By Manvi Jain, a Student at DME, Noida (GGSIPU)

Abstract

This article explores the landmark legal case of Navtej Singh Johar v. Union of India, which led to the decriminalization of homosexuality in India by repealing Section 377 of the Indian Penal Code. The case, prompted by five members of the LGBTQ community challenging the Suresh Kaushal judgment, examined the constitutionality of Section 377, which criminalized consensual same-sex relations. The contentions of the petitioners, arguing for the recognition of LGBTQ rights, and the respondents, raising concerns about societal impacts, are examined. The judgment acknowledged the right to privacy and dignity for the LGBTQ community, emphasizing the irrationality and arbitrariness of Section 377. The article critically analyses the legal precedents leading to this momentous decision and underscores the significance of the ruling in challenging societal prejudices and promoting equal rights for the LGBTQ community in India.

Introduction

India has joined the 28 Asian countries that have legalised homosexuality and recognised LGBTQ rights. Many people’s lives have been affected as a result of the decision in Navtej Singh Johar v. Union of India, case. Homosexuality was a punishable offence under Section 377 of the Indian Penal Code, 1860, hence the LGBTQ Community did not have such rights prior to this verdict.

Facts of the Case

The judgement of ‘Suresh Kaushal and Ors. v. NAZ Foundation and Ors.’ was challenged in the Navtej Singh Johar v. Union of India case, by five members of the LGBTQ community who petitioned for the repeal of Section 377 IPC, which criminalised consensual sexual relations between gays.

In the case of, Suresh Kaushal and Ors. v. NAZ Foundation and Ors., Section 377 was challenged. It was claimed that it is in violation of Articles 14, 15, and 21 of the Constitution. The Supreme Court issued an ambiguous ruling, indicating that the decision to decriminalise homosexuality should have been decided by Parliament rather than the courts. The courts can only do so if the statute is proven to be in violation of constitutional provisions beyond a reasonable doubt. The court also stated that because fewer than 200 cases have emerged in 150 years, there is insufficient evidence to declare that Section 377 IPC is ultra vires the provisions of Articles 14, 15, and 21 of the Constitution. Finally, the Supreme Court stated that Section 377 does not suffer from the vice of unconstitutionality, without going into greater detail. 

Main Issue Raised

The main issue raised here was about the constitutionality of Section 377 of IPC.

Contentions of Petitioners

• Homosexuality, bisexuality, or any other sexual inclination is a natural occurrence, not a physical or mental ailment. It is a reflection of personal choice, and criminalising it will undermine Article 21 of the Indian Constitution by compromising an individual’s dignity and gender identity.
• It is also stated that if a person’s group is not acknowledged by society as a whole, he would not become an alien, and hence the rights of the LGBTQ community, which accounts for 7-8 percent of India’s population, must be recognised.
• Section 377 is founded on Victorian-era morals and social norms, in which sexual practises were only seen as a means of reproduction and nothing more. This section is the only reason that the LGBTQ community has faced discrimination and abuse throughout their lives, and will continue to face discrimination and abuse if homosexuality is criminalised once more.
• If Section 377 is kept in place without any changes, it will violate the LGBTQ community’s fundamental rights to freedom of expression, privacy, equality, liberty, and dignity.
• The Petitioners also stated that persons who choose inter-religious and inter-caste marriages are no different than people who chose a spouse of the same gender. Although society may or may not accept of inter-caste and inter-religious marriages, it is the court’s responsibility to uphold each citizen’s fundamental rights. The LGBTQ community holds the same position, despite the fact that the majority of the population opposes them; it is up to the court to ensure that their constitutional rights are not violated. 
• There is no logical distinction between natural and unnatural sex, and the phrase “carnal intercourse against the natural order of things” isn’t defined anywhere. As a result, Section 377 is arbitrary and vague, and therefore violates Article 14 of the Constitution.
• The Section also violates Article 15 of the Indian Constitution since it discriminates against the LGBTQ community based on the sex of their partners, which is illegal under Article 15 of the Indian Constitution.

Contentions of Respondents

• If Section 377 is deemed unconstitutional, the family system will be shattered, and many corrupt young Indians will regard gay behaviours as a business opportunity and begin to engage in them for profit. Furthermore, people who engage in such behaviours are more likely to get HIV/AIDS, increasing the number of AIDS victims in the country. 
• Fundamental rights are not absolute, and repealing Section 377 will render all religions practised in the country unacceptable, violating Article 25 of the Indian Constitution, which must also be taken into account.
• The fundamental rationale for criminalising carnal intercourse against nature is to protect citizens from harmful repercussions, as one of the goals of criminal law is to protect citizens from anything dangerous.
• Because Section 377 of the IPC forbids discrimination on the basis of sex but not sexual orientation, it does not violate Article 15. Furthermore, it does not violate Article 14 because the Section solely describes a specific offence and its punishment.

Judgement 

Just like all, the LGBTQ community also has the right to privacy, which includes physical intimacy. Their choice of spouse may be different, but that does not mean they will face legal consequences. The fundamental goal of keeping Section 377 is to protect women and children from being mistreated and harassed as a result of carnal intercourse, however consensual carnal intercourse done by the LGBTQ community is neither harmful to children nor to women. 

Furthermore, non-consensual activities have previously been defined as a crime under Section 375 of the IPC, implying that Section 377 is redundant and discriminatory against a particular group of people, and hence unlawful under Article 14 of the Indian Constitution. Because our Constitution is liberal, the right to choose will never be absolute. As a result, the principal of choice has been subjected to some limitations. The right to choose a partner for intimate relations, on the other hand, is a wholly personal choice that cannot be regulated. Section 377 of the Indian Penal Code, on the other hand, inhibits the right of the LGBTQ community to choose a sexual partner and is thus irrational and arbitrary.

Public order, decency, and morality are justifications for limiting the fundamental right to freedom of expression. Any act of affection performed in public by members of the LGBTQ community does not disrupt public order or moral standards unless it is appropriate and not obscene. Section 377, on the other hand, is unlawful because it fails to meet the proportionality standards and violates the LGBTQ community’s fundamental right to free expression.

Critical Analysis

In 2018, the LGBTQ community received justice. Many people could not even approach the court because they lacked the courage to stand up and fight for their rights, but Navtej Singh Johar and 4 others who filed a new writ petition challenging the constitutionality of Section 377, stood up for the entire LGBTQ community, and came out on top. The fact that the LGBTQ community only accounts for a small percentage of the Indian population has been cited as a primary reason for the delay and neglect, but there is law for everyone, and the fact that this community exists suggests that they deserve to exercise and safeguard their rights. While the petitioners’ arguments were clearly contradicted by the respondents’ arguments, the fact that the law recognised the Third Gender implied that LGBTQ adults have the full right to choose their life partner and engage in sexual relations with their partner, even if that partner is a homosexual.

A few cases which laid the groundwork for the case of Navtej Singh Johar and Ors. v. Union of India, 2018, were:

• Naz Foundation v. Government of the National Capital Territory of Delhi (2009) – It is a historic Indian case ruled by a two-judge bench of the Delhi High Court, which declared that criminalising consenting homosexual intercourse between adults is a breach of India’s Constitution’s fundamental rights.
• Suresh Kumar Koushal and others v. NAZ Foundation and others (2013) – In this case, a two-judge Supreme Court panel overruled the Delhi High Court decision Naz Foundation v. Govt. of NCT of Delhi and reinstated Section 377 of the Indian Penal Code.
• The NALSA case/National Legal Services Authority v. Union of India (2014) – In this case, the Supreme Court of India recognised transgender people as the “third gender”, maintaining that the fundamental rights guaranteed by the Indian Constitution are equally relevant to them and granting them the ability to self-identify as male, female, or third gender.
• Shakti Vahini v. Union of India (2018) – In this case, the freedom to choose a life mate was declared a fundamental right as according to Article 21, 19(1)(a) and 14 of the Indian Constitution, the freedom to marry the person of one’s choice is a basic right.

Conclusion

The right to privacy and dignity are essential because they allow people to keep their personal lives private and secure, and allow them the right to be appreciated and respected for their own sake and treated ethically. They are, without a doubt, extremely significant. Despite the fact that the Supreme Court has ruled in favour of the LGBTQ community, the majority of Indians regard this group as unequally treated. Instances such as refusing renting properties to LGBTQ persons point to the fact that some people still hold prejudices against the LGBTQ community and refuse to embrace the fact that it is a community of equals. Such mindset should be altered immediately, as it is past time. This community is entitled to the same respect and treatment as everyone else. This decision brought a new ray of hope to a community that has long suffered in silence in the face of widespread prejudice and social injustice.

We cannot be naive to imagine that this decision revolutionised society’s attitude toward transgender people, but it was a start toward righting the wrongs that have been perpetrated against transgender people for generations. If males can pick females as their life partners and females can choose males as their life partners, then why are males not allowed to choose males and females allowed to choose females as their life partners? The fact that the third gender was recognised in the NALSA case proves that this community exists! And thus, they deserve the same rights as the rest of Indian citizens.