{"id":201423,"date":"2018-09-06T21:04:00","date_gmt":"2018-09-06T15:34:00","guid":{"rendered":"https:\/\/www.scconline.com\/blog\/?p=201423"},"modified":"2024-02-09T16:37:43","modified_gmt":"2024-02-09T11:07:43","slug":"gender-identity-and-self-expression-basic-to-human-dignity-article-377-unconstitutional-in-so-far-it-penalises-consensual-sexual-acts-between-adults-in-private-sc","status":"publish","type":"post","link":"https:\/\/www.scconline.com\/blog\/post\/2018\/09\/06\/gender-identity-and-self-expression-basic-to-human-dignity-article-377-unconstitutional-in-so-far-it-penalises-consensual-sexual-acts-between-adults-in-private-sc\/","title":{"rendered":"Final Judgment| Gender Identity and self-expression basic to human dignity; Section 377 unconstitutional insofar it penalises consensual sexual acts between adults in private : SC"},"content":{"rendered":"

\u00a0\u00a0What nature gives is natural. That is called the nature within.<\/em><\/p>\n

\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0 – <\/em>C.J. Dipak Misra and A.M. Khanwilkar, J.<\/p>\n

Supreme Court: <\/strong>The 5-Judge Constitution Bench comprising of CJ Dipak Misra and R.F. Nariman, A.M. Khanwilkar, Dr\u00a0D.Y. Chandrachud and Indu Malhotra, JJ. in their landmark judgment held Section 377 IPC unconstitutional insofar it criminalised gay sex between consenting adults. The Bench which delivered three opinions along with the leading judgment, reversed the 2-Judge Bench decision in Suresh Kumar Koushal v. Naz Foundation,<\/strong><\/em>(2014) 1 SCC 1<\/a><\/strong>\u00a0 which in turn had reversed the judgment of a Division Bench of Delhi High Court in Naz Foundation v. State (NCT of Delhi)<\/strong>,<\/em> 2009 SCC OnLine Del 1762<\/a>. The Delhi High Court in Naz Foundation <\/em>had declared Section 377 violative of Articles 14, 15 and 21 of the Constitution insofar as it criminalised consensual sexual acts of adults in private.<\/p>\n

\u00a0I am what I am, so take me as I am.<\/em><\/p>\n

\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0 \u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0–<\/em>Johann Wolfgang von Goethe<\/p>\n

The present judgment can be said to be a watershed moment in India’s journey to gender equality and social justice. The judgment not only emancipates the LGBTQ community from the shackles of gender inequality; it not only gives them the freedom of individuality, Right to privacy, life and liberty, freedom of choice; but also the Right to freedom of self-expression. The decision can fairly be looked upon as a classic example of how the Indian Judiciary time and again rises to the injustice suffered by the discriminated strata of the society. The judgment more than anything gives identity.<\/p>\n

The Court considered the validity of the section by analysing it in juxtaposition to Section 375 which defines rape. Drawing an analogy, the Court held that if consensual carnal intercourse between a heterosexual couple does not amount to rape, it definitely should not be designated as an unnatural offence under Section 377 IPC. The expression against the order of nature<\/em> has nowhere been defined. The non-consensual acts which have been criminalised by the section, have already been designated as penal offences under Section 375 and POCSO Act. If the section remains on the statute book in its present form, it will allow harassment and exploitation of LGBT community to prevail. It abridges both human dignity and fundamental right of privacy and choice of the citizenry, however small. Right to privacy takes within its sweep the right to every individual including that of the LGBT to express their choices in terms of sexual inclination. The section does not survive the trinity test of Articles 14, 19 and 21. Freedom of choice cannot be scuttled or abridged on the threat of criminal prosecution and made paraplegic on mercurial stance of majoritarian perception. To understand the scope of the judicial pronouncement by the sentinel of the qui vive – as our Judiciary has stood always — it is pertinent to delineate the observations made by the Hon’ble Judges in their opinions.<\/p>\n

CJ Dipak Misra (for himself and A.M. Khanwilkar, JJ.)<\/strong><\/p>\n

\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0 <\/strong>One defines oneself. That is the glorious form of individuality<\/em><\/p>\n