Section 377 Case: What the Judges said while decriminalising homosexuality

In NAVTEJ SINGH JOHAR & ORS. V UNION OF INDIA THR. SECRETARY MINISTRY OF LAW AND JUSTICE

A five-judge bench of the Apex Court gave this landmark judgement, headed by:

• Chief Justice Dipak Misra,
• Justice A.M. Khanwilkar
• Justice Dr. D.Y. Chandrachud
• Justice R.F. Nariman
• Justice Indu Malhotra

This landmark judgement partially struck down the sec 377 of IPC which decriminalised homosexuality and was considered to be violative of fundamental rights as it bared the persons to choose a partner of their choice or to determine their sexuality. Now homosexuality and consensual sexual acts like oral and anal sex are no more an offence in India but however bestiality and forceful oral and anal sex remain an offence.

Sec 377 of IPC states: “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.”

Views of the justices constituting the bench:

Whole bench unanimously declared the sec 377 of IPC as unconstitutional. Although the bench consisted of 5 judges but 4 out of them expressed themselves.

1. Chief Justice Dipak Misra (Also on behalf of 
   Justice A.M. Khanwilkar) :

While reading his judgement, he noted “I am what I am. So take me as I am. No one can escape from their individuality.”  His judgement included transformative constitutionalism and the rights of LGBT community, Sexual orientation, Privacy and its concomitant aspects, Doctrine of progressive realization of rights, The litmus test for survival of Section 377 IPC and many other things.

• He emphasized on the human dignity as an important part of Article 21: Right to life. One has full right to live with full dignity and respect of his own identity. To understand a person‘s dignity, one has to appreciate how the dignity of another is to be perceived.
• He talked about sexual orientation and added that it is a natural process and discrimination on this fact is a violation of freedom of expression. He also referred the definitions, given by Michael Kirby, for the terms like homosexual, bisexual, lesbian, gay, gender identity, intersex, MSM and LGTB in his judgement.
• He highlighted the importance of right to privacy in the way that every person has full right to decide their sexual identity and living their life as normal as heterosexuals, like a normal person.
• The doctrine of progressive realization of rights invariably reminds us about the living and dynamic nature of a Constitution and with time it grows with the growth of the society. And it the duty of the judiciary to make some changes in the laws which prove to be a dead letter to the citizens.

And in the end he considered the principles evolved under Articles 14, 19 and 21 of the Constitution as the litmus test for the survival of the section 377 of IPC and found it better to decriminalise the parts of the sec 377.

2. Justice R.F. Nariman:

He started his judgement with the lines of Lord Alfred Douglas  “The love that dare not speak its name” is how the love that exists between same-sex couples. While reading his verdict, he observed that homosexuality can’t be considered as mental disorder and referred Mental Healthcare Act as per which parliament has recognized that homosexuality is not a mental disorder. He further added that homosexuals have full right to live with dignity as others. And he further asked the government to take initiatives to sensitize about LGBTQ rights. He said that the Suresh Kumar Koushal was no longer good law in view of the NALSA and Puttaswamy judgments. Finally, they declared that homosexuals are entitled to the protection of equal laws, and are entitled to be treated in society as human beings without any stigma being attached to any of them. We further declare that Section 377 insofar as it criminalizes homosexual sex and transgender sex between consenting adults is unconstitutional.

3. Justice Dr. D.Y. Chandrachud:

He delivered his judgement saying that section 377 inflicts tragedy and anguish which has to be remedied. He further added that the state has no business in controlling the private lives homosexuals and community is entitled to equal citizenship, respects, rights and dignity. They should be treated as normal human beings only. And decriminalizing homosexuality is the first step towards their better life.

He mentioned that the choice of whom to partner, the ability to find fulfilment in sexual intimacies and the right not to be subjected to discriminatory behaviour are intrinsic to the constitutional protection of sexual orientation.  He too brought up the right to privacy judgment from last year and the decision in Suresh Kumar Koushal & Anr. v. Naz Foundation & Ors was overruled.

4. Justice Indu Malhotra :

She read out her judgement by saying that history owes an apology to LGBT community as they had to face discrimination and they were a victim of stigma imposed on them and were forced to live a life of prosecution.

She referred homosexuality as A VARIATION OF SEXUALITY NOT AN ABERRATION. She considered section 377 violative to Articles 14, 15,19 and 21 of the constitution in her judgement. She further mentioned that sexual orientation is an innate part of the identity of LGBT persons. Sexual orientation of a person is an essential attribute of privacy. Its protection lies at the core of Fundamental Rights guaranteed by Articles 14, 15, and 21.

She highlighted in her judgement that in India the sections 18(1) and (2) read with 21(1)(a) of the Mental Healthcare Act, 2017 provide for the right to access mental healthcare and equal treatment of people with physical and mental illnesses without discrimination, inter alia, on the basis of “sexual orientation”

She also added that decriminalisation of section 377 shall not lead to the reopening of any concluded prosecutions, but can certainly be relied upon in all pending matters whether they are at the trial, appellate, or revisional stages.

For summary of judgment and read full judgement click here or visit: https://legaldesire.com/section-377-sc-decriminalises-homosexuality-love-is-supreme-and-equal-for-all/