CASE ANALYSIS
OF
Navtej Singh Johar v. Union of India [AIR 2018 SC 4321]
Submitted by -: Veer sharma
( 1st year B.A LLB. Hons FYIC Rajiv Gandhi National University of Law )
Introduction
As a result of this case's ruling, any agreed sexual acts between adults, including homosexual intercourse, are no longer considered crimes in our nation. Due to this, the ruling, which was rendered on September 6, 2018, has been recognised as one of the Indian judiciary's major judgements.
The main issue was whether Section 377 of the Indian Penal Code of 1860 (hereafter referred to as the "IPC"), which made all homosexual conduct illegal, was constitutional. Section 377, which rendered consenting sexual conduct between people of the same sex illegal, was decriminalised in this case as a result of the jury's decision. The clause's other provisions, which address unnatural sex with animals and children as well as unlawful sexual actions like rape, shall still be in effect. The Hon'ble Judges made it very clear that this judgement only recognises the unconstitutionality of Section 377 and does not encompass other rights, such as rights pertaining to marriage or inheritance.
Before this ruling, gay acts and other behaviours including anal and oral sex were considered unnatural offences under Section 377 of the IPC. According to the Navtej Singh Johar ruling, the aforementioned clause is unconstitutional insofar as it prohibits adults of the same sex from engaging in consenting sexual activity, therefore gay activity is no longer a crime. Additionally, the Supreme Court noted that it is a clear violation of fundamental rights to discriminate on the basis of sexual orientation.
This decision had a profound effect on gay couples' lives and cleared the path for the campaigners fighting for the rights of the LGBT community to succeed. The LGBT rights activists gathered outside the courthouse on this historic day to applaud the Supreme Court's ruling with joy, hugs, and some tears as well. This judgement was eagerly anticipated by them.
The court's ruling was applauded by progressives and even on a global scale, but it was also sharply criticised by several religious organisations and traditional rural populations who vehemently disagreed with it.
The Ride Towards New Dawn
The process of decriminalising a 157-year-old colonial legislation that had been in place since the days of British administration was extremely laborious. Early in the 1990s, a number of human rights organisations began to speak out against section 377 and call for its repeal. Following that, the NAZ Foundation's appeal was rejected, and in the 2013 case of Suresh Kumar Koushal and another vs. NAZ Foundation and others, the court upheld Section 377's validity by ruling that "sexual intercourse outside the order of nature cannot be legalised." Numerous political leaders and human rights advocates publicly opposed this judgement on a global scale.
Sonia Gandhi, the President of the National Congress, the then-ruling party, requested that
Section 377 be repealed shortly after the Suresh Kumar Koushal judgement. The Indian National Congress-led central government submitted a petition for review, claiming that the ruling is flawed and goes against the fundamental rights values upheld by the Indian constitution. The Naz Foundation, on the other hand, also submitted a review petition to the Supreme Court in opposition to its 2013 ruling. As a result, the Supreme Court strongly dismissed the petitions and declined to review the decision in January 2014.
Following the 2013 verdict, there were sizable demonstrations led by prominent members of the film industry and others who disapproved of the Supreme Court's decision.
On September 6, 2018, the case's judgement was announced, and the activists' labour of love had finally paid off..
Detailed Case Analysis
To begin with, five Petitioners filed a writ petition in the Supreme Court challenging the legality of Section 377 of the IPC in the current case of Navtej Singh Johar v. Union of India. Dancer Navtej Singh Johar, journalist Sunil Mehra, chef Ritu Dalmia, hoteliers Amar Nath and Keshav Suri, and businesswoman Ayesha Kapur were among the petitioners. They argued that the problems raised in their petition were considerably different from those raised in the Koushal v. NAZ case's petition. They predicated their whole argument on the fact that each of them had experienced direct distress as a result of Section 377's violation of their fundamental rights. The Apostolic Alliance of Churches, Utkal Christian Council, and Trust God Ministries were among the opponents..
Petitioners’ submissions
The petitioners' attorneys testified that the interpretation of Article 21 of the Constitution put forth in the Suresh Kumar case was severely limited. The majority's approval and opinion cannot serve as the basis for establishing sexual orientation rights. On the other hand, the judges and the petitioners did not raise any objections to the portion of Section 377 that refers to having sex with animals in a carnal manner.
One of the petitioners' most eye-catching arguments was that a person's sexual orientation is something that comes naturally to them, is a reflection of their preferences, and is based on their permission. Since it is neither a physical condition nor a mental ailment, but rather the expression and outcome of free thought, a member of the LGBT community cannot be stigmatised. Therefore, making such behaviours illegal is a clear violation of Article 21 of the Constitution's fundamental right to privacy.
The petitioners asked the protection of this community's rights in addition to speaking out against discrimination because their sexual orientation will have an influence on all aspects of their lives. It is crucial to ensure that they are not subjected to open or covert discrimination by society and those around them.
The learned counsel argued that section 377 of the IPC was a product of colonial thinking that viewed sexual activity as primarily being used for reproduction. However, since times have changed and it is urgent to do away with such laws that harm people's dignity and deprive them of their basic human rights, it is necessary to do so.
The petitioners further argued that the presumption of the validity of any statute cannot be upheld if it is prima facie demonstrated to the court that any person's fundamental rights have been violated. It has been clearly established that the constitutionality of Section 377 was in jeopardy in the instance of harassment and alienation of the LGBT community. Due to the existence of this section, members of the LGBT community were afraid of being prosecuted if they disclosed their sexual orientation. As a result, they refrained from approaching the legal system's watchdogs and instead relied on their allies, such as NGOs, parents, teachers, and counsellors, to speak out against any harassment they encountered. The LGBT community's fundamental rights, including the rights to privacy, dignity, equality, liberty, and freedom of speech, would be violated if this section were to remain in place. The clause forbids them from expressing their sexual identity and orientation; as a result, if they are not provided the protection they are asking for, an individual's identity will become meaningless and their existence will be limited to only surviving.
The petitioners further argued that Section 377 of the IPC is inherently ambiguous because neither the section nor the entirety of the IPC or any other law contains a definition or explanation of carnal intercourse against the order of nature.
The petitioners argued before the court that, as the ultimate judge of constitutional rights, it should not follow the majority's views if they are opposed to the rights of the LGBT community. The Constitution is supreme, and its principles are the foundation of the law of the land, hence the Court must give more weight to constitutional morality in these types of instances than to societal morality.
Respondent’s submissions
The Respondents, on the other hand, heavily cited the ruling in the Suresh Koushal case in support of their arguments that no unnatural act should be permitted under the guise of defending the right to privacy because doing so would be an abuse of that right. There is no question of personal liberty when it comes to harming others because the activities included by Section 377 of the IPC are abusive behaviours that may hurt a partner's private organs. According to the Constitution, these behaviours qualify as immoral, abhorrent, or undignified behaviour.
Another argument put out by the Respondents was that, notwithstanding the section's colonial origins, it has been protecting public morals since ancient India up until the present day and is still constitutionally, legally, and medically relevant. To demonstrate this, the opponents cited W. Friedmann's statement from "Law in a Changing Society," which states that any behaviour that is subject to criminal penalties and is widely regarded as deserving of condemnation should be understood to be significantly influenced by the values governing the society.
Another argument made by the Respondents went so far as to say that if Section 377 were declared unconstitutional, it would damage the family unit and dilute the institution of marriage. In addition, widespread homosexual activity motivated by monetary gain would corrupt young people's minds and encourage them to engage in this trade.
Regarding the question of the violation of fundamental rights, the Respondents argued that nothing in section 377 of the IPC is inappropriate because Article 25 of the Constitution may be given fair weight when determining the reach and scope of constitutional morality.
The Respondents detailed their arguments regarding the concept of consent, including how it might have been obtained by inducing fear of harm or death, by making someone drunk, or by making them incapable of understanding the nature and consequences of the activities. Therefore, they claimed that if the petitioners' pleas were granted, it would ultimately result in a violation of the right to privacy and of public morals.
Observation and Findings
“History owes an apology to the members of this community and their families, for the delay in providing redressal for the ignominy and ostracism they have suffered through the centuries. The members of this community were compelled to live a life full of fear of reprisal and persecution. This was on account of the ignorance of the majority to recognize that homosexuality is a completely natural condition, part of a range of human sexuality”.
Hon’ble Justice Indu Malhotra
The court correctly noted that criminalising adult consent-based sexual activity is unreasonable, capricious, and in violation of our Constitution's guarantee of fundamental rights. The court ruled that "the right to choose one's partner, the capacity for fulfilling intimate relationships, and the freedom from discriminatory behaviour are essential to the constitutional protection of sexual orientation."
The honourable court further observed that a rigid and static interpretation of the Constitution by the court would kill the Constitution's true transformative nature and cause it to become a dead letter in a society that is dynamic in nature and experiences rapid change in its social and economic spheres.
Regarding sexual orientation, the court said that each person is born with a specific set of biological traits that they gradually develop or acquire in response to their environment. These tendencies are either innate or ones that people develop through time as a result of the decisions they make in an effort to find fulfilment. A pattern of sexual attraction is basically implied by sexual orientation, a natural phenomena. The way a person's genitalia and brain respond and work is a subject of pure science. The heart of each person's identity and existence is their sexual orientation because attraction to people of the same sex is the outcome of neurological and biochemical elements. Any person who has a particular orientation cannot be forced to do anything since that person's body was not designed to accomplish that action.
Regarding the most contentious idea in constitutional morality, the Supreme Court stated that it is possible to apply constitutional morality to all facets of a society that is constantly changing while keeping in mind the fundamental principles of the constitution, rather than just the literal text of the constitution. Every citizen has the perfect freedom to be different if they are capable of doing so and if their actions do not infringe on the rights or freedoms of others because, in a society where everyone participates in social engineering, personal choice and freedom is not at all an exception. As a result, it was realised that even a single citizen could aspire to be something different or choose a distinctive trait.
Judgment
This ruling is regarded as one of the most important rulings for showing how the judiciary protects the rights, freedom of choice, and human dignity of every citizen. Johan Wolfgang von Goethe, a highly well-known German poet and thinker, is quoted by the judges as saying: "I am what I am. Accept me for who I am. Nobody can escape from being unique.
The courts ruled that because a person's natural identity is derived from nature itself, that person's natural identity must be recognised by all and treated with respect. The idea of punishing someone for having these features is out of date and ruins their identity.
The honourable justices explained section 377 by pointing out that the phrase "carnal intercourse against the order of nature" is used in the section. The order of nature cannot be precisely determined because it is not a static entity.
Social morality changes with the times as well. The law cannot restrict the inherent rights ingrained in an individual through various aspects of the right to life under Article 21 of the Constitution because what is natural to one person may not be natural to another, and because the Test of Popular Acceptance is never a valid test to determine or disregard the rights guaranteed by the Constitution. The rights of the majority were never intended to be protected by the Constitution's drafters. If such were the case, then the words "any citizen" whose rights were truly supposed to be protected in Part III of our constitution would have been replaced by qualifiers like "majority citizens."
Because of this, a group of people who value their freedom of choice shouldn't live in constant terror, unless their behaviour is legal. The primary prerequisite for any sexual interaction between the two adults, in the judges' opinion, is their free permission.
The court stated in their advisory words that our society needs to adapt its perspective and mentality and should learn to embrace and respect people for their unique identities rather than pressuring them to become someone they are not.
Following an analysis of Section 377, it was determined that the law cannot be regarded as constitutional insofar as it punishes any consensual sexual activity between two adults. However, the aforementioned provision of section 377 is constitutional, and anyone who participates in any type of sexual behaviour with an animal will continue to be punished for doing so.
Mixed Reactions
Many eminent people and institutions were interested in this choice. When the discriminatory clause was finally overturned, activists believed they had achieved another victory in the fight for independence. In response to this accomplishment, a lot of prominent people and celebrities also took to social media and inundated it with tweets and postings. In a tweet, movie director Karan Johar referred to the aforementioned ruling as "historic" and "giving back the country's air."
However, other people expressed their disappointment with the decision and even went so far as to imply that it would lead to an increase in HIV cases. While BJP Rajya Sabha member Subramaniam Swamy criticised the court's ruling and questioned whether it would legitimise having sex with animals in the name of personal freedom. It's noteworthy to note that, compared to other socio-political challenges in the nation, our Honourable Prime Minister, Narendra Modi, has spoken about this topic less frequently when he's been questioned and has repeatedly declined to comment.
At the same time, the UN praised and welcomed the Supreme Court's ruling, stating that "sexual orientation and gender expression are an intrinsic element of an individual's identity throughout the world." Amnesty International also expressed its strong support for the court's ruling, describing it as a turning point and a new era for millions of Indians..
Conclusion
Our Constitution is flexible and dynamic in nature. Therefore, it must broaden in line with how time is evolving. In this way, it will increase equality and help us realise our goal of ensuring equal rights for all of the nation's citizens. The judiciary, on the other hand, must take into account the needs of the underprivileged and marginalised groups in society and adopt a progressive strategy to deal with the challenges of modern life they face by eradicating the discriminatory practises that are pervasive in all nooks and crannies of the society.
However, even after decriminalising homosexual relationships, sexual minorities are still stigmatised in our society and mistreated as a result of which many of them fail to express their orientation and are forced to live a life they were not meant to live. As citizens of the country, we must consider and fulfil our responsibility to protect the rights of minorities and uphold the Constitution's literature..
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