“Laws enforcing sexual morality may cause misery of special degree”
-H.L.A. Hart (Law, liberty and morality)
Naz Foundation v. The Government of NCT Delhi is a landmark case in the legal history of India. The case was brought about by the Naz Foundation, an NGO working with and for HIV/AIDS convalescents; the foundation held that Section 377 of the Indian Penal Code was unconstitutional. Since 1861, Section 377, an innovation of the colonial period called “Unnatural Offences,” has been on the statute books. Under early British rule, sodomy was criminalised and first established in Britton in the 1300s, according to the legislative documents. Under British law, Lord Macaulay designed the Indian penal code in 1861.
The prominent claim that emerged centred on the fact that the Indian penal code followed the rules that the people who exploited the Indian land obviously made. In terms of context, it is believed to be orthodox and outdated and important adjustments are needed. The IPC section 377 criminalised consensual acts with consenting adults of the same sex in private.
The case is a movement to protect the ad-infinitum outcast third gender and is antagonistic towards the brutally tyrannical nature of section 377. The section violated Article 14 (Right to Equality), Article 15 (Right against Discrimination), Article 19 and Article 21 (Right to life, Personal liberty and Dignity) of the Indian Constitution. The Naz foundation held in the public interest that in consequence of its work on tackling the spread of HIV/ AIDS was being thwart by the discrimination face by the LGBT community as a result of Section 377. On the 6th September 2018, the Supreme Court sanctioned the landmark judgement recognising the coercion of section 377, decriminalized homosexuality and ruled out the criminalisation of sexual act between consenting adults.
Along with the Naz Foundation, there was an important and substantial involvement of a LGBT, women and human right activists based in delhi called “Voice against 377” who were highly in support of the cause and contributed a sum in helping the fight for LGBT freedom. The Naz Foundation noted that the violence and discrimination against the gay and transgender minority in India emanating from the continued implication of Section 377 affected the rights of that group constitutionally guaranteed, along with the right to equality, the right to non-discrimination, the right to privacy,
the right to life and liberty, and the right to health.
The section 377 evidently prohibits homosexuality and promotes unreasonable laws as opposed to the reality, depriving the minority of their fundamental rights. Prior to the remarkable and monument judgement, the section 377 of the Indian Penal Code was barbarically exercise by the law enforcement to bedevil and exploit the transgender and homosexual community. Over the years, many cases of police brutality and sexual abuse toward homosexuals and transgenders have emanated. According to a report by The Wire, most of the harassment face by the transgenders is by the police and law enforcement officials. In 2006, an affidavit was also catalogue by the National AIDS Control
Organization explaining that Section 377’s enforcement and implications violate the rights of the LGBT community.
The Article 14 and Article 15 of the Indian constitution operate with the Right to equality and Right against discrimination on the ground of sex including sexual orientation respectively. The transgenger community have determined their existence between the sex and gender contention. The contention that arose was whether sex included the sexual orientation. The contrast between the sex and gender has forever been determine by the third gender. Sex refers to the indentification of a man of the basis of physical feature while gender refers to a man’s intimate mental identification.
The transgender has suffered the most in the contention of sex and gender. The Delhi High Court recognised the violation of Article 15 by the section 377 through various trials. Important cases that shape the judgement and recognise the violation of Article 15 were Anuj Garg v. Union of India[1] and Corbiere v. Canada.[2] 377 also infringe Article 21 of the constitution which operates the Right to life. Under section 377, any person not omitting the natural sexual laws of nature and voluntarily committing carnal intercourse will be imprisoned for life. This clearly secludes the rights of the homosexuals and transgender community, depriving them of their fundamental right to equality,
right against discrimination and right to life.
On 6th September 2018, The Supreme Court made historic judgement in support of the LGBT community overthrowing the section 377 of the Indian penal code. The decision that gave back the identity and the fundamental rights to the LGBT community which were forget. However, something forgotten does not imply that it ceases to exist. Every man is born with the basic fundamental rights even if not they are not sanction by the authorities. As a whole, the Court did not strike down Section 377. The section has been declare unconstitutional to the extent that it criminalises adult consensual sexual acts in private. To the degree that it relates to non-consensual non-vaginal intercourse and intercourse with minors, the decision holds the clause intact.
The court declared that until Parliament decided to change the statute, the judgement would hold. The judgement has been recognise as a landmark judgement which seeks to accomplish social justice, right to equality, right against
discrimination and right to life of every person. While many parts of the judgement will be radical for the LGBT rights in India, the High Court’s expression on the right to equality (Article 14 and 15 of the Indian Constitution) is an incredible
achievement of the Indian government.
The court held that the section 377 was unreasonable in multiple aspects taking into consideration that it did not take into account factors like age, nature of act, consent and absence of harm while recognising the disparity between the
public and private acts and neither the disparity between consensual and non consensual acts. As a result, criminalising on such bases with absence of harm appears unjustified and obstructive. The Indian court has put forward a higher
standard of equality and sets an optimistic and empowering stance toward the youth and the growing India.
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REFERENCES
- Anjaneya Das, Gay And Transgender Rights In India: Naz Foundation V. Gov. Of Nct Of Delhi, Women’s Link World Wide, https://www.womenslinkworldwide.org/
[1] (2008) 3 SCC 1
[2] (2008) 6 SCC 1
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