Authored By: Shivam Chaurasiya
Guru Ghasidas vishwavidyalaya bilaspur chattisgarh
INTRODUCTION :
In the Puttaswamy judgment, the Supreme Court recognised the right of every citizen of India to live with dignity and the right to privacy, including the right to make intimate choices regarding the manner in which an individual wishes to live. These rights are protected under Articles 14, 19, and 21 of the Constitution. In light of this judgment, it became clear that Section 377, insofar as it applied to consensual same-sex relationships between adults, was unconstitutional. Instead of understanding sexual orientation and attempting to correct
centuries of stigma associated with such individuals, the provision criminalised them.This is a landmark case of section 377 of the Indian Penal code 1860 . In this case of S.C held section 377 of the IPC partially unconstitutional , it is violative of Aricle 14 , 19 and 21 of the constitution of India 1950 . The apex court established a precedent in case of the rights of LGBTQ community .
The judgement was delivered for constitutional bench ( five judges ) Chief Justice Dipak Misra and Justices Rohinton F. Nariman, D.Y. Chandrachud, Indu Malhotra, and A.M. Khanwilkar. The court is held section 377 was constitutional . The reling resored constitutional morality , reorgnised the rights of the LGBTQ community and reaffirmed the principle of equality aprivacy and freedom under the constitution of India .
FACTS:
The primary issue in this case was the constitutional validity of Section 377 of the IPC (now under the Bharatiya Nyaya Sanhita), which dealt with “unnatural offences” and criminalised carnal intercourse against the order of nature, insofar as it impacted consensual same-sex relationships. In 2009, Section 377 was held unconstitutional by the Delhi High Court in the Naz Foundation case. However, this decision was reversed by the Supreme Court in Suresh Kumar Koushal v. Naz Foundation. Subsequently, a writ petition was filed in Navtej Singh Johar before a three-judge bench of the Supreme Court, seeking reconsideration of the decision in Suresh Kumar Koushal and challenging the constitutionality of Section 377. The petitioner sought recognition the right of sexuality and the right to choose a sexual partner to be part to the right to life . Article 21 of the constitution of India 1950 .
ISSUES:
- Whether Section 377 should be struck down as unconstitutional.
- Whether Section 377 created a reasonable classification between natural and unnatural consensual sex.
- Whether constitutional morality should prevail over social morality. • How the Court should evolve constitutional rights in light of changing societal values.
- How the court should be interpret and evolve constitutional rights in response to changing social values .
CONSTITUTIONAL ISSUE :
- Article 14 Right to equality
- Article 15 prohibition of discrimination
- Article 19 (1)(a) – freedom of expression
- Aricle 21 – Right to life and personal liberty
ARGUMENTS:
The petitioners submitted that the rights of the LGBT community, which constitutes approximately 8% of the Indian population, must be recognised and protected. They relied on the Puttaswamy case to argue that Section 377 was unconstitutional because it discriminated against the LGBT community on the basis of sexual orientation and violated the fundamental rights guaranteed under Articles 14, 19, and 21.
The petitioners sought recognition of the right to sexuality, the right to sexual autonomy, and the right to choose a life partner as part of the right to life guaranteed under Article 21.
The respondents submitted that since the constitutional validity of Section 377 concerned consensual acts of same-sex adults in private, they would leave the matter to the wisdom of the Court. They further argued that Section 377 was not discriminatory because it criminalised acts, not individuals, and applied equally to all “unnatural” sexual conduct, irrespective of sexual orientation, including both heterosexual and homosexual couples.
DECISION / JUDGEMENT :
A five-judge Constitution Bench of the Supreme Court, comprising Chief Justice Dipak Misra and Justices Rohinton F. Nariman, D.Y. Chandrachud, Indu Malhotra, and A.M. Khanwilkar, unanimously held that Section 377 was unconstitutional to the extent that it criminalised consensual sexual acts between adults. However, the parts criminalising non-consensual acts, acts involving minors, and bestiality remain valid and enforceable.
The Court held that sexual orientation is innate, natural, and immutable. It affirmed the protection of freedom of expression (Article 19), the right to privacy and decisional autonomy (as recognised in the Puttaswamy case), and the principles of equality and non-discrimination (Articles 14 and 15).
Overruling Koushal declaring its reasoning 1 st at only a minuscule minority ’’was affected to be legally followed and constitutional unacceptation .
Constitutional morality , progressive realisation & transformative constitutionalism .
UESED IN OTHER CASES :
- Naz foundation Vs Government Of NCT of Delhi 160 DLT 277 (Delhi H.C 2009) – Delhi High Court declared section 377 unconstitutional for the first time .
- Suresh Kumar Koushal Vs Naz foundation (2014) (SCC) :- the Supreme Court restored section 377 overturning the Naz foundation judgement which was overturned by Navtej Johar .
- Justice KS Puttaswamy Vs Union Of India (2017) 10 SCC 1 :- held the right to privacy as a fundamental right which become the basis for LGBTQ right .
- National legal services Authority Vs Union Of India AIR 2014 SC 1863 – Recognized the rights of transgender persons and gender identity under Artcle 14, 15 ,19 and 21 .
- Shayara Bano Vs Union Of India (2017 ) 9 SCC1 :- Interpreted constitutional morality in the triple talaq case .
CONCLUSION:
The Court partially struck down Section 377, finding it unconstitutional and violative of fundamental rights. The decision was delivered by a five-judge Constitution Bench of the Supreme Court of India. In the view of the forsaid findings it is declared that sofar as section 377 criminalises consensual sexual acts of adults in private of Articles 14,15,19 and 21 of the constitution . It is however , clarified that such consent must be free consent which is completely voluntary in nature and devoid of any duress or coercion
The declaration of the aforesaid reading down of section 377 shall not however lead to the reopening of any conducted proseculations but can certainly be relied upon in all pending matters whether they are at the trial , appellate or revisional stages .
