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    Arguments From Petitoner

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    Rushikesh pachpute
    The Supreme Court of India unanimously declared Section 377 of the Indian Penal Code unconstitutional insofar as it criminalized consensual sexual acts between adults of the same sex. The Court held that criminalizing homosexuality violated fundamental rights to privacy, equality, dignity, and life under the Constitution. It reasoned that sexual orientation is a basic aspect of identity and that discrimination based solely on sexual orientation violates right to equality. The Court also stated that criminalizing private, consensual acts between adults violated right to privacy and that fundamental rights cannot be denied due to a small affected population.

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    Arguments From Petitoner

    Uploaded by

    Rushikesh pachpute
    37 views5 pages
    The Supreme Court of India unanimously declared Section 377 of the Indian Penal Code unconstitutional insofar as it criminalized consensual sexual acts between adults of the same sex. The Court held that criminalizing homosexuality violated fundamental rights to privacy, equality, dignity, and life under the Constitution. It reasoned that sexual orientation is a basic aspect of identity and that discrimination based solely on sexual orientation violates right to equality. The Court also stated that criminalizing private, consensual acts between adults violated right to privacy and that fundamental rights cannot be denied due to a small affected population.

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    Arguments From Petitioner

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    The Supreme Court of India unanimously declared Section 377 of the Indian Penal Code unconstitutional insofar as it criminalized consensual sexual acts between adults of the same sex. The Court held that criminalizing homosexuality violated fundamental rights to privacy, equality, dignity, and life under the Constitution. It reasoned that sexual orientation is a basic aspect of identity and that discrimination based solely on sexual orientation violates right to equality. The Court also stated that criminalizing private, consensual acts between adults violated right to privacy and that fundamental rights cannot be denied due to a small affected population.

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    © All Rights Reserved
    Download as DOCX, PDF, TXT or read online from Scribd
    Download as docx, pdf, or txt
    37 views5 pages

    Arguments From Petitoner

    Uploaded by

    Rushikesh pachpute
    The Supreme Court of India unanimously declared Section 377 of the Indian Penal Code unconstitutional insofar as it criminalized consensual sexual acts between adults of the same sex. The Court held that criminalizing homosexuality violated fundamental rights to privacy, equality, dignity, and life under the Constitution. It reasoned that sexual orientation is a basic aspect of identity and that discrimination based solely on sexual orientation violates right to equality. The Court also stated that criminalizing private, consensual acts between adults violated right to privacy and that fundamental rights cannot be denied due to a small affected population.

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    © All Rights Reserved
    Download as DOCX, PDF, TXT or read online from Scribd
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    of 5

    Arguments From Petitoner:

    Homosexuality, Bisexuality and others sexual orientations are equally natural and cannot be
    considered as some form of illness. Criminalizing it destroys a person's dignity, creates discomfort
    regarding gender identity and invades the right to privacy guaranteed under Art 21 of the
    constitution. It also affects growth of personality, relation building, forcing association and other
    essential desires provided under Art 19(1)(a) of the Constitution.

    LGBT community comprises of 7-8% of the total Indian Population and are discriminated and abused
    on the basis of their sexual orientation and therefore need protection more than majority
    communities to achieve their full potential and live freely without fear, apprehension or trepidation.

    Transgender section got recognition as third gender and have been given certain rights under NALSA
    case yet their consensual activities are treated as an offence.

    The petitioners seek for scrapping off Section 377 IPC in so far as it criminalizes consensual sex
    between homosexuals. They are of the view that sec 377 should be confined to offences of bestiality
    and non-consensual acts.

    The Petitioner propounded that Sec 377 violates several fundamental rights namely, right to dignity,
    right to equality, privacy, liberty and right to freedom of expression.

    Due to lack of intelligible differentia or reasonable classification between natural and unnatural sex,
    the section violates Art 14 of the constitution. The said terms are nowhere defined in the sec or the
    statute making it vague in nature.

    The section also violates Art 15 of the constitution as art 15 includes sexual orientation and sec 377
    is biased on the basis of sex of a person's sexual partner.

    Arguments From Respondent:

    The respondent on behalf of Intervener said that sec 377 constitutes abusing the organs and such
    acts are undignified and derogatory and amount to constitutional wrong and constitutional
    immorality.

    Sufficient rights are provided to the community by this court in NALSA and further reliefs asked by
    petitioners are mere abuse to privacy and personal liberty transgressing the concept of public
    morality.
    Criminalization of acts in sec 377 is more relevant now as Homosexuals indulging in those acts are
    more prone to contact HIV than heterosexuals and henceforth right to privacy should not be
    extended for the same.

    Apart from the fact that declaring Sec 377 unconstitutional would completely destroy the family
    system, institution of marriage and social culture, it will ruin the political, economic and cultural
    heritage of the country.

    Sec 377 does not violate the constitutional rights of a person as it is the duty of state to put
    reasonable restrictions on certain acts like carnal intercourse to protect the citizens from something
    offensive and injurious.

    It does not violates Art 14 as the state has the power to identify who should be regarded as a class
    for making laws under reasonable classification. Moreover, the Section only defines an offence and
    its punishment.

    It does not violates Art 15 as the article mainly prohibits discrimination on the basis of sex and not
    sexual orientation which is nowhere described.

    It will also impact Parsi Marriage and Divorce Act, Special Marriage Act, Indian Divorce Act and Hindu
    MarriageAct.

    Facts:

    Sec 377 of IPC categorized consensual sex between homosexuals as “unnatural offence” and
    criminalized it. It discriminates a minority solely on the ground of their sexual orientation which is
    analogous to prohibited ground of sex. The section was challenged in Suresh Kaushal and Anr Vs.
    NAZ Foundation and Ors. Stating it violates Art 14,15 and 21 of the Constitution. To which the SC
    passed a very vague judgement stating that the decision of decriminalizing homosexuality should
    have been made by Parliament instead of courts. The courts can only do so if it is proved beyond
    reasonable doubts that the law infringes constitutional provisions.

    Furthermore, the court also highlighted that since less than 200 cases have arisen in 150 years,
    therefore it's not a sound basis for declaring that section 377 IPC ultra vires the provision of Art
    14,15 and 21 of the Constitution. In conclusion, The SC said that Sec 377 does not suffers from the
    vice of unconstitutionality with no further elaboration. The same judgement was challenged in
    Navtej Singh case through a petition made by five individuals from the LGBTQ community for
    scrapping
    Issues

    The main issues before Hon'ble Court were:

    Whether judgment given in Suresh Kumar Koushal v. NAZ foundation was proper or not?

    Whether section 377 of IPC violates article 14 and 15 of Constitution of India or not?

    Whether section 377 is against Right to privacy which is a fundamental right?

    Whether section 377 has a chilling effect on Article 19 (1)(a) by criminalizing gender expression of
    LGBT community?

    Citation: AIR 2018 SC 4321; W.P. (Crl.) No. 76 of 2018 D. No. 14961/2016

    Decided: 6 September 2018

    Case Summary and Outcome

    The Supreme Court of India unanimously held that Section 377 of the Indian Penal Code, 1860,
    which criminalized ‘carnal intercourse against the order of nature’, was unconstitutional in so far as
    it criminalized consensual sexual conduct between adults of the same sex. The petition, filed by
    dancer Navtej Singh Johar, challenged Section 377 of the Penal Code on the ground that it violated
    the constitutional rights to privacy, freedom of expression, equality, human dignity and protection
    from discrimination. The Court reasoned that discrimination on the basis of sexual orientation was
    violative of the right to equality, that criminalizing consensual sex between adults in private was
    violative of the right to privacy, that sexual orientation forms an inherent part of self-identity and
    denying the same would be violative of the right to life, and that fundamental rights cannot be
    denied on the ground that they only affect a minuscule section of the population.

    law Case

    Chiranjit Lal Chowdhury v. The Union of India and

    Others, [1950] S.C.R. 869, page 913 and 932,

    State ofWest Bengal v. Anwar Ali Sarkar , [1952] SCR 294,

    Lawrence vsTexas, 539 U.S. 558 (2003)

    Section 377 of Indian Penal Code provides as follows: “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”.

    Article 14 of Constitution of
    India states that, “Equality
    before law The State shall not
    deny to any person equality
    before the law or the
    equalprotection of the
    lawswithin
    Article 14 of Constitution of India states that, “Equality before law The State shall not deny to any
    person equality before the law or the equal protection of the laws withinthe territory of India
    Prohibition of discrimination on grounds of religion, race, caste, sex or place of birth”.

    Article 15 of Constitution of India states that, “Prohibition of discrimination on grounds of religion,


    race, caste, sex or place of birth”.

    Article 19(1)(a) of the


    Constitution of India
    guarantees to all its citizens the
    right to
    freedom of speech and
    expression. The law states that,
    “all citizens shall have the
    right
    to freedom of speech and
    expression”.
    Article 19(1)(a) of the Constitution of India guarantees to all its citizens the right to freedom of
    speech and expression. The law states that, “all citizens shall have the right to freedom of speech
    and expression”.

    rticle 21 of Constitution of
    India states that, “Protection of
    life and personal liberty No
    person shall be deprived of his
    life or personal liberty except
    according to procedure
    established by law”.
    Article 21 of Constitution of India states that, “Protection of life and personal liberty No person shall
    be deprived of his life or personal liberty except according to procedure established by law”.

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