the Case
The decriminalizing of sexual act between same sex partners has played a commendable role unlike the other countries where same sex consensual activities is a crime.Through this decision the courts have given importance to the community of LGBTQIA+ and providing them equal rights and rights to voice their opinion and expression.It expresses that the society is in the environment of understanding that sexual intercourse with a person of same sex is no longer a stigma or an illness as a person can be attracted to another person of the same sex or the opposite sex.
This case has a greater impact on future cases relating to the rights of the LGBTQIA+community.
This decision will help the society to stop protesting and fighting against the LGBTQIA+ community and the persons who develop feelings for people of the same sex.With time the society and politics shall be able to accept them as a member of the society and will stop judging them on the basis of their choice of partner.
Personal Analysis
My analysis and evaluation state that this decision by the Supreme Court is the best decision as it shows the judicial systems abiding by the laws laid down in the constitution .It enables each section and community of the society to get equal rights regardless of their background and their choice of partner.
The strengths of the court's argumentation show that one needs to change with the changes in the society. It has helped in making basic correction in the amendments of the constitution. People of this community were forced to act in a certain way due to which they were unable to express who they are but with this decision those people can now express themselves freely.
There is no weakness in the argumentation of the court.
Conclusion
The court partially struck down Section 377 of IPC. It stated that if the sexual intercourse is consensual between both the partners then it is not violative of any crime even in the case of homosexual partners. This decision of the court made fundamental rights under Article 14,15,19, and 21 available to LGBTQIA+ community.
The final observation on this case is that it influences society and any other case that may arise in the future regarding the rights of the LGBTQIA+ community to understand that the fundamental rights enlisted in the constitution are also meant for this community.
