Navtej Singh Johar VS Union of India

Case decided on September 6th 2018 

Citation: AIR (2018) 10 SCC 1 

Judges: 

1. Chief Justice Dipak Misra, 
2. Justice Rohington Nariman, 
3. Justice D Y Chandrachud, 
4. Justice A M Khanvilkar
5. Justice Indu Malhotra. 

Introduction: 

This is the landmark judgement when challenged by Naz foundation Delhi. The case travelled  from ‘Unnatural offence’ to fundamental rights of the Homosexual Community. It’s very evident that Indians have displayed homosexuality in different manners,like many temples in India have sculptures where we can see the carving of homosexuality, bisexuality basically its a Kama sutra manual on the walls of many temples in India.However the Judgement of respective case made everyone believe that, “Love don’t have any gender.” 

Summary of the case: Decriminalisation of Sec.3771 of IPC. 

This section came into force more than 150years.In 1862, before independence.,It was formed  on Britans ‘Burggery Act’of 1533. 

According to the -term highlighted “Unnatural offence”:  

• Sexual intercourse between the same gender is an unnatural offence. 
• It is punished with imprisonment for life,and ten years of imprisonment, and also be liable to fine. 

Although the act doesnot specify Gay sex or consexual intercourse,involving who are not  Hetero Sexual. 

❖ In 2001 -The Naz foundation(India)Trust, LGBT community activists filed Public interest litigation in Delhi high court challenging the section of 377 -legislation of homosexual intercourse between consenting adults. 

❖ In 20032 Delhi High Court refused to Consider a petition regarding the Legality of the law. 

❖ Naz foundation challenged the Delhi High Court decision and appealed to the Supreme court of India,. to dismiss the petition. 

❖ The supreme court has reverted to the appeal and says that Naz foundation can file the Public Interest Litigation on this case and simultaneously given the orders to Delhi High Court to reconcile the case on merit. 

❖ In 2009, July 2nd Delhi High Court delivered the judgment, legalizing consensual homosexual activities between same gender. 

❖ In 2013, the supreme court dismissed the high court order, stating that the order was legally unsustainable. 

Major Legal issues faced in this case : 

1. Section 377 violates the fundamental right to expression under Article 19(1)(a) by criminalizing the gender expression of persons belonging to the LGBT community. 2. Violation of Article 14 and 15 by allowing discrimination on the basis of ‘ Sexual orientation and Gender equality?
2. Violation of section 377 violates the right of Privacy between the two adults who belong to the same gender.

The Petitioner in this case, Navtej Singh Johar, a dancer who belongs to LGBT community, and other community people Sunil Mehra a Journalist, Ritu Dalmia, a chef, Ayesha suri and Ayesha kapoor, together filed a Writ Petition in the Supreme Court in 2016 seeking recognition of the right to sexuality, the right to choose a sexual partner to be part of the right to life guaranteed by Art. 21 of the Constitution of India (Constitution).and also declaration of Section 377 was unconstitutional. The Petitioners also argued that Section 377 was violative of Art. 14 of the Constitution (Right to Equality Before the Law).There was no intelligible differentia or reasonable classification between natural and unnatural consensual sex. 

Petitioners further argued that,(i) Section 377 violates Art. 15 of the Constitution (Protection from Discrimination) 

(ii) and Article 19 (Freedom of Expression) since it denied the right to express one’s sexual identity through speech and choice of sexual partner, and 

(iii) And it also violates the right of privacy, as it subjected LGBT people to the fear that they would be humiliated or shunned because of “a certain choice or manner of living.”The Respondent in the case was the Union of India. 

Respondent: The Union of India. Along with the Petitioner and Respondent, certain non-governmental organizations, religious bodies and other representative bodies also filed applications to intervene in the case. 

The Union of India submitted that it left the question of the constitutional validity of Section 377 (as it applied to consenting adults of the same sex) Some interveners argued against the Petitioner, submitting that the right to privacy was not unrestrained, that such acts were derogatory to the “constitutional concept of dignity”.3that such acts would increase the prevalence of HIV/AIDS in society, and that declaring Section 377 unconstitutional would be detrimental to the institution of marriage and that it may violate Art. 254 of the Constitution (Freedom of Conscience and Propagation of Religion). 

So far this case was first instance, wherein any petitioner prayed infront of the Court that , the section is against the constitution of India, as it violates the sexual privacy, dignity, right against discrimination and freedom of expression.Supreme court ready to review the petition and criminalization of the Homosexual activity. 

❖ In 2017, Supreme court unanimously ruled that, the right of individual 5privacy is the fundamental rights in the constitution of India.The judgement also mentioned the Right of Privacy and Right of Sexual orientation lies at the core of the fundamental rights, guaranteed under the Article 14, 15 and 21 of the constitution. 

❖ Five bench judges delivered the judgement that section 377 is ‘Unconstitutional’ and should be striked down as it violates Article 14 (Equality before law) Article 15(Prohibition of discrimination on grounds of religion, caste, sex, race or place of birth)Article 21(Right to life) of the Indian Constitution. 

❖ September 8th 2018, the verdict and Supreme court reversed its 2013 judgment restoring Section 377. “Section 377 of Indian Penal code -Criminalizes Homosexuality now unconstitutional and void”. 

❖ The court also declared that the portion of the law relating to consensual sex between the adult is unconstitutional.Other remaining portion of the section 377, sex with minors, non-consensual sex between adults and bestiality still remains in force. 

Personal analysis: After referring to so many articles, re reading constitution , Indian penal code, articles , blogs of LGBTQIA, referring to many citations, it’s very important for an individual to breathe free and lead in a dignified manner. The Judicial system again proved in this case there are no barriers for Love. I strongly urge every individual who belongs to this community to make use of this clause and stop taking their life for the sake of society. And messages to other society people who believe in equality let’s support them and give them respect.