Navtej Singh Johar & Ors. V. Union of India thr. Secretary Ministry of Law and Justice

 

Navtej Singh Johar&Ors. V. Union of India thr. Secretary Ministry of Law and Justice

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

Decided: 6 September 2018

Petitioner:

NavtejsinghJohar

RituDalmia

Ayesha Kapur

AmanNath

Sunil Mehra

Respondent:SecretaryMinistry of Law & Justice

Bench: CJI DipakMisra, Justice A.M. Khanwilkar, Justice RohintonFaliNariman, Justice

D.Y. Chandrachud and Justice Indu Malhotra.

Issues: Constitutionality of Section 377 of IPC

 

Navtej Singh Johar and others. V. The Union of India Secretary of Law and Justice is a landmark decision of the Supreme Court of India in 2018 that decriminalized all consensual sex between adults, including homosexual sex. The court was asked to determine the constitutionality of Section 377 Indian Penal Code, a colonial-era law which, among other things, criminalized homosexual acts as an “unnatural offence”. While the law criminalizes all anal sex and oral sex, including for opposite-sex couples, it largely affected same-sex relationships. On 6 September 2018, the court unanimously declared the law unconstitutional “as it criminalizes consensual sexual conduct between adults of the same sex”. The verdict was hailed as a landmark judgment for LGBT rights in India, with campaigners waiting outside the courtroom after the verdict was announced.Elements of Section 377 relating to sex with minors, unconsensual sexual acts such as rape, and animality continue to apply.

 

Facts

On 27 April 2016, five people filed a fresh writ petition in the Supreme Court challenging the constitutionality of Section 377 of the Indian Penal Code. The petitioners claimed that the issues raised by them in their petition were varied and varied from those raised in the pending curative petition in the Suresh Kumar Kaushal v Naz Foundation case of 2013, in which the Supreme Court upheld the constitutionality of Section 377 . The Naz Foundationearlier referred to a five-judge bench to decide whether the curative petition could be admitted for consideration. The petitioners included dancer Navtej Singh Johar, journalist Sunil Mehra, chef RituDalmiya, hoteliers AmanNath and Keshav Suri and businessman Ayesha Kapoor. This was the first instance in which the petitioners argued that all of them were directly aggrieved by section 377, alleging that it was a direct violation of fundamental rights. The Apostolic Alliance of Churches, Utkal Christian Council and Trust God Ministries led the opposition to the decriminalization petitions. Advocate Manoj George represented the first two and Senior Advocate KS Radhakrishnan represented the third party. The NDA government took a neutral stance, leaving the decision at the “knowledge of the court” as long as it applied to “acts of private consenting adults”.

 

Proceeding

The petition was earlier placed before the former Chief Justice of India, Justice SA Bobde and Justice AK Bhushan, on 29 June 2016. An order was passed to post the matter before Justice DipakMisra for appropriate action as a curative petition was already pending before the Constitution. Bench. On 8 January 2018, the case (Navtej Singh Jauhar et al. vs Union of India) was listed for hearing by a bench of the Chief Justice, which passed an order stating that the matter would be heard by a Constitution Bench.

The five-judge Constitution Bench of the Supreme Court heard the matter from January 17, 2018. On 10 July 2018, the SC began hearing petitions challenging the constitutionality of Section 377. The bench concluded its hearing on July 17 and reserved its verdict, asking both the parties to submit written submissions for their claims by July 20.

 

Judgement

On 6 September 2018, the court delivered its unanimous ruling declaring parts of the law relating to consensual sexual acts between adults to be unconstitutional. This decision reverses a 2013 judgment in Suresh Kumar Kaushal v Naaz Foundation in which the court had upheld the law. However, other parts of section 377 relating to sex with minors, non-consensual sexual acts and bestiality are applicable.

The court found that the criminalization of sexual acts between adults who are giving the consent violated the right to equality guaranteed by the Constitution of India. Reading out the verdict, the then Chief Justice of India Deepak Misha said the court found “criminalizing physical intercourse” to be “irrational, arbitrary and clearly unconstitutional”. The court ruled that LGBT people in India are entitled to all constitutional rights, including the freedoms protected by the Constitution of India. It held that “the right to choose one’s partner, the ability to find fulfillment in sexual intimacy and not be subject to discriminatory treatment are intrinsic to the constitutional protection of sexual orientation”. “History apologizes to the members of this community and their families, for the delay in redressal of the humiliation and ostracism they have faced over the centuries. The members of this community were forced to live a life full of fear of reprisal and persecution It was because of the ignorance of the majority that homosexuality is a completely natural condition, part of a range of human sexuality.” The Hon’ble Justice Indu Malhotra said. The judgment also noted that the LGBT community was equal without any discrimination. Citizenship and is entitled to protection under the law.

 

Conclusion

It was one of the Supreme Court’s major landmark decisions regarding the LGBTQ community’s right to equality, from which they were robbed by Victorian-era legislation. The community is entitled to equal rights and respect like any other individual and discrimination against an individual on the basis of sexual orientation is deeply offensive to the dignity and self-worth of the individual. Thus, it reads section 377 to exclude consensual sex between adults, whether between same-sex persons or otherwise. Section 377 will continue to apply to non-consensual sexual activity against adults, sexual acts against minors and animality.