Navtej Singh Johar v Union of India

Vrinda Vohra, Amity Law School, Amity University, Noida


Background

Prior to the passing of the landmark judgement in Navtej Singh Johar & ors v Union of India in 2018, the LGBTQ+ community had no rights, as Section 377 of the Indian Penal Code criminalised homosexuality. It stated that anyone who voluntarily had “unnatural sex” with another person was guilty of a crime.
Many petitions were filed against this provision of the years, but were dismissed by courts over various grounds. Finally in 2018, this remarkable case overruled the judgement given in the case of Suresh Kaushal & ors v Naz Foundation & ors (year) and not only decriminalised consensual sexual acts between two adults of the same sex, but also declared section 377 of the Indian Penal Code unconstitutional to some extent as it violates Articles 14, 15, 19 and 21 of the Indian Constitution.
The following article aims to provide a brief analysis of this landmark judgement that brought a major change in the society. The article covers the facts and issues of the case, the arguments made by the petitioner and respondent and the judgement.


Facts
A writ petition challenging the constitutionality of section 377 was filed in the Supreme Court of India in 2016. Section 377 of the IPC criminalised interpreted consensual sexual acts between people of the same sex to be an unnatural offence and thus criminalised homosexuality. 
This writ petition was filed by 5 members belonging to the LGBTQ community, namely Navtej Singh Johar, Ritu Dalmia, Ayesha Kapur, Aman Nath and Sunil Mehra, claimed that they had all been directly aggrieved as a result of Section 377, IPC, and alleging it to be in direct violation of fundamental rights granted under the Indian Constitution.
In the 2009 case of Naz Foundation v Govt of NCT of Delhi, the Delhi High Court ruled that Section 377 of the IPC was unconstitutional in relation to consenting sexual behaviour between two adults of the same sex.However, in 2014, a two-judge bench of the Supreme Court, in the case of Suresh Kumar Koushal v. Naz Foundation, overturned the Delhi High Court’s decision and reinstated the criminalization of same-sex relationships.
The petitioners filled this appeal, seeking the right to sexuality, right to sexual autonomy and right to choice of a sexual partner to be part of the right to life guaranteed by Art. 21 of the Constitution of India. Furthermore, the petitioners sought a declaration that Section 377, IPC was unconstitutional in criminalizing same-sex relationships as it violates Articles 14, 15, 19 and 21 of the Indian Constitution.


Issues of the case
Whether Section 377 of the Indian Penal Code violates Articles 14, 15 and 19 of the Indian Constitution?
Whether Section 377 of the Indian Penal Code violates the right to privacy under Article 21 of the Indian Constitution?
Whether Section 377 shall be declared as unconstitutional?
Petitioner’s Arguments
The petitioners argued that Section 377 was in direct violation of Articles 14, 15, 19, and 21 of the Indian Constitution:


Article 14:
The Petitioner argued that Section 377 was violative of Art. 14 of the Constitution i.e. Right to Equality Before the Law. The provision was vague in nature, and it did not define “carnal intercourse against the order of nature”.
It was argued that Section 377 arbitrarily discriminated against LGBTQ+ individuals by criminalizing consensual same-sex acts, thereby violating the principle of equality before the law.

Article 15:
Section 377, IPC violates Article 15 of the Indian Constitution. There exists inherent discrimination on the basis of the gender or sex of a person’s sexual partner.
The Justice J.S Verma Committee on amendments to Criminal Law, observed that the term “sex” occurring in Article 15 includes sexual orientation as well, and thus on this account, Section 377 is violative of Article 15.
The petitioners also argued that sexual actions performed with a partner of the opposite sex without her agreement might result in prosecution under Section 376(c) to (e), but same-sex acts performed with a partner of the same sex are illegal even with consent.

Article 19:
The petitioners argued that Section 377, IPC has a chilling effect on Article 19(1)(a) of the Indian Constitution, which protects the fundamental right of freedom of expression including that of homosexual persons to express their sexual identity and orientation, through speech, choice of romantic/sexual partner, expression of romantic/sexual desire, acknowledgment of relationships or any other means.
It is also claimed that Section 377 constitutes an unreasonable exception and is thereby not covered under Article 19(2) of the Constitution.
The petitioner relied on the case of S. Khushboo v. Kanniammal & anr wherein it has been held that law should not be used in such a manner that it has a chilling effect on the freedom of speech and expression. Additionally, the NALSA case has been heavily cited to highlight how the aforementioned ruling unequivocally states that the right under Article 19(1)(a) encompasses the freedom to express one’s self-identified gender through words, deeds, behavior, or any other medium.

Article 21:
The petitioners argued that sexual orientation, which is a natural corollary of gender identity is protected under Article 21 of the Indian Constitution, and any discrimination meted out to the LGBTQ community on the basis of sexual orientation would run counter to the mandate provided under the Constitution.
It is further argued that the right to privacy must encompass and protect everyone’s right to make their own decisions, including LGBTQ community, without fear of social rejection or humiliation due to a particular choice or way of life.

The petitioners argued that sexual orientation and privacy lie at the core of the fundamental rights which are guaranteed under Articles 14, 19 and 21 of the Constitution and therefore, it is imperative that Section 377, IPC be struck down.

Respondents’ arguments
Risk of Sexually Transmitted Diseases:
It has been argued by the respondent that persons indulging in unnatural sexual acts which are punishable under section 377, IPC are more prone to contract STDs like HIV/AIDS.
The percentage of prevalence of AIDS in homosexuals is much greater than heterosexuals and that the right to privacy may not be extended in order to enable people to indulge in unnatural offences and thereby contact AIDS.
The institution of marriage:
If section 377 is declared unconstitutional then the family system which is the bulwark of social culture will be in shambles, the institution of marriage will be detrimentally affected and rampant homosexual activities for money would tempt and corrupt young Indians into this trade.
Religious sentiments:
Since fundamental rights are not absolute, there is no unreasonableness in Section 377, IPC and decriminalizing the same would run foul to all religions practiced in the country, and, while deciding the ambit and scope of constitutional morality, Article 25 also deserves to be given due consideration.
Article 14:
Section 377, 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 legislation and this is a reasonable classification in the context of Section 377 IPC.
Article 15:
Section 377 IPC is not violative of Article 15 of the Constitution as the said Article prohibits discrimination on the grounds of only religion, race, caste, sex, place of birth or any of them but not sexual orientation.
The word sexual orientation is alien to our Constitution and the same cannot be imported within it for testing the constitutional validity of a provision or legislation.

Decriminalizing Section 377 IPC would lead to a plethora of social problems that the legislative branch cannot handle, with one of them being same-sex marriages, that will turn into social experiments with uncertain results.

Judgement

In a unanimous ruling on September 6, the Supreme Court ruled that section 377 of the IPC was unconstitutional.
Some parts of the section, meanwhile, didn’t change. These include bestiality, non-consensual sexual behaviours, and having sex with children.
The court determined that the criminalization of sexual conduct between consenting adults infringed with the Indian Constitution’s principle of equality. Chief Justice Misra declared after the reading of the ruling that the court believed that “criminalizing carnal intercourse” was “irrational, arbitrary, and manifestly unconstitutional.”
The court decided that Indian LGBTQ individuals are entitled to all constitutional rights, including the freedoms guaranteed by the Indian Constitution. It concluded that the constitutional protection of sexual orientation is inextricably linked to the freedom to choose one’s partner, the capacity to achieve fulfilment in sexual intimacy, and the immunity from discriminatory treatment.
The ruling also said that the LGBT community has a right to equal citizenship and legal protection free from discrimination.


FAQS

What was Section 377 of the Indian Penal Code?
Section 377 criminalized “unnatural sex,” including consensual same-sex relationships, by deeming them an offense punishable under Indian law.


What fundamental rights were cited in challenging Section 377?
The petitioners argued that Section 377 violated Articles 14 (Equality), 15 (Non-discrimination), 19 (Freedom of Expression), and 21 (Right to Privacy and Life) of the Indian Constitution.


What was the Supreme Court’s ruling in 2018?
The court declared Section 377 unconstitutional insofar as it criminalized consensual sexual acts between adults, recognizing the rights of LGBTQ+ individuals to equality, privacy, and freedom.


What aspects of Section 377 remain valid after the 2018 judgment?
Section 377 still applies to non-consensual acts, bestiality, and sexual acts involving minors.

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