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Section 377 of Indian Penal Code, 1860 was brought in India by the Britishers. This Section criminalised all sexual acts “against the order of nature”. This Section was not only directed against the homosexuals but also covered all other forms of non-traditional sexual intercourse even in the course of heterosexual union. Hence, the LGBT+ community was not able to express their sexual orientation as it was considered a criminal offence. Therefore, the battle of the LGBT+ community began for the decriminalisation of Section 377. This article talks about several judgements which relate to the validity of section 377 and how section 377 was finally decriminalised in the Navtej Johar’s judgement.

  • Pre-Naz Foundation case situation i.e., before 2009

   Section 377 of Indian Penal Code, 1860 was still in force during this time.

In the case of Jayalakshmi v. State of Tamil Nadu[1], a transgender, charged for theft was arrested by the police. He was sexually abused in the police station and finally, he put himself on fire in the police station.

Theapathy towards LGBTQ+ was also present when health services are to be provided to prisoners. In Tihar jail[2], the medical team did the inspection and found out that sodomy was being practiced in the prison premises. So, they suggested the inspector general to provide condoms to the inmates to prevent STIs. Despite this, inspector general refused this idea as this might became the ground where homosexuality would be practiced which was punishable.There have been numerous instances like this wherein the name of implementing Section 377, several rights of LGBTQ+ had been violated.

  • Naz foundation v. Govt. of NCT[3](2009)

The Naz Foundation is a non-governmental organisation. It works on creating awareness about prevention of HIV/AIDS and sexual education and health since 1994. In 2001, the organisation filed a writ petition in the Delhi High Court and challenged the constitutional validity of Section 377 of Indian Penal Code,1860, claiming this section violated Article 14, 15, 19 and 21 of the Indian Constitution.

The court held that Section 377 to be unconstitutional which violates Article 14, 15 and 21 of the Indian Constitution. The Court held that Section 377 violates Article 14 because it creates an unreasonable classification and targets homosexuals as a class. The Court held that the term “sex” is inclusive of the word “sexual orientation”, and therefore discrimination on the ground of sexual orientation is violative of Article 15. The Court also noted that the right to health is one of the components of the right to life under Article 21, and concluded that Section 377 obstructs public health because it further the problems of the spread of HIV disease.

  • Suresh Kumar Koushal v. Naz Foundation & Ors.[4]

One part-time astrologer by the name of Suresh Kumar Koushal sought the permission of the Supreme Court to challenge the verdict of Delhi High Court in Naz[5], and was permitted to do so. Several religious groups then also filed to challenge the decision in Naz’s case.

On 11th December 2013, the Supreme Court reversed the judgment of the Delhi High Court and homosexuality would be an offence under Section 377.

The court in this judgment expressed that there’s a presumption of constitutionality of Section 377 of the Penal Code, 1860 (‘IPC’) since it has not been revised or annulled by Parliament in spite of the fact that it had a chance to do so while amending the IPC provisions related to sexual assault.[6]

The court reasoned that in order to conclude that LGBT people in India were being discriminated against, there was insufficient evidence before the Court. The Court makes a distinction between sexual acts and identities, as though the two were not in any way related. Turning a blind eye to the materials placed before the court, the judges noted that the LGBT community is only a “minuscule fraction of the population of the country” suggesting that they did not need protection from the law.

  • National Legal Services Authority v. Union of India & Ors.[7](2014)

The National Legal Services Authority (NALSA) is a statutory body which provides legal aid and services to oppressed, underprivileged sections of our society. NALSA realised that the transgender community have been facing discrimination at the hands of society and have been denied fundamental rights due to the fact that they were not considered male or female. Society shunned them and treats them as an outcast. These individuals also turn to begging or prostitution, rendering them more vulnerable to STDs and crimes such as human trafficking, since they are continually rejected and do not have access to services. Hence, NALSA filed the case before the Supreme Court to address this issue.

The ‘third gender’ status for hijras or transgender was established by the Supreme Court in its landmark judgment. As before, transgender people were expected to identify themselves as either male or female, but they were able to proudly accept themselves as transgender after the verdict. But aside from this, what made this decision so special was that it laid down the foundation to guarantee a whole range of fundamental human rights for the transgender community, which can be inferred as follows:

  1. The court held that the refusal to recognize their identity was contrary to Articles 14,15,16 and 21 of the Constitution of India. In addition, the Supreme Court ordered the Government of India to treat “Third Gender” members as an economically and socially backward class. It was also stipulated that, in the light of Articles 15(2) and 16(4) of the Indian Constitution, the government should establish suitable policies for the transgender community to ensure equal opportunities in education and jobs.
  2. The court accepted the distinction between sex and the biological elements of sex. In order to include genital, secondary sexual features, chromosomes, etc., the court specified biological characteristics, but defined gender attributes as one’s self-image, i.e., the deep emotional or psychological sense of sexual identity and character of a person that is not limited to the binary sense of male and female, but may lie on a broad spectrum.

After this judgement, there was awareness and recognition of transgender rights for example, the state of Kerala formed certain policies for Transgender in 2015. Many other states like Tamil Nadu and Maharashtra established Transgender Welfare Board in their respective states.

  • K.S. Puttaswamy & Anr. v. Union of India & Ors.[8](2017)

This judgement is also known as ‘Aadhar judgement’ or ‘Privacy Judgement’ as the right to privacy was held as a fundamental right which is a facet of Article 21 of the Indian Constitution. In this case, the opinion of Justice Chandrachud contained a section entitled “discordant notes.” The first was about the case of Jabalpur v S.S., Additional District Magistrate[9], Shukla which upheld the denial of fundamental rights, while the second part applied to the case of Koushal[10] denying the rhetoric of the LGBTQ+ community’s “so-called” rights. Koushal judgement is also termed as bad law in the privacy judgement.

The judgement states that the state does not have any control over the intimacy between consenting adults of the same-sex. Sodomy laws breach equality by targeting a section of society as they have alternate sexualities and don’t follow the traditional gender norms. Such a law continues to perpetuate biases and gives the state the power to further create a stigma around the LGBTQ+ community. This led to the chilling effect in the exercise of their freedom. Not only their sexual orientation is inherent to the identity of the LGBT+ community but also forms a component of liberty, dignity, privacy and individual autonomy and equality.   

  • Navtej Singh Johar & Others v. Union of India[11](2018)
  1. In its decision on 6 September 2018, the Supreme Court of India decriminalized same-sex relations. CJI Dipak Misra quoted the German thinker, Johann Wolfgang von Goethe, “I am what I am. therefore take me as I am” that tried to affirm the identity of the LGBTQ+ community.

The Court found Section 377 as arbitrary and violative because it distinguished heterosexual and homosexual individuals solely on the basis of their sexual orientation. Hence, it violates Article 14[12] of the Constitution (right to equality). The Court further stated that from Article 21 flows the right to dignity, privacy, and sexual autonomy and Section 377 violates these rights guaranteed to a homosexual person. Furthermore, the Court held that Section 377 violates Article 19(1)(a) of the Indian Constitution (freedom of speech and expression).  The judgement directed the Union of India to give the judgement some publicity using television, radio, print and online media from time to time, and initiate programmes to reduce stigma around the LGBTQ+ community. The Yogyakarta Principles which talk about the rights of sexual minorities were acknowledged by the court in this case.

  • While the Navtej[13] case is a major victory for the LGBT+ community in India, the fight[14] for civic, social, and political equality is far from over[15]. People belonging to gender and sexual minorities continue to face discrimination[16], abuse, and violence in all aspects of life which is further exacerbated by other intersecting identities, including caste, class, and religion[17].
  • The Indian government has managed to resist discussing its LGBT+ population’s problems and, despite the 2018 verdict, has remained apathetic to their realities. This is evident from its failure to enforce the guidelines of the Supreme Court to sensitize the public and government officials to eradicate social stigma and discrimination against LGBT+ individuals.
  • Transgender Persons (Protection of Rights) Act[18]

The Government of India introduced and passed the 2019 Transgender Rights Bill in the Lok Sabha in August 2019. The Bill was also passed by the Rajya Sabha and became law by a December 2019 Presidential Notification.

This Act has been criticized by many transgender representatives, activists and legal scholars.

There were several reasons for the widespread criticism, some were: –

  1. An individual still needs permission from the government of the state to prove their chosen gender which is against the idea of the right to self-determine the identity and against the NALSA judgement.
  2. The Act reduces the punishment for sexual assault on transgender persons (6 months to 2 years) compared to cis-gendered women.
  3. The Act remains silent on reservation for transgender persons even though they are considered as socially and backward classes from the NALSA judgement.
  • Conclusion

Section 377’s impact has gone well beyond criminalizing. The presence of this provision has increased myths of sexual orientation. It has given the state power to suppress the identity of the individuals. The threat of persecution has led to same-sex marriages being closed down. Hence, the judgement of Navtej[19] brought a ray of hope for LGBT+ community by finally decriminalising Section 377 of IPC, 1860 and freely express their sexual orientation as it is their fundamental right which emanates from the Indian Constitution.

[1] (2007) 4 MLJ 849.

[2] Siddharth Narrain, “The Queer Case of Section 377”, Sarai Reader, available at http://archive.sarai.net/files/original/67296a7644a5664a9733aabf58b238b1.pdf (last visited on Feb. 14, 2021).         

[3] (2009) 111 DRJ 1.

[4] (2014) 3 SCC 220.

[5] (2009) 111 DRJ 1.

[6] Siddharth Narrain, “Lost in Appeal: The Downward Spiral from Naz to Koushal”,(2013) 6 NUJS L Rev 575.

[7] (2014) 5 SCC 438.

[8] (2017) 10 SCC 1.

[9] (1976) 2 SCC 521.

[10](2014) 3 SCC 220.

[11] (2018) 10 SCC 1.

[12] INDIA CONST. art. 14.

[13] (2018) 10 SCC 1.

[14]“Living with Dignity: Sexual Orientation and Gender Identity Based Human Rights Violations in Housing, Work, and Public Spaces in India”, International Commission of Jurists, June, 2019, available at https://www.icj.org/wp-content/uploads/2019/06/India-Living-with-dignity-Publications-Reports-thematic-report-2019-ENG.pdf (last visited on Feb. 16, 2021).         

[15] Chakrabarti, A. “Queer freedom? A year after the Section 377 verdict, LGBT community still doesn’t have these rights”, News18, Sept 6, 2019, available at https://www.news18.com/news/buzz/queer-freedom-a-year-after-Section-377-verdict-lgbt-community-still-dont-have-these-rights-2299373.html (last visited on Feb. 16, 2021).         

[16] Banerji, A.,One year after landmark ruling for LGBT+ rights in India, challenges persist”, Reuters,Sept 6, 2019, available at https://www.reuters.com/article/us-india-lgbt/one-year-after-landmark-ruling-for-lgbt-rights-in-india-challenges-persist-idUSKCN1VR256 (last visited on Feb. 17, 2021).         

[17] Ahmed, R, “First person: As a persecuted gay Muslim from Bangladesh seeking refuge, I wasn’t welcome in India”, Scroll.in, Dec 25, 2019, available at https://scroll.in/article/947811/first-person-as-a-persecuted-muslim-bangladeshi-seeking-refuge-i-wasn-t-welcome-in-india (last visited on Feb. 17, 2021).         

[18] Transgender Persons (Protection of Rights) Act, 2019 (No.40 of 2019).

[19] (2018) 10 SCC 1.

Author: Aadi Kushwaha

Editor: Kanishka VaishSenior Editor, LexLife India.

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