Facts :!
- In the year 2009 the Delhi High Court in the case of Naz Foundation v Govt of NCT held section
377 of IPC unconstitutional,. The law stated consensual sexual intercourse between same sex
people as an “unnatural offence” which is “against the order of nature” It prescribed a
punishment of 10 years of imprisonment. The judgement of Delhi high court in this case was
based on the fundament principal of right to life and personal liberty enshrined under article 21
and also that the very law was a violation of article 14 as well which provided for equal protection
before law.!
- The judgement of the Delhi high court was challenged by several organisations and in the case
of Suresh Koushal and ors vs Naz Foundation the Supreme Court reversed the judgement of the
Delhi high court in the year 2013. The supreme court in it's judgement contented that the section
does not violated article 14 as it is not focused on any class of people but stands against certain
activities in order to protect public health. It also stated that a significantly smaller portion of
people have been persecuted from the entire LGBTQ community clearly stating that the law was
not prohibitive but restrictive. !
-The judgement of the Supreme court in the case of Suresh Koushal and ors vs Naz Foundation
was challenged by several organisations and during the pendency of these collective petitions a
fresh writ petition was filed by 5 individuals including Navtej Singh Johar to scrape section 377.!
- The matter was heard by a 5 judge bench on 10th of June, 2018.!
Issue:!
-1.Whether section-377 of IPC is violative of Article 14 and 15 of the Indian Constitution?!
2.Whether section-377 of IPC is violative of Article 21 of Indian Constitution?!
3.Whether section-377 of IPC is unconstitutional?!
Law:!
-Article 14, 15 , 21 , 19(1)(a) Of the Indian constitution, sec 377 of IPC!
Analysis:!
- With a ratio of 4:1 the Supreme Court gave the ratio decidendi to strike down section 377 of
IPC which criminalised carnal intercourse against the order of nature and stated it to be
unconstitutional. The obiter dictum of the court was that discrimination on the basis of sexual
orientation was violation right to equality and criminalising consensual sex between adults in
private was against right to privacy. !
The court lied on the judgement delivered in the case of NALSA vs UOI to identify gender identity
to be intrinsic to ones personality and denying the same would result to violation of right to a
dignified life. It also relied on the judgement delivered in the case of K.S Puttaswamy v UOI that
there shall be violation of fundamental rights towards the LGBTQ community if they are denied
right to privacy only on the ground that they belonged to a minority section of then society.!
Communication:!
-The verdict proved to be a landmark judgement in the history of LGBTQ community, this
provides for recognising there rights which have been neglected for a long time. The judgement
gives new perspectives to further laws that can be implemented to protect the community and
give a voice to them against the discrimination they face.
