CA - 2 IPC 315

An assignment on

Navtej Singh Johar and ors. Vs. Union

of Indian and ors.

Submitted by

SPARSHUL JANDIAL
ROLL N0. – RL2001A30
SECTION – L2001
B.A LL.B (Hons.) :,Sem 5
SUBMITTED TO
BAISHALI JAIN
 SCHOOL OF LAW
INDEX

 Facts of the case

 History of case

 Issues

 Sec. involved

Arguments from Both sides

 Judgment

Social and Legal Impact

 Conclusion
FACTS -

The central issue of the case was the constitutional validity of Section 377 of the Indian Penal
Code, 1860 (Section 377) insofar as it applied to the consensual sexual conduct of adults of the
same sex in private. Section 377 was titled ‘Unnatural Offences’ and stated that “ 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.”

The issue in the case originated in 2009 when the Delhi High Court, in the case of Naz
Foundation v. Govt. of N.C.T. of Delhi, held Section 377 to be unconstitutional, in so far as it
pertained to consensual sexual conduct between two adults of the same sex. In 2014, a two-judge
bench of the Supreme Court, in the case of Suresh Kumar Koushal v. Naz Foundation,
overturned the Delhi HC decision and granted Section 377 “the stamp of approval When the
petition in the present case was filed in 2016 challenging the 2014 decision, a three-judge bench
of the Supreme Court opined that a larger bench must answer the issues raised. As a result, a
five-judge bench heard the matter.

The Petitioner in the present case, Navtej Singh Johar, a dancer who identified as part of the
LGBT community, filed a Writ Petition in the Supreme Court in 2016 seeking recognition of the
right to sexuality, right to sexual autonomy and right to choice of a sexual partner to be part of
the right to life guaranteed by Art. 21 of the Constitution of India (Constitution). Furthermore, he
sought a declaration that Section 377 was unconstitutional. The Petitioner also argued that
Section 377 was violative of Art. 14 of the Constitution (Right to Equality Before the Law)
because it was vague in the sense that it did not define “carnal intercourse against the order of
natureThere was no intelligible differentia or reasonable classification between natural and
unnatural consensual sex. Among other things, the Petitioner further argued that (i) Section 377
was violative of Art. 15 of the Constitution (Protection from Discrimination) since it
discriminated on the basis of the sex of a person’s sexual partner, (ii) Section 377 had a “chilling
effect” on Article 19 (Freedom of Expression) since it denied the right to express one’s sexual
identity through speech and choice of romantic/sexual partner, and (iii) Section 377 violated the
right to privacy as it subjected LGBT people to the fear that they would be humiliated or
shunned because of “a certain choice or manner of living.”

The Respondent in the case was the Union of India. Along with the Petitioner and Respondent,
certain non-governmental organizations, religious bodies and other representative bodies also
filed applications to intervene in the case.

The Union of India submitted that it left the question of the constitutional validity of Section 377
(as it applied to consenting adults of the same sex) to the “wisdom of the Court”. Some
interveners argued against the Petitioner, submitting that the right to privacy was not unbridled,
that such acts were derogatory to the “constitutional concept of dignity” , that such acts would
increase the prevalence of HIV/AIDS in society, and that declaring Section 377 unconstitutional
would be detrimental to the institution of marriage and that it may violate Art. 25 of the
Constitution (Freedom of Conscience and Propagation of Religion).

HISTORICAL BACKGROUND

Section 377 of the Indian Penal Code criminalises consensual private sexual acts between adults.
It came into force in 1862. Lawyers have argued that the notorious Criminal Tribes Act, 1871,
which branded a number of marginalised population groups like transgenders as “innately
criminal” before it was repealed, drew inspiration from Section 377. Though the 172nd report of
the Law Commission of India recommended the deletion of Section 377, no action was taken.
The penal provision says “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 10 years, and shall also be
liable to fine.”

In 2009, the Delhi High Court read down Section 377 to apply only to non-consensual, penile,
non-vaginal sex, and sexual acts by adults with minors. In December 2013, a two-judge Bench of
the Supreme Court, on appeals filed by private parties, set aside the High Court’s judgment. It
upheld the criminalisation of gay sex while virtually denying the LGBTQ community the right to
sexuality, sexual orientation and choice of partner. In July 2018, a Constitution Bench, led by
Chief Justice Dipak Misra, re-opened the entire issue, saying a section of people could not live in
fear of the law which atrophied their rights to choice, privacy and dignity.

Arguing for 20 IITians against Section 377, advocate Menaka Guruswamy told the Supreme
Court that the penal provision reduced the LGBTQ community to the status of “unconvicted
felons.” Hopes of the community to lead a normal life got dashed when the Supreme Court
overturned the Delhi High Court’s verdict in December 2013. But their decades-long struggle for
dignity took a significant turn for the better with the progressive NALSA judgment delivered by
a Supreme Court Bench, led by Justice K.S. Radhakrishnan. This verdict recognised transgender
people as ‘third gender,’ possessing rights, including marriage, adoption, divorce, succession and
inheritance. More importantly, it condemned discrimination on the grounds of sex as a violation
of the fundamental right to equality under the Constitution. In August 2017, the fight against
Section 377 got a second major boost when a nine-judge Bench of the court, led by the then
Chief Justice of India J.S. Khehar, upheld the right to privacy as a fundamental right intrinsic to
life and liberty. This Bench ripped apart the December, 2013 judgment. The nine-judge Bench,
in its main opinion authored by Justice D.Y. Chandrachud, underlined the impact of Section 377,
saying it “poses a grave danger to the unhindered fulfilment of one’s sexual orientation, as an
element of privacy and dignity.” The two judgments signalled that the court was ready to change
its opinion on Section 377. They became the pillars on which the petitioners based their case
before the Constitution Bench.

Why does it matter?

Section 377 criminalises a section of people for being a sexual minority. A cross-section of the
people has approached the Supreme Court against the penal provision. They are not just seeking
protection as sexual minorities, but recognition of characteristics inherent in all human beings.
They argue that the right to sexuality, sexual autonomy and freedom to choose a sexual partner
form the cornerstone of human dignity. Section 377 has a “chilling effect” on the right of
equality, liberty, life, dignity and non-discrimination on the ground of sex.

What next?

The pertinent question before the court is, what is the ‘order of nature’ meant by Section 377 in
its text. Once the Constitution Bench decides that homosexuality is also an order of nature and
upholds the fundamental right to sexuality, sexual orientation and choice of same-sex partners,
the doors are opened for individuals to approach the court in future on the larger issues of
legalising same-sex marriages, inheritance, adoption, and reservation in employment.

In Suresh Kumar Koushal. v. Naz Foundation

The decision in the Naz Foundation was appealed to the Supreme Court attracting a large
number of interveners including organizations and individuals who stated that they had an
interest in protecting the moral, cultural, and religious values of Indian society.

Court’s findings were:

Section 377 IPC is applied irrespective of age and consent; It does not criminalize particular
people, identity or orientation and only identifies certain acts which would constitute an offense.
So, the prohibition under Section 377 was to regulate sexual conduct regardless of gender
identity or orientation.

The argument that Section 377 had become a tool to perpetrate harassment, blackmail, and
torture onto the LGBT community was denied by stating that such a treatment is neither
mandated nor condoned by the Section and the mere misuse by police authorities and others
cannot hold for unconstitutionality.

The ones who indulge in carnal intercourse in the ordinary course and those who indulge against
the order of nature constitute 2 different classes. The latter category cannot claim that Section
377 suffers from irrational classification.

Only a minuscule fraction of the Indian population constitutes the LGBT community and in the
last 150 years, less than 200 persons have only been prosecuted under Section 377 because of
which Section 377 IPC cannot be held ultra vires the provisions of Articles 14, 15, 19 and 21 of
the Indian Constitution.
Case Brief

This petition sought recognition of the right to sexuality, the right to sexual autonomy and the
right to choice of a sexual partner as part of the right to life guaranteed under Article 21 of the
Constitution of India. The petition further sought declaration that Section 377 of the Indian Penal
Code, 1860 (IPC), which criminalised consensual sexual conduct between adults, was
unconstitutional. The Petitioners contended that homosexuality, bisexuality and other sexual
orientations were natural variations of expression, and to criminalise these sexual orientations
would have the effect of violating the Constitution’s guarantees relating to dignity and privacy.

Accepting these contentions, the Supreme Court found Section 377 to be discriminatory towards
the Lesbian, Gay, Bisexual and Transgender (LGBT) community and noted that sexual
orientation was an inherent part of their identity, dignity and autonomy. On this basis, the Court
decided that Section 377 constituted a violation of the right to dignity, privacy and sexual
autonomy under Article 21, freedom of expression under Article 19, the right to equality under
Article 14, and nondiscrimination under Article 15 of the Constitution.

While the Supreme Court had previously considered the question of the constitutionality of
Section 377 in the case of Suresh Kumar Koushal & Anr. vs. Naz Foundation & Ors. ((2014) 1
SCC 1) (which overturned the Delhi High Court’s judgement in Naz Foundation vs. Government
of NCT of Delhi & Ors. ((2009) 111 DRJ 1), in light of several factors including the progressive
development of the right to privacy and its intrinsic link to dignity and personal autonomy in the
cases of NALSA vs. Union of India & Ors. ((2014) 5 SCC 438) and K.S. Puttaswamy & Anr. vs.
Union of India & Ors. ((2017) 10 SCC 1), a three Judge Bench of the Supreme Court referred the
petition to a larger bench for final adjudication.

SECTION INVOLVED
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.

In the West, sexual intercourse by same-sex couples was outlawed both in Judaism and
Christianity, since the offenses relating to them were decided by the ecclesiastical courts (laws
governing the affairs of the Christian Church). As a result of England’s Henry VIII breaking
with the Roman Catholic Church, the Buggery Act of 1533 (Section 377) (See here) was
introduced prohibiting and criminalizing anal penetration, bestiality, and homosexuality (in a
broader sense). Drafted by Thomas Macaulay this law defines ‘buggery’ as an unnatural sexual
act against the will of men and God.

As per Macaulay’s original draft, anybody who touched or was touched (with consent) by any
person, or any animal intending to gratify unnatural lust, would be penalized and punished with
imprisonment of which may extend to 14 years and not be less than 2 years (Article 361).
Anyone who touched any person without that person’s free consent, for the same above-said
purpose would be penalized and punished with imprisonment extending to life and not be less
than 7 years (Article 362).

After several reviews of the draft, the Indian Law Commission concluded the Draft Penal Code
to be sufficiently complete. The revised edition was forwarded to the Supreme Court and Sudder
Court Judges at Calcutta in 1851 and the Committee of Sir Barnes Peacock finally sent the draft
of Section 377 for enactment.

It was only after a long 150 years the deletion of Section 377 was recommended by B. P. Jeevan
Reddy, J’s Law Commission Report of 2000 (172nd Report), consequent to the changes made in
preceding sections clarifying that anal sex would not be penalized in the presence of consent,
regardless of being same-sex or otherwise.

Right to privacy, dignity, and health

When a biological expression is hindered through the imposition of law, an individual’s natural
and constitutional right is eroded. Here is where the essence of dignity speaks up and where we,
as our constitutional duty, should allow an individual to behave, conduct, and express
himself/herself as he/she desires. When it comes to the national sphere, dignity is often
considered as an important aspect of Article 21 of the Constitution whereas internationally, it
was identified as a basic right after the institution of the UDHR (Universal Declaration of
Human Rights).

After the Puttaswamy judgment, the challenges against Section 377 IPC have been stronger than
ever. In the said decision, the Bench held that sexual orientation is a facet of the right to privacy
which is in itself a fundamental right under the Constitution of India. Individual autonomy has a
significant space in the compartment of privacy and is expressive of self-determination which
further includes sexual orientation and identity. These, as under the constitutional scheme, do not
accept any interference as long as it is not against decency or morality (constitutional morality).
Under the autonomy principle, an individual has sovereignty over his/her body. Anybody can
surrender it to another and their intimacy is a matter of choice.

Chandrachud, J , one of the judges who spoke for the majority in the Puttaswamy case, regarded
that the reasons stated in Suresh Koushal’s judgment cannot be a valid constitutional basis for
disregarding the right to privacy. He further observed that the rationale in Suresh Koushal i.e.,
only a small fraction of the Indian population is LGBTQ community, is not a proper basis to
deny the right to privacy. Whatever the percentage may be, what matters is whether the
community is entitled to the claimed fundamental rights and whether those rights are violated
due to the existence of any statutory law. When the answer is in the affirmative, the courts must
not hesitate to strike them down.

The above-mentioned view is also cemented by a landmark Supreme Court judgment wherein
the Court was concerned with the fundamental rights of the arrested, which forms a minute
fraction of the total population. A recent case in which the Supreme Court protected the
fundamental right to die with dignity was the Common Cause wherein it protected the rights of
those some who slipped into a permanent vegetative state (again a very small fraction of the
society).

Just like the right to privacy, an individual has the right to the union under our Constitution. The
phrase ‘union’ does not solely mean marriage, but companionship in a physical, mental, sexual,
and emotional sense. In the present case, the LGBT community was seeking the realization of
this cardinal right to companionship.

The right to health and healthcare access is one of the other facets of the right to life. The
LGBTQ persons are usually at a higher risk of HIV than heterosexuals because of the lack of
safe spaces to engage in sex. They are thereafter inhibited from seeking medical help for they are
under the threat of being ‘exposed’ and as a result be prosecuted. In an international
case, Nicholas Toonen v. Australia, it was stated that the statutes criminalizing homosexual
activity impeded public health programs and it was a proportionate measure hindering the aim of
preventing the spread. Its criminalization would thus counter the implementation of education
programs for the prevention of HIV/AIDS.

Although the LGBT community learns to cope up with the stigma against them, the pattern of
prejudice causes psychological distress, especially when they conceal or deny their identity. It is
pertinent to mention here that the Mental Healthcare Act, 2017 provides for the right to access
mental healthcare equally, without any discrimination, in line with “sexual orientation”. In other
words, Section 377 criminalizes LGBT, which then inhibits them from access of healthcare
facilities, while the Mental Healthcare Act provides them the right to access mental healthcare
without discrimination, even on the basis of ‘sexual orientation’.

Comparative analysis of sections 375 and 377 of IPC

Section 377 of IPC, 1860 uses ‘whoever’ and is thus a gender-neutral one. The word ‘carnal’,
means ‘of the body’ and ‘sexual intercourse’ means the contact between a male and a female‘s
sexual organs. But the ‘order of nature, another expression used in the section, is neither defined
in it nor in any other provision of IPC. The ground on which Section 377 IPC penalizes carnal
intercourse is that it is against the order of nature. So, what does ‘against the order of nature’
mean?

In Lakhi Sahu (Kanu) v. Emperor, the issue that arose was whether coitus per os amounts to
carnal intercourse against the order of nature. There, the Court ruled in affirmative reasoning that
the object of intercourse is conception but it was impossible in coitus per os. With the evolution
of the society, procreation of children is not the only reason for people to have live-in
relationships, or perform coitus. In the contemporary world when even marriage cannot be
equated to procreation, the question is whether carnal intercourse between consenting adults of
same-sex can be labeled as ‘against the order of nature. Obviously, it is their choice to engage in
sex for procreation or otherwise and sex, if performed differently, does not per se be against the
order of nature.

On scrutinizing the 7 descriptions of Section 375 IPC and Explanation 2, it can be found that the
absence of wilful consent is sine qua non to conclude that the acts in the former part of Section
375 IPC as rape. The major difference between the language of Section 375 and 377 is that the
element of consent is absent in Section 377 IPC. It is the absence of wilful and informed consent
which makes the offense of rape criminal. On the other hand, Section 377 IPC contains no such
exceptions criminalizing voluntary carnal intercourse between homosexuals and heterosexuals.

The litmus test for the survival of section 377

Article 14

Article 14 propounds that equals must be treated equally. In the Budhan Choudhry case, the
Court observed that Article 14 forbids class legislation, but it doesn’t rule out reasonable
classification for legislation. To pass this test of classification, 2 conditions need to be fulfilled,

The classification must distinguish between the grouped ones from the left out (intelligible
differentia); and

The object to be achieved by the statute in question must be rationally related to intelligible
differentia

377 IPC classifies and penalizes persons who indulge in carnal intercourse aiming at the
protection of women and children. But the non-consensual acts criminalized by Section 377 IPC
are already meant as penal offenses under Section 375 IPC and the POCSO Act. Per contra, the
presence of this Section has resulted in an objectionable effect whereby ‘consensual acts’, which
are not harmful to children or women and are performed by the LGBTs owing to their inherent
characteristics defined by their identity and individuality. This discrimination meted out to the
LGBT is unconstitutional, being in violation of Article 14 of the Constitution, due to the absence
of reasonable nexus.
Another point to be urged here is that when Section 377 criminalizes the consensual sexual acts
between homosexual adults in private space (which are not contagious to our society), it fails to
distinguish between consensual and non-consensual sexual acts, which again shows the absence
of reasonable nexus.

Article 19

In the Chintaman Rao case, the Court opined that the phrase ‘reasonable restriction’, which
connotes the limitations imposed on an individual’s enjoyment of a right, should not be beyond
the public interest. The legislation which excessively invades the individual right lacks
reasonableness unless it has an adequate balance between the freedom guaranteed under Article
19(1) (g) and 19(6). The Supreme Court in Shreya Singhal v. Union of India had struck down
Section 66A of the IT Act on the ground of over-breadth as it took protected speech and innocent
speech within its sweep which further had a chilling effect on free speech.

In our case, it was held that any display of affection amongst the LGBT members in the public
cannot be halted by majority perception as long as it doesn’t amount to indecency or disturb the
public order. In view of the test, Section 377 IPC does not meet the proportionality criteria and is
thus in violation of Article 15 which included the right to choice of a sexual partner. Section 377
IPC is also the weapon of the majority to exploit the LGBT community.

However, if anyone engages in any sexual activity with an animal or engages in sexual activity
with another without consent, the said aspect of Section 377 IPC was decided to be still
constitutional, inviting penal liability.

Article 21

Bhagwati J. observed in Francis Coralie Mullin’s case that the right to life includes the right to
carry on such activities as required as to constitute one’s self-expression. Every act which
impairs human dignity will deprive one’s right to life and whether or not it is in accordance with
the reasonable, and fair procedure established by law is the test here. It was thereafter re-
affirmed by the Constitution bench decision in K.S. Puttaswamy & Anr. v. Union of India & Ors.
and Common Cause v. Union of India & Anr. Section 377, since it trims the personal liberty of
LGBT persons to engage in consensual sexual activities with a partner of their choice, is in
violation of Article 21. The section inhibits them from entering into sexual relationships as a
result of which they are forced to lead a solitary life or a closeted life as non-apprehended felons.

SOCIAL AND LEGAL IMPACT

Striking Down of Section 377 of The Indian Penal Code – A Step Towards Constitutional
Morality Rather Than Towards Social Morality.

The Supreme Court of India in the matter titled Navtej Singh Johar & Ors v. Union of India &
Ors has struck down Section 377 of the Indian Penal Code, 1860 (hereinafter called "IPC") and
has consequently overruled the earlier judgement passed by a 2 judge bench in Suresh Kumar
Koushal v. Naz Foundation & Ors .

Section 377 provides for punishment for "carnal intercourse against the order of nature". The
Petitioners in the batch of Writ Petitions before the Supreme Court put forth various arguments
to state that the phraseology used in Section 377 is violative of the fundamental rights enshrined
in the Indian Constitution.

It is of pertinence to point out that the Lesbian Gay Bisexual Transgender (LGBT) community
consists of about 7-8% of the Indian population. Section 377 was promulgated in the year 1860
and the same can be considered to be a manifestation of the mindset of societal values in the
Victorian Era where sexual activities were considered mainly for procreation. What Section 377
fails to consider is that homosexuality, bisexuality and other sexual orientation are as natural and
are an expression of individualism.
In National Legal Services Authority v. Union of India,[ the Supreme Court has acknowledged
"gender identity" and has recognised transgender as third gender apart from male and female.
Accordingly, Section 377 in its present form violates various fundamental rights of the LGBT
community. It has been contended that being homosexual is neither a physical nor a mental
illness and right to choose a partner is a feature of dignity and LGBT community has right to
privacy.

Union of India while addressing arguments left the issue of "consensual acts of adult in private"
to the wisdom of the Supreme Court. On the other hand, various interveners in the batch petitions
vehemently argued against striking down of Section 377 on interalia the following grounds.
Firstly, that the LGBT community is more susceptible to contracting HIV/ AIDS. Secondly, the
same goes against the family system and the institution of marriage. Thirdly, interest of an
individual/ section of people cannot supersede interest of the society as a whole.

The Constitution Bench of Supreme Court while deciding the Navtej Singh Johar[8] has
recognised that the society needs to transform progressively and LGBT community has a right to
live with dignity. It has also been duly recognised that sexual orientation is natural and inherent
in an individual which is controlled by neurological and biological factors. Persons of same sex
who indulge in 'consensual sexual acts' cannot be penalised and unequal treatment to be them
cannot be meted out. Accordingly, the law in Suresh Kumar Koushal has been overruled
unanimously.

The Supreme Court has also laid emphasis on the reduction of social stigma and has accordingly
suggested that the judgment ought to be widely publicised by various media platforms. While
showing empathy towards the LGBT community, Supreme Court states that "hundred and fifty
eight years is too long a period for the LGBT community to suffer the indignities of denial." It
also writes that "History owes an apology to the members of this community and their families,
for the delay in providing redressal for the ignominy and ostracism that they have suffered
through the centuries."

In Navtej Singh Johar and ors. Vs. Union of Indian and ors.

Appeal- This case is an appeal against the judgment given by the Supreme Court in the previous
case of 2013.

Coram- CJI-Dipak Misra, Justice A.M. Khanwilkar, Justice Rohinton Fali Nariman, Justice D.Y.
Chandrachud and Justice Indu Malhotra.

Issues raised–

The main issue here raised was about the constitutionality of section-377 of IPC.

Arguments from Petitioner side

Homosexuality, bisexuality or any other sexual interest is something natural and is not a physical
or mental illness. It is a reflection of personal choice and criminalizing it will lead to the
destructing of Article 21 of the Indian Constitution by affecting an individuals dignity and his or
her gender identity.

It is also argued that a person will not become an alien if his community is not accepted by the
society at large and therefore rights of the LGBT community who constitutes 7-8% of Indian
population needs to be recognised.

Section-377 is based on the morals and social values of Victorian-era where sexual activities
were just considered as a reproductive process and nothing more than that. This section is the
only reason that the LGBT community has suffered discrimination and abuse all their lives and
will continue to suffer if homosexuality is criminalized again.

If section-377 is retained in without making any amendments then it would lead to the violation
of various fundamental rights of the LGBT group i.e. right to freedom of expression, right to
privacy, right to equality, liberty and dignity.
Petitioners have also mentioned that people who choose inter-religious and inter-caste marriages
are the same as people who choose a partner of same-sex and there is no difference between
them. Society may or may not disapprove of inter-caste and inter-religious marriages but it is the
duty of the court to enforce constitutional rights of every citizen. Position of the LGBT group is
the same, even though the majority is disapproving them but it is to the court to protect their
constitutional rights from being violated.

There is no reasonable classification between natural and unnatural sex and even the expression
“carnal intercourse against the order of nature” is not defined anywhere. Therefore section-377 is
arbitrary and vague and is violative of Article 14.

The section is also violative of Article 15 as it discriminates the LGBT community on the basis
of sex of their partners which is prohibited under Article 15 of the Indian Constitution.

Arguments from Respondent side

It has been submitted by them if section-377 is declared as unconstitutional then the family
system will be destroyed and many corrupt young Indians will see this as a trade and will start
using homosexual activities for money. Moreover, individuals indulging in such activities are
more likely to contract HIV/AIDS which will increase the percentage of AIDS victim in the
country.

It is also contended that the political, economic and cultural heritage of countries were
consensual homosexual acts have been decriminalized are very much different from a
multicultural and diverse country like India.

Fundamental rights are not absolute and decriminalizing section-377 will leave all the religions
practised in the country as objectionable and will lead to the violation of Article 25 of Indian
Constitution which also needs to be given due consideration.
They also submitted that clarifications can be added to section-377 by defining every word
which is controversially mentioned in the section. The section will then target people with
malafide intentions and non-consensual acts.

The main reason behind criminalizing carnal intercourse against nature is to protect the citizens
from the injurious consequences as protecting the citizens from something hazardous is one of
the aims of criminal law.

Article 15 prohibits discrimination on the basis of sex but not on sexual orientation,
therefore section-377 of IPC is not violating Article 15. Moreover, it is also not violative of
Article 14 as the section only mentions a particular offence along with its punishment.
JUDGEMENT

It doesn’t matter how minuscule is the LGBT section, they also have the right to privacy which
includes physical intimacy. Their choice of partner might be different but it does not mean they
will be prosecuted for that. Section-377 does curtail their human dignity and their personal
choice, therefore violating their right to privacy which is covered under Article 21.

The main objective behind retaining section-377 is to protect women and children from being
abused and harasses by carnal intercourse but consensual carnal intercourse which is performed
by the LGBT community is neither injurious to children nor women. Moreover, non-consensual
acts have already been referred to as an offence under section-375 of IPC which implies
that section-377 is redundant and discriminative towards one section of the society and is
therefore violative of Article 14 of the Indian Constitution rendering it unconstitutional.

Our Constitution being liberal, it is not possible that right of choice will be absolute. Therefore
some restrictions have been imposed on the principal of choice. However right of choosing a
partner for intimate relations is completely a matter of personal choice which cannot be
restricted. Whereas, section-377 of the Indian Penal Code restricts the right of LGBT community
of choosing a partner for sexual matters and is therefore irrational and arbitrary.

Public order, decency and morality are the grounds which can impose reasonable restriction on
the fundamental right of expression. Any act done in affection by the LGBT coommunity in
public does not disturb the public order or moral values untill it is decent enough and is not
obscene. However, section-377 is again unconstitutional in the sense that it does not connect
with the criteria of proportionality and is violating the fundamental right of expression of LGBT
group.

The SC declared that section-377 is unconstitutional as it violates Articles 14, 15, 19 and 21 of
the Indian Constitution and therefore overruled the judgment given in Suresh Koushal annd ors.
vs. Naz Foundation and ors. Moreover, it also declared that section-377 will be governing only
non-consensual sexual acts committed against any adult and minor.
CONCLUSION

So now homosexuality has been decriminalized but the reaction of society and different
organisations is still a challenge for the LGBT community. Though there are organisations such
as All India Muslim Personal Law Board and the Jamaat-e-Islami Hind who expressed their
disappointment towards the verdict given by the Apex Court on section-377. There also exist
organisations and parties who are satisfied with the given verdict, namely, Amnesty
International, RSS, CPI(M) and UN. According to the surveys conducted by various LGBT
activists in different parts of the country, life is much better and simple for the LGBT group.
Every society needs time to accept any change. The time is not so far when the society will
accept the LGBT community and their rights.