Navtej Singh Johar and Ors. v. Union of India and Ors.

Case Name: Navtej Singh Johar and Ors. v. Union of India and Ors.

Citation: AIR 2018 SC 4321; W.P. (Crl.) No. 76 of 2018 D. No. 14961/2016

Author :Abhishek Yadav , Amity Law School Noida , Amity University

Brief

Millions of lives have been transformed by this verdict, and it has also served as a springboard for society to advance. By focusing on the idea of progressive realisation of rights and maintaining that the objective of a progressive society should always be looking forward, the five-judge bench overturned the Suresh Kaushal judgement, which was previously mentioned.

The goal of this petition was to have the right to sexuality, autonomy over one’s sexual life, and the ability to choose one’s sexual partner recognized as part of the right to life which is protected by Article 21 of the Indian Constitution. The petition also requested a declaration of unconstitutionality regarding Section 377 of the Indian Penal Code, 1860 (IPC), which made consenting sexual conduct between adults illegal. The petitioners argued that criminalizing homosexuality, bisexuality, and other sexual orientations would violate the Constitution’s guarantees of privacy and dignity because they are natural variations of expression.

Acknowledging these arguments, the Supreme Court determined that Section 377 discriminated against the LGBT community, noting that sexual orientation was an integral aspect of their identity, autonomy, and dignity. Based on this, the Court determined that Section 377 violated the Constitution’s Article 21 rights to dignity, privacy, and sexual autonomy; Article 19 rights to freedom of expression; Article 14 rights to equality; and Article 15 rights against discrimination.

Although the Supreme Court had previously examined the constitutionality of Section 377 in the case of Suresh Kumar Koushal & Anr. vs. Naz Foundation & Ors. ((2014) 1 SCC 1), overturning the Delhi High Court’s decision in Naz Foundation vs. Government of NCT of Delhi & Ors. ((2009) 111 DRJ 1), a number of factors, including the evolving concept of the right to privacy and its inherent connection to individual autonomy and dignity in NALSA v. Union of India & Ors. ((2014) 5 SCC 438) and K.S. Puttaswamy & Anr. vs. Union of India & Ors. ((2017) 10 SCC 1), led the three-judge bench of the Supreme Court to refer the petition to a larger bench for final adjudication. 

Facts

Insofar as it affected consenting same-sex relationships, the main question in this case concerned the constitutionality of Section 377 of the IPC, which dealt with “unnatural offences” and criminalized “carnal intercourse against the order of nature.” The 2009 Delhi High Court decision in the Suresh Kumar Koushal case, which ruled that Section 377 was unconstitutional, was overturned by the Supreme Court. In 2016, Navtej Singh Johar, the petitioner, filed a writ case before a three-judge bench contesting the constitutionality of Section 377 and the Supreme Court’s decision in the Suresh Kumar Koushal case. The five-judge bench was tasked with considering the issue in light of its importance. 

Issue

A. Whether the ruling in Suresh Kumar Koushal should be upheld or overturned, and whether Section 377 of the Indian Penal Code, 1860 was unconstitutional as it related to consenting sexual behavior between adults.

Submissions from the petitioner side:

• Homosexuality is a natural orientation and not an illness or disorder. It is a matter of personal choice and criminalizing it would violate Article 21 of the Indian Constitution, which guarantees the right to personal liberty, dignity, and gender identity.
• The LGBTQIA+ community constitutes a significant percentage of the Indian population and their rights should be recognized and protected by the law, despite non-acceptance by society at large.
• Section 377 of the Indian Penal Code (IPC) is a product of the Victorian era when sexual activities were viewed only as a means of reproduction. This section is the sole reason why LGBTQIA+ individuals face discrimination and abuse and will continue to do so if homosexuality is criminalized again.
• Retaining Section 377 without making any changes would violate various fundamental rights of the community, such as freedom of expression, privacy, and equality.
• The right to choose a partner is a fundamental right and should not be restricted based on caste, gender, or sexual orientation. The court has the obligation to protect the constitutional rights of every citizen, including the LGBTQIA+ community.
• The term “carnal intercourse against the order of nature” used in Section 377 is not defined anywhere, and there is no reasonable classification between natural and unnatural sexual acts. Therefore, Section 377 is arbitrary and violates Article 14 of the Indian Constitution.
• Section 377 is also violative of Article 15, which prohibits discrimination on the basis of sex. Discrimination against individuals based on their sexual orientation is a clear violation of this article.

Submissions from the respondent side 

• It was argued that if Section 377 were to be decriminalized, the Indian family structure would collapse and a large number of unethical young Indians would exploit this as a business opportunity, turning to homosexuality as a source of income. Furthermore, those who engage in these kinds of activities frequently have a higher risk of contracting HIV/AIDS.
• They further argued that a country as diverse as India has a very different political, economic, and cultural legacy from those where consensual homosexual acts are no longer illegal.
• In addition, it should be noted that fundamental rights are not unqualified, and decriminalization will render all religions practiced in the nation intolerable and violate Article 25 of the Indian Constitution, which must be taken into account as well. 
• They further argued that, even though the section has been decriminalized, definitions can be added for each contentious term mentioned in the section. After that, the section will only address those engaging in non-consensual behavior.
• Moreover, the primary rationale for making carnal relations against the law is to safeguard citizens from the negative outcomes and advance the goals of our nation’s criminal codes. 
•  Since discrimination based on sex, not sexual orientation, is prohibited by Article 15, Section 377 of the IPC does not violate Article 15. Additionally, since Article 14 only lists a specific offense and its penalty, it does not violate that article.

Decision

• The court ruled that LGBTQIA+ people have the same right to privacy as everyone else, including the freedom to choose their sexual orientation and individuality, regardless of how tiny their section may be. Even though they may have chosen a different partner, they won’t face consequences for it. They are deprived of their human dignity and freedom of choice by Section 377, which infringes upon their right to privacy guaranteed by Article 21.
• The primary goal of keeping Section 377 of the IPC in place is to shield women and children from harassment and abuse resulting from non-consensual sexual relations; however, consensual sexual relations, practiced by members of the LGBT community, does not harm women or children. Furthermore, non-consensual acts are already listed as crimes under Section 375 of the IPC, implying that Section 377 is unconstitutional because it targets a single segment of society and is redundant and discriminatory, in violation of Article 14 of the Indian Constitution.
• Because of the liberal language of our Constitution, the right to choose cannot be guaranteed indefinitely. As such, this right has also been subject to certain limitations. But the freedom to select a partner for a sexual relationship is an unalienable right that cannot be limited. In contrast, Section 377 of the Indian Penal Code imposes unreasonable and arbitrary restrictions on this community’s ability to select a sexual partner. 
• Article 19(1)(a) permits reasonable restrictions on the fundamental right of expression based on public order, decency, and morality. Until an act is sufficiently respectable and not offensive to the general public, it does not in any manner disrupt public order or moral principles when performed in public by any member of this community. But Section 377 is unconstitutional once more because it disregards proportionality standards and infringes upon the LGBTQIA+ community’s fundamental right to free speech.
• The Supreme Court overruled the ruling in Suresh Koushal and others. v. Naz Foundation and others, ruling that Section 377 is partially unconstitutional due to its violations of Articles 14, 15, 19, and 21 of the Indian Constitution. Additionally, it stated that only non-consensual sexual acts against adults, sexual acts against minors, and even bestiality would be punished under Section 377. 

Analysis

The ruling on Section 377 by the Supreme Court is a landmark decision for LGBTQIA+ rights in India. They based their arguments on the Constitution’s guarantees of equality, privacy, and self-determination. It was decided that criminalizing consenting same-sex relationships would be against these rights.
The freedom to select one’s sexual orientation and sexual privacy were acknowledged by the court as essential components of the right to privacy. LGBTQIA+ people can now live freely without worrying about consequences thanks to this. Section 377 was declared discriminatory by the court in addition to targeting the LGBTQIA+ community for consensual acts that were acceptable for heterosexual couples.

The court’s ruling was influenced by international legal principles as well, which demonstrated India’s compliance with international human rights norms. Public morality-based arguments were rejected by the court, which held that morality shouldn’t be used to restrict individual rights in situations where there is no harm to the public.
This historic ruling essentially decriminalizes adult consenting same-sex relationships in India. It opens the door for further legal developments in the LGBTQIA+ community and represents a significant step towards increased acceptance of this community. It’s crucial to remember that Section 377, which shields people from abuse, is still in place for non-consensual sexual acts.