CASE COMMENT
NAVTEJ SINGH JOHAR AND OTHERS VS UNION OF INDIA
Equivalent Citation- (2018) 10 SCC I
Author- Dipak Mishra and A.M Khanwilkar
Bench- Dipak Misra, C.J
Rohinton Fali Nariman
A,M Khanwilkar
Dr. D.Y. Chandrachund
Indu Malhotra, JJ
PETITIONER……………………………………..NAVTEJ SINGH JOHAR AND OTHERS
V.
RESPONDENT…………………………………………………...………..UNION OF INDIA
DATE OF JUDGEMENT- 6.09.2018
Bench: -
Chief Justice Dipak Mishra, Justice A.M. Khanwilkar, Justice Rohinton Fali Nariman, Justice D.Y. Chandrachund and Justice Indu Malhotra
Citation: -
AIR (2018) 10 SCC I, 2018 SC 4321
Introduction: -
Section 377 of the Indian Penal Code imposes criminal liability on anyone who ‘voluntarily has carnal intercourse against the order of nature’. The said section was questioned on the crux argument of ‘consent’, the court decided to de-criminalise certain acts of the section and the same has been hailed as a landmark precedent. The Supreme Court by way of this judgement, reiterated its place with changing times and mind- set of the people.
Provisions of law involvyed: -
1. Section 377 IPC
2. Art 14, 15 and 19(1)(a) of constitution of India
Issues: -
The main issues before Hon'ble Court were:
1. Whether judgment given in Suresh Kumar Koushal v. NAZ foundation was proper or not?
2. Whether section 377 of IPC violates article 14 and 15 of Constitution of India or not?
3. Whether section 377 is against Right to privacy which is a fundamental right?
4. Whether section 377 has a chilling effect' on Article 19 (1)(a) by criminalizing gender expression of LGBT community?
Facts of the case: -
A writ petition was filed before a three-judge bench of the Supreme Court on 8th January, 2018. Petitioner prayed for declaration of ‘right to sexual autonomy’ and ‘right to choose of a sexual partner’ to be a part of right to life under Art. 21 of the constitution of India. It was also prayed by the petitioner to declare section 377 of Indian Penal Code as unconstitutional.
The three judge- bench of the Apex Court decided that the matter was required to be addressed by a larger bench.
Contentions: -
Arguments by Petitioner
1. Homosexuality, bisexuality and other sexual orientations are equally natural to allpersons and are founded on consent of two legally qualified persons; the orientationsare neither a physical illness nor a mental disease;
2. Making the sexual orientations of a person criminal, was offensive to the well-establishedprinciples of individual dignity and autonomy; sexual orientation is anessential attribute of one’s privacy.
3. Lesbian, gay, bisexual and transgender (LGBT) community comprise 7-8% of India’spopulation and they need to be recognized irrespective of their minority and they needlegal protection;
4. Section 377 violates Article 14 as it is vague regarding the term “carnal intercourseagainst order of nature” and no intelligible differentia or reasonable classificationexists as long as sex is consensual;
5. Section 377 is contrary to Article 15 and has a chilling effect on Article 19(1)(a) asLGBT persons cannot express their sexual identity and orientation freely;
6. Sexual autonomy and right to choose a partner of one’s choice is inherent underArticle 21 of the Constitution; a person’s right to reputation is also taken away underSection 377, which is a facet of Article 215
7. Section 377 hampers the ability of the LGBTs to realize their constitutional right toshelter; LGBTs seek assistance of private sources such as Gay Housing AssistanceResources (GHAR) in order to access safe shelter and this is an indication that themembers of thiscommunity are in a dire need of immediate care and protection of thegovernment and judiciary’s by the Petitioner.
Arguments by the Respondent: -
1. No person has any liberty to abuse one’s organs and that the offensive acts asmentioned in Section 377 are committed by abusing one’s organs;
2. Acts mentioned in Section 377 are undignified and derogatory to the constitutionalconcept of ‘dignity’ and thus, de-criminalising the Section would be wrong andconstitutionally immoral;
3. Section 377 rightly makes the acts stated therein punishable as the Section wasincorporated after taking note of the legal systems and principles which prevailed inancient India and now in 2018, the said Section is more relevant legally, medically,morally and constitutionally;
4. If Section 377 was declared unconstitutional then the family system would be inshambles and institution of marriage would be affected;
5. Despite the de-criminalisation of various consensual acts of adults in other parts ofworld, they cannot be de-criminalised in India due to its different political, economic
and cultural fabric;
6. In the event that consenting acts between two same sex adults are excluded from theambit of Section 377, then a married woman would be rendered remediless againsther bi-sexual husband and his consenting male partner and additionally would have acascading effect on personal laws and legislations like the Special Marriages Act;
7. Doctrine of manifest arbitrariness is of no application as the law is not clearly orotherwise arbitrary, for Section 377 applies irrespective of one’s gender or sexualorientation;
8. Consent could also be obtained by misconception, unsoundness of mind, intoxicationor coercion;
9. Section 377 does not violate Article 14 as it merely defines a particular offence and itspunishment and it is well within the power of the State to determine who should beregarded as a class for the purpose of a legislation and this is reasonable classification.
Rational: -
First looking at the chronological legal events that led to the present case: The issue legally
arose in 2009 when the Delhi High Court in Naz Foundation v. Government of NCT ofDelhi & Ors.6observed that Article 15 of the Constitution prohibits discrimination on variousgrounds- including sex. Thus, the Court declared Section 377 unconstitutional in view ofArticles 14, 15 and 21 of the Constitution of India. But this judgement was overturned inSuresh Kumar Koushal & Anr. v. Naz Foundation & Ors.7by another Delhi High Courtbench wherein it was held that prohibition of acts under Section 377 only regulated sexualconduct regardless of gender identity and sexual orientation of a person. Section 377 wouldapply irrespective of age and consent, for the Section did not criminalize a particular peopleor identity or sexual orientation and only identified certain acts which, when committed,would constitute an offence.
Next, looking at the Constitutional jurisprudence aspect: it is definitively true that ourConstitution guarantees the citizens of India certain inalienable rights. However, repeatedly,by way of precedents, it has been established by the Indian courts that the rights guaranteedas Fundamental Rights under Articles like 14 and 21 of the Constitution of India are dynamicand timeless rights of 'liberty' and 'equality' and it would be against the principles of ourConstitution to give them a static interpretation without recognizing their transformative and evolving nature of our social fabric and conditions. Flowing from the same principle is theconcept of ‘Transformative Constitutionalism’. Transformative constitutionalism is theability of the Constitution to adapt and transform with the changing times. The principle alsoplaces an onus on the judiciary of a country to uphold the supremacy and values of theConstitution. Thus, in tandem with the above two propositions, rights of LGBT communitywere required to be recognized under Articles 14, 19 and 21 of the Constitution of India.Further, the concept of constitutional morality is also of very high importance. Constitutionalmorality aims at ushering a diverse and inclusive society while adherence to the principles ofconstitutionalism is observed. Since 1860, our society has undergone huge amounts ofprogressive change: sexual minorities have been accepted now and given space, especiallysince the NALSA judgement. Nevertheless, Section 377 in its original form created a chillingeffect on the acceptance and judicial judgement. If this happens or if such a treatment to theLGBT community is allowed to persist, then the Indian courts, which are under the obligationto protect the fundamental rights of citizens, would be failing in the discharge of their duty. Afailure to do so would reduce the citizens’ belief in the judiciary of their country. The Court,as the final guardian of the Constitution, has to also keep in view the necessities of the needy,weaker and minor sections. The role of the Court assumes further importance when the classor community whose rights are in question are those who have been the object of humiliation,discrimination, separation and violence by not only the State and the society but also at thehands of their very own family members and friends. The development of law cannot furtherstruggle for the realisation and attainment of the rights of such members of the society. Thus, in view of constitutional morality as well, Section 377 should not cover consensual sexbetween two adults, though of the same sex.
On the argument of the LGBT community being statistically minor, as advanced by therespondents, fundamental rights apply to citizens irrespective of their numbers in thepopulation. These rights are guaranteed to each and every citizen and cannot be denied to acommunity because of its minority in the society. However small the fragment of LGBTcommunity is, they must have equal legal protection; if not more. The Court, on this pointcorrectly said, “The idea of number, in this context, is meaningless; like zero on the left sideof any number”.Furthermore, the Petitioners contended that Section 377 violated Article 14 guaranteeing theright to equality because there existed ‘no intelligible differentia’. The same contention is trueas what is ‘natural’ varies from time to time; especially in today’s times when sex is not onlyequivalent to generation of offspring. With regards to violation of Article 15, the contentionstands true as well because ‘sex’ is the term at which sexual orientation and genders aredefined. Article 15 has perpetually been assumed stereotypical of sex as ‘male and femaleand heterosexuals. Thus, Article 15 must cover in its ambit the LGBT community as well. Inrespect of Article 19, Justice Misra and Justice Khanwilkar specifically pointed out that suchexpression of sexual orientation does not violate decency or morality, because these conceptsare not majoritarian in character. The Section also violated Article 21 for right to life includesright to privacy of consensual acts and right to choose a sexual partner, irrespective of theeither party’s sex. Sexual autonomy is also to be in the ambit of Article 21. The aspect ofright to privacy as upheld in the K.S. Puttaswamy case is also an important point ofconsideration. The Supreme Court in the Puttaswamy judgement held that denying the LGBTcommunity its right to privacy on the ground that they form a minority would be violative oftheir fundamental rights. Thus, keeping in view the Constitutional rights of a citizen, theymust be extended to the LGBT community as well. Additionally, keeping in mind theprecedent set by the NALSA judgement that gender identity was intrinsic to one’s personalityand denying the same would be violative of one’s dignity, the Section must have been decriminalised much sooner.The Supreme Courtcorrectly based its judgement on the aspects covered in the aboveanalysis and de-criminalised consensual sexual acts of two adults and termed the acts as“natural”. To summarise the above analysis in a sentence: the Supreme Court held that sexualorientationforms a part of the right of expression under Article 19 and is an important part ofthe right to privacy
Inference: -
When the writ petition was first presented by dancer Navtej Singh Johar, before the three judge bench, the bench referred to the Suresh Koushal case in which the Supreme Courtoverturned the Naz Foundation judgement. The three-judge bench felt that there were a lotof aspects to be considered regarding Section 377- determination of “order of nature”, socialmorality, rights of sections of people, constitutional foundations, consenting adults, etc. Thus,the judges deemed the case fit to be considered by a larger bench.Considering the petitions and examining the same through various aspects, the learned fivejudge bench of the Apex Court gave its judgement in favour of the petitioner andunanimously held that Section 377 was unconstitutional as far as it criminalized consensualsex between two adults of same or different sex. As the judgement was given by a five-judge
bench, it is a binding precedent on all courts in India.
Conclusion: -
Thus, the decision of the Apex Court de-criminalising consensual sexual acts between twoadults, irrespective of their gender or sexual orientation, was correct. In so far as, the Courtretained bestiality, sex with minors and non-consensual sexual activity within the ambit ofSection 377, the decision was apt to prevent any loopholes or abuse of law. Thus, the Courtoverruled Suresh Kumar Koushal decision as well. Having suffered at the hands of societyas well as family and being termed as ‘untouchables’, it was high time that our SupremeCourt adopted a progressive and open mind and accepted the LGBT community as a part ofthe Indian society.
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