The Honorable Supreme Court of India in the case of Navtej Singh Johar v. Union of India[1] passed a landmark judgment. A Bench headed by the former Chief Justice, Honorable Justice Dipak Misra, read down the colonial law to the extent to which it hampered individual freedoms and rights of the LGBTQ community in this country.

Sexual orientation varies from one individual to the other. A general rule can never be laid down. It's not always that a man is attracted to a woman or a woman is attracted to a man. When Michael Kirby, a former judge of the High Court of Australia and a former President of the International Commission of Jurists, delivered the 2013 Tagore Law Lectures, his theme was 'Sexual Orientation and Gender Identity 'a new province of law for India'. In 1999, Justice Kirby had made it public that he was homosexual.

Homosexuality though attracts a unique sexual orientation but is certainly not an offence. While most religions condemn it, a secular country is not expected to be driven by religious bindings while making secular laws. Thus, finally in September 2018, the Honorable Supreme Court of India vide its judgment in Navtej Singh Johar v. Union of India[2] struck down portions of Section 377 that criminalized consensual sexual relations between same-sex couples.

The Supreme Court while delivering the judgment observed that when Section 377 was drafted, procreation was considered as the sole purpose of intercourse and any deviation from such kind of sexual relations was thought of as unnatural.[3] But the court explained that 'homosexuality' is no longer 'unnatural' and thus there is no point of covering it under the umbrella of 'unnatural offences'.

Thus, the present law under Section 377 doesn't punish individuals for establishing consensual homosexual relations.

However, what really is Section 377 and why was it controversial? Let's discuss it hereunder.

The Indian Penal Code (hereinafter, 'the IPC') is the principle legislation dealing with substantive criminal law in India. Various provisions punishing various offences have been laid down under the IPC. One such law was Section 377[4]. The law punished individuals for indulging in sexual relations 'against the order of nature'. The problem with that provision was the absence of the consent clause. Unlike Section 375 'Rape' that punishes individual for forceful sexual relations with a woman against her will and without her consent, Section 377 punished anybody for having sexual relations against the order of nature, with or without consent. However, before we move further on this discussion, we need to understand two things viz., 'against the order of nature' and 'consent'.

Consent

Consent is a tricky issue. In various countries and various legislations even consensual sexual relations outside marriage are an offence. In some countries even forcing oneself on your wife is punishable. Hence, consent as the basis for punishing the individual for a sex law varies from country to country and is subjective. However, when we talk in context of India, considering the individual freedom as enshrined under Article 21 of the Constitution, a person shall have a right to indulge in consensual sexual relation until such relation violates the rights of a third person. This would mean that a husband and a wife shall not indulge in such relations outside marriage. Similarly, if two individuals are entering into such relations with consent then it should not be punishable in law.

That was precisely the issue with Section 377 that it punished individuals for indulging in such relations against the order of nature even when it was with consent. This aspect of consent was finally resolved by the Honorable Supreme Court of India in the judgment of Navtej Singh Johar which shall be discussed later.

Now, a person shall have a right to indulge in such relations wilfully and consensually, even if they are against the order of nature. Let's now look into this aspect of the provision i.e. 'against the order of nature'.

Against The Order Of Nature

Section 377 used a very peculiar term for punishing individuals and that was against the order of nature.
However, what does it really mean? What is natural about sexual relations? God has made human beings for various purposes and establishing sexual relations also has a purpose. That purpose according to every religion and every belief across the world is that such relations are established to procreate, to have children. Thus, any such physical relation that will not ultimately lead to legitimate children is condemned by all religions unanimously. Hence, obviously since homosexual relations or bestiality in no way can naturally lead to procreation of children, all such relations come under this umbrella of 'against the order of nature'.

Now the next question which arises is why was this punishable? Every single religion or community or society in this world, irrespective of how liberal it may become, has not given up on its core principles. Whether this is good or bad, I leave it for you to decide, however, this is a fact. And all religions irrespective of how different they are, unanimously condemn, oppose and criminalise such relations between individuals.

This was the basis of Section 377 as well that nobody could have imagined back in the 1860s that people in the future will develop such kind of a sexual orientation as well. Even in 1950 when we got our Constitution and we got Article 21 and the right of life and personal liberty, nobody could have imagined that establishing such sexual relations will become a part of that liberty as well. This is exactly the reason why Section 377 remained in existence without any change for so long.

The Case Of Suresh Kumar Koushal And The Begining Of Recongising Rights Of Homosexuals

On December 11, 2013, the Honorable Supreme Court of India reversed a liberating and internationally acclaimed judgment of Delhi High Court after 4 years. The judgment by the Delhi High Court delivered on 2nd July, 2009[5], though welcomed by the public at large, was much criticized by the legal fraternity, claiming that it was unlawful vide Section 377. The Supreme Court on appeal reversed the decision saying that it was against the erstwhile provision under the Indian Penal Code.[6] However, the problem with the judgment of the Honorable Supreme Court was the defunct provision under Section 377. The Supreme Court in its judgment categorically specified that this matter shall be decided by the Parliament.

There was much hue and cry about this for many years which was finally put to rest in the year 2018.

The Case Of Navtej Singh Johar

The petitioner in the present case, Navtej Singh Johar, filed a writ petition in the Supreme Court in 2016 challenging the constitutional validity of Section 377 seeking recognition of the right of sexuality, right to sexual autonomy and right to choose a sexual partner as part of Article 21[7]. Also it was prayed to declare Section 377 as unconstitutional. Moreover, the petitioner argued that Section 377 was violative of Article 14[8] as it was vague since carnal intercourse was not defined in the provision. It was also argued that it was violative of Article 15[9] as it discriminated on basis of a person's sexual orientation and freedom of expression under Article 19 since it denied the right to express one's sexual identity through speech and choice of sexual partner.

The Union of India submitted that it left the question of constitutional validity of Section 377 to the wisdom of the court.

The five judge bench of the Supreme Court in this matter unanimously held that Section 377 insofar as it applied to consensual sexual conduct between individuals, was unconstitutional.
So now, consensual homosexual relations are no more punishable under Section 377.

Right Of Maintenance

Consensual homosexual relations are now perfectly valid as per the judgment of the Honorable Apex Court and hence all such rights that are enjoyed by heterosexual couples must be extended to homosexual couples as well. One such right is the right to claim maintenance.

Section 125(1)(a) of the Code of Criminal Procedure[10] recognizes the right of a wife to claim maintenance from her husband. So obviously Section 125 is based on the premise of a heterosexual relationship. It will not take into consideration homosexual relationship.

This is something that the judiciary in this country must look into and recognize a homosexual partner's right to maintenance.

End-Notes:

1. (2018) 10 SCC 1.
2. Id.
3. Id., at 19.
4. 377. 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.
5. Naz Foundation v. Govt. of NCT, Delhi, 160 DLT 277.
6. Suresh Kumar Koushal and Anr. v. Naz Foundation, (2014) 1 SCC 1.
7. 21. Protection of life and personal liberty- No person shall be deprived of his life or personal liberty except according to procedure established by law.
8. 14. Equality before law- The State shall not deny to any person equality before the law or the equal protection of the laws within the territory of India.
9. 15. Prohibition of discrimination on grounds of religion, race, caste, sex or place of birth  (1) The State shall not discriminate against any citizen on grounds only of religion, race, caste, sex, place of birth or any of them.
   (2) No citizen shall, on grounds only of religion, race, caste, sex, place of birth or any of them, be subject to any disability, liability, restriction or condition with regard to-
   (a) access to shops, public restaurants, hotels and places of public entertainment; or
   (b) the use of wells, tanks, bathing ghats, roads and places of public resort maintained wholly or partly out of State funds or dedicated to the use of general public.
   (3) Nothing in this article shall prevent the State from making any special provision for women and children.
   [(4) Nothing in this article or in clause (2) of article 29 shall prevent the State from making any special provision for the advancement of any socially and educationally backward classes of citizens or for the Scheduled Castes and the Scheduled Tribes.]
   [(5) Nothing in this article or in sub-clause (g) of clause (1) of article 19 shall prevent the State from making any special provision, by law, for the advancement of any socially and educationally backward classes of citizens or for the Scheduled Castes or the Scheduled Tribes in so far as such provisions relate to their admission to educational institutions including private educational institutions, whether aided or unaided by the State, other than the minority educational institutions referred to in clause (1) of article 30.]
10. The Code of Criminal Procedure, 1973, No. 2, Acts of Parliament, 1974 (India).

Written By: Syed Aatif - is a practicing advocate at Central Administrative Tribunal, Delhi High Court and the Supreme Court of India.
Email: [email protected]