S.377 is an offence which punishes sexual intercourse
which is against the order of nature. The phrase ‘against the order of nature’
has not been defined anywhere but as per my understanding and research it
should mean a type of sexual intercourse in which there is no to negligible
chances of procreation, or an intercourse which is done solely for pleasure. So,
S. 377, before 2018, used to punish every intercourse which was done for
pleasure and against the order of nature.
The Problem
Problems of S. 377 were:
- 1.
That
it used to punish ‘voluntary carnal intercourse against the order of nature’,
that’s it. It did not at all mention about whether it was with consent or without
consent. So if two adults are voluntarily having sexual intercourse in four corners
of a room. They have committed an offence. Isn't this seem to be unjust,
unequitable and arbitrary on the face of it?
- 2.
That
if a person contracted a sexually transmitted disease while voluntarily
performing a sexual act of the nature mentioned above then s/he cannot visit a
doctor and seek the treatment. Because the moment s/he will disclose the
details of his/her partner to the doctor, the doctor will have to inform the
police and police will arrest the person. It being a cognizable offence. Naz
Foundation was one such organization which was working for control of AIDS and
challenged S.377 mainly for this reason.
Journey towards the Solution
Naz Foundation Vs.
Govt. of NCT of Delhi (2009 DHC)
This was the time when the K.S
Puttaswamy was not there. Meaning thereby, things like sexual preference,
individual autonomy and dignity, sexual autonomy, etc did not exist. The Delhi
High court through Hon’ble J. Muralidhar and Hon’ble J. A.P. Shah decided in
favour of Naz Foundation and declared S.377 to the extent of punishing two
consenting adults having voluntary sexual intercourse in private as
unconstitutional. The Delhi High court gave beautiful reasoning and also
held that S.377 violates Articles 21 , 19(1)(a), 15(1) of the LGBTQ2S
community. LGBTQ2S – Lesbian, Gay, Bisexual, Transgender, Queer, Two spirited.
Article 21: Right to Life and
Personal Liberty – DHC held that everyone has its personal discretion to choose
his partner. And everyone has full right to control one’s own private affairs.
Law should not interfere in something which is not disturbing the society and
is not violating the individual’s dignity and autonomy.
In recent judgment, the Delhi
HC on Marital Rape held that even the private space is within the scrutiny of
law, though context was different and discussion was different. Case Name: RIT
Foundation Vs. Union of India ( 11.05.2022 DHC).
Article 19(1)(a): Right to Freedom
of Speech and Expression. The Delhi High Court held that S. 377 comes in the
way of one’s Freedom of Speech and Expression. Because every person in India
has it’s sex preference. And have the right to declare the same to the world whether
s/he is Straight/Bi-Sexual/Gay/Queer/Lesbian.
Article 15(1): The Delhi High
Court held that the State cannot discriminate on ground of sex. And the term ‘Sex’
written in Article 15 does include sexual orientation also.
Individualistic Approach: It
was held by the court that the focus of state should be upon individual’s
freedom. And individual should be allowed to live in a way s/he wants. As long
as it is not affecting other’s right. Moreover, every individual has the right to
choose the person with whom s/he wants to have sexual intercourse with (Though
with consent).
Constitutional Morality: The
court also held that ultimately it is the Constitutional morality which should
prevail over any kind of social or religious practice.
Despite this being a very well-reasoned
judgment. It was overruled by the Supreme court in a case named Suresh Kumar
Koushal Vs. Naz Foundation (2013 SC)
Suresh Kumar
Koushal Vs. Naz Foundation (2013 SC)
In this court basically
overruled the Naz Foundation judgment and held it to be unconstitutional. Moreover,
the court held that LGBTQ community is very miniscule population. Thereafter
court gave various figures and facts and observed that there has been hardly
any conviction under S. 377. Court also held that Naz Foundation judgment of
Delhi High Court is mainly based on foreign judgments, which are not applicable
in India and have only persuasive value. The court went on to held that the
judiciary should not interfere in law making and should restrict itself with interpretation
of law and the making of law should be left to Legislature thereby promoting
Article 50 of the Constitution (Separation of Powers).
This judgment caused a lot of
unease in the society.
Navtej Singh Johar
Vs. Union of India, through Ministry of Law and Justice (2018 SC)
By the time this judgment came,
K.S. Puttaswamy judgment was already there. So, Navtej Singh Johar could not go
against Puttaswamy judgment. In this case, the apex court reiterated the same
points which were held by the Delhi High Court in the year 2009. This judgment
talked about individual autonomy which is implicit in Right to Privacy (Article
21) and also include sexual autonomy. Then court also talked about
Constitutional morality being over and above social/religious morality.
So, this judgment overruled
the Suresh Kumar Koushal Judgment of Supreme Court and declared S. 377
unconstitutional to the extent of it punishing voluntary sexual intercourse
between two consenting adults.
So this was the journey of S. 377. Though it is very
important to note that S. 377 has been declared to be unconstitutional only to
the extent of it punishing voluntary sexual intercourse between two consenting
adults. What is important to note here is that, S. 377 has not been declared to
be unconstitutional in totality. It still punishes sexual intercourse without
consent or an intercourse with a minor or an intercourse in public place.
By: Adv. Ishaan Garg
+91-8851742417 (WhatsApp)
