NAVTEJ SINGH JOHAR VS UNION OF INDIA

 

CASE COMMENT

NAVTEJ SINGH JOHAR VS UNION OF INDIA

 

APPELLANT :- NAVTEJ SINGH JOHAR

RESPONDENT :- UNION OF INDIA

CITATION :- AIR 2018 SC 4321, ( 2018) 10 SCC 1

DATE OF JUDGMENT :- 6^TH SEPTEMBER, 2018

JUDGE BENCH :- DIPAK MISRA, CJI AND A.M. KHANWILKAR, J.

 

1)    INTRODUCTION

This petition has seen the identification of the right to sexuality, the right to sexual autonomy and the right to choice of a sexual partner as a part of the right to life which is defined under Article – 21 of the Constitution of India. After that, the petition declared that Section – 377 of the IPC, 1860, which was prohibited consensual sexual conduct between adults, was unconstitutional. The petitioners argued that homosexuality, bisexuality, and other sexual orientations were natural differences of expression, and to prohibited these sexual orientations would have the effect of violating the articles which is given in Constitution regarding to dignity and privacy.

Further, the arguments were accepted, The Supreme Court found Section – 377 is discriminating the LGBT community that is bisexual, Lesbian, Gay and Transgender and Court noted that Sexual Orientation was the natural or inherent part of their identity, dignity and autonomy.

On the basis of this, The court held that Section – 377 violated the Article 21 of the Constitution of India which includes the right of dignity, privacy and sexual autonomy. And three other articles that is Article 19 which is freedom of expression and right to equality which is given in Article 14 and Article 15 which is Non-discrimination.

 

 

2)    FACTS

In this case, the first issue was related to the constitutional validity under Section – 377 of the IPC, which talks about the unnatural offences and criminalised carnal intercourse against the order of nature, it extents impacted as it consensual same-sex relationships. In the Judgment of 2009, Section – 377 was held to be unconstitutional by the Delhi High Court in the Naz Foundation Case, which was overruled by the Supreme Court in Suresh Kumar Koushal. Navtej Singh Johar, who was the petitioner in this case filed a writ petition before a three Judge Bench of the Supreme Court in 2016 challenging its decision the constitutionality of Section – 377 and in Suresh Kumar Koushal. The matter was refereed to the five Judge Bench considering the importance of the issue.

 

3)    CONTENTIONS

 

1)    PETITIONERS CONTENTION

In this case, the petitioner contended that homosexuality, bisexuality and other sexual orientations were natural and it was based on lawful consent and it were neither a physical nor a mental illness. Further, The petitioner contended that criminalising sexual orientations have violated the concept of individual dignity and decisional autonomy has natural or inherent in the personality of a person and the privacy right which is under Article 21.

In this case, the Petitioner submitted the rights which is of the LGBT community, who forms 7-8 percent of the Indian Population need to be recognised and protected. This petitioner has relied on the case of Puttaswamy to argue that Section – 377 was unconstitutional because it discriminated against the LGBT COMMUNITY on the basis of sexual orientation, which was an essential availability of privacy, and that the sexual orientation and privacy lay at the basic rights of fundamental which is guaranteed under Article 14, 19 and 21. This petitioner has seen the identification of the right to sexuality, the right to sexual autonomy and the right to choice of a sexual partner as a part of the right to life which is defined under Article – 21 of the Constitution of India.

 

 

 

2)    RESPONDENT CONTENTION

On the other side, The respondents submitted that extent the constitutional validity of Section – 377 was concerned with the consensual acts of same sex adults in private, they all things would leave it to the perception of the court. Some mediators of this case has argued in favour of reservation of Section 377 and furthered as it a compelling state interest to enlarge the morals in public life. They were also arguing that fundamental rights were not absolute, the mediators submitted that the Section 377 was not discriminatory as it criminalises acts and not people and it is applied equally to all unnatural sexual conduct, and it is not understanding of sexual orientation and criminalised some forms of carnal intercourse by the couples of both heterosexual and homosexual.

 

4)ISSUES

1) Whether Section 377 of the IPC, 1860 extent as it applied to consensual sexual conduct between adults was unconstitutional?

2) Whether the Judgment of the Case Suresh Kumar Koushal should be upheld or set aside?

 

5)JUDGMENT

▪︎ In Suresh Kumar Koushal case, observing the Judgment by Supreme Court and it was noted that it relied on the minor minority reasoning to deprive the LGBT community of their fundamental rights and they were not differentiated between consensual and non-consensual sexual acts between adults. In this case, The court noted regarded this that a difference has to be made between consensual relationships of adults in private, whether they are in nature either homosexual or heterosexual. Consensual relationships between adults has not be classified along with the offences relating to sodomy, bestiality and non-consensual relationships.

▪︎ After this, The court examined further the constitutionality of Section 377 on the based of the principles which is expressed in Article 14, 15, 19 and 21. The Court relied on the NALSA judgment, which granted equal protection of laws to Transgender persons, to repeat that sexual orientation and gender identity was an essential part of a person’s personality and the Judgment of Puttaswamy, which recognised the inter-relationship between privacy and autonomy and that the right to sexual orientation was an natural part of the right to privacy, this thing to conclude that it is vital to broaden the scope of the right to privacy to incorporate a right to sexual privacy to protect the rights of sexual minorities. Further, The Court discussed the principles of Yogyakarta on Gender Identity and Sexual Orientation. Some penal offences are eliminated or finished by U.K. WOLFENDEN COMMITTEE REPORT. 1957 which is involving same sex and which is authorising by adults between many other references of international relative.

▪︎ In this Case, the Court concluded that sexual orientation was natural, innate and immutable. The court held that the choice of person of LGBT community to enter into the closest sexual relations with persons of the same sex is an exercise of their choice which is personal and an expression of their autonomy and self determination. Further, it decided that LGBT community was equally protected under the Part III of the Constitution that is Fundamental Rights and it was formed a sexual minority as well.

▪︎ In this Case, The five Judge Bench held that Section – 377 to be unconstitutional and they struck down that Section – 377 to the extent it prohibited consensual sexual conduct between adults, whether of the same sex or in privately. The Court stately that consent must be free, voluntary and avoid of any type of duress or coercion.

 

6) CONCLUSION

Now we studied that In this case Section 377 was criminalised and it was sexual conduct between adults was unconstitutional. Supreme Court also found that Section 377 is discriminating the LGBT community that is bisexual, Lesbian, Gay and Transgender but after the Court noted that Sexual Orientation was the natural or inherent part of their identity, dignity and autonomy. Further which issues involved in this case, the court stated that choice of person of LGBT community to enter into the closest sexual relations with persons of the same sex is an exercise of their personal choice, and an expression of their autonomy and self determination. Further, it decided that LGBT community was equally protected under the Part III of the Constitution that is Fundamental Rights and it was formed a sexual minority as well. Finally,the thing is that prohibited which is sexual conduct between adults, whether of the same sex or privately but if sexual conduct is free or with consent, voluntary or not any type of coercion or pressure so that is not included in the offence of Section 377 of IPC.