Navtej Singh Johar vs Union of India Ministry of Law

Equivalent Citation:

AIR 2018 SUPREME COURT 4321, AIR 2018 SC( CRI) 1169, (2018) 4 MAD LJ(CRI) 306, (2018) 4 BOMCR(CRI) 289, (2018) 10 SCALE 386, 2019 (1) SCC (CRI) 1, (2018) (10) 4 CURCRIR

1, (2018) 105 ALLCRIC 258, (2018) 3 ALLCRIR 3234, (2018) 3 CRIMES 233, 2018 (10) SCC 1, 2018(190) AIC (SOC) 1 (SC) 252 (2018) DLT 1 (CN)(SC), 2018 (3) KCCR SN 325 (SC), 2018 (4) KLT SN 1 (KER), AIRONLINE 2018 SC 146

Court – The Supreme Court Of India

Judges: – Chief Justice, Rohinton Fall Nariman, A.M. Khanwilkar, D.Y. Chandrachud, Indu Malhotra

Bench: – Five Judge Constitution Bench

Date: – 6th of September, 2018

NAVTEJ SINGH JOHAR & ORS. …Petitioner(s) VERSUS UNION OF INDIA

THR. SECRETARY MINISTRY OF LAW AND JUSTICE …Respondent(s) WITH

WRIT PETITION (CIVIL) NO. 572 OF 2016

WRIT PETITION (CRIMINAL) NO. 88 OF 2018

WRIT PETITION (CRIMINAL) NO. 100 OF 2018

WRIT PETITION (CRIMINAL) NO. 101 OF 2018

WRIT PETITION (CRIMINAL) NO. 121 OF 2018

FACTS: –

• Petitioner argued that the homosexuality, bisexuality and other sexual orientations are equally natural and reflective of expression of choice and inclination founded on consent of two persons who are eligible in law to express such consent and it is neither a physical nor a mental illness, rather they are natural variations of expression and free thinking process and to make it a criminal offence is offensive of the well-established principles pertaining to individual dignity and decisional autonomy inherent in the personality of a person, a great discomfort to gender identity, destruction of the right to privacy which is a pivotal facet of Article 21 of the Constitution.
• Individuals belonging to the LGBT suffer discrimination through the existence of section 377 IPC which is nothing but manifestation mindset of societal values prevalent during Victorian era.
• They also argued that section 377 despite being pre-unconstitutional, was retained and is a violation of fundamental rights
• K.S. Puttaswamy case was relied in the argument as it argued that sexual orientation is also an essential attribute of privacy. 
• Consenting act between two same sex adults are excluded because of section 377 IPC, then a married woman would be rendered remediless under the IPC against her bi-sexual husband and his consenting male partner indulging in any sexual acts
• On the basis of aforesaid reasons, the High Court declared Section 377 IPC violative of Article 14, 15, 21of the constitution

ISSUES: –

• The LGBT person cannot be penalized simply for choosing a same sex partner, supporting that sexual orientation being an innate facet of an individual’s identity.
•  Section 377 has a chilling effect on Article 19(1)(a) of the constitution which protects fundamental right of freedom of expression including of LGBT person to express their sexual identity and orientation
• Section 377 of IPC uses the phraseology – carnal intercourse against the nature but the order of nature is not a constant phenomenon and social morality also changes from age to age.
• What is natural to one may not be natural to other but the said natural orientation and choice cannot be allowed to cross the boundary of law.

Argument

Petitioner: –

• Section 377 discriminates, violates Article 14 that is Right to Equality.
• It discriminates on the basis of sexual orientation, personal liberty, dignity and privacy through Article 15 and Article 21
• it was also filed that consensual act of adults in private has been decriminalised in many parts of the world and, therefore, it deserves to be decriminalised in India as wellfor several reason such as economic, political and cultural heritage.

Respondent: –

• The constitutional validity of Section 377 IPC, to the extent it applies to ‘consensual acts of adults in private’, the respondent leaves the same to the wisdom of the court.
• It was submitted that the observation of the court in Puttuswamy (supra), virtually pre – empt and forestall the aforesaid NGO from raising substantial contention to the effect that there is no unanalysed and unbridled right to privacy and the said right cannot be abused.
• Submission on the behalf of Raza Academy, through its learned counsel Mr. R.R. Kishore who has contended that homosexuality is against order of nature and Section 377 rightly forbids it.

Judgement: –

•  It was held that Section 377 IPC, insofar as it criminalised consensual act between adults, was unconstitutional.
• But, it will be applied to non-consensual act and acts with minors and animals.

Ratio Decidendi: –

•   The Suresh Koushal judgement was overturned 
• Sexual orientation was protected under Article 21 as it is essential for dignity and privacy
• Constitution must prevail over societal morality
• Equality and liberty cannot be denied over majority opinion.

Conclusion: –

• Discrimination against LGBT relies heavily on the Benett Carpers “binary gender system” which is defined as institutionalised valorisation of heterosexual activity.
• Heterosexism reinforces sexism by penalizing persona who do not confirm to bipolar gender system and rewarding men and women who do and it subordinates the female sex through its hierarchical polarity.