Case Title– Navtej Singh Johar v. Union of India
Court– Supreme Court of India
Bench– Chief Justice Dipak Misra, Justice R. F. Nariman, Justice D. Y. Chandrachud and Justice Indu Malhotra
Petitioner– Navtej Johar, Sunil Mehra, Ritu Dalmia, Aman Nath, Keshav Suri, Ayesha Kapur
Respondent– Union of India
Citation– 2018 SC 4321
There has been no scarcity of discussion on the issue of the rights of homosexuals in India in the previous period. The constitutionality of section 377 of the Indian Penal Code, 1860 which states about the unnatural offences, criminalised homosexuality was also a very disputed issue in previous times. The whole concept of homosexuality was recognized as against the course of nature and hence disagreeable in society. Discussions against the prohibition of homosexuality focussed on some of the articles of the Indian constitution. They are Article 14, 15, and 21 which are the fundamental rights and forecast equality as well as non-discrimination based on sex, and personal liberty respectively, so section 377 of IPC violates these rights. In quintessence, homosexuality is an undergoing marking of romantic, emotional, or sexual attractions among the people of the same sex. This case of Navtej Singh Johar v. Union of India is one of the landmark cases which permitted homosexuality.
Section 377 of the IPC states the mutual consent sexual intercourse between the people of the same sex as an unnatural offence and something which is against the order of nature. It also prescribes the punishment of ten years of imprisonment. This provision is a prudish law, which pulled through the 21st century. Fascinatingly, about one hundred and twenty three countries around the globe have never punished or even have legitimized homosexuality. But presently fifty two countries intensely prohibit same sex relations.
The Naz Foundation Trust of India challenged the constitutionality of Article 377 under the article 15, 15, 19 and 21 of the Indian Constitution before the High Court of Delhi. The Naz Foundation asserted that Section 377 throwbacks an outdated apprehension of the motive of the sex, specifically as a means of conception, and do not deserve any place in modern society. Additionally, the police authorities had weaponized this provision, which obstructed the efforts pointed at stopping the expansion of HIV/AIDS. Naz Foundation quoted an occurrence of the year 2001 in Lucknow where the HIV avoidance workers, who were distributing the condoms to the homosexual men, were arrested on the assertion that they were plotting towards the commitment of an offence. Naz Foundation also contended that the amenities were being exploited to punish the consensual sex acts.
In 2009, Delhi High Court governed that Section 377 of IPC which cannot be used to penalize sex between the two consenting adults – hence, this violates the Right to privacy and personal liberty of an individual, which are mentioned under Article 21 of the Indian Constitution. The Court, on the other hand, held that classifying and choosing homosexuals contravenes equal protection, which is guaranteed under Article 14 of the Indian Constitution. Hence, Section 377 of IPC violated the dignity of a human being, which manifests the fundamental of the Constitution of India.
Various organizations, as well as individuals, challenged the judgement of the Delhi High Court in the Supreme Court. They argued about the right to privacy which does not include the right to commit any kind of offence, legitimizing homosexuality would be harmful to the marriage institutions and would tempt the young youth towards such homosexual activities.
In 2013, Supreme Court altered the verdict of the Delhi High Court. In Suresh Koushal’s judgment and it was held that the conclusion of legitimizing homosexuality cannot be done by the Court but by the Parliament of India only. It was also held by the Supreme Court that Section 377 of IPC, prohibits definite acts and not a specific class of people. It was also applicable to the diminutive number of people who were then members of the LGBT community.
Various petitions were filed challenging the judgement of the Supreme Court. With the petition against Suresh Koushal, the judgement was pending, six persons from the LGBTQ community filed a petition to get rid of Section 377 of IPC. Those individuals are, Navtej Johar, Sunil Mehra, Ritu Dalmia, Aman Nath, Keshav Suri and Ayesha Kapur.
On 5th January 2018, Supreme Court established a constitution bench for hearing the challenges of Section 377 of IPC in an extensive manner, even though the remedial petition was pending before the apex Court. The reason behind this could be the observations made by the nine judge bench decision in the case of Right to privacy. The five judge bench of Chief Justice Dipak Misra, Justice A.M. Khanwilkar, Justice D.Y. Chandrachud, Justice R.F. Nariman and Justice Indu Malhotra heard the same matter from 10th July 2018.
The five judge bench on 6th September 2018 relatively brought down Section 377 of IPC, legitimizing the same sex relations between two consenting adults. The individuals of this community finally are now legally allowed to engross in consensual intercourse.
The Buggery Act, 1533
Section 377 of the Indian Penal Code
Article 14, 19, 21 of the Indian Constitution
Facts of the case
As per the facts, the petitioner Navtej Singh Johar was a dancer who identified himself as an LGBT (Lesbian, Gay, Bisexual, and Transgender) community filed the writ petition in a court demanding the right to sexual autonomy and also demanded the right to choose a sexual partner as in right to life under Article 21. He sought the declaration of section 377 of I.P.C. as unconstitutional and further stated that the language of section 377 is not clearly defined and there are no proper criteria for differentiation between natural and unnatural sexual acts. He further stated that section 377 is based on discrimination based on sexual partners and is a legal discouragement on the freedom of speech and expression as it denies the expression of the sexual identity by the choice of partners. Moreover, section 377 is a violation of the right to privacy by placing LGBT people in a fear of humiliation because of their lifestyle.
The respondent left the question of section 377’s constitutional validity to the court. However, it was contended that the act of homosexuality was against the idea of constitutional dignity.
- If the reasoning adopted in Suresh Kaushal judgement was proper or not?
- If Section 377 violates Articles 14 and 15 of the Indian constitution or not?
- If Section 377 violates the right to privacy under Article 21 of the Indian constitution or not?
- If Section 377 has a petrifying effect on Article 19(1)(a) of the Indian constitution by prohibiting gender expression by the community of LGBT?
Evaluation of case
6th September 2018, a five judge Bench put down Section 377 of IPC through majority, the decision that criminalizes same-sex relations between consenting adults. LGBT people can now legally engage in consensual intercourse. The Court agreed to provisions in Section 377 that criminalise sexual acts performed on animals.
Supreme Court of India with the majority held that Section 377 of Indian Penal Code 1860, which placed a crime tag on ‘the carnal intercourse against the order of nature, was unconstitutional as it depicted consensual sexual intercourse between adults of the same sex as a crime. This petition was filed by Navtej Singh Johar who openly challenged Section 377 of IPC on the basis that it violates the constitutional rights of an individual like, privacy, equality, expression, dignity and protection against discrimination. The Court questioned that the discrimination on the grounds of orientation(sexual) was a violation of the right to equality, which denies consensual intercourse between adults in a private location and criminalizes it on the grounds of violation of the right to privacy.
Sexual orientation is an important part of self identity and ignoring it is a violation of the right to life. The fundamental rights can never be denied on the basis that they are only affecting a small section of the population.
As of now the concept of homosexuality has been legitimized but the reaction of some of the organizations and the people of the society is still a challenge for the LGBT community. Nevertheless, there are organizations like, Jamaat-e-Islami Hind and All India Muslim Personal Law Board, these organizations have expressed disappointment for the verdict which the apex court gave about Section 377. On the other hand, some organizations are happy with the decision of the apex court regarding the same. They are RSS, UN, Amnesty International, etc. There was the conduction of several surveys conducted by the different LGBT activists in the different parts of our country which states that life is easier and more simple for these groups. Every person of the society needs time to accept any changes which occur in their country and that time is not far away when all the people of society will accept this change as well about the LGBT community and rights of this community. So instead of blaming people or fighting with them, let’s just give them time to accept the truth.
Analysis of judgement
It is of no importance, that how small the LGBT section is as they also have the right to privacy which also includes physical intimacy. The choice of their partners might be different but this in no way means that they will be prosecuted for the same. Section 377 does cut down their human dignity and the choice of their partners, hence violating their right to privacy which is shown under Article 21.
The main concept behind keeping section-377 working is to protect women and children from getting abused and harassed through carnal intercourse whereas consensual carnal intercourse that is performed by the LGBT community is not injurious to either children or women. Furthermore, non consensual acts are depicted as an offence under section 375 of IPC that implies, section 377 is no longer needed and is discriminative towards a whole section of the society and hence it is violating Article 14 of the Indian Constitution, rendering it unconstitutional.
Our Constitution is liberal, hence, it is not possible that freedom of choice to be absolute. Therefore, some restrictions need to be imposed on the right of choice. On the other hand, the right of selecting a partner for intimate relations is purely a personal decision that cannot be restricted. But the Section 377 of the Indian Penal Code restricts this right of the LGBT community from choosing a partner for their intimate relations and hence it is irrational and arbitrary.
The grounds under which reasonable restrictions can be imposed on the fundamental right of expression are public order, decency and morality. Any such act done in affection, by the people of the LGBT community in a public place does not disturb any kind of public order or their moral values until it is quite decent and not obscene. But section 377 is again void and unconstitutional in this sense that it restricts the connection with criteria of proportionality and is it purely violating the necessary right of expression of the LGBT group.
The Supreme Court hence declared section 377 unconstitutional as it was violating articles 14, 15, 19 and 21 of the Indian Constitution and finally overruled the judgment which was given in Suresh Koushal and others vs. Naz Foundation and others. Furthermore, it was also declared that section 377 will be governing only the non consensual sexual acts which are committed against any adult or minor.
The judgement which was given in Navtej Johar’s case is remarkably a historical one and as a result of this judgement, the homosexuals will be able to live in a respected environment and will be able to express themselves freely. This judgment also highlighted the realisation of people’s rights. But the question arose- that is this the end of the problem? The answer to this question is still a ‘no’ as there is still discrimination carried out against homosexuals because there is an absence of proper law that can address this issue. The court ordered the government that certain measures should be taken to uphold the interests of homosexuals even after this, no specific steps are taken.
The need to take proper measures is extremely important which gives equality to all people based on gender identity, sexual orientation and other grounds. The law should also impose certain obligations of equality and nondiscrimination for every person.
Now, the historical judgement needs to be added with positive efforts by the government to give meaningful life to homosexuals. The essential bodies of the state need to properly support each other. Then only we can have a more positive impact on the judgement given by the court.
This case analysis has been done by Ishika Gautam. She is a 3rd year BBALLB student at Chandigarh University.