A taboo, an illegal act, an unnatural act, a filthy act- this and much more is what is heard of when we talk about the same-sex relationship in India. Section 377 of the Indian Penal Code defines “unnatural offence”. Section 377 was introduced in 1864 during the period of British Rule in India. It makes sexual activity between people of the same sex illegal.
In a landmark judgement of 2018 in Navtej Singh Johar v. Union of India, the five-judge bench of Supreme Court, declared Section 377 as unconstitutional insofar as it criminalises consensual sexual acts of adults in private. This was a big step taken by our apex court in enhancing the rights to its citizens and showing that SC always stands for the rights of the people of the country. It formulated a fundamental right that is right to love from Article 21. This judgement not only marked the victory of the LGBT community in India but also gave them legal recognition.
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Background of the case
Section 377 was always controversial because it prescribed the punishment of 10 years for people who had consensual sex ‘against the order of nature’. The LGBT community was targeted and was not allowed to exist in the society even. This resulted in a petition by Naz Foundation India in the Delhi HC which contended that Section 377 was unconstitutional and invalid because it overlooked Article 14, Article 15, Article 19 and Article 21. Moreover, Section 377 cannot be used to punish two consenting adults for having sex.
Many other NGO’s and organisations stood against this petition and contended that Right to Privacy should not be used to commit an offence and to degrade the society.
The Court held Section 377 IPC as violative of Article 14 and against human dignity. Thereafter, in 2013 the SC in Suresh Koushal held that the act of decriminalization of Section 377 can only be done by the Parliament and is ultra vires court’s powers. Many petitions were filed in the SC challenging this decision, and finally, in September 2018 the SC formed a 5-judge bench to decide the matter.
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Important considerations by the Court
The constitutional bench of the SC considered several aspects while striking down Section 377 of the IPC.
The partial striking of Section 377
It is important to note that the court partially struck down the provision. Section 377 still penalises the non- consensual intercourses. The court only struck down the provision as far as it penalised the consensual sexual intercourse between two adults.
Rights of the LGBT Community
The court upheld the rights of the LGBT community. SC relied on its earlier judgement in National Legal Services Authority v. Union of India and held that gender identity is one of the most important things in determining the personality of an individual. Denying it would amount to violate one’s dignity, which is the very essence of the Constitution.
K.S. Puttaswamy v. Union of India was also relied on while extending the right to privacy to the LGBT community. Right to privacy could in no case be denied on the ground that the community is in the minority and does not form a considerable part of the society. This was considered a violation of the Constitution. It was also held that “intimacy between consenting adults of the same sex is beyond the legitimate interests of the state.”
The court also cited the case of Shafin Jahan v. Asokan K.M. and Shakti Vahini v. Union of India which held that an adult has the right to choose his/her life partner. This is a facet of individual liberty.
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The Supreme Court held Section 377 violative of Article 14, 19(1)(a) and 21 of the Constitution. Two tests were applied to determine whether the provision was violative of Article 14 or not. The tests were the old classification test and the new manifest arbitrariness test.
The Court held that Section 377 violated the rights of the LGBT community to identify, dignity and privacy and freedom of expression. Two of the judges of the bench also held that the provision also violated the right to health of an individual because the LGBT community is more prone to sexually transmitted diseases (STDs) and they hesitate to get a medical check-up or seek medical advice when they know that their act is criminalised.
Right to Love
Chandrachud J. cited Leila Seth C.J. in his judgement and emphasised on the point that “what makes life meaningful is love.” He recognised that “the right to love and to find a partner, to find fulfilment in a same-sex relationship is essential to a society which beliefs in freedom under the constitutional order based on rights”.
Love is that force that crosses all the lines of caste, religion, and sex. ‘Social Morality’ or people’s opinion cannot be used to disapprove the rights given to the citizens.
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With the apex court of India giving a backbone to the community and standing by them, the homosexuals have got a legal recognition. Although they are now liberated to live their life according to their whims and fancies, still they need to fight back with the societal norms and outlook of the people. SC’s 2018 judgement defines the identity of the LGBT community, but they have to go a long way in fighting for their rights. The law needs to define them more and frame rules to implement their rights.
 National Legal Services Authority v. Union of India (2014) 5 SCC 438.
 K.S. Puttaswamy v. Union of India (2017) 10 SCC 1.
Shafin Jahan v. Asokan K.M. 2018 (5) SCALE 422.
 Shakti Vahini v. Union of India (2018) 7 SCC 192.
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