Navtej Singh Johar v. Union of India -Section 377

Navtej Singh Johar v. Union of India is a landmark judgment in which Section 377 of the Indian Penal Code was unanimously struck down by a Five Judge Bench and the SC decriminalized Homosexuality.

Full case name:	Navtej Singh Johar v. Union of India
Decided on:	06-09-2018
Citation:	2018 SCC Online SC1350

Judges Involved

1. Chief Justice Deepak Misra
2. Justice Khanwilkar
3. Justice R.F Nariman
4. Justice D.Y Chandrachud
5. Justice Indu Malhotra

Introduction

LGBTQ is an acronym for Lesbian, Gay, Bisexual, Transgender and Q for those who are questioning their sexuality or are identified as queer.

Section 377[1] of the Indian Penal Code defines Unnatural Offences as Whoever voluntarily has carnal intercourse against the order of the mature with any man, women or animal, shall be punished with imprisonment of either description for a term which may extend to ten years, and shall also be liable to pay fine.

The Delhi HC, in the case of Naz Foundation v. Govt. of NCT of Delhi, decriminalized consensual sexual relations between adults of same-sex under Section 377. The court propounded that Section 377 of the IPC is in gross violation of the right to privacy and liberty of homosexual individuals, enshrined under the Article 2[2]1 of the Indian Constitution, as it criminalises consensual acts between adults in private. The court ruled that Section 377 further violates Articles 14[3],15[4],21 if the Constitution.

But on December 11,2013 the Supreme Court, contradicting the Delhi High Courts Judgment, held that the Section 377 of the IPC is not unconstitutional and the decision made by the divisional bench of Delhi High Court is not legally sustainable.

On 24^th August, 2017, a decision was passed by Nine Judge Bench upholding Right to Privacy as Fundamental Right under Article 21 of the Constitution of India (Justice KS Puttaswamy vs. Union of India[5]).

This judgment clarified that “Privacy” includes at its core the preservation of persona; intimacies, the sanctity of family life, marriage, procreation, the home and sexual orientation.

 This judgment paved its way for Decriminalising of Homosexuality under Section 377 IPC.

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Issues Raised in Navtej Singh Johar’s Case:

The Court deliberating on the soundness of the decision laid down in the Suresh Kumar Koushal case, considered whether Section 377 violates:

• Article 14 as it discriminates against individuals on the basis of their “sexual orientation” and “gender identity”?
• The right to autonomy and dignity under Article 21 by penalizing private consensual acts between same-sex persons?
• The right to expression under Article 19(1)(a) by criminalizing the gender expression of the LGBTQI+ community?

Judgment

The apex court held that Section 377 IPC, cannot be said to be constitutions so far as it penalizes any consensual sexual intercourse between two adults, be it me homosexuals (man and man), lesbians (woman and woman) or heterosexuals (man and women). However, its context with bestiality (if a man or women tries to have sexual intercourse with an animal), Section 377 with hold a constitutional position and it shall remain a penal offence under the said section.

The court stated that Consensual carnal intercourse among adults, homosexual, lesbians or heterosexuals, does not harm the public morality or decency, and therefore, Section 377 is in violation of Article 19(1)(a) of the constitution.

Overruling the decision laid down in Suresh Kumar Koushal & anr. v. Naz Foundation & Ors[6], the SC stated that the members of LGBT community are equally entitled to the full range of constitutional rights including the liberties protected by the constitution, as any other citizen.

The court held that even the people who are homosexuals have a fundamental right to live with dignity, which in larger framework of the Preamble of India, will assure cardinal constitutional value of Fraternity. Considering the aforesaid findings, it was declared that insofar as Section 377criminalises consensual sexual acts of adults, it violates the Article 14,15,19 and 21 of the Constitution.

Justice Indu Malhotra stated that the provisions of Section 377 will continue to govern non-consensual sexual intercourse against adults, all acts of carnal intercourse against minors and act of bestiality.

It was stated in the judgment that even though the LGBT community constitute a sexual minority, they are the citizens of the country and are equally entitled to their Fundamental Right embodied under Articles 14,15,19 and 21.

Conclusion

This case marks is significance in the history of India judiciary as the Supreme Court unanimously upheld the right to equal citizenship of all members of the LGBTQI community in India. Thus, it read down Section 377 to exclude consensual sexual relationships between adults, whether between same-sex individuals or otherwise. Section 377 will continue to apply to non-consensual sexual activity against adults, sexual acts against minors, and bestiality.

 

 

-Anushka Hanotiya

 

 

Link to the official judgment of Navtej Singh Johar case.
https://www.sci.gov.in/

[1] Section 377, The Indian Penal Code

[2] Article 21, The Constitution of India

[3] Article 14, The Constitution of India

[4] Article 15, The Constitution of India

[5] Justice KS Puttaswamy vs. Union of India 2017 SCC 996

[6] CIVIL APPEAL 10972 OF 2013