Author: Satyam Dubey
College: Symbiosis Law School
To the point
The present writ petitions were filed before the Supreme Court of India challenging the constitutional validity of Indian Penal Code, 1860, Section 377 as it criminalized consensual sexual acts within private sphere between competent adults. The petitioners argued that the provision infringed upon their fundamental rights as guaranteed by the Constitution of India, Articles 14, 15, 19 and 21. The petitions further asked the Court to revisit the earlier judgement in Suresh Kumar Kaushal v. Naz Foundation (2013) which had upheld Section 377. In the landmark judgment, a Constitution Bench of the Supreme Court, led by Justice Jagdish Singh Khehar, on 6th September 2018,declared Section 377 unconstitutional to the extent that it criminalizes consensual sexual relations between adults of the same sex.
The use of legal jargon.
The case of Navtej Singh Johar v. Union of India is a landmark constitutional case relating to the equality, dignity, privacy, autonomy, sexual orientation and constitutional morality. The crux of the case was whether Section 377, which criminalizes consensual same-sex intimacy, would stand constitutional muster.
The Supreme Court has looked at Section 377 under the provisions of Article 14 which guarantees equality, Article 15 which prohibits discrimination, Article 19 which ensures freedom of expression and Article 21 which ensures life, dignity, privacy and personal liberty.
The Court determined that the prohibition of consensual private sexual activity inflicted discrimination, stigma and inequality on LGBT people by being an intrinsic component of their identity. The judgment differentiated between “constitutional morality” and “societal morality” or “majority morality”. There is no constitutional right in existence that can be abridged because a part of society is disapproving of a person’s sexual orientation or intimate decisions. It also highlighted transformative constitutionalism, which requires the interpretation of the Constitution to work towards equality, liberty and dignity, rather than upholding discriminatory social norms.
The Court also noted that the phrase “against the order of nature” was too broad and can be misapplied. Section 377 did not differentiate between consensual and non-consensual sexual behavior between consenting adults. Thus, it was deemed unconstitutional to be applied to consensual same-sex relations.
The proof
The judgment set the precedent for the LGBT community having the same human, fundamental and constitutional rights as other citizens. The Court acknowledged that sexual orientation is a core aspect of privacy and personal choice and the criminalization of consensual adult intimacy is an infringement of dignity, autonomy and liberty. The Supreme Court, too, has struck down the rationale of the Suresh Kaushalv Naz Foundation. It believed that the size of a minority group population is not a measure of its constitutional rights. Individual rights are guaranteed by the Constitution regardless of whether their views, identity or choice is accepted by the majority or not. The ruling thus set a precedent of stating that individual dignity, privacy and equality would not be sacrificed in the interests of the majority moral values.
Abstract
Partially decriminalized Section 377 of the Indian Penal Code, 1860 which was related to consensual sexual activity between competent adults of the same sex, in private spaces. The Court determined that this criminalization was in breach of the rights to equality, non-discrimination, freedom, privacy, dignity and personal autonomy that are guaranteed by the charter. The judgment affirmed that sexuality is an integral part of a person’s identity, and that LGBT people have the right to equal citizenship and constitutional protection. The Court said that it was not possible to constitutionally use Section 377 against consensual sexual acts between adults. But the provision remained in effect in regards to non-consensual acts, sexual acts with minors, sexual acts with animals.
Case Laws
1. Suresh Kumar Kaushal v. Naz Foundation (2013) The Supreme Court had previously declared the constitutionality of Section 377 and overturned the orders of the Delhi High Court on the issue of consensual same-sex relations. The Constitution Bench, in Navtej Singh Johar took a relook, and found that earlier reasoning was not in keeping with the constitutional ideals of equality, dignity and privacy.
2. K.S. Puttaswamy v. Union of India* (2017) Article 21 had been declared a fundamental right and the right to privacy was included in it. In Navtej Singh Johar case, the Court made a constitutional development and found that a part of privacy is decisional autonomy in relation to intimate personal choices and sexual orientation.
3. *NALSA v. Union of India* (2014) Supreme Court upheld the constitutional rights and dignity of transgender people and held that equality and personal identity is guaranteed by the constitution. The principles that were being developed within NALSA were instrumental in the overall constitutional understanding of gender identity and sexual orientation in Navtej Singh Johar.
4. Anuj Garg v. Hotel Association of India (2008) This judgment, which stressed constitutional equality and the necessity to scrutinise discriminatory legislation by considering substantive equality instead of relying on social stereotypes, triggered the development of a new approach to the constitutional interpretation of equality.It was this judgment that gave rise to a new way of dealing with the constitutional interpretation of equality, with a particular focus on the concept of substantive equality and not assuming equality based on social stereotypes. The logic was one aspect of the constitutional strategy of dealing with discrimination and stereotypes.
Conclusion
The Supreme Court declared that Section 377 IPC (which made consensual sex between consenting adults a crime) was unconstitutional. The Court upheld the constitutional rights of LGBT people under the Articles 14, 15, 19 and 21 of the Constitution. The judgment
once again confirmed that constitutional morality is supreme over majoritarian morality and that each individual has the right to dignity, privacy, autonomy, equality and the freedom to live based on their identity and options. The judgment was a landmark towards equal citizenship and equal protection of LGBT people in the Indian Constitution.
FAQs
1. In this case, why were there challenges to Section 377?
– The broad wording of Section 377 was used to criminalizeconsensual sexual relations between adult men of the same sex, a fact which led the petitioners to argue that this infringed fundamental rights as set out in Article 14, 15, 19 and 21.
2. What was the decision of the Supreme Court?
– The Court ruled Section 377 unconstitutional, unanimously, as far as criminalizing consensual sexual activity between adults of the same gender.
3. Has the Supreme Court done away with Section 377 of IPC?
– No, sexual acts with minors, sexual acts with animals and non-consensual sexual acts were still covered by section 377.
4. What are the reasons for the importance of constitutional morality in this case?
– The Court determined that majority approval or disapproval of constitutional rights is not permissible. The state must protect the dignity, liberty, equality and autonomy of the individual in the context of constitutional morality.
5. What made the case of Navtej Singh Johar a landmark case?
– It changed the constitutional status of LGBT people by recognizing that sexual orientation and intimate decisions are aspects of dignity, privacy, liberty and equality.
