This post is written by Arohi Ambade, a second-year law student of Maharashtra National Law University, Nagpur.
Title of the Case: Navtej Singh Johar v Union of India
Citation: AIR 2018 SC 4321
Court: Supreme Court of India
Bench: Chief Justice Dipak Misra, Justice A.M. Khanwilkar, Justice Rohinton Fali Nariman, Justice D.Y. Chandrachud and Justice Indu Malhotra
Date of Judgment: 06-09-2018
Petitioner: Navtej Singh Johar
Respondent: Union of India thr. Secretary Ministry of Law and Justice
Brief Facts: A writ petition was filed by on 26th April 2016 by Navtej Singh Johar, a dancer from the LGBT community along with 4 others to challenge the constitutional validity of Section 377 of IPC which criminalizes consensual sexual intercourse between same-sex adults in private. In the prayer, the petitioners prayed for declaration of “right to sexuality”, “right to sexual autonomy” and “right to choice of a sexual partner” to be a part of right to life guaranteed by Article 21 of the Constitution of India. It was also prayed by the petitioners to declare Section 377 of the Indian Penal Code as unconstitutional.
Procedural History: In July 2009, the Delhi High Court first deemed portions of Section 377 unconstitutional in Naz Foundation v. Govt. of NCT of Delhi. Various individuals and religious groups challenged the judgment, and the Supreme Court overturned the Delhi High Court in 2013 in Suresh Kumar Koushal v. Naz Foundation, saying that the matter and decision be left up to the Parliament. The matter of Section 377 was rejected in 2015.
Arguments raised by the Respondent:
(1) Section 377 of IPC does not violate Article 14 of the Constitution as it merely defines a particular offence and its punishment and it is well within the power of the State to determine who should be regarded as a class for the purpose of the legislation.
(2) Section 377 of IPC does not violate Article 15 of the Constitution as the said Article prohibits discrimination based on religion, race, sex, place of birth, caste, and not specifically sexual orientation.
(3) Persons indulging in unnatural sexual acts made punishable under Section 377 of IPC are more susceptible and vulnerable to HIV/AIDS and right to privacy cannot be extended to enable people to indulge in unnatural offences and thereby contracting HIV/AIDS.
(4) The offence under Section 377 of IPC implies sexual perversity and involves Carnal intercourse between two persons which is offensive, injurious, and against the order of nature; it is well within the jurisdiction of the state to put reasonable restrictions on it.
(5) Section 377 of IPC has been incorporated after taking note of the legal systems and principles which prevailed in ancient India and the said section is more relevant legally, medically, morally, and constitutionally in the present situation.
(6) Decriminalization of Section 377 of IPC will shamble the family system and detrimentally affect the institution of marriage, open a floodgate of social issues which the legislative domain is not capable of accommodating and would also have a cascading effect on existing laws.
(1) Whether Section 377 of IPC violates Right to Equality under Article 14 of the Constitution?
(2) Whether Section 377 of IPC violates Freedom of Speech and Expression under Article 19 of the Constitution?
(3) Whether Section 377 of IPC violates Right to Life with dignity under Article 21 of the Constitution?
(4) Whether discrimination based on sexual orientation under Section 377 of IPC violates Article 15 of the Constitution?
(5) Was the rationale of the Supreme Court judgment in the Suresh Kumar Koushal case sound in its understanding of morality as social morality?
The bench found that Section 377 discriminates against individuals based on their sexual orientation and/or gender identity, violating Article 14 and 15 of the Constitution. Further, they ruled that Section 377 violates the rights to life, dignity, and autonomy of personal choice under Article 21. Finally, they found that it inhibits an LGBT individual’s ability to fully realize their identity, by violating the right to freedom of expression under Article 19(1)(a). They all referred to Court’s recent judgments in NALSA v Union of India (recognized transgender identity) and Justice K.S. Puttaswamy v Union of India (recognized fundamental right to privacy).
In 2013, in Suresh Kumar Koushal v Naz Foundation, the Court had upheld the constitutionality of Section 377. Not only did the Bench find that Suresh Koushal failed to recognize how Section 377 violates fundamental rights, but further that it relied on a constitutionally impermissible rationale. Suresh Koushal used the miniscule minority rationale, which holds that since only small minorities of citizens are negatively impacted by Section 377, the Court need not intervene. The Constitution guarantees all citizens, independent of sexual orientation or gender identity, their fundamental rights. The Court is concerned with safeguarding ‘constitutional morality’, not ‘popular morality’.
Thus, the five-judge bench of the Indian Supreme Court (Court) unanimously held that Section 377 of the Indian Penal Code, 1860, insofar as it applied to consensual sexual conduct between adults in private, was unconstitutional.
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