1.) Whether Section 377 of the IPC infringed on Article 14 of the Constitution’s Right to Equality, Article 19’s Freedom of Speech and Expression, and Article 21’s Right to Privacy and Right to Live in Dignity?
2.) Is it unreasonable to classify consensual relationships as crimes against the natural order under Section 377 of the IPC?
3.) Is it a violation of Article 15 of the Constitution for the law to discriminate against people based on their sexual orientation?
FIVE JUDGES BENCH: Chief Justice Dipak Misra, Justice A.M. Khanwilkar, Justice D.Y. Chandrachud, Justice R.F. Nariman, and Justice Indu Malhotra.
CASES MENTIONED: In its decision, the court highlighted the following cases:
1.) National Legal Services Authority v. Union of India:- In this case, the court stated that “gender identity is inherent to one’s personality, and denying it would be a violation of one’s dignity.” As a result, discriminating against LGBT people on the basis of their minority status would be a violation of their fundamental right to privacy.
2.) Shafin Jahan v. Asokan K.M. and Shakti Vahini v. Union of India:- In these cases, the court affirmed that “an adult’s ability to choose a life partner of his or her choice is a component of individual liberty.” As a result, when two LGBT people decide to do anything in private, it has no negative impact on public decency or morals. Intimacy between consenting people of the same sex is outside the scope of the state’s legitimate interests.
3.) Union of India and Ors. v. Justice K.S. Puttaswamy (Retd.) and Others:- The court reaffirms that everyone has a fundamental right to privacy and that the right to make decisions that are vital to one’s way of life cannot be infringed upon by the state without compelling necessity and/or harm to others.
JUDGMENT: Regardless of how minor the LGBT community is, they have a right to privacy, which includes physical intimacy. Their choice of a spouse may be different, but that does not mean they will face legal consequences. Section-377 infringes on their human dignity and freedom of choice, infringing on their right to privacy, which is protected under Article 21.
The fundamental goal of preserving section-377 is to protect women and children from being mistreated and harassed as a result of carnal intercourse, yet consensual carnal intercourse done by the LGBT community is neither harmful to children nor harmful to women. Furthermore, non-consensual activities have previously been defined as a crime under section 375 of the IPC, implying that section-377 is redundant and discriminatory against a particular group of people, and hence unlawful under Article 14 of the Indian Constitution.
Because our Constitution is liberal, the right to choose will never be absolute. As a result, the principle of choice has been subjected to some limitations. The right to choose a partner for intimate relations, on the other hand, are entirely a matter of personal choice that cannot be restricted. Section-377 of the Indian Penal Code, on the other hand, inhibits the right of the LGBT community to choose a sexual partner and is thus irrational and arbitrary.
The reasons for imposing justifiable restrictions on the basic right of expression include public order, decency, and morality. Any act of affection performed in public by members of the LGBT community does not disrupt public order or moral standards unless it is appropriate and not obscene. Section-377, on the other hand, is illegal because it fails to meet the proportionality criterion and violates LGBT groups’ fundamental right to free expression.
The Supreme Court based its decision on the ‘principles of transformative constitutionalism and progressive realization of rights,’ holding that the constitution must steer society’s evolution from an antiquated to a pragmatic society with zealously guarded fundamental rights. It also claimed that constitutional morality would take precedence over societal morality and that homosexuality was not an aberration but a variety in a person’s sexual inclination.
As a result, the Supreme Court found that section-377 is unconstitutional because it breaches Articles 14, 15, 19, and 21 of the Indian Constitution, overturning the decision in Suresh Koushal and others v. Naz Foundation and others. It further stated that section-377 will only apply to non-consensual sexual activities done against adults or minors.
EFFECT OF JUDGMENT: The court’s decision was based on the concept of transformative constitutionalism, which has paved the way for a slew of important legislative revisions and reforms. It is a watershed moment in the country’s history because it not only recognizes the identity of LGBT people but also grants them global acceptability by society.
Following this victory in the form of a landmark ruling, the next battleground in the legal arena would be for social and economic provisions for such people, including the ability to marry a person of the same sex or anybody else of their choosing.
I have always been against Glorifying Over Work and therefore, in the year 2021, I have decided to launch this campaign “Balancing Life”and talk about this wrong practice, that we have been following since last few years. I will be talking to and interviewing around 1 lakh people in the coming 2021 and publish their interview regarding their opinion on glamourising Over Work.
If you are interested in participating in the same, do let me know.
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We also have a Facebook Group Restarter Moms for Mothers or Women who would like to rejoin their careers post a career break or women who are enterpreneurs.
We are also running a series Inspirational Women from January 2021 to March 31,2021, featuring around 1000 stories about Indian Women, who changed the world. #choosetochallenge