Navtej Singh Johar vs union of India

 

Navtej Singh Johar vs union of India

Name of the Case	Navtej Singh Johar v/s Union of India
Citation	WRIT PETITION (CRIMINAL) NO. 76 OF 2016
Date of Judgement	6 September 2018
Petitioner	Navtej Singh Johar
Respondent	Union of India
Judges	Justice Indu Malhotra, Justice Dipak Mishra, Justice A.M. Khanwilkar, Justice D.Y. Chandrachud, Justice Rohinton Fali Nariman
Statutes/ Constitution	Constitution of India, Indian Penal Code 1860
Important Sections/ Articles	Constitution of India – Art 14,15,21   Indian Penal Code -  Section 377

 

Abstract

Section 377 criminalized homosexuality as it was considered to be against the course of nature, impermissible and deplorable in the Indian society. The biggest question which arises is regarding the constitutional validity of Section 377 of IPC if it merely included sexual orientation or it also includes the sexual choice of partner. The Supreme court declared the provision to be unconstitutional as far as it concerned criminalization of consensual sex between to adults of the same gender. The court has also provided rationale of it because sexual orientation is a part of person’s personal liberty.

The main contentions in the writ petition revolve around the concepts of “Constitutional Morality”, “Transformative Constitutionalism” and how the provision stands in violation of Articles 14, 15, 21 and the right to sexuality,-the right to sexual autonomy and -right to choose of a sexual partner which is a part of the right to life guaranteed under article 21 of the Indian Constitution guaranteeing Fundamental Rights to its citizens⁽¹⁾

Facts

1.     Navtej Singh Johar was a dancer from LGBTQ community. Navjot Singh Johar along with 4 other people namely Sunil Mehra, Ayesha Kapur, Aman Nath, Ritu Dalmia filed a writ petition in supreme court on 26 April 2016. In the petition, he challenged the constitutional validity of Section 377 of the Indian Penal Code.

2.     He seeks from to government to declare Right to sexual autonomy as a part of Right to Life guaranteed under Article 21 of the Indian Constitution. According to Section 377 of the Indian constitution If a person voluntarily has a sexual intercourse with a person of his own sex, against the order of nature, it is said to commit a crime.

3.     In a case of 2009 Naz Foundation v. Government of NCT of Delhi some of the provisions of section 377 were declared unconstitutional but in 2013 Suresh Kumar Kaushal challenged this decision of Delhi High Court. The court overruled the judgement and said that only parliament can declare section 377 as unconstitutional  (Suresh Kumar Kaushal V/s Naz

Foundation)

Issue raised by the court

1.     Whether Section 377 is constitutionally valid or not Whether Section 377 of IPC violates Right to Equality(Article 14), Freedom of speech and expression (Article 19) and Right to Life (Article 21) of the Indian constitution

2.     Whether the constitution discriminates people on their sexual orientation or not

Contention –

Arguments from  the side of petitioner –

1.     Section 377 of the Indian Penal Code is violative of Article 21 of Indian constitution. Right to privacy is also a part of right to Life, and sexual relations are private matters of any persons⁽³⁾.

2.     Section 377 of the Indian Penal Code violates Article 15 of the constitution and discriminates people on the basis of their sexual orientation. Right to privacy also extends 1. Case Brief: Navtej Singh Johar v. Union of India, Ministry of Law and Justice Secretary - LawBhoomi

to LGBTQ community.

3.     Fundamental Rights protects and safeguards the rights of all people in India, the term all includes LGBTQ community (which comprise 7% of the total Indian population as well 

4.     So, Section 377 of Indian penal code is violative of basic structure of the constitution. A person belonging to the said community does not become an alien to the concept of individual and his individualism cannot be viewed with a stigma

5.     The court in the case Francis Coralie Mullin vs The Administrator, Union⁽²⁾said that sexual relations is a part of person’s freedom and choice which is based on consent of two individuals.

6.     The petitioners referred to NALSA case. In this case transgenders were recognised as third gender. In most of the parts of the world, the transgender has been declared as third gender, but still their sexual rights are considered as an offence

7.     Section 377 of Indian Penal Code violates the Article 14 which says that All person are equal before the law. There is no legal provision which tells the difference between  Natural Sex or Unnatural Sex as long as they are Consensual.

8.     That there is no difference between people who do inter-religious affairs or inter-caste affairs and the people who do sex with the person of the same sex.

9.     It was argued in the case Delhi High Court v/s Naz Foundation⁽³⁾ that consensual carnal intercourse cannot be considered as offence.

10.  The court in the case Kishore Samrite v/s State of Uttar Pradesh(4) and Umesh Kumar v/s Sate of Andhra Pradesh(5) that reputation is  a matter of personal security and hence is protected by constitution but in the case of LGBT community the Section 377 makes them apprehensive it speaks about their orientation and hence make them vulnerable to blackmail, extortion etc. they fear prosecution and persecution upon revealing their sexual identities.

2.1981 AIR 746, 1981 SCR (2) 516

3.     160 Delhi Law Times 277

4. CRIMINAL APPEAL NO.1406 OF 2012

5. CRIMINAL APPEAL NO.1305 of 2013

 

11.  It is argued that Section 377 has a wrong effect on Article 19(1)(a) of the Constitution which protects the fundamental right of freedom of expression including that of LGBT persons to express their sexual identity and orientation

Arguments from the side of respondent –

1.     Ministry of Human Affairs by government of India said that Section377 was included in order to prevent child abuse and said that the court has power to interfere in private matters for public safety and protecting healthArticle 15 of the constitution violates separation of people on the basis of religion, race, caste, sex, place of birth and not on people on the basis of sexual orientation, so Article 15 is not violated by Section 377

2.     When it comes to abusing one’s organs, no concept of personal liberty can be applied hence section 377 is required to protect rights of LGBT community

3.     Section 377 does not violate the right of Equality protected by Article 14 of the constitution because it simply characterizes a special offence and the punishment of it

4.     According to a report of National Aids Control Organization(NACO), the homosexual people are highly vulnerable to HIV-AIDS. NACO said that about 24 lakhs homosexual people are under a danger of suffering from HIV/AIDS and if Section 377 is revoked the number will increase.

5.     If Section 377 is decriminalised it will negatively affect the family planning system in India and will counter the concept of marriage in India.

6.     Section 377 declares carnal intercourse as offense. Carnal intercourse is offensive, harmful and against the order of nature and disregard by the society.

 

Legal Provision –

Indian Penal code

Ø  Section 377 - Whoever voluntarily has carnal inter­course against the order of nature with any man, woman or animal, shall be punished with 1[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^.

 

Constitution of India

Ø  Article 14 - Equality before law The State shall not deny to any person equality before the law or the equal protection of the laws within the territory of India Prohibition of discrimination on grounds of religion, race, caste, sex or place of birth⁽⁶⁾

Ø  Article 15 - The State shall not discriminate against any citizen on grounds only of religion, race, caste, sex, place of birth or any of them⁽⁷⁾

Ø  Article 19 - right to freedom of speech and expression ⁽⁸⁾

Ø  Article 21 - Protection of life and personal liberty No person shall be deprived of his life or personal liberty except according to procedure established by law⁽⁹⁾

 

Judgement

The judgement of the case came on 6 September 2018 where the court declared that Section 377 of Indian Penal Code is unconstitutional. A five-judge bench was appointed for it. The court said that Section 377 is violative of Article 21(Protection of Life and Liberty) of the constitution because Section 377 criminalizes the identity of people based on their sexual

orientation. Further the section discriminates homosexual people on the basis of their gender

and sexual identity. The court said that it is people’s choice to have sex with the person of

same gender or opposite gender till the time it is consensual in nature and does not harm other than invasion. Article 15(2) of the constitution decriminalize people on the basis of their sexual orientation but Section 377 of IPC is violative of the law. The court also overruled the judgement of Suresh Kumar Kaushal V/s Naz Foundation. It stated that section 377 will only apply to non-consensual sexual activities committed against any adult or minor. The  Section-377 will also continue in cases of non-consensual penile

6.     Article 14 in The Constitution Of India 1949 (indiankanoon.org)

7.     Article 15(1) in The Constitution Of India 1949 (indiankanoon.org)

8.     Freedom Of Speech And Expression Under Article 19 Of The Constitution (indiankanoon.org)

9.     Article 21 in The Constitution Of India 1949 (indiankanoon.org)

non-vaginal sex which involves minors i.e. a person below 18 years of age.  

Conclusion

The judgement not only gives rights to the homosexual community but also sets an example in world that how India is protecting rights of each and every citizen. The overall judgement stands right in a way and was welcomed in most parts of the country and nearly by all major political parties. The judgement gave freedom to homosexual society and all the members ofLGBT community to express themselves freely in the society. They now don’t have to fear to be declared as criminal for their sexual desires.

The decision is considered to be one of the historic cases fought for the rights of LGBT Community in India. It is considered as one of the first step for creating a free society inclusive of all communities. The section 377 is not wholly declared unconstitutional it is still applicable on non-consensual sex of adults and on minors(people below 18). The case put forward the idea that sexual orientation and gender identity are part of personal liberty. The LGBT community constitutes a major portion of population which is roughly 8% and hence their rights should be protected. They should be treated like any ordinally person and should not be discriminated on any of the grounds. According to various surveys conducted by different organisations, the life of LGBT community after this landmark judgement is much simple and better as compared to their situation before the judgement.

The judgment was also welcomed by Organisations like United Nations , Amnesty International and Human Rights Watch. Various countries like Singapore, South Africa also welcomed the judgement saying that it will play a major role in protecting the rights of LGBT community all over the world.