Navtej Singh Johar and Ors V. Union of India

Case Name ;- Navtej Singh Johar and Ors V. Union of India

Facts Of the Case 

• The issue concerns the validity of Section 377 of the Indian Penal Code, which criminalizes “carnal intercourse against the order of nature” and has implications for consenting same-sex relationships. The Delhi High Court deemed Section 377 illegal in 2009, but the Supreme Court overruled that decision in Suresh Kumar Koushal. In 2016, Navtej Singh Johar filed a writ petition contesting the Supreme panel’s ruling under Section 377 of the Indian Penal Code, arguing that it violated fundamental rights to privacy, equality, and dignity. The case was referred to a five-judge panel.In 2016, a three-judge Supreme Court bench ruled that concerns raised required a larger court, leading to a five-judge panel hearing the case. The case continues to be a contentious issue in India.

[Section 377, titled “Unnatural Offenses,” states that individuals who voluntarily engage        in sexual intercourse against nature with any person, woman, or animal may face life imprisonment or 10 years imprisonment, and a fine.]

• In 2016, Navtej Singh Johar, a dancer from the LGBT community, filed a petition with the Supreme Court to acknowledge the right to life under Article 21 of the Indian constitution.He claimed that Section 377 was illegal, violating Article 14 (Right to Equality Before the Law) and Article 15 (Protection from Discrimination). The Appellant  claimed that Section 377 had a discouragement on Article 19 (Freedom of Expression) and violated the right to privacy by putting LGBT people in fear of humiliation or rejection because of their sexual orientation.
• In 2013, the Indian Supreme Court overruled a 2013 decision in Suresh Kumar Kochhal vs Naz Foundation, stating that Section 377, which prosecutes only a small percentage of the LGBTQ community, is unconstitutional and violates Articles 14, 15, and 21 of the Indian Constitution. The court argued that the provision does not explicitly state that the LGBTQ group should be treated differently and that Parliament can modify the section’s constitutionality to reduce or eliminate prejudicial behavior.
• In 2016, a three-judge bench proposed a larger panel, leading to a five-judge panel. In 2018, Navtej Singh Johar, an LGBTQ dancer, filed a plea to declare Section 377 illegal and demand sexual autonomy, choice of sexual desire, and freedom under Section 21 of the Indian Constitution.
• The Union of India claimed that the constitutional legality of Section 377, which applies to consenting individuals of the same sex, should be up to the court’s discretion. However, several interveners contended that the right to privacy was unrestricted, that such acts violated the constitutional concept of dignity, increased HIV/AIDS prevalence, and that finding Section 377 invalid would impair marriage and violate Article 25 of the Constitution.
• The primary argument was based on Section 377 of the IPC

Article – 14

Article – 19

Article – 21 

Issues of The Case

• The issue concerns the legitimacy of Section 377 of the Indian Penal Code, which criminalizes consensual homosexual behavior between adults, and whether it breaches the fundamental rights granted by the Indian Constitution.
• Article 14—Equality: Does Section 377 categorize someone in such a way that it allows for unjustifiable and arbitrary bias against LGBTQ+ people, depriving them of equal legal protections?
• Article 15—[Prohibition of discrimination on grounds of religion, race, caste, sex or place of birth]  Non-Discrimination: Does the law discriminate based on gender or sexual orientation, which is forbidden under Article 15?
• Article 19 (Freedom of Speech) : Section 377, a contentious piece of legislation, raises concerns about whether it violates LGBTQ+ people’s free expression rights by criminalizing consenting sexual behavior.
• Article 21 asks if criminalizing consenting, same-sex partnerships breaches the right to life, which includes liberty, privacy, dignity, and autonomy.

Judgment: 

• On September 6, 2018, the Supreme Court unanimously repealed Section 377 of the IPC, decriminalizing consenting same-sex relationships between adults. The important parts of the judgment are:

(i) Violation of Fundamental Rights:

The Court pass an order  that Section 377, IPC, violate Articles 14, 19, and 21 of the Indian Constitution. It acknowledged that sexual orientation is an inherent element of an individual’s identity, and that criminalizing consensual relationships based on sexual orientation undermines LGBTQ+ people’s dignity and personal liberty.

• The Indian Supreme Court has largely thrown down Section 377 of the Indian Penal Code, overturning Suresh Koushal’s 2013 decision. The court determined that Section 377 discriminates against people based on their sexual orientation or gender identity, in violation of Articles 14, 15, and 21 of the Indian Constitution. It also limits their freedom of expression under Article 19(1)(a). The case was founded on previous decisions in NALSA v Union of India and Puttaswamy Case. Moreover,  Court maintained the right to privacy established in Justice K.S. Puttaswamy v. Union of India, noting that it safeguards an individual’s sexual orientation and intimate relationships. It held that private sexual behavior between adults is beyond the scope of criminal law and damages autonomy and dignity, both of which are vital components of the constitutionally established right to privacy.
• The Indian Supreme Court declared  Section 377 of the Indian Penal Code invalid , and overruling  2013 judgment by Suresh Koushal. The court found that Section 377 discriminates against individuals based on their sexual orientation or gender identity, violating articles 14, 15, and 21 of the Indian Constitution. It also inhibits their freedom of expression under Article 19(1)(a). The case was based on previous judgments from NALSA v Union of India and Puttaswamy Case.
• The Supreme Court concluded that Article 377 breaches privacy, decision-making, and human dignity, which contradicts Article 21. Article 377 forbids permission to sexual activity, socially rejects gay individuals, and does not completely comprehend their characteristics. The court determined that “sexual privacy” is protected and included in the right to privacy since it infringes the freedom to choose one’s own sexual orientation.
• The decision considered the historical and social background of Section 377 of the IPC, which was enacted during British colonial rule. The Court observed that the law did not reflect contemporary human rights ideals, making it uncomfortable with modern concepts of equality and non-discrimination.

Reasoning

• • The respondent contends that if Section 377 IPC is deemed unconstitutional, additional ancillary problems or rights not presented to the Bench may be overlooked. The Union of India desires to respond with a full affidavit, as these problems have far-reaching implications under other legislation. The Apostolic Alliance of Churches and the Utkal Christian Council have filed another application for intervention (I.A. No. 76790 of 2018). The applicants argue that the Court should consider situations in which consent can be obtained through fear of death or injury, misinterpretation, intoxication, or an inability to comprehend the nature and consequences of the prohibited acts.
  • The State and Judiciary have a duty to defend the fundamental right to dignity, but the collective as a whole is equally responsible to respect one another’s dignity. This is a constitutional obligation and a demonstration of constitutional solidarity. Individual preferences, emotional and physical expression, and freedom of choice, subject to consent, are emphasized by constitutional courts. A biological engagement is founded on consent, in which both individuals have agreed to the act. Expression of choice is an important aspect of liberty, and both are linked to a persona’s existence and living. Liberty should be granted a place in the sphere of dignity.
  • I read the opinions of Chief Justice Nariman and Justice Chandrachud, who addressed numerous issues for the Bench to address. They also discuss a batch of Writ Petitions challenging Section 377 of the Indian Penal Code, 1860, which criminalizes consensual sexual intercourse between adult persons of the same sex in private.
  • Decriminalization of anti-sodomy legislation has gained traction in recent decades, with 124 countries no longer punishing homosexuality. This modification was made possible by legislative revisions or court decisions. Same-sex couples’ relationships are likewise protected, with 24 countries now permitting marriage and 28 officially recognizing partnerships. Several countries have established legislation that protects LGBT people from discrimination and allows them to adopt children. The United Kingdom officially prohibits sexual orientation-based discrimination in employment, education, social protection, and housing. Sexuality, however, is thought to be the consequence of a complex interplay between nature and upbringing, rather than an aberration.
  • LGBT individuals, despite being a small minority, are entitled to equal rights under Articles 14, 15, 19, and 21 of the Constitution, despite their status as citizens.

Conclusion

The Indian Supreme Court has ruled Section 377 of the Penal Code, 1860, unconstitutional, stating it infringes on fundamental rights such as equality, nondiscrimination, freedom of expression, and personal liberty. The court emphasized that majoritarian views cannot dictate fundamental rights and that constitutional morality should take precedence over social morality. The court also acknowledged the violation of LGBTQ+ people’s humanity and dignity by denying them love and intimacy. This case affirms their rights and represents a significant step towards equality and inclusivity in India.