Sec 377 of the Indian penal code,a fable of colonial creation,has succeeded in penalizing unnatural sexual acts since 1861.Indian penal code was drafted by Lord Macaulay and introduced in 1861 in British India.Sec 377 is backed by an ancient Christian philosophy based upon moral and ethical standards,which popularly has one notion framed that sex in purely functional terms,i.e. for purpose of protestation only.Any non-procreative sexual activity is thus judged against the order of nature and has been criminalized by the Indian penal code.The landmark case in the legal history of India Naz Foundation v.Government Of NCT Of Delhi a writ petition brought abut by the Naz Foundation an NGO working with and for HIV/AIDS sufferers has elevated the most suppress issue in the Indian legal system by raising some crucial contention which held sec 377 unconstitutional.It stated that sec 377 violated the fundamental rights guaranteed under Articles 14,15,19 and 21 of the Constitution of India.Legislature and judiciaries across the globe have upheld laws criminalizing homo sexuality and transgender behaviour and molding their reasoning on the grounds of public decency and morality.
Section 377 of the Indian Penal Code,was first implemented during the colonial rule in India,which penalizes carnal intercourse against the order of nature.The interpretation has been given a wide ambit and only heterosexual penal-vaginal intercourse is permitted.
A voice of change was led by the Naz Foundation,a non government organization.They filed a lawsuit in the Delhi High Court in 2001 for removing the centuries long legislation and declaring it unconstitutional.Previously in 1994 same petition was filed by AIDS Bhedhav Virodhi Andolan but was unable to supersede.
Delhi High Court in 2003 denied to contemplate on the petition concerning the legality of the law,asserting that petitioners had no locus standi in the present matter.
Naz foundation took the aggrieved matter to the Supreme Court of India against the decision of Delhi High Court,arguing that their right has been neglected on the technical grounds.The Supreme Court contented that Naz foundation had the legality and standing to file public interest litigation in the present case and reinstate the matter to the Delhi High Court to hear the present petition on the basis of merit.
National AIDS control organization in 2006 filed an affidavit supporting the petition and argued that the enforcement and implication of sec 377 violates the fundamental rights of the LGBT community.Comparable intervention was permitted in the case by a Delhi based alliance of LGBT and human rights activists who supported the same ideology to struck down sec 377 and declare it unconstitutional.
Arguments and Analysis
The petitioner NGO works for prevention and betterment of HIV/AIDS sufferer and
Has raised some serious arguments in favour of the vulnerable sections of society which includes gay community who can be addressed as homosexuals.According to petitioner they are extremely vulnerable to HID/AIDS infection as they are suppressed under sec 377 and are tortured by the police men and other aiding authorities.Their basic fundamental human rights stood denied and they are subjected to assault and harassment.
According to petitioner sec 377 is an ancient methodology curved by the opinion orthodox standards,it is solely based on the judo-christian philosophy in which sex is for the purpose of procreation only and as a result of which any non procreative sexual activity was considered against the order of nature.But penalizing oral and anal sex is outdated and stands no place in the modern psychology. Sec 377 only creates the gap between society which further leads to more vulnerable people who are continually victimized and targeted by the present provision.
Pursuit of happiness ,human dignity and concepts of privacy are all encompassed within the ambit of fundamental right to life and liberty given under Article 21.It is argued that sexual desires and intimacy that one performs or express are so private and prominent within an individuals personality and definitely covers the spectrum of Article 21.Further it is submitted that sec 377 criminalize unnatural sexual acts which has no rational nexus to justify the objective and reasoning behind it,and is violation of Article 14.Sex as used in Article 15 can not be restricted only to gender but has to be given a wide spread,it includes sexual orientation and desires also thus equality on the basis of sexual orientation covers Article 15.Freedoms guaranteed under Article 19 give a stage area to an individual to make personal statement about ones sexual orientation.
The Ministry of Home Affairs and Ministry of Health & Family Welfare are two paramount respondents in the present petition.what triggers the most in this case is that complete contradictory affidavits has been filed by both wings.MHA stood justifying the retention of sec 377,whereas the Ministry of Heath made a strong contention stating that sec 377 has impeded the HIV/AIDS prevention efforts.MHA tried to put fare arguments in favour of sec 377 and spoke broadly that how removing of current legislation will lead to more child sexual abuse and lacunae in the rape laws.It has been stated that removal thereof would expand the horizons of homosexuality and delinquent behaviour.
The judgment of the Delhi High Court is a landmark judgment of its own kind as it address various concerns associated with the existing legislation of sec 377.The court pondered upon the constitutional validity of the impugned law,testing its compatibility with Article14,15,19 and 21.High Court held that sexual orientations has its strings attached with the right to dignity and privacy of an individual and thus directly violates the substance of Article 21.As to answer the violation of Article 14,the court applied the said test announced by the Supreme Court in State of West Bengal v.Anwar Ali Sarkar.There was no reasonable nexus between inhibiting child sexual abuse or preventing rapes with criminalizing of consensual sexual relations between adults.furthermore court interpreted the term sex mentioned in Article 15 and further explained how connotation of word sex needs to be given wider periphery inclusive of sexual desires.
Repercussions of the judgement towards sexual minorities
The judgment has turned out to be the merriment for the oppressed sexual minorities.It can be viewed as a full plate meal as it decriminalizes sexual relations between homosexuals as well as a source of protection from the harassment and abuse at the hands of the administrators.The most considered argument admitted by the HC as to ensure protection of the sexual minorities from a serious medical condition HIV/AIDS among homosexuals.By decriminalizing consensual sex between homosexuals has overcome the great concern of health.Previously proliferation of sexual transmitted diseases in homosexuals leads its way in the direction of conviction of the sufferers.The other element of the court decision is the elimination of any trail which leads to abuse at the hands of the authorities.From the centuries back sexual minorities has suffered abuse and extortion for the main reason of sec 377 which allowed inhuman treatment towards them.
Constitutional components engaged in the judgement
The High Court has heard all the relevant circumspection's concerning the fundamental rights and has pondered upon the applicability of its decision.The court found the impugned law in contradiction to various fundamental rights of the constitution.The recent judgement has allowed the extension of equal protection of laws to all the deprived sections,recognizing the discrimination towards sexual minorities.
The judgement of the Delhi High Court shows a sense of scruple and affinity towards the sexual minorities.Decriminalizing of sec 377 was demand of the human rights to prioritize individual liberty over the idea of fake morality and ethics.The repression of anti homosexual laws has already been recognized by various legal systems internationally.From home Affairs v. Fourie in Southern Africa to Lawrence v.Texas in United States has recognized the common law system who administers the rights and freedom of sexual orientation.According to the Vedas ,all human beings forms one family,regardless of their origin or their skin color so why discriminate anyone on the basis of sexual orientation.
1. VIRAM RAGHAVAN, Navigating the noteworthy and Nebulous in Naz Foundation’2 NUJS Law Review
2. Indian Kanoon.org
3. Naz Foundation v Govt of NCT of Delhi Law Times 277
4. PATRICK ARTHUR DEVLIN,The enforcement of Morals
5. Rachel Sweeney,Homosexuals and the Right to Privacy
Credit: KIRAN DHAIYA
Clg name: LLOYD LAW COLLEGE