THE CONSENSUAL IS NO LONGER CRIMINAL
We’re fundamentally an Intellectual Property resource. However, we believe the verdict in question here, striking down Section 377, is a historic moment in our vast legal landscape, and thus worthy of mention. Further, this verdict has implications on privacy laws, and hopefully on a societal outlook that will spur changes in a multitude of other areas of law, many of which are yet to be analyzed in this specific respect.
On September 6th, 2018, the Supreme Court of India struck down parts of Section 377 of the Indian Penal Code, largely on the basis of the 2017 Supreme Court decision in Puttaswamy and the 2009 Delhi High Court Decision in Naz Foundation. In its decision involving multiple writ petitions, the Supreme court discussed at length the effect of the existing law on individual privacy, the rights of transgender people, and the importance of consent in Section 375 of the IPC, while determining the constitutionality of Section 377.
The decision, issued by a 5-judge constitutional bench, involves 6 writ petitions, 5 opinions, and a unanimous verdict that Section 377, insofar as it covers consensual activity between adults, is unconstitutional in light of Articles 14, 19 and 21 of the Constitution of India.
Factual and Procedural Background
The most comprehensive petition against Section 377 was filed in 2001 by the Naz Foundation in the Delhi High Court, whose verdict in 2009 read down Section 377 to exclude consensual activity between adults. Although the government did not appeal this judgement, many other organisations filed appeals in the Supreme Court. In 2013, the Supreme Court overturned the decision of the Delhi Court in Koushal v. Naz, stating that the judiciary did not have to intervene, and any amendment to the section would have to be carried out by the legislature.
While a curative petition against the decision in Koushal v. Naz was still pending, five eminent members of the LGBT community filed petitions in the Supreme Court in 2016. Before these petitions were heard, the Supreme court delivered its decision in 2017 in Puttaswamy, which upheld the fundamental right to privacy read into Article 21. These decisions directly and significantly impacted the Supreme Court’s reasoning, as discussed below.
Contentions of the Petitioners and Respondents
The Writ Petition was filed for declaring the following as part of the right to life under Article 21: the right to sexual autonomy and the right to choose a sexual partner; and consequently, declaring Section 377 unconstitutional.
The petitioners submitted that homosexuality, bisexuality and other sexual orientations are equally natural and their consensual expression is neither an illness nor a crime. They further submitted that, based on the majority opinion in Puttaswamy, and the decision in NALSA, sexual orientation was an essential component of guaranteed Constitutional rights and is also an integral and innate facet of every individual‘s identity. It was also submitted that the presumption of the constitutionality of a statutory provision merely imposed an evidentiary burden on the petitioners to show a prima facie violation of fundamental rights, beyond which the presumption was invalid. The petitioners argued that Section 377 is overly broad and arbitrary in its classification, violative of the freedom of expression guaranteed by Article 19, and the right of privacy under Article 21.
The Respondent, the Union government submitted it would leave the question of the Constitutional validity of Section 377 to the wisdom of the court. On behalf of the Respondent, various intervenors submitted that no further relief could be granted to the transgender community beyond the rights granted in NALSA. It was submitted that unnatural acts as contemplated by section 377 resulted in higher incidence of HIV/AIDS among homosexuals. Another intervenor submitted that the striking down of Section 377 would render the victims complaining of forced acts covered under the existing Section 377 IPC remediless. Another intervenor submitted that Section 377 criminalizes the act irrespective of gender or sexual orientation of the persons involved, and is therefore not discriminatory. The intervenors also contended that discrimination based on sexual orientation is not prohibited under Article 15 of the Constitution.
In the majority opinion, Chief Justice Dipak Misra and A.M. Khanwilkar, J, framed the issue as whether sexual orientation alone is to be protected or both orientation and choice are to be accepted as long as the exercise of these rights by an individual do not affect another‘s choice, while maintaining dignity and privacy.
The petitioners argued that the idea of what constitutes the “order of nature” as been narrowly interpreted as the concept of procreation, or as what comprises the majoritarian perception of natural. Accepting the petitioners’ contentions, the court stated, “The natural identity of an individual should be treated to be absolutely essential to his being. What nature gives is natural.”
Noting that the Constitution is a living and evolving organism, the Court held that, “the development of law cannot be a mute spectator to the struggle for the realisation and attainment of the rights of such members of the society.” It further stated that, in accordance with the principle of transformative constitutionalism, “it is this ability of a Constitution to transform which gives it the character of a living and organic document.”
Discussing constitutional morality, the court opined that the Constitution strives to maintain diversity in society, and not give voice only to the majority prevalent sentiment. The Court held, “It is the concept of constitutional morality which strives and urges the organs of the State to maintain such a heterogeneous fibre in the society, not just in the limited sense, but also in multifarious ways. It is the responsibility of all the three organs of the State to curb any propensity or proclivity of popular sentiment or majoritarianism. Any attempt to push and shove a homogeneous, uniform, consistent and a standardised philosophy throughout the society would violate the principle of constitutional morality. Devotion and fidelity to constitutional morality must not be equated with the popular sentiment prevalent at a particular point of time.”
Discussing the discriminatory nature of the section, the judges questioned whether an act, which covers all categories of persons if the offence is committed, can be treated as a criminal offence if it violates Articles 19(1)(a) and 21 of the Constitution. The court held that Constitutional provisions have to be construed and developed in such a manner that their real intent and existence percolates to all segments of the society. The need for equality was discussed in light of Article 1 of the UDHR, which is “uncompromising in its generality of application: All human beings are born free and equal in dignity and rights.”
Discussing the right to privacy, the Court noted the decision of the US Supreme Court in Planned Parenthood v. Casey, where it was held that matters which involve the most intimate and personal choices a person may make in a lifetime, choices central to personal dignity and autonomy, are central to the liberty protected by the Fourteenth Amendment. The court also referenced Article 12 of the UDHR and Article 17 of the ICCPR.,
The Court stated, “There can be no doubt that an individual also has a right to a union under Article 21 of the Constitution. When we say union, we do not mean the union of marriage, though marriage is a union. As a concept, union also means companionship in every sense of the word, be it physical, mental, sexual or emotional. The LGBT community is seeking realisation of its basic right to companionship, so long as such a companionship is consensual, free from the vice of deceit, force, coercion and does not result in violation of the fundamental rights of others.”
Quoting Chandrachud J. in Koushal v. Naz, the Court held that, the mere fact that a minuscule fraction of the country’s population constituted lesbians, gays, bisexuals or transgenders is not a sustainable basis to deny the right to privacy.
Holding that fundamental rights, by their very nature, are guaranteed to all persons, the Court held, “the provisions have employed the words ‘any person’ and ‘any citizen’ making it manifest that the constitutional courts are under an obligation to protect the fundamental rights of every single citizen without waiting for the catastrophic situation when the fundamental rights of the majority of citizens get violated.
Drawing an analogy between the amended Sections 375 and 377 of the IPC, the Court held that, “if consensual carnal intercourse between a heterosexual couple does not amount to rape, it definitely should not be labelled and designated as unnatural offence under Section 377 IPC.”
The Court opined that, “criminalisation of consensual carnal intercourse, be it amongst homosexuals, heterosexuals, bi-sexuals or transgenders, hardly serves any legitimate public purpose or interest.”
Applying a “litmus test” to determine whether Section 377 should survive in its current form, the Court held that the provision abridges human dignity and the fundamental right to privacy and to choose a partner, and this choice should not be subject to the fear of criminal prosecution.
The Court stated, “Section 377 IPC, in its present form, abridges both human dignity as well as the fundamental right to privacy and choice of the citizenry, howsoever small. As sexual orientation is an essential and innate facet of privacy, the right to privacy takes within its sweep the right of every individual including that of the LGBT to express their choices in terms of sexual inclination without the fear of persecution or criminal prosecution.
“The sexual autonomy of an individual to choose his/her sexual partner is an important pillar and an insegregable facet of individual liberty.”
It further held, that “Sexual acts cannot be viewed from the lens of social morality or that of traditional precepts wherein sexual acts were considered only for the purpose of procreation”, and therefore, “Section 377 IPC, so long as it criminalises consensual sexual acts of whatever nature between competent adults, is manifestly arbitrary.”
In light of the above, the Court, over-ruling Koushal v. Naz, concluded as follows:
Section 377 IPC, so far as it penalizes any consensual sexual relationship between two adults, be it homosexuals (man and a man), heterosexuals (man and a woman) or lesbians (woman and a woman), cannot be regarded as constitutional. However, if anyone, by which we mean both a man and a woman, engages in any kind of sexual activity with an animal, the said aspect of Section 377 is constitutional and it shall remain a penal offence under Section 377 IPC. Any act of the description covered under Section 377 IPC done between two individuals without the consent of any one of them would invite penal liability under Section 377 IPC.
This article is authored by Ashwini Arun, Associate, BananaIP Counsels.
 Justice K. S. Puttaswamy (Retd.) and Anr. vs Union of India And Ors, WRIT PETITION (CIVIL) NO 494 OF 2012, Supreme Court of India.
 Naz Foundation v. Govt. of NCT of Delhi, 160 Delhi Law Times 277.
 Section 377 of the IPC reads:
Unnatural offences: Whoever voluntarily has carnal intercourse against the order of nature with any man, woman or animal shall be punished with imprisonment for life, or with imprisonment of either description for a term which may extend to ten years, and shall also be liable to fine.
Explanation: Penetration is sufficient to constitute the carnal intercourse necessary to the offence described in this section.
 Navtej Singh Johar & Ors. versus Union of India thr Secretary Ministry of Law and Justice, W. P. (Crl.) No. 76 of 2016, Supreme Court of India.
 Suresh Kumar Koushal and Anr vs. Naz Foundation and Ors, Civil Appeal No. 10972 OF 2013, Supreme Court of India.
 Para 10.
 Para 15.
 National Legal Services Authority v. Union of India, WP (Civil) No 604 of 2013, Supreme Court of India.
 Para 10.
 Para 16.
 Para 19.
 Para 43.
 Para 47.
 Para 54.
 Para 59.
 Para 4.
 Para 16.
 Para 89.
 Para 97.
 Para 116.
 Para 81.
 Para 97.
 Para 126.
 Para 137, citing Planned Parenthood of Southeastern Pennsylvania, et al. v. Robert P. Casey, et al, 505 U.S. 833 (1992).
 Para 150, 151 Article 12 of the universal Declaration of Human Rights, 948 reads as follows:
No one shall be subjected to arbitrary interference with his privacy, family, home or correspondence nor to attacks upon his honour and reputation.
 Article 17 of the International Covenant of Civil and Political Rights, reads as follows:
No one shall be subjected to arbitrary or unlawful interference with his privacy, family, home and correspondence, nor to unlawful attacks on his honour and reputation.
 Para 155.
 Para 160.
 Para 170.
 Para 221.
 Para 223.
 Para 229, 230.
 Para 239.
 Para 253 (xvii).