DISCUSSING THE ORDER OF NATURE- SECTION 377

Ethics and morals becomes a huge part of law in cultured society since rules and regulations exist for its smooth functioning. But as each state becomes more cosmopolitan and rationale driven, people demand more inclusiveness and are voicing for their rights, which were either denied or remained unmentioned. With regard to section 377, Homosexuality has a long drawn history in India but if you need a summed up layout of its presence in the legal arena of India you only need to know and understand the timeline that spans just over one decade.

THE TIMELINE ON SECTION 377

2009- Naz Foundation v. Govt. of NCT of Delhi 

The decision was probably the first big step taken towards striking down Section 377 of the Indian Penal Code which criminalized same-sex intercourse in India. The Bench discussed how the colonial era law abrogates the Right to Equality provided under the Indian Constitution and also the Right to Privacy of individuals.

2013- Suresh K. Koushal & Anr. v. Naz Foundation & Ors.

The judgment overturned the 2009 Delhi High Court decision, which decriminalized homosexuality. It received huge criticism on a lot of ends. Apart from ignoring a minority on the basis of sexual preferences, it established huge threats by restricting their access to basic sexual healthcare and making them vulnerable to harassment from local authorities.

2018- Navtej Singh Johar v. Union of India

The decision was a landmark, given by 4 senior judges and the Chief Justice of India, all arriving at the unanimous decision of decriminalizing homosexuality. It will be nothing but incorrect to say that the Apex Court struck down the section in its entirety. The Section still retains other essential elements which amount to “unnatural sex” by law. This includes non-consensual sex by a person of the same gender, sodomy and bestiality.

UNDERSTANDING THE RATIONALE

Since the decision lies on the opposite end of the rationale spectrum as compared to the 2013 Supreme Court judgment, it is essential to know what the reported change in thinking was and any further developments that led to the final verdict.

Just a year earlier, in another landmark case, the court finally established the status of the right to privacy in India, which prior to the decision was still in ambiguity. The Privacy Judgment, also famously called the Puttaswamy Judgment, is credited a lot with paving the way for the 2018 homosexuality judgment. Each individual has the right to live with dignity, and this right is entangled with his right to privacy. Any law that discriminates on the basis of sexual orientation is violative of the person’s right to live with dignity.

Another element that was recognized was the element of “consent” while choosing sexual partners. The Court sternly dictated that the autonomy of each person is individualistic, and between consenting adults, their sexual orientation should not be dictated by the state, society, or its morals.

Apart from protecting the rights and privacy of sexual minorities, the judgment was also cheered on because it paves a way for the provision of a legal framework for the protection of sexual minorities from widespread STDs and everyday mental harassment from the police.