Navtej Singh Johar & Ors. v. Union of India

The case relates to the landmark judgment of the Supreme Court of India that decriminalizes all consensual sex among adults that includes homosexual sex as well. In this article, we will be critically analyzing this case and the decriminalizing of Section 377 of the Indian Penal Code.

Background

This case is not the first case dealing with homosexuality in India. Those cases are:

Naz Foundation v. Government of N.C.T. of Delhi[1]

Naz Foundation, an NGO working in the sectors of health, gender, and related rights since 1994, filed a writ in Delhi High Court looking for the legitimization of homosexuality as the criminalization of homosexuality prompted blocks in its drives. High Court excused the request on grounds of no locus standi of the solicitor. An Appeal was made the Supreme Court of India against this order. The Supreme court said that Section 377 makes unreasoned order and targets people from the LGBT Community. Open appall is not a legitimate ground for condemning homosexuality. The word ‘sex’ under Article 15 of the Constitution incorporates ‘sexual orientation’ also and since Article 15 forestalls discrimination based on sex, Section 377 is disregarding Article 15. Right to life under Article 21 incorporates ‘right to wellbeing or health’ and Section 377 is a deterrent to it as people from the LGBT Community regularly shroud their character because of the criminalization of homosexuality. Along these lines, sufficient treatment is not given. Thus, Section 377 was announced unlawful or unconstitutional to the extent that it condemns consensual sexual demonstrations of adults in private.

Suresh Kumar Koushal v. Naz Foundation[2]

The petitioner, that is, Suresh Kaushal appealed against the order of the Supreme Court in the case of the Naz Foundation case wherein the apex court-sanctioned homosexuality. The petitioner posed that there was no documentary evidence of the Naz Foundation and the one that was present was unreliable. The Supreme Court cannot assume control over the Legislature. Section 377 is impartial and there is no infringement of Article 14. The right to protection under article 21 does exclude components of area 377. At last, the solicitor for the Petitioner said that if homosexuality is authorized, the foundation of marriage and social structure would separate. The respondent re-expressed the contentions concerning the infringement of the major privileges of gay people under articles 14, 15, and 21 because of segment 377 of I.P.C. The respondent additionally battled the need for adaptable laws according to the changing needs of society. The Supreme Court said that gay people are in a minority in the nation and laws need not be changed for their inclinations. The court said that Section 377 was a pre-established law and had it been violative of any arrangement under Part III, it would’ve been struck down quite a while in the past. Thus, Section 377 was held to be constitutionally valid.

Facts

The court has decided upon the constitutionality of Section 377 of the Indian penal Code, 1860 that defines unnatural offenses as “Whoever voluntarily has carnal inter­course against the order of nature with any man, woman or animal, shall be punished with [imprisonment for life], or with impris­onment of either description for a term which may extend to ten years, and shall also be liable to fine. Explanation—Penetration is sufficient to constitute the carnal intercourse necessary to the offence described in this section.[3]This means that any kind of sex that is unnatural, that is, homosexual sex or sex with an animal is punishable with an imprisonment of 10 years and liability for a fine. The case was brought forward with consent as the main argument and the contention was that if two adults are consenting to sex, it does not matter whether it is natural or homosexual, having a law against consensual sex is an infringement to right of privacy of both adults, it should not matter to the Court or the Parliament what a person is doing under the covers. The Supreme Court while making this judgement kept in mind the changing times and changing mindset of people.

The issue had originated in the case of Naz Foundation v. Government of N.C.T. of Delhiin the year 2009that held Section 377 unconstitutional as far as there is sexual conduct between two adults of the same gender. But in 2014, in the case of which was in an appeal against the order of Delhi High Court in 2009, the Supreme Court held that section 377 was not unconstitutional and was granted the ‘stamp of approval’. The present case is against the judgment of the Supreme Court in 2014, where a three-judge bench opined that a larger judge bench should listen to the issue at hand and thus a five-judge bench heard the matter.

Issue of the case

Whether or not the non-recognition and subsequent denial of expression of choice by way of Section 377 were contrary to the Judgement given in Suresh Kumar Koushal and Anr. v. Naz Foundation & Ors.?

Contentions of Petitioner

  • The petitioner, Navtej Singh Johar was a dancer and a part of the LGBT community that stands for Lesbian, Gay, Bisexual and Transgender community filed a writ petition in the Supreme Court seeking inclusion of Right of Sexual autonomy and Right to choose a sexual partner in the ambit of Right to life under Article 21 of the Constitution along with the declaration of unconstitutionality of Section 377 of the Indian Penal Code.
  • His contention for the same was that the language of section 377 is vague and no one can differentiate between natural and unnatural offences. He also stated that this section limits the right to choose a sexual partner and effects the freedom of expression and speech by denying the expression of one’s sexual identity through the choice of romantic partners.
  • The section also puts fear into the mind of people of LGBT Community, that forces some people to take drastic steps due to the humiliation that is bestowed upon them. What he meant was that a person should not feel alienated in society due to the non-acceptance of his sexual identity in the society he lives in.
  • Another contention was that Section 377 is a Victorian-era law that was made by the British rule based on their Christian belief of Satan residing in a homosexual. They also considered the sexual process as a way of reproduction of heirs and nothing more than that.
  • Also, if this section is retained without making any changes, it would lead to a violation of various fundamental rights of the LGBT community.
  • The petitioner also contended that people are allowed to choose inter-religious and inter-caste marriages with no repercussions, the same way people should have the freedom to choose their sexual partners of same-sex, even if their position in the community is disapproved, but the court must protect the interests of citizens’ rights being violated.
  • The section is violative of Article 15 that states that citizens cannot be discriminated against based on their sexual preferences.

Contentions of the Respondent

The Respondent is the Union of India that contended that the question of constitutional validity should be left in the competent hands of the Judiciary or ‘wisdom of the Court’. Some contentions taken up by the respondent were:

  • If Section 377 is declared unconstitutional, then it would be detrimental to the family system in the country where the main purpose of a person is to procreate and manage his/her family. Not only this, but many citizens might also start using homosexual acts as a way to earn money. These individuals may come directly in contact with HIV/AIDS as well and spread it through continuous acts.
  • Article 15 prohibits discrimination based on sex, not sexual orientation.
  • India is a multicultural and diverse country and is very different from the countries that have decriminalized homosexuality where only one religion might be followed. Some religions are against homosexuality and this can lead to violation of Article 25 that gives the Right to profess any religion.
  • That the Section should not be declared unconstitutional but some clarifications or changes should be made to not fully decriminalize homosexuality but also not stopping it.
  • That the main reason behind criminalizing carnal intercourse against nature is to protect the citizens from the injurious consequences as protecting the citizens from something hazardous is one of the aims of criminal law.

Judgement

The Supreme Court while making the decision kept in mind the way the society is progressing and the changing mindset of young people for their choice. The points one need to understand from the judgment are:

  • It doesn’t make a difference how tiny is the LGBTcommunity, they also have the Right to Privacy which incorporates physical closeness. Their decision of choosing a partner may be unique yet it doesn’t mean they will be arraigned for that. Section 377 diminishes their human pride and their personal choice, consequently abusing their Right to Privacy which is secured under Article 21.
  • The primary target behind retaining Section 377 is to shield women and children from being abused and harassed via carnal intercourse. Whereas, consensual carnal intercourse which is performed by the LGBT community is neither damaging to kids nor women. Also, non-consensual acts have just been alluded to as an offense under section 375 of the Indian Penal Code which infers that Section 377 is repetitive and discriminative towards one area of the general public and is in this manner violative of Article 14 of the Indian Constitution rendering it unconstitutional.
  • Our Constitution being liberal, it is absurd that the Right of Choice will be supreme. In this way, a few limitations have been forced on the Right of Choice. However, the right of picking a Partner for sexual relations is a matter of individual decision that cannot be limited. While Section 377 of the Indian Penal Code confines the privilege of LGBT people group of picking a partner for sexual relations and is hence irrational and arbitrary.
  • Public order, decency,and ethical quality are the grounds which can force sensible limitation on the fundamental right of expression. Any demonstration done in friendship by the LGBT community in broad daylight does not upset the public order or moral values until it is decent enough and isn’t revolting. In any case, Section 377 is again unconstitutional as it doesn’t associate with the standards of proportionality and is disregarding the central right of expression of the LGBT community.
  • The Supreme Court announced that Section 377 is unconstitutional as it disregards Articles 14, 15, 19, and 21 of the Indian Constitution and in this manner overruled the judgment given in Suresh Koushal and Ors. v. Naz Foundation and Ors. Moreover, it was also pronounced that Section 377 will be administering just non-consensual sexual acts committed against any adult and minor.

Critical Analysis of the Case

This case comprised of various substantial questions of law which had extensive ramifications and outcomes. Different established arrangements were considered for this situation. To understand the case we first need to understand the language of the contested Section 377 of the IPC, and as stated above that this current section language proposes that no individual is to have carnal intercourse against the course of nature with other individuals or creature.Thus, the demonstration of homosexuality in the country and at the time when the Indian Penal Code was drafted was considered against the course of nature for quite a while as heterosexuality should be ordered by the entire society through separate traditions, religious beliefs, and customs.

The LGBT Community has faced extreme repercussions. They were not just observed as lawbreakers without a legitimized reason yet additionally they were oppressed in fields of education, work, and so on. Their essential human rights were denied to them as a result of their sexual orientation. The different organs of the State additionally stayed unaware of this issue till the Naz Foundation v/s Govt. of NCT, Delhi case wherein homosexuality was authorized by the Supreme Court. This was overruled by the apex court’s judgment in the Suresh Kumar Kaushal v/s Naz Foundation case. One of the significant grounds taken in the previously mentioned case was that since the LGBT Community is in minority in the nation, their inclinations can’t be given need over cultural qualities and ethical quality.

This ground was flawlessly struck as invalid in this case wherein the court said that constitution is for each person in the nation, whether or not it is for a minority community or that of majority. Each area of society is qualified for equivalent treatment. The Preamble of the Constitution likewise focuses onequality.

The court additionally said that the discrimination is made in the society against LGBT Community and that because of the dread of being mortified and rebuffed, as a rule, they shroud their gender identity, and really, have a stigma appended to themselves due to guilt. Thus, the law needs to be ever-changing according to societal needs.

The decision was taken by the Supreme court to declare Section 377 unconstitutional has been one of the most recent developments for India to move forward and leave its image of a backward society further towards modernization.

Conclusion

This judgment is without a doubt a historical one. Because of this judgment, the LGBT Community would now be able to live in an increasingly dignified condition and can openly communicate. The judgment additionally underlined the dynamic acknowledgment of individuals’ rights. But is this issue over? The appropriate response is ‘no’ as still there is separation allotted against gay people as there is no enactment which tends to this issue. The court had requested the Parliament to take certain measures for maintaining the interests of this community yet no particular advances have been taken as of yet.

Along these lines, this historic judgment must be supplemented with positive government endeavors to give a dignified life to gay people. The organs of the state need to facilitate with one another. That will have a significantly increased positive effect of the court’s judgment.

Also read Delhi University Copyright Case


[1] 160 DLT 277

[2] Civil Appeal no. 10972 of 2013

[3] Section 377 of the Indian Penal Code, 1860