Landmark Ruling on LGBTQ Rights: Decriminalization of Section 377 IPC

In a historic judgment, the Supreme Court of India delivered a landmark ruling on September 6, 2018, striking down a portion of Section 377 of the Indian Penal Code (IPC) that criminalized consensual sexual acts between adults. This judgment in Navtej Singh Johar & Ors. v. Union of India was a major step forward in recognizing the rights and dignity of the LGBTQ community in India.

The case was brought before the Supreme Court by a group of petitioners, including renowned dancer Navtej Singh Johar, challenging the constitutional validity of Section 377 IPC. They contended that the provision violated fundamental rights under the Constitution, including the right to equality, dignity, and privacy.

Arguments by the Petitioners

The petitioners, represented by eminent senior counsel, argued that Section 377 IPC was unconstitutional as it criminalized consensual sexual acts between adults in private, infringing upon their fundamental rights. Their primary contentions were:

• Sexual orientation is an innate and immutable characteristic of an individual, and criminalizing such behavior violates Article 21 of the Constitution.
• The law discriminated against LGBTQ individuals, violating Article 14, which guarantees equality before the law.
• Article 19(1)(a) was also violated as it suppressed an individual’s right to express their sexual identity freely.
• The provision subjected the LGBTQ community to social stigma, police harassment, and denial of rights available to other citizens.
• International legal precedents, including those from the US, UK, Canada, and South Africa, have progressively decriminalized homosexuality, and India must not lag behind in recognizing these rights.

Arguments by the Respondents

The Union of India, in its affidavit, left the decision to the wisdom of the Supreme Court but sought to limit the judgment to decriminalization and not address ancillary issues such as same-sex marriage or civil partnerships.

However, some intervenors opposed the decriminalization of Section 377 IPC, arguing:

• Homosexuality was against Indian culture and traditions.
• The provision served as a deterrent against unnatural sexual behavior.
• Any change in the law should be left to the Parliament and not be adjudicated by the courts.
• Decriminalization could lead to the breakdown of the traditional family structure.

Observations and Verdict by the Supreme Court

The Supreme Court, in a unanimous decision delivered by a five-judge Constitution Bench comprising Chief Justice Dipak Misra, and Justices A.M. Khanwilkar, Rohinton Fali Nariman, D.Y. Chandrachud, and Indu Malhotra, struck down the portion of Section 377 IPC that criminalized consensual sexual acts between adults.

The judgment was based on the following principles:

• Fundamental Rights: The court reaffirmed that LGBTQ individuals are entitled to all fundamental rights guaranteed under the Constitution.
• Right to Dignity and Privacy: The judgment relied heavily on the 2017 landmark ruling in K.S. Puttaswamy v. Union of India, which recognized the right to privacy as a fundamental right under Article 21.
• Equality and Non-Discrimination: The Court held that Section 377 IPC violated Article 14 as it unfairly discriminated against individuals based on their sexual orientation.
• Freedom of Expression: The law had a chilling effect on LGBTQ individuals from expressing their identity, violating Article 19(1)(a).
• Constitutional Morality Over Social Morality: The judgment emphasized that constitutional morality must prevail over popular social morality, which is often influenced by outdated prejudices.
• International Precedents: The Court cited various international judgments and human rights treaties that recognized LGBTQ rights and decriminalized same-sex relations.

Justice Indu Malhotra, in her concurring opinion, stated: “History owes an apology to the LGBTQ community for the delay in providing them the right to live with dignity and without fear.”

Impact of the Judgment

The judgment was celebrated as a victory for human rights, dignity, and equality. It decriminalized consensual homosexual acts but left intact provisions that criminalized non-consensual sexual acts and bestiality.

The ruling paved the way for further discussions on LGBTQ rights, including legal recognition of same-sex marriages, adoption rights, and anti-discrimination laws in employment and housing.

The Supreme Court’s verdict in Navtej Singh Johar & Ors. v. Union of India marked a progressive step towards inclusivity and the recognition of diversity in Indian society. It upheld the fundamental rights of LGBTQ individuals, reaffirming that their identity and love were no longer a crime but a natural and valid expression of human existence.

Petitioner Name: Navtej Singh Johar & Ors..
Respondent Name: Union of India.
Judgment By: Justice Dipak Misra, Justice A.M. Khanwilkar, Justice Rohinton Fali Nariman, Justice D.Y. Chandrachud, Justice Indu Malhotra.
Place Of Incident: India.
Judgment Date: 06-09-2018.

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