The present Writ Petition was been filed by 3 Transgender persons, Dr. Akkai Padmashali, Uma Umesh, and Suma M seeking a declaration that Section 377 of the Indian Penal Code is unconstitutional being violative of their fundamental rights under Articles 14, 19, 15 and 21 of the Constitution.
The Constitutionality of Section 377 IPC has been upheld by the Supreme Court in Suresh Kumar Koushal v. Naz Foundation, (2014) 1 SCC 1. (Koushal) After dismissal of review petitions filed to challenge the said judgment, curative petitions were filed, and the Supreme Court had directed the matters to be heard by a Constitutional Bench.
In 2016, 5 individuals belonging to the LGBT community approached the Supreme Court of India in a fresh writ petition Navtej Singh Johar & Ors. Vs Union of India, challenging the constitutionality of Section 377 of the IPC. In the same year, the three transgender persons who are Petitioners in the present case, also filed a writ under Article 32 for the deletion of Section 377 from the IPC. This was done particularly in the wake of the landmark decision of a division bench of the Supreme Court in National Legal Services Authority vs Union of India (2014) 5 SCC 438 (NALSA).
The primary contention of the Petitioners was that the Supreme Court had granted legal recognition to the right to gender identity in NALSA and held that persons belonging to the third gender were entitled to the enjoyment of the fundamental rights and freedoms under Articles 14, 19 and 21 of the Constitution. The retention of Section 377 in the IPC as held in Koushal, amounted to a denial of these rights. In NALSA, the court had observed that Section 377 of the IPC though associated with specific sexual acts, was used as an instrument of harassment and physical abuse against hijras and transgender persons and that such discrimination of transgender persons on the ground of sexual orientation or gender identity impaired their right to equality before the law under Article 14.
The Petition along with other connected matters was taken up for hearing by a Constitution Bench of the Supreme Court and Advocate Jayna Kothari presented her arguments before the Court on 11.07.2018. Referring to the Criminal Tribes Act and other State Laws that criminalised “eunuchs” and drew a direct link between them and the offence under Section 377 of the IPC, Ms. Kothari argued that the provision is in direct contravention of these fundamental rights. Under Section 377, any sexual intercourse against the order of nature is a criminal offence. “Against the order of nature” is interpreted as any intercourse that is not penal-vaginal intercourse between a man and a woman.
In the case of transgender persons, their gender identity may not be the same as their biological sex, they may have had sex reassignment or not and therefore if transgender persons were to have intercourse with their partners, the same would fall foul of the section and would amount to a criminal offence. Section 377 of the IPC would thus not give them equal protection of the law as transgender persons would be particularly vulnerable to being criminalized under Section 377. It further curtailed their freedom of expression under Article 19(1)(a) and amounted to sex discrimination under Article 15 of the Constitution.
On 06.09.2018, the 5 Judge Bench of the Supreme Court held Section 377 as unconstitutional to the extent that it criminalised consensual sexual activity of any kind between adults. It was further held that the provision was manifestly arbitrary and violative of an individuals right to autonomy, for it was not for the State to decide what falls within the “order of nature”. The LGBT community possesses the full range of constitutional rights, including sexual orientation and the right to choice of partner. The provisions stand in the way of fulfilling the constitutional promise of equality and equal protection of laws for the LGBT community.