Above: Queer Azaadi’s annual parade in Mumbai/Photo: UNI

With the apex court agreeing to reconsider its 2013 decision to criminalise gay sex, the LGBTQ community hopes to lead a life of dignity with their rights restored

~By India Legal Bureau

Thanks to the right to privacy being deemed a fundamental right, the Supreme Court has agreed to reconsider its 2013 decision in Suresh Kumar Kaushal vs Naz Foundation which criminalised gay sex and said it will review Section 377 of the Indian Penal Code that makes such relations a crime.

The Court said that what is natural for one may not be natural for the other, but the law cannot curtail rights under Article 21 (right to life) of the Constitution. The SC also issued a notice to the Centre seeking its response to a writ petition filed by five members of the lesbian, gay, bisexual, transgender and queer (LGBTQ) community, who said they live in fear of police because of their natural sexual orientation and preferences. Among those who filed the petition were acclaimed dancer Navtej Singh Johar, journalist Sunil Mehra, celebrity chef Ritu Dalmia and hotelier Aman Nath. The petition was argued by senior advocate Arvind P Datar who contended that Section 377 was violative of the fundamental rights of LGBTQs.

Datar urged the court to rule in favor of their right to sexuality, sexual autonomy and choice of sexual partner. He cited the court’s right to privacy judgment to seek constitutional protection of sexual minorities from harassment and persecution.

The apex court also referred to a constitution bench the petition seeking to decriminalise consensual sex between LGBTQ adults. In December 2013, the top court set aside the Delhi High Court’s 2009 verdict decriminalising homosexuality.

RIGHT TO PRIVACY

A three-judge bench of Chief Justice Dipak Misra and Justices AM Khanwilkar and DY Chandrachud said the SC’s December 2013 judgment upholding the validity of Section 377—which says sexual intercourse between consenting adults of the same gender is a crime—appears to hurt the sexual preferences of individuals.

The bench took into account views expressed in another judgment in August, which gave the right to privacy the status of a fundamental right. That judgment was also in favour of respecting the freedom of individuals regarding sexual orientation.

After the SC’s privacy judgment in August, activists and lawyers working for the LGBTQ community made a strong case for the rights of sexual minorities. At the time, activist Gautam Bhan said the SC’s reading of the right to privacy as an aspect of dignity and equality, particularly in the case of LGBTQ rights, was welcome.

Section 377, enacted by the British 153 years ago in 1860, terms consensual anal sex as an “unnatural offence” and provides for punishment equivalent to that for the offence of rape under Section 376. It even outlaws oral sex between a man and a woman, while holding that only penile-vaginal sex was not “against the order of nature”.

In 2001, the Naz Foundation, an NGO working on HIV/AIDS and sexual health issues, filed a petition in the Del-hi High Court against Section 377. In 2009, the High Court called Section 377 a violation of the fundamental rights guaranteed by the Constitution. It said: “We declare that Section 377 IPC, insofar it criminalizes consensual sexual acts of adults in private, is violative of Articles 21, 14 and 15 of the Constitution. The provisions of Section 377 IPC will continue to govern non-consensual penile non-vaginal sex and penile non vaginal sex involving minors….Secondly, we clarify that our judgment will not result in the re-opening of criminal cases involving Section 377 IPC that have already attained finality.”

However, religious groups appealed against the decision in the Supreme Court. In December 2013, the Supreme Court overturned the Delhi High Court’s judgment and said that amending or repealing this Section should be left to Parliament. In 2016, a three-member bench headed by then Chief Justice TS Thakur said that the curative plea of Naz Foundation and other gay rights activists would be reviewed afresh by a five-member constitutional bench. In August 2017, when the Supreme Court upheld the right to privacy as a fundamental right, it said sexual orientation is an “essential component of identity” and the rights of the lesbian, gay, bisexual and transgender population are “real rights founded on sound constitutional doctrine”.

The present writ petition filed by Navtej Singh Johar & Ors under Article 32 raises two questions of law:

(1) Whether Section 377 is unconstitutional and violative of Part III of the Constitution and thus ought to be struck down?

(2) Whether Section 377 ought to be read down to exclude its applicability to consensual sexual acts of adults in private, so as to safeguard the fundamental rights of such consenting adults?

The petitioners requested the Supreme Court to declare the “Right to Sexuality” as the “Right to Sexual Autonomy” and the “Right to Choice of a Sexual Partner” and to include it as part of the Right to Life guaranteed under Article 21 and declare Section 377 unconstitutional.

MAJORITY PERCEPTION                        

The writ petition was earlier listed before a double bench of the Supreme Court in 2016 and later before a bench of three judges presided over by the chief justice on January 8, 2017. In the two-judge bench judgment in Suresh Kumar Kaushal Vs Naz Foundation which upheld the constitutional validity of Section 377, the order said that the perception of the majority which is based on social morality stands on a platform distinct from constitutional morality. It was submitted that constitutional supremacy would prevail and any social principle would not be allowed to come in the way.

Reference was also made to National Legal Service Authority vs Union of India and others, where in Para 21 and 22 it said:

“21. Gender identity is one of the most fundamental aspects of life which refers to a person’s intrinsic sense of being male, female or transgender or transsexual person. A person’s sex is usually assigned at birth, but a relatively small group of persons may born with bodies which incorporate both or certain aspects of both male and female physiology. At times, genital anatomy problems may arise in certain persons, their innate perception of themselves, is not in conformity with the sex assigned to them at birth and may include pre and post-operative transsexual persons and also persons who do not choose to undergo or do not have access to operation and also include persons who cannot undergo successful operation. Countries, all over the world, including India, are grappled with the question of attribution of gender to persons who believe that they belong to the opposite sex.

“22. Sexual orientation refers to an individual’s enduring physical, romantic and/or emotional attraction to another person. Sexual orientation includes transgender and gender-variant people with heavy sexual orientation and their sexual orientation may or may not change during or after gender transmission, which also includes homosexuals, bysexuals, heterosexuals, asexual etc. Gender identity and sexual orientation, as already indicated, are different concepts.”

The counsel also relied on a nine-judge bench decision in Justice K.S. Puttaswamy (Retd.) and another vs.  Union of India and Ors. in 2017 where the Court ruled that privacy is a constitutionally protected right in India.

The Supreme Court’s new stance has brought cheer to the LGBTQ community and shows that the judiciary is in step with changing times.