One year of Section-377: A Case Comment

NAVTEJ SINGH JOHAR & ORS. v. UNION OF INDIA

WRIT PETITION (CRIMINAL) NO. 76 OF 2016
(Decided on September 6, 2018)
Mayank Pratham*

Introduction

On the 6th of September, 2018 an enduring legal battle of law and morality, with social morality and
constitutional validity pitted against each other came to an end in the form of the landmark ruling by
a five judge constitutional bench of the Hon’ble Supreme Court headed by the then CJI Deepak
Mishra correcting and overruling the apex court’s own prior judgement upholding the provisions of
the section-377 of the Indian Penal Code, 1860.

Section 377 of the IPC categorised consensual sexual intercourse between same sex people as
an “unnatural offence” which is “against the order of nature”. It prescribed a punishment of
10 years imprisonment. The two distinctive cases of Naz foundation v. NCT(2009), Suresh
Kumar Koushal vs. Naz Foundation(2013) built a narrative for the landmark case of Navtej
Singh Johar & Ors. v. UOI. a five-judge Bench unanimously struck down Sec- 377 of the Indian
Penal Code, to the extent that it criminalised same-sex relations between consenting adults while
Apex Court upheld provisions of the section that criminalise non-consensual acts or sexual acts
performed on animals.

Background

Section 377 of Indian Penal Code which was introduced in 1861 under the British Rule, modelled
on the Buggery Act of 1533, made sexual activities "against the order of nature" illegal as
unconstitutional "in so far as it criminalises consensual sexual conduct between adults of the
same sex". The implication of the same was such that, those who belonged to the LGBTQ
community were left in an eternal limbo as they were not free to love due the same being
penalised. The draconian Victorian Era law made its way even to our times as though the
societal understanding of such sexual orientation had gone a sea change there still existed many
contentions to the moral acceptability of the same, as many cited religious sanctions as the
authoritative basis of non-tolerance towards such an orientation of a person while many brought
it under the guillotine of morality which itself is not constant. The validity of the section was for
the first time challenged by the Naz Foundation (India) Trust under Articles 14, 15, 19, and 21
before the Delhi High Court. It was contended that Section-377 of IPC Naz Foundation (India)
Trust challenged the constitutionality of Article 377 under Article 14, 15, 19 and 21 before the
Delhi High Court. The Foundation contended that Section 377 reflects an antiquated
understanding of the purpose of sex, namely as as means of procreation, and has no place in a
modern society.

The purpose of writing this section is to let the reader get the general idea about the factual

subject matter of the case before you start your analysis. The very first step to do this is to

draw an outline of the development of the law leading up to the case under review by

touching upon landmark cases and significant statutory developments. This helps the
reader to appraise the court's decision and understand your arguments more clearly.

Analysis

This constitutes the main limb of the case comment. Here you need to ask yourself four

pertinent questions1, namely1. Was the Court’s decision appropriate?

2. Does this decision change/conform with existing law? Was the reasoning consistent

with previous reasoning in similar cases? Is it likely that the decision will

significantly influence existing law?

3. Did the court adequately justify its reasoning? Was its interpretation of the law

appropriate? Was the reasoning logical /consistent? Did the court consider all/omit

some issues and arguments? And, if there was omission, does this weaken the merit

of the decision?

4. What are the policy implications of the decision? Are there alternative approaches

which could lead to more appropriate public policy in this area?

If you have answered these questions satisfactorily, 80% of your job is done. As the sole

purpose of the case comment is to dissect a particular legal issue, you must be extremely

careful here as to not touch upon any extraneous or peripheral issue. Your answer to these

questions must be substantiated by logical assertions and adequate reasoning.

Conclusion

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findings and arguments. It is not always necessary to reach a conclusion to decide upon

whether or not the court's decision was right. You can simply end your analysis by briefly

stating the impact of the case and pointing out certain lacunae (if any).

Using Foot-notes in a Case Comment

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1Writing Law case notes available at https://academicskills.anu.edu.au/node/125

the general policy followed by most of the reputed law journals in the world. Secondly,

though you are free to use any type of uniform citation method, it is advisable that you use

the Blue Book method which is most commonly used for law journals.
The narrative for the decision was built through the cognizance of the Right to Privacy, another
landmark ruling by the Apex Court in 2017 which further strengthened the demand for scrapping
such a draconian law which even resulted in many cases in people ending up in jail just for
following the natural sexual orientation of their bodies. The decriminalisation also opened new
paradigms for the LGBT community as they enjoyed better protection under the law and were no
longer seen as unnatural due to their sexual composition. A year can serve as a well enough
time to introspect as to whether the decriminalisation of 377 has actually changed anything with
effect to the ground reality that is, whether the traditionally circumscribed mindset of the majority
still forms the grund norm of our society or not?
Though scrapping of section-377 of the Indian Penal Code has opened up immense possibilities
for the LGBTQ community which comprise of about 7-8% of the general population (hence being
one of the largest minorities), my aim would also be to look away from just the benefits that are
highly elicited in general and would like to draw a parallel for the readers as to how the same act
of empowerment has created further hinderance as to the realization of our goal of greater
equality and freedom for those belonging to the LGBTQ community.
A major blow comes from the fact that the struggle which was until now operating under one
umbrella that is LGBTQ stands fragmented as the ruling was majorly in favour of the LGBT
hence ruling out the question of the status quo of the Queer, it is detrimental in the sense that
though the ruling does decriminalises homo-sexuality but it is in ambit of the legislative that is to
make laws to actually effectuate this ruling in present day, day-to-day realities as even though
having homo-sexual relationships may not be a crime but there exists no legal recognition for
same sex couples. They do not have equal representation as they do not enjoy any sort of
equality in conjugal terms as there remain many grey areas such as adoption rights or having
joint bank accounts to even visiting each other in the hospital as they are not legally entitled the
same conjugally valid rights. Also there has to be a social engineering done so as to facilitate the
LGBTQ community on an equal standing as not do new laws need to be framed, the existing
ones also need to be made relevant with context to the LGBTQ, as an example could be seen in
the highly debated surrogacy bill which is still pending, as it seeks to grant surrogacy rights only
to married couples in special instances, not to even a single mother willing to bear a child or the
LGBTQ who still exist in a limbo as to being considered legally married.
The political or legislative aspect alone cannot bring about an interventionist change to the still
legally undernourished environment that the LGBTQ live in, a sensitization among the masses
can call for such a welcoming change, but the society at large has to create and build upon such
avenues of change so as to better inculcate the LGBTQ into the social strata hence the fight may
still not be considered over as a long battle for civil rights waits ahead.

BACKGROUND
Section 377 of the IPC categorised consensual sexual intercourse between same sex people as
an “unnatural offence” which is “against the order of nature”. It prescribed a punishment of
10 years imprisonment. The provision is a Victorian-era law, which survived into the 21st
century. Interestingly, about 123 countries around the World have never penalized or
have decriminalized homosexuality. Currently, 57 countries actively criminalize same-sex
relations.

Naz Foundation (India) Trust challenged the constitutionality of Article 377 under Article
14, 15, 19 and 21 before the Delhi High Court. The Foundation contended that Section 377
reflects an antiquated understanding of the purpose of sex, namely as as means
of procreation, and has no place in a modern society. Further, the police had weaponized the
provision, which impeded efforts aimed at preventing the spread of HIV/AIDS. The
Foundation cited an instance in 2001 in Lucknow where HIV prevention workers, who were
distributing condoms to homosexual men, were arrested on the allegation that they were
conspiring to commit an offence. The Naz Foundation also argued that the provision was
being misused to punish consensual sex acts that are not peno-vaginal.

The Delhi High Court ruled in 2009 that Section 377 cannot be used to punish sex between
two consenting adults - this violates the right to privacy and personal liberty under Article 21
of the Constitution. The Court held that classifying and targeting homosexuals violates the
equal protection guarantee under Article 14 of the Constitution. Section 377 thus
violated human dignity which forms the core of the Indian Constitution.

The Supreme Court reversed the Delhi High Court verdict in 2013 in
it Suresh Koushal judgment and held that the decision of decriminalizing homosexuality can
only be done by the Parliament and not the Court. It also held that Section 377 criminalises
certain acts and not any particular class of people. It also alluded to the minuscule number of
people who were members of the LGBTI community and the fact that only a fraction
amongst them had been prosecuted under Section 377.

Several curative petitions were filed challenging the Supreme Court judgement. While the
curative petitions against the Suresh Koushal judgment were pending, 5 individuals from the
LGBTQ communities – noted Bharatnatyam dancer Navtej Singh Johar, restaurateurs Ritu
Dalmia and Ayesha Kapur, hotelier Aman Nath and media person Sunil Mehra filed a fresh
writ a petition for scrapping Section 377 IPC in so far as it criminalised consensual sex
between same-sex individuals.

The Supreme Court on January 5, 2018, formed a constitution bench for hearing the
challenge to Section 377 in a comprehensive manner, even though the curative petitone were
pending before the Court. This could be due to the observations made in the 9 judge decision
in the Right to Privacy case which hinted at the inherent wrongness of the reasoning and
decision in Suresh Koushal. The 5 judge bench of Chief Justice Dipak Misra, Justice A.M.
Khanwilkar, Justice D.Y. Chandrachud, Justice R.F. Nariman and Justice Indu Malhotra
heard the matter from July 10th, 2018.

On 6th September, 2018 the five-judge Bench partially struck down Section 377 of the Indian
Penal Code, decriminalising same-sex relations between consenting adults. LGBT individuals
are now legally allowed to engage in consensual intercourse. The Court has upheld provisions
in Section 377 that criminalise non-consensual acts or sexual acts performed on animals.

The four judgments unanimously cited fundamental rights violations in reading down Section
377. They found that Section 377 discriminates against individuals on the basis of their
sexual orientation and/or gender identity, violating Articles 14 and 15 of the Constitution.
Further, they ruled that Section 377 violates the rights to life, dignity and autonomy of
personal choice under Article 21. Finally, they found that it inhibits an LGBT individual’s
ability to fully realize their identity, by violating the right to freedom of expression
under Article 19(1)(a).

HINDU
In the intervening years, two landmark judgments took forward the law on sexual orientation
and privacy and formed the jurisprudential basis for the latest judgment. In National Legal
Services Authority (2014), a case concerning the rights of transgender people, the court ruled
that there could be no discrimination on the basis of sexual orientation and gender identity.
In Justice K.S. Puttaswamy (2017), or the ‘privacy case’, a nine-judge Bench ruled that
sexual orientation is a facet of privacy, and constitutionally protected. Chief Justice of India
Dipak Misra’s opinion lays emphasis on transformative constitutionalism, that is, treating the
Constitution as a dynamic document that progressively realises various rights. In particular,
he invokes the doctrine of non-retrogression, which means that once a right is recognised, it
cannot be reversed. Taken together, the four opinions have furthered the frontiers of personal
freedom and liberated the idea of individual rights from the pressure of public opinion.
Constitutional morality trumps any imposition of a particular view of social morality, says
Justice R.H. Nariman, while Justice D.Y. Chandrachud underscores the “unbridgeable
divide” between the moral values on which Section 377 is based and the values of the
Constitution. Justice Indu Malhotra strikes a poignant note when she says history owes an
apology to the LGBTQ community for the delay in providing the redress. The dilution of
Section 377 marks a welcome departure from centuries of heteronormative thinking. This is a
verdict that will, to borrow a phrase from Justice Chandrachud, help sexual minorities
‘confront the closet’ and realise their rights.