It is widely acknowledged that undervaluation of sex and sexual minorities in society occurs on both a social and political level in many social regimes. This is a significant component that varies throughout countries, states, and worldwide regions. Underestimating the impact of anything can lead to various forms of separation, including rape, misuse, limited heterosexual marriage, mental and physical abuse, and transformation therapy.
In view of this, on September 6, 2018, the Indian Supreme Court ratified section 377 of ipc, 1860, making gay sex legal. The Supreme Court stated in its ruling that although it is a matter of personal preference, consenting adult sex in private that does not endanger women or children cannot be prohibited.
naz foundation v government of nct of delhi Case Facts
- In 2009, section 377 of ipc was ruled illegal in the case of Naz Foundation v. Government of the NCT of Delhi. Legal interference shouldn’t be allowed when two adults of the same sex consent to a sexual encounter.
- Unfortunately, the Delhi High Court’s earlier ruling was overturned in the case of Suresh Kumar Koushal v. Naz Foundation. A petition against the 2014 ruling was filed in 2016.
- The Supreme Court believed that the case ought to be heard by a five-judge bench. The lgbtq community member named Navtej Singh Johar, an activist and dancer, filed the petition in 2016.
- He fought for the defense of liberties such as the ability to choose a mate and the right to sexual autonomy. Obviously, this would mean overturning a law from the colonial era that runs counter to everything.
naz foundation case Issues
- Was there a violation of Articles 14 and 15 by Section 377?
- Does Article 21 conflict with Section 377?
- Should Section 377 be entirely repealed due to its unconstitutionality?
Contentions by the Parties
Petitioner:
- The Naz Foundation, a non-governmental organization that filed the petition, claimed that the ongoing application of section 377 to the Indian penal code, the gay and transgender community had resulted in harassment and discrimination against them, violating their constitutionally guaranteed rights to equality, non-discrimination, privacy, life and liberty, and health.
- They maintained that the right to privacy was safeguarded by article 21 of the indian constitution, which outlines the right to life and liberty.
- They further contended and suggested that reading Article 15 of the Indian Constitution narrowly and obstructively should exclude “sexual orientation” from the prohibition against discrimination on the basis of sex.
Respondent:
- On the one hand, the MHA made a number of arguments in favour of keeping section 377 of ipc in place.
- First of all, it made it possible for those who sexually abuse minors to be prosecuted.
- Secondly, it also closed a loophole in the rape legislation.
- Thirdly, eliminating it would open the door for “flood gates of criminal behaviour,” which is unquestionably against the interests of the public.
- Lastly, MHA argued that laws had to represent these kinds of cultural ideals since such behaviour is not ethically acceptable in Indian society.
- However, in support of the Naz Foundation’s argument, the Ministry of Health and Family Welfare, which was affiliated with the National Aids Control Organization, submitted evidence. It claimed that section 377 of the IPC undermines efforts to prevent and treat HIV/AIDS.
naz foundation case Judgment
The most popular justification against criminalizing homosexuality, according to former Chief Justice A.M. Khanwilkar, is that having sex is fundamentally about reproducing. Given this contention, Justice Deepak Mishra penned:
- As culture and time have changed, there are now more reasons than only procreation for people to choose to live together, get married, or even come together. They do so for a variety of reasons, such as close relationships and emotional company.
- Nowadays, it appears that the primary purpose of marriage is to provide emotional fulfilment that cannot be attained in any other kind of partnership. It serves as a haven for a lot of people fleeing the impersonality and coldness of modern life.
- The question that would come up is whether homosexuality and carnal relations between consenting adults of the opposite sex can be labeled as “against the order of nature” in the modern world, where marriage is no longer connected with having children.
- It is up to two consenting individuals to decide whether or not to have intercourse for the purpose of procreation, and if they choose to do so, it cannot be argued that their decision goes against the natural order. Thus, having sex in a different way, according to the consenting individuals’ decision, does not mean that it is against the natural order.
As a result, the Supreme Court decided that having gay intercourse with an adult who has given consent is not illegal. It was decided that those who identify as lesbian, gay, bisexual, or transgender have the same constitutional rights as other Americans. It stated that discrimination based on the biological phenomenon of homosexuality would be against fundamental rights.
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