#The377Debate II : 06.09.2018

Navtej Singh Johar v. UOI, [Writ Petition (Criminal) No. 76 of 2016] was filed for declaring Section 377 to be unconstitutional. It was held by: 

Dipak Misra CJI and A.M. Khanwilkar J.

The phrase ‘against the order of nature’ has neither been defined in any provision of the IPC. What is ‘against the order of nature’? Procreation is not the only reason for which people choose to come together, have live-in relationships, perform coitus or even marry. They do so for a whole lot of reasons including emotional companionship. It is the freedom of choice of two consenting adults to perform sex for procreation or otherwise and if their choice is that of the latter, it cannot be said to be against the order of nature. Therefore, sex, if performed differently, as per the choice of the consenting adults, does not per se make it against the order of nature. 

Section 375 IPC clearly stipulates that carnal intercourse between a man and a woman with the willful and informed consent of the woman does not amount to rape and is not penal. If consensual carnal intercourse between a heterosexual couple does not amount to rape, it definitely should not be labelled and designated as an unnatural offence under Section 377. 

Criminalization of consensual carnal intercourse, be it amongst homosexuals, heterosexuals, bisexuals or transgenders, hardly serves any legitimate public purpose or interest. Section 377 , in so far as it criminalizes consensual sexual acts between competent adults, fails to make a distinction between non-consensual and consensual sexual acts of competent adults in a private space which are neither harmful nor contagious to the society.

Thus analyzed, Section 377,  in so far as it penalizes any consensual sexual activity between two adults, be it homosexuals (man and a man), heterosexuals (man and a woman) and 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. Any act of the description covered under Section 377 done between the individuals without the consent of any one of them would invite penal liability.

R.F. Nariman J. 

Only a minuscule fraction of the country’s population constitutes lesbians and gays or transgenders, and in the last 150 years less than 200 persons have been prosecuted for committing the offence under Section 377.

The Latin maxim cessant ratione legis, cessat ipsa lex, meaning when the reason for a law ceases, the law itself ceases, is a rule of law which has been recognized in H.H. Shri Swamiji of Shri Amar Mutt, (1979) 4 SCC 642 at paragraph 29. The rationale for Section 377, namely Victorian morality, has long gone.

Section 377 insofar as it criminalizes homosexual sex and transgender sex between consenting adults is unconstitutional. The Union of India shall take all measures to ensure that this judgment is given wide publicity.

Dr. D.Y. Chandrachud J.

Although Section 377 prima facie appears to criminalize certain acts or conduct, it creates a class of criminals, consisting of individuals who engage in consensual sexual activity. In protecting consensual intimacies, the Constitution adopts a simple principle: the State has no business to intrude into these personal matters. 

Such conduct is purely private, or as Mill would call it, ‘self-regarding’, and is neither capable of causing injury to someone else nor does it pose a threat to the stability and security of society. Once the factor of consent is established, the question of such conduct causing any injury, does not arise.

Section 377, in so far as it criminalizes consensual sexual conduct between adults of the same sex, is unconstitutional.

 Indu Malhotra J. 

Section 377 does not criminalize particular people or an identity or orientation. It merely identifies certain acts which if committed would constitute an offence. Such a prohibition regulates sexual conduct. Sexual expression and intimacy of a consensual nature, between adults in private, cannot be treated as ‘carnal intercourse against the order of nature’. Insofar as Section 377 criminalizes consensual sexual acts of adults (i.e. persons above the age of 18 years who are competent to consent) in private, it is violative of Articles 14, 15, 19, and 21 of the Constitution. It is, however, clarified that such consent must be free consent, which is completely voluntary in nature, and devoid of any duress or coercion.

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All Non-Heterosexuals / Heterosexuals are not professional readers of Supreme Court Judgments.

While only 200 may be have been prosecuted in the last 150 years, those years have also witnessed 10,000 Non-Heterosexuals and 10,000 Heterosexuals indulge in ‘unnatural’ sex at least 10,000 times.

What has been judged today, on 06/09/2018, was undoubtedly important. I would not call it an achievement yet. Have the Eloquent Judges written enough to convince all Indians ‘What is Normal? What is the Order of Nature?’ No. That conviction will have its own fight. What has been won instead is the simple statement: consented sexual activities, unless of course not with an animal, are not offences under Section 377.

I feel these 500 pages reduce to one and one word only: consent. If tomorrow, a Non-Heterosexual / Heterosexual, man or woman, approaches a police station and states that its consent was obtained with duress or coercion, 200 would be 201 in the 151st year.

The existence of marital rape is yet to be confirmed by the SC. It appears permissible for a Husband to insist on Anal Sex with his Legal Wife, everyday of her living life, for a decade. Even if there is no consent, the Husband’s luck would not invite Section 377. If the existence of marital rape stands confirmed, 201 would at least be 250 in the 152nd year. We would then approach the Non-Chandrachud Question: does the State have a business to intrude into personal matters?

I have been learning law as I have been learning politics for nearly 32 years. I can remember words spoken to me even when I was 2, believe me or not. The battle is not over yet. It has now received a restart. 

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