Section 377 of the Indian Penal Code states that- 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 be liable for fine.
The term ‘carnal intercourse’ has no definite meaning. The Supreme Court has stated that meaning of ‘carnal intercourse’ should be fluid in nature and not rigid. A Bench of Justices G S Singhvi and S J Mukhopadhyaya said, “The meaning of the word ‘unnatural sex’ has never been constant,” The Indian Penal Code has been vague in defining the terms, but when the question arose as to whether it criminalises consensual sex between two homosexual, the answer was affirmative.
Such a debate as to what constitutes ‘unnatural sex’ gave rise to the whole agenda of providing the LGBT (lesbians, gays, bisexual, transgender) their rights.
Development in India:
In 2001, Naz Foundation, an NGO filed a writ petition in the court with a demand to legalise consensual sex between adults and challenging the constitutional validity of section 377. The petitioner contended that Section 377 encroached upon Articles 14, 15, 19 and 21 of the Constitution of India and also that the section should decriminalise consensual penile non-vaginal sex between two consenting adults of the same sex. In the landmark judgement conveyed in 2009 by the Delhi High Court, that the section was in fact in violation of various fundamental rights including, the right to privacy, the right to dignity under the fundamental right to life and liberty. It was also in violation of Article 14- the right to equality, Article 15- no discrimination on the basis of gender, as was stated in the decision.
The decision of the High Court was regarded as a step toward an open-minded society but then the case was taken to Supreme Court, in the case of Suresh Kumar Koushal and another v NAZ Foundation and others. Justice Sanghvi, in this case, said that Indian Penal Code was pre-constitution and if in fact, any part of the section was in violation of the fundamental rights as prescribed in Part III of the constitutional, it would be void and would have repealed long ago. Also, the practice that is being followed is that of reading the section together with any provision of the legislative. Even if the doctrine of severability is applied in listed section, it will be affecting the whole of the section, and it is not possible. Therefore, the decision of the Delhi High Court in this aspect was incorrect.
If this Section is repealed, and there would be decriminalisation. As a result, it would be decriminalising other sexual offences such as paedophilia, bestiality and other assaults.
The Supreme Court, therefore, concluded that Section 377 did not suffer from any constitutional infirmity and left the matter to the legislature to consider the legitimacy and desirability of the section, whether there shall be some sort of alteration to allow consensual sexual activity between two adults of the same sex in private.
Right to Privacy:
The question then arises regarding Right to Privacy. In order to exercise Right to Privacy, firstly such a phenomenon needs to be understood and homosexuals rights regarding such needs to be analysed.
The Indian Constitution does not explicitly provide the right to privacy as a part of the fundamental right. But it has been emphasised time and again that this should be considered as a part of fundamentals rights, so an individual’s right to privacy is not violated under any circumstances by the state.
Thus, The Supreme Court clearly stated that right to privacy is implicit in Right to life and therefore, there is a scope for further development of this particular right in its establishment and its exercise.