Repealing Section 377- Move Towards Social Equality

 Supreme Court in Navtej Singh Johar v/s Union of India, 2018 case declared parts of Section 377 of IPC as unconstitutional, thus decriminalizing homosexuality.

Background

• Section 377 came into force in 1861 during the British rule to criminalise sexual activities “against theorder of nature”, including homosexual activities.
• In Naz foundation v/s Govt of Delhi case, 2009 the Delhi High Court held that section 377 was in violation of Fundamental Rights of the constitution such as Article 14, 15, 19 and 21 and decriminalized it.
• Later, Supreme Court in Suresh Kumar Koushal vs Naz Foundation case, 2013 overturned the HC ruling by dismissing the issue as concerns of a ‘miniscule fraction of the country’s population’.
•  In 2014, the SC in NALSA v/s Union of India case directed the government to declare transgender a ‘third gender’ and include them in the OBC quota.
• Last year in its privacy judgment (Justice Puttaswamy(retd.) v/s Union of India, 2017), SC upheld the Right to Privacy as a fundamental right under the Constitution and said that sexual orientation is an essential component of identity and the rights of the LGBTQ persons are real and founded on constitutional doctrine.
• SC also called for equality and condemned discrimination, stating that the protection of sexual orientation lies at the core of the fundamental rights and dignity of the person.

Arguments given by SC against Section 377

• SC declared Section 377 as irrational, indefensible and manifestly arbitrary: the fact that Section 377 fails to make a distinction between consensual and non-consensual sexual acts between competent adults was manifestly arbitrary and makes it violative of the right to equality that includes the right against arbitrariness.
• Unconstitutional and Violative of Right to privacy: According to the SC, bodily autonomy is individualistic and choice of a partner is part of the fundamental right to privacy, integral to Article 21 of the constitution(SC in Hadiya judgment, 2018). Criminalisation of private sexual conduct between adults of same sex was thus unconstitutional as it also abridged their freedom of choice and expression under Article 19.
• Discriminated against a minority based solely on their sexual orientation: thus violating the basic fundamental rights of LGBTQ community under article 14 and 15 of the constitution which prohibits discrimination solely on the basis of sex. It also prohibited them to enjoy equal citizenship and equal protection of laws under Article 21.
• It is not against the order of nature: Homosexuality is documented in 1500 species and is not unique to humans. Sexual attraction for the same sex is controlled naturally by neurological and biological factors; an individual’s natural orientation is innate and lies at the core of her/his being and identity.
• Homosexuality is neither mental illness nor moral depravity: The Mental Healthcare Act, 2017 already cleared the stigma of mental illness attached to homosexuality.
• International law strictly prohibits any discrimination on the grounds of sexual orientation or gender identity.
• Constitutional morality privileges over social or majoritarian morality: Constitutional morality must seek to usher in a pluralistic and inclusive society. It is the responsibility of the State to curb majoritarianism and any attempt to create a homogeneous, uniform, consistent and a standardized philosophy would violate the constitutional morality. The 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.
•  The idea of transformative constitutionalism must be utilized to transform society for the better so as to embrace the ideals of justice, liberty, equality and fraternity among the citizens.
• The destruction of individual identity would tantamount to the crushing of dignity: Attitudes and mentalities have to change to accept distinct identities of individuals, who must be respected for who they are, and not compelled to become who they are not. Courts must protect dignity of an individual as right to live with dignity is recognized as fundamental right.

 But the judgement throws open other issues of discrimination as well:-

• Employment in private sector will still be an issue and is bound to raise the issue of discrimination.
• Inheritance rights will be questioned.
• There is no law on marriages other than male-female ones.
• Sexual harassment law will need to include the LGBTQ community.
• If a liberal interpretation of 377 sets aside sexual intercourse "against the law of nature" then so shall bestiality be decriminalised but the judgement has not done so.

Calling LGBTQ people “victims of Victorian morality” and setting the ground for change in the future, Justice Chandrachud said: “It is difficult to right a wrong by history. But we can set the course for the future. This case involves much more than decriminalizing homosexuality. It’s about people wanting to live with dignity”
 

By: ABHISHEK KUMAR GARG