Case BriefsHigh Courts

Bombay High Court: The Bench of Mridula Bhatkar, J. quashed and set aside the order passed by Additional Sessions Judge,  refusing to discharge the petitioner/accused from offence punishable under Section 377 of Penal Code, 1860.

The present petition was filed in respect of challenging the order passed by the Metropolitan Magistrate, Girgaon, Mumbai rejecting the discharge of petitioner under Section 377 IPC.

Petitioner in the present case is a co-accused prosecuted under Sections 498-A, 377, 323, 504  r/w Section 34 of IPC. The facts of the case are that the complainant is married with a son of 6 to 7 years old. Complainant states that after 4-5 years of marriage she realised that her husband was gay, and on realising that she refused the parallel relationship of her husband. She also stated that she was ill-treated by her husband due to which she had left for her father’s house but later agreed to come back to her husband’s place when she again witnessed no change and continuation of the gay relationship of her husband with different males.

On realising the fact that her husband was not ready to stop his relationship with the petitioner/accused and being ill-treated a number of times, she finally lodged an FIR. Later, the Additional Sessions Judge partly allowed the revision application but maintained the charge under Section 377 IPC against the accused. Aggrieved by the same, the present petition was filed.

High Court while placing reliance on the Apex Court’s judgment in Navtej Singh Johar v. Union of India, (2018) 10 SCC 1, held that though the ground for divorce could be the extramarital consensual sexual relationship as cruelty to the complainant, but it does not constitute an offence under Section 377 IPC, because both are adults and had a consensual sexual relationship.

Thus, in the present case, no victim exists and the order of the Additional Sessions Judge is quashed. [Daniel Crasto v. State of Maharashtra, 2019 SCC OnLine Bom 188, dated 30-01-2019]


Note: The 5-Judge Constitution Bench comprising of CJ Dipak Misra and R.F. Nariman, A.M. Khanwilkar, Dr D.Y. Chandrachud and Indu Malhotra, JJ. in their landmark judgment held Section 377 IPC unconstitutional insofar it criminalised gay sex between consenting adults. [2018 SCC OnLine SC 1350]

Case BriefsSupreme Court

  What nature gives is natural. That is called the nature within.

                                                                       C.J. Dipak Misra and A.M. Khanwilkar, J.

Supreme Court: The 5-Judge Constitution Bench comprising of CJ Dipak Misra and R.F. Nariman, A.M. Khanwilkar, Dr D.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,(2014) 1 SCC 1  which in turn had reversed the judgment of a Division Bench of Delhi High Court in Naz Foundation v. State (NCT of Delhi), 2009 SCC OnLine Del 1762. The Delhi High Court in Naz Foundation 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.

 I am what I am, so take me as I am.

                                                          –Johann Wolfgang von Goethe

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.

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 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.

CJ Dipak Misra (for himself and A.M. Khanwilkar, JJ.)

                                                   One defines oneself. That is the glorious form of individuality

  •  It is only where each individual is liberated from the shackles of bondage of social exclusion, identity, seclusion and isolation from the mainstream, that we can call ourselves a truly free society.
  • Through its dynamic purposive interpretive approach, the judiciary must strive to breathe life into the Constitution and not render the document of collection of mere dead letters.
  • Ours is a transformative Constitution. It will become a dead testament without dynamic; vibrant and pragmatic interpretation.
  • Constitutional morality embraces within itself virtues of ushering a pluralistic and inclusive society.
  • Expression of choice is a facet of human dignity and is essential component of liberty.
  • To compel a person having a certain sexual expression to proselytize to another is like asking a body part to perform a function it was never meant to perform.

R.F. Nariman, J.

  • The present definition of mental illness in Mental Healthcare Act, 2017 makes it clear that homosexuality is not considered a mental illness.
  • Viewed in light of the principles contained in Yogyakarta Principles on the Application of International Human Rights Law in relation to Sexual Orientation and Gender of Identity, Section 377 will have to be declared unconstitutional.
  • When it is found that privacy interests came in and the State has no compelling reason to continue an existing law which penalises same-sex couples who cause no harm to others, it is transgression of Articles 14, 15, 19 and 21.
  • LGBTQ are entitled to protection of equal laws and we are entitled to be treated in the society as human beings.

Dr D.Y. Chandrachud, J.

It is difficult to right the wrongs of history. But we can certainly set the course for the Future.

  • The case involves much more than mere decriminalising certain conduct. The case is about aspiration to realise constitutional rights.
  • Section 377 is unconstitutional in so far as it penalises a consensual relationship between adults of the same gender. Constitutional values of dignity and liberty can accept nothing less.
  • LGBT have a constitutional right to citizenship in all its manifestations.
  • It is difficult to locate any intelligible differentia between indeterminate terms such as natural and unnatural. It is even more problematic to say that the classification between individuals who engage in natural intercourse and those engaging in carnal intercourse against the order of nature can be legally valid.
  • Constitution protects fluidities of sexual experience and leaves it to the consenting adults to find fulfilment in their relationships, in a diversity of cultures, among plural ways of life and infinite ways of love and longing.
  • By application of Section 377, MSM and transgender persons are excluded from access to health care due to social stigma attached to their sexual identity. Being particularly vulnerable to contraction of HIV, this deprivation can only be described as cruel and debilitating. The indignity suffered by sexual minority cannot stand the test of constitutional validity.

Indu Malhotra, J.

  • Homosexuality is not an aberration but a variation of sexuality.
  • Sexual orientation is not a choice. It manifests in early adolescence.
  • Sexual expression and intimacy of consensual nature, between adults in private, cannot be treated as carnal intercourse against the order of nature.
  • LGBT is a sexual minority and is equally entitled to protection afforded by Article 15.
  • LGBT are entitled to complete autonomy over the most intimate decisions relating to their personal life, including the choice of their partners. Such choices must be protected under Article 21.
  • Section 377 compels LGBT persons to live in a closet. They are seriously disadvantaged and prejudiced when it comes to access to healthcare facilities.
  • The Section cannot be justified as reasonable restriction under Article 19(2) on basis of public or societal morality as it is inherently subjective.

The Judgment that was delivered, joins the plethora of authorities – including, inter alia, National Legal Services Authority v. Union of India, (2014) 5 SCC 438; K.S Puttaswamy v. Union of India, (2017) 10 SCC 1; Indra Sarma v. V.K.V. Sarma, (2013) 15 SCC 755; etc.- that were referred to be the Bench in the case herein. The petitions were disposed of observing and holding all that is mentioned hereinabove. [Navtej Singh Johar v. Union of India, 2018 10 SCC 1, decided on 06-09-2018]    

Hot Off The PressNews

Supreme Court: The 5-Judge Constitution Bench comprising of CJ Dipak Misra and R.F Nariman, A.M. Khanwilkar, Dr D.Y. Chandrachud and Indu Malhotra, JJ., likely to pronounce the judgment concerning the constitutionality of Section 377 Indian Penal Code, 1860 today, i.e. 06-09-2018.

The judgment was reserved by the Constitution Bench on 17-07-2018, after a 4-day hearing covering the different standpoints on Section 377 and further Nariman J., on the last day of hearing stating that “If we are convinced that it is unconstitutional, it is our duty to strike it down’.

Background:

Several pleas were filed challenging the re-criminalization of sex between consenting adults of the same sex by holding it as “illegal”. Therefore, the Supreme Court stated that the Naz Foundation v. State (NCT of Delhi)2009 SCC OnLine Del 1762 case requires re-consideration not only on the ground of Constitutional morality but also social morality as social morality also changes from age to age.

Case BriefsSupreme Court

Supreme Court: The 5-Judge Constitution Bench comprising of CJ Dipak Misra, Rohinton Nariman, A.M Khanwillkar, DY Chandrachud and Indu Malhotra, JJ. addressed the petitions challenging Section 377 of IPC, 1860, which criminalises unnatural sex between two consenting adults while revisiting its December 2013 verdict in Suresh Kumar Koushal v. Naz Foundation, (2014) 1 SCC 1 which upheld the criminalisation of gay sex.

“As the protector of fundamental rights, the Supreme Court has the duty to protect the LGBTQ community.”

Supreme Court began the hearing with two issues open which were: Sex against the order of nature whether retrograde and can sexual rights to persons be denied just because they are the minuscule minority?

Appearing for one of the petitioners, Mukul Rohatgi contended that the rights of the gay community are protected under Article 21 and “Being gay or lesbian is not a matter of choiceIt is innate, inborn and actually has to do something with the genes.” He stated that a gay man or gay woman shouldn’t be identified as something else.
As stated by learned advocate Mukul Rohatgi on stressing the criminalisation of Section 377 IPC, he quotes that “This is a case of Constitutional morality v. Others” also Section 377 is based on Victorian morality.”Ancient India was different.”

He referred to the following cases in support of his contentions which were:

Senior Advocate Datar began with his arguments by stating that Section 377 IPC is pre-constitutional, not in conformity with the Constitution. Further argued, that one of the Law Commission Reports had also recommended repealing the said section. He also stated that if a person has a different type of sexual orientation to which he has expressed, then it can’t be treated as a crime, to which he also stated that Article 21 of the Constitution includes my choice of sexual orientation and DY Chandrachud, J. accepted the said proposition.

Datar contended that there is no such thing as “Order of nature” and concluded his arguments by seeking a declaration to protect the rights of LGBT community through striking down Section 377 IPC.

The proceedings concluded for the day, Constitution Bench to resume the hearing from tomorrow i.e. July 11, 2018, in Navtej Singh Johar v. Union of India, WP(Crl.) No. 76 of 2016, order dated 10-07-2018.

[Source: The Hindu]

OP. ED.

 “If we just hold privacy is a fundamental right, Naz judgment may become vulnerable”, Dr. D.Y. Chandrachud, J while hearing the issue of ‘right to privacy’.

On 18.07.2017, the 5-judge bench of J.S. Khehar, CJ and J Chelameswar, SA Bobde, DY Chandrachud & Abdul Nazeer, JJ referred the issue involving violation of right to privacy due to Aadhaar-PAN linkage to a 9-judge Constitution bench as the 8-judge and 6-judge benches in M.P. Sharma v. Satish Chandra and Kharak Singh v. State of U.P., have earlier held that Right to Privacy is not a fundamental right.

Chandrachud, J was a part of this 9-judge bench when he said that holding that ‘right to privacy’ is a fundamental might right will mean that the 2013 ruling in Suresh Kumar Koushal v. Naz Foundation, (2014) 1 SCC 1, where it was held that Section 377 IPC does not violate a person’s right to privacy, will no more be a good law.

This one remark by Chandrachud, J on the first day of hearing is a silver lining for the LGBT community. If ‘right to privacy’ is declared to be a fundamental right, the decision will be binding on the bench hearing the curative petition in the Naz Foundation case.