Navtej Singh Johar & Ors. Vs Union of India

Citation: Navtej Singh Johar & Ors. versus Union of India AIR 2018 SC 4321; W. P. (Crl.) No. 76 of 2016

Date of Judgement: September 06, 2018

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

Case No.: Writ Petition (Criminal) No. 76 of 2016

Case Type: Writ petition

Petitioner: Navtej Singh Johar & Ors.

Respondent: Union of India Thr. Secretary Ministry of Law and Justice

Bench:

• Hon’ble Chief Justice Dipak Misra
• Hon’ble Justice R. F. Nariman
• Hon’ble Justice D. Y. Chandrachud
• Hon’ble Justice Indu Malhotra
• Hon’ble Justice A. M. Khanwilkar

Court: Supreme court of India

Statue Referred:

• Indian Constitution Articles 14, 15, 19, 21
• Indian Penal code, 1860, Section 377

Case Referred:

• Suresh Kumar Koushal and Anr cases. v. Naz Foundation and Ors. (“Koushal”) Civil Appeal No. 10972 Of 2013
• National Legal Ser.Auth Vs Union Of India Writ Petition (Civil) No.400 Of 2012
• Justice K.S.Puttaswamy(Retd) Vs Union Of India Writ Petition (Civil) No 494 Of 2012

Facts:

• Section 377 of India’s Penal Code (IPC) has been alleged to criminalize consensual sexual relations between persons of the same sex as “Against the nature of order”.
• The fight against Section 377 lasted long. In 2009, the constitutionality of Section 377 was challenged in the Delhi High Court in the Trust Falls Naz Foundation (India) for violating Articles 14, 15, 19 and 21 of the Indian Constitution.
• The Court ruled that the punishment of sexual acts between two consenting adults in Section 377 violated that person’s right to equality, privacy and personal freedom.
• That decision was challenged in the Supreme Court and in 2013 the court overturned Naz’s judgment in the Suresh Kumar Koushal and Anr cases. v. Naz Foundation and Ors. (“Koushal”) He argued that only parliament could decriminalize homosexuality.
• Later, five people from LGBTQ communities, including Navtej Singh Johar, Ritu Dalmia, Ayesha Kapur, Aman Nath, and Sunil Mehra, filed a new writ-petition contesting the constitutionality of Section 377.

Issue involved:

• Whether Section 377 violates the Fundamental Right to expression under Article 19(1)(a) by criminalizing the gender expression of persons belonging to the LGBTQI+ community?
• Was the basis for the Supreme Court judgment in the Suresh Kaushal case solid in its understanding of morality as social morality?
• What if Section 377 violates Articles 14 and 15 by allowing discrimination based on “Sexual orientation” and “Gender identity”?
• If Section 377 violates the right to autonomy and dignity under Article 21 by criminalizing consensual private acts between persons of the same sex?

Contention of Petitioner:

The counsel for the Petitioner contended that:

1. Petitioners argued that homosexuality, bisexuality, and other sexual orientations are equally natural and reflective of expressions of choice and inclination based on consent of two persons who are legally eligible to express such consent, and that it is neither a physical nor a mental illness, but rather natural variations of expression and free thinking process, and that making it a criminal offence would be unconstitutional.
2. Gender identity suffers greatly, the right to privacy, which is a key feature of Article 21 of the Constitution, is jeopardised, the highly prized concept of liberty is jeopardised, and the concept of biological desire, which revolves around the pattern of mosaic of true manifestation of identity, is traumatised.
3. The petitioners have emphasised the need of recognising and protecting the rights of the lesbian, gay, bisexual, and transgender (LGBT) community, which accounts for 7-8% of the Indian population, because sexual orientation is a fundamental and innate aspect of everyone’s identity.
4. Petitioners further argued that such individuals (sexual minorities in society) require more protection than heterosexuals in order to allow them to reach their full potential and live freely without fear, apprehension, or trepidation without being discriminated against by society.
5. The Learned Counsel for the petitioners argues that members of the LGBT community face discrimination and abuse throughout their lives as a result of the existence of Section 377 IPC, which is nothing more than a manifestation of a societal values mindset prevalent during the Victorian era, in which sexual activities were viewed as primarily for procreation.
6. The Petitioners have cited this Court’s decision in the NALSA case, in which transgender people were recognised as a third gender, distinct from male and female, and given certain rights.
7. The petitioners also claim that, despite being a pre-constitutional law, Section 377 was retained after the Constitution took effect by virtue of Article 372 of the Constitution, but it should be noted that the presumption of constitutionality is merely an evidentiary burden placed on the person seeking to challenge the constitutionality of a statute, and that once a fundamental right has been violated, the presumption of constitutionality is overturned.
8. The petitioners argued and said that if Section 377 were to be kept in its current form, it would violate not one, but multiple LGBT fundamental rights., right to privacy, right to dignity, equality, liberty and right to freedom of expression.
9. The petitioners further cited the case of K.S. Puttaswamy (supra), in which it was declared that sexual orientation is an important aspect of privacy. As a result, protecting an individual’s sexual orientation and right to privacy is critical, because without these basic and essential rights, an individual’s identity may fade, a sense of dread may take hold, and their existence may be reduced to simple survival.
10. It is argued that the right to privacy must include and encompass the freedom of every individual, including LGBTs, to make their own decisions without fear of being humiliated or rejected by society because of a particular choice or way of life.
11. Petitioners further cited the cases of Shakti Vahini v. Union of India and others and Shafin Jahan v. Asokan K.M., in which it was clearly established that an individual’s exercise of choice in choosing a spouse is a feature of dignity, and hence protected under Article 19 and 21 of the Constitution.
12. The petitioners have also claimed that Section 377 is in violation of Article 14 of the Constitution because it is imprecise in the sense that carnal intercourse against the natural order is not specified in the Section, or any other law.
13. According to the petitioners, there is no discernible difference or reasonable classification between natural and unnatural sex as long as it is consensual. In light of this Court’s decision in Anuj Garg and others v. Hotel Association of India and others, which establishes the principle that classifications that were considered valid at the time of their adoption may no longer be so on account of subsequent social norms.
14. The petitioners have also contended that Section 377 violates the rights of LGBT persons under Article 19(1)(a)(c) and violates their fundamental rights.

Contention of Respondent:

The counsel for the Respondent contended that:

1. The case was referred to a Constitution Bench to determine whether the law set forth in Suresh Koushal (supra) is correct or not, and that the only issue before the Bench is the constitutional validity of criminalising “Consensual acts of adults in private” under Section 377 IPC.
2. The respondent leaves the constitutional legitimacy of Section 377 IPC, to the extent that it pertains to ‘Consensual acts of adults in private’ to the wisdom of this Court.
3. That if Section 377 IPC is declared unconstitutional in relation to “Consensual acts of adults in private,” other ancillary issues or rights that have not been referred to this Bench for adjudication may not be dealt with by this Bench, as the Union of India expresses the desire to file a detailed affidavit in reply, for consideration of other issues.
4. Allowing any other issue (other than the constitutional validity of Section 377 IPC) to be argued and adjudicated without giving the Union of India an opportunity to file a counter affidavit may not be in the interest of justice and would be a violation of natural justice principles, according to the respondent.
5. Abusing one’s organs is not a personal liberty, and the offensive activities prohibited by Section 377 IPC are performed by abusing the organs.
6. According to the intervenor, Section 377 correctly renders the activities listed therein illegal because it was enacted after considering the legal systems and values that prevailed in ancient India, and it is now more relevant legally, medically, morally, and constitutionally in 2018.
7. That people who engage in unnatural sexual acts, which are punishable under Section 377 IPC, are more susceptible and vulnerable to contracting HIV/AIDS, and that the prevalence of AIDS in homosexuals is much higher than in heterosexuals, and that the right to privacy should not be extended to allow people to engage in these acts.
8. The intervenor argues that, because fundamental rights are not absolute, there is no unreasonableness in Section 377 IPC, and that decriminalising it would be detrimental to all religions practised in the country, and that, in determining the scope and ambit of constitutional morality, Article 25 should be taken into account.
9. The said intervenor argues that if Section 377 is struck down, victims of forced acts covered by the existing Section 377 IPC will be rendered helpless, because the said Section not only prohibits carnal intercourse against the order of nature between two consenting adults, but also applies to forced penile non-vaginal sexual intercourse between a man and a woman.

Judgement:

• On September 6, 2018 the court issued its final judgment on Section 377, as the court confirmed the provisions of Section 377 that criminalize non-consensual or sexual acts with animals.
• This decision overturned the 2013 judgment in Case of Suresh Kumar Koushal v Naz Foundation, in which the court upheld the law.
• However, it was further noted that other parts of Section 377 relating to sex with minors, non-consensual sexual acts, and sodomy remain in effect.
• In analysing the case, the court found that the criminalization of sexual acts between consenting adults violated the right to equality guaranteed by the Indian Constitution.
• The court ruled that LGBT people in India have all constitutional rights, including the freedoms protected by the Indian Constitution. It stated that “The choice of behaviour, the ability to find satisfaction in sexual intimacy, and the right not to be exposed to discriminatory behaviour are part of the constitutional protection of sexual orientation.”
• The judgment also showed that the LGBT community has the right to equal citizenship and protection from the law without discrimination.

Ratio Decidendi:

• The principles of transformative constitutionalism and the progressive realization of rights state that the constitution should guide the transformation of society from an archaic to a pragmatic society in which fundamental rights are strictly protected. It also affirmed that “Constitutional morality takes precedence over social morality”
• In order to ensure the protection of the human rights of LGBT people regardless of whether those rights are approved by a majority government discrimination of the same sex, it must take positive action in order to achieve equal protection and to grant the community “Equal citizenship in all its forms”.
• The right to privacy includes not only the right to be alone, but also extends to “spatial” and decision-making privacy.

Obiter dicta:

Sexual orientation is part of the right to freedom of expression and an integral part of the right to privacy.

Conclusion:

Legislative history of Section 377 to conclude that from the basis of section 377, that is, Victorian morality, “long gone” there was no reason for the law to be continued. It completed its verdict by placing an obligation on the Indian Union to take all measures to publish the verdict in order to remove the stigma faced by the LGBT community in society. Ordered that government and police officers be made aware of the difficult situation in the community to ensure favourable treatment. History owes members of the LGBT community and their families an apology for the delay in redressing the shame and marginalization they have suffered over the centuries.

Drafted by: Bharti verma, Chanderprabhu Jain college of Higher studies and school of law

Edited By: Tanvi Mahajan, Publisher, Law Insider

Published On: February 12, 2022 at 23:00 IST