Legal Reasoning for CLAT, Passage- Homosexuality

Wednesday, April 7th, 2021

Section 377 is a colonial law which aims to destroy personal choice and snatches away the right to choose one’s partners who constitute a minuscule section of the society. Section 377 reads as follows 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 also be liable to fine. Explanation.-Penetration is sufficient to constitute the carnal intercourse necessary to the offence described in this section.” This section penalizes for three different subjects which are:

1. If a man has carnal intercourse with another man.
2. If a woman has carnal intercourse with another man.
3. If a person has carnal intercourse with any animal.
This section gives an unreasonable perception of the society which is based on vague, irrational and a stereotyped notion that sexual activity is only related to procreation but if this kind of sexual activity is considered unnatural then methods of contraception should be restricted as well. This infringes upon many basic fundamental rights which could remove this section from Indian Penal Code. This section on the face of it shows inequality towards the sexual minorities and infringes upon article 19(a), (b) and (d) which prohibits people to express them, to associate with people of their choice and also restricts them to move freely in the Indian Territory because of the bias they go through due to their sexual preferences. In a petition filed by Navtej Singh Johar it was contended by the appellant that the state can’t put two adults into jails who are involved in consensual unnatural sex.

A Petition was filed before the SC by dancer NavtejJauhar and four others in 2018 to reassess the judgment passed in the case of Naaz foundation before the Delhi HC. The five judge bench led by the then CJI Deepak Mishra diluted Section 377 to exclude all kinds of consensual sex as it was arbitrary and irrational. SC in its judgment mentioned that “Consensual sex between adults in a private space, which is not harmful to women or children, cannot be denied as it is a matter of individual choice.” Justice Chandrachud noted that right to privacy and the protection of sexual orientation are fundamental rights which lie at the core of rights enshrined under Article 14, 15 and 21 of the Constitution. The SC decriminalized 377 to the extent that it would not exclude unnatural offences against minors and animals.
Our constitution has recognized several equality rights for the different sections of society and it recognizes the rights of gender as well. Indian constitution explicitly states that in Article 14 no state shall deny equality before the law and equal protection before the law within the territory of India, Article 19(a) states that right to freedom of speech and expression, Article 21 states that protection of life and personal liberty in which also gives right to live with dignity. These are the basic fundamental rights that are denied to some people because of their sexual orientation. Even these basic fundamental rights are denied to some people because of their sexual orientation.

Source with editing and revision: Discrimination towards Sexual Minorities in India <https://blog.ipleaders.in/discrimination-towards-sexual-minorities-in-india/>

Answer the following on the basis of above mentioned principles:

1. Jagga was charged under Section 377 for raping a goat. Advise Jagga.
a. Section 377 has been declared unconstitutional.
b. He has committed an offence under section 377.
c. There has been no harm to women and children, therefore, his action is lawful.
d. It is a lawful exercise of right to decide one’s sexual orientation.
2. Ram and Shyam were taking an evening stroll and were beaten up by police and arrested under Section 377. Which rights have been violated?
a. Right to privacy
b. Articles 14, 15 and 21
c. Article 19(a)
d. Section 377
3. Gita and Sunita (lesbians) were having consensual sex in their bedroom. The domestic help made a video of them and handed it over to the police. The police arrested Gita and Sunita. Advise them.
a. Their action is unlawful.
b. The domestic help has violated the privacy of Gita and Sunita.
c. The police has wrongfully arrested Gita and Sunita.
d. Both b) and c)
4. X had anal sexual intercourse with his wife Y without her consent. Advise Y.
a. X has committed rape.
b. X has committed an offence under section 377.
c. Both a) and b)
d. X has committed marital rape.
5. L is a bisexual man. She applied for a job at a trading company but was denied job because of his sexual orientation.
a. His right to privacy has been violated.
b. Articles 14 and 15 have been violated.
c. Article 19 has been violated.
d. Article 21 has been violated.

 

CLAT Gurukul
Answers

1. B. Only the part that criminalised consensual sex among adults without harm to women or children has been struck down. Other forms of unnatural sex are still an offence.
2. B. Articles 14, 15 and 21 have been violated which include the right to privacy and protection of sexual orientation.
3. D. Any consensual sexual act among adults is permitted and cannot be questioned, especially in their private spaces.
4. C. Since the intercourse was not consensual, both section 377 and 376 will be attracted.
5. B. Articles 14 and 15 have been violated because there is no intelligible differentia in discriminating between job applicants on the basis of their sexual orientation.