By Khushboo Jindal
Every Man has certain basic, natural inalienable rights and it is the function of the state to acknowledge those rights and human rights are rational, so that human life may be preserved. With the increasing crimes rates and offences in this world it becomes necessary to protect the rights of the people so that they can enforce them and can claim compensation for the infringement of such rights. In India citizen’s rights are protected under Part III, which provides for “Fundamental Rights” and it duty of the judiciary to assist citizens to enforce their Fundamental rights. Fundamental Rights are all those rights which are essential for development of every individual and helps not only in protection but also in prevention of Human Rights violation. These Rights are called Fundamental because these are basic to every person and apply to each and every citizen of India irrespective of Race, Caste, Religion and Gender.
FUNDAMENTAL RIGHTS (Article 14 – 32) :
- Part III provides for Fundamental right.
· Fundamental Rights are the backbone of constitution together with part IV Directive
· Principle of State policy, but the main difference between the two is that fundamental rights are enforceable whereas Directive principles of state policy are not enforceable. These rights are not absolute; reasonable restrictions can be imposed on them.
Every citizen of India has these six fundamental rights:
- Right to Equality
- Right to Freedom
· Right against Exploitation
· Right of Religion
· Educational right and Cultural right
· Right to Constitutional Remedy
SECTION 377: UNNATURAL OFFENCES
This section describes Unnatural offences and criminalizes sexual activity “against the order of nature.” It says whoever has a carnal intercourse with any man, women, or animal, voluntarily, against the order of nature shall be punished, and defines this offence as cognizable, Non-bailable and non-compoundable. Thus consensual sexual act between adults of same sex shall also be punished under this section.
HISTORY OF SECTION 377 IN INDIA In 1991
Acquired Immunodeficiency syndrome, Bhedbhav Virodhi Andolan took an initiative to fight against Section 377 and they published a book called Less than Gay: A Citizens Report which talks about Section 377 and problems related with it. In 2001 public interest litigation was filed by the activists of lesbian, gay, bisexual antrans gender with the help of Naz Foundation in Delhi’s High Court with the prayer of legalizing homosexual intercourse between consenting adults. In 2009, Delhi High court bench of Chief Justice Ajit Prakash Shah and Chief Justice S Murlidhar gave a landmark judgment by decriminalizing section 377 stating that it violates Article 14 and says that every citizen has equal opportunity of life and is equal before the law. In 2013 Supreme Court Two Judge Bench struck down the judgment given by Delhi High court and Section 377 was enforced again. Then Union Government filed a review petition stating that Supreme Court judgment is violating Article 14, 15 and 21. In 2017 Supreme Court Nine Judge bench held that Right to Privacy is a Fundamental Right enshrined under Article 21 and said that the decision laid down in Suresh Kaushal Judgment is incorrect and Discrimination against an individual on the basis of Sexual Orientation is violative of Right to Privacy.
NAVTEJ SINGH JOHAR AND ANR V. UNION OF INDIA 2018
This is a Landmark case of Section 377 in India. In this case writ petition was filed by five lesbian, gay, bisexual and transgender community members Navtej Singh Johar, Sunil Mehra, Aman Natha, Ayesha Kapur and Keshav Suri. Mehra, Aman Natha, Ayesha Kapur and Keshav Suri. In 2018 five judge Supreme Court bench consisting of Chief Justice Dipak Misra, Justices D. Y. chandrachud, Indu Malhotra, Rohinton Nariman and Ajay khanwilkar unanimously ruled that Gay Sex among consenting adults is no more a criminal offence as Section 377 violates constitutional rights of lesbian, gay, bisexual and transgender community, it is violative of Article 14, 15, 19, 21. SECTION 497: ADULTERY This section deals with Adultery and it says that whoever has sexual intercourse with married women, without the consent of her husband, is guilty of offence of Adultery and defines this offence as Non-cognizable and bailable. This offence is compoundable by the husband of the woman with whom adultery is committed. Section 497 punishes only man, women cannot be punished even as an abettor or for being an adulterous, Thus the offence of adultery is treated as crime committed against man by another man.
SECTION 198(2): AGGRIEVED PERSON
Section 198(2) treats husband of the wife as aggrieved by an offence committed under section 497 and in absence of husband, any other person will be treated as aggrieved who had taken care of woman at the time when the offence was committed. Which means only husband of women with adultery is committed can file a complaint under this section and in absence of husband any other person who had taken care of the woman.
The landmark Judgments of Supreme Court on section 377 & 497 are based on Violation of these four Fundamental Rights
ARTICLE 14: Right to Equality – Article 14 states that it is the duty of the state to ensure that no citizen is denied of his Right of equality before law and equal protection from law residing within the territory of India.
ARTICLE 15: No discrimination – Discrimination on the basis of race, caste, gender, sex, and religion is prohibited, this section also gives state a power to make special provision for women and children of socially and economically backward class.
ARTICLE 19: Right to freedom – Every citizen has following rights under this section:
- Freedom to speech and expression.
· Freedom to assemble peacefully without arm.
· Freedom to form association and union
· Freedom to move freely throughout India
· Freedom to practice any profession, trade or occupation.
· Freedom to practice any profession, trade or occupation.
ARTICLE 21: Right to life and personal liberty
The meaning of the word Life includes Right to live in fair and reasonable condition, Right to live in descent environment and this fundamental right is enshrined under. This article which guarantees right to live with Human dignity and says that No one should be deprived of his Right to life and personal liberty, every individual has a Right to protect their life. Right to livelihood, Right to Privacy, Right to Sleep, and Right to shelter are also a part of this article
Preamble of India which is soul of our constitution states that the objective of preamble is to secure Justice, Equality, liberty to all citizens. Equality means absence of discrimination against any section of the society. It provides for equality in status and equal opportunity to all people of this country. Decriminalizing homosexuality among consenting adults and abolishing Adultery by apex court making both these sections as unconstitutional because they violates Fundamental Rights of citizen is landmark step in India, these days will be remembered as historic days in India as a true win of Humanity. Giving citizens a right to be who they are and to choose the person who they want to be is the essence of Life. Now woman will no more be considered as personal property of their husband and lesbian, gay, bisexual and transgender need not to hide their sexuality from this whole world, this is the true meaning of EQUALITY and being treated as Equal.