Navtej Singh Johar V. Union Of India

WRIT PETITION (CRIMINAL) No. 76 OF 2016

DECIDED ON: 6th September, 2018

Equivalent Citation: AIR 2018 SC 4321
Bench: Chief Justice Dipak Misra, Justice A.M. Khanwilkar, Justice D.Y. Chandrachud, Justice R.F. Nariman and Justice Indu Malhotra.

Background:

In 2009, Naz foundation challenged the constitutionality of Article 377 under Article 14,15,19 and 21 before the Delhi High Court. The court ruled that the section cannot be used to punish sex between two consenting adults.

Various appeals were filed in the Supreme Court against the Delhi High Court judgement and the court reversed the Delhi High Court’s judgement in Suresh Koushal’s case.

Several curative petitions were filed in the Supreme Court challenging the Koushal’s judgement.

A fresh writ petition was filed in the Supreme Court challenging the constitutional validity of Section 377 to the extent that it criminalized same sex intercourse between two consenting adults.

The Supreme Court formed a Constitution Bench comprising 5 judges to hear the challenge against Section 377. The hearings started on July 10, 2018.

Facts:

The petitioner Navtej Singh Johar, a dancer who identified himself as a part of the LGBTQ community filed the writ petition under Article 32 in the Hon’ble Supreme Court of India in 2016.

The petitioner sought recognition of the right to sexual autonomy, right to sexuality and right to choose a sexual partner to be part of the right to life guaranteed by Art. 21 of the Constitution of India.

Furthermore, it was sought that Section 377 of the Indian Penal Code be declared unconstitutional.

Laws applicable:

Section 377 of the Indian Penal Code:
Z

Voluntary carnal intercourse against the order of nature with any man/woman/animal shall be punished with imprisonment for life or 10 years and shall also be liable to fine.

Article 14 of the Constitution of India
Z

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.

Article 15 of the Constitution
Z
Prohibition of discrimination on grounds of religion, race, caste, sex or place of birth
(1) The State shall not discriminate against any citizen on grounds only of religion, race, caste, sex, place of birth or any of them
(2) No citizen shall, on grounds only of religion, race, caste, sex, place of birth or any of them, be subject to any disability, liability, restriction or condition with regard to
(a) access to shops, public restaurants, hotels and palaces of public entertainment; or
(b) the use of wells, tanks, bathing ghats, roads and places of public resort maintained wholly or partly out of State funds or dedicated to the use of the general public
(3) Nothing in this article shall prevent the State from making any special provision for women and children
(4) Nothing in this article or in clause ( 2 ) of Article 29 shall prevent the State from making any special provision for the advancement of any socially and educationally backward classes of citizens or for the Scheduled Castes and the Scheduled Tribes.
Article 19(1)(a) of the Indian Constitution
Z

All citizens shall have the right to freedom of speech and expression

Issues:

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?

Whether Section 377 violates Article 14 and 15 by allowing discrimination on the basis of "sexual orientation" and "gender identity"?

Whether Section 377 violates right to autonomy and dignity under Article 21 by penalizing private consensual acts between same-sex persons?

Arguments:

Petitioner’s Arguments:

Section 377 criminalizes rights protected under Article 21. This criminalization, they argued, affected in an adverse manner the rights of the LGBT community in aspects relating not just to their employment but also to their dignity and the perception of the society towards them.

Emphasizing the superiority of ‘constitutional morality’ over ‘societal morality’, it was argued that the societal morality which discriminated against the LGBT community had no place in the Indian Constitutional structure.

Further, it was argued that Section 377 discriminated against a particular class of people. At this point, Justice Chandrachud disagreed and said that the provision could apply to anal sex between a man and a woman. Refuting this, it was arguedthat its impact was largely on gay men. He highlighted that if the object was discriminatory, reasonableness is irrelevant.

‘Order of nature’ has to be read as being relative to the times and that prior notions may become irrelevant with the passage of time.

Rohatgi then went on to read out parts of the Naz Foundation Judgement of the Delhi High Court and said that the Union of India had not filed any appeal against it and had in fact filed a Review against the Supreme Court Judgement in Koushal and therefore the stand of the Government was clear. Datar dealt with the historical background of Section 377. He highlighted that Section 377 was a part of ecclesiastical courts and that the offence of buggery (anal intercourse) was punishable by death in England. Datar argued against the remarks made in the Koushal case regarding Section 377 being a will of the Parliament by stating that the IPC was a pre-constitutional law and hence, could not reflect the will of the parliament.

Respondent’s Arguments:

The Union of India, respondents in the present case submitted that the question of Constitutionality of Section 377 was left to the wisdom of the court.

Some interveners, arguing against the Petitioner, submitted that the right to privacy was not unbridled, that such acts were derogatory to the “constitutional concept of dignity”

It was further argued by the intervenors that same-sex intercourse would lead to an increased prevalence of HIV/AIDS.

Declaring Section 377 unconstitutional would be detrimental to the institution of marriage and that it may violate Art. 25 of the Constitution (Freedom of Conscience and Propagation of Religion).

Judgment: (Unanimous)

The five-judge Bench unanimously struck down Section 377 of the Indian Penal Code, to the extent that it criminalized same-sex relations between consenting adults. LGBT individuals are now legally allowed to engage in consensual intercourse. The Court upheld provisions of Section 377 that criminalizes non-consensual acts or sexual acts performed on animals.

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