Navtej Singh Johar vs Union of India

Introduction: India has acquired a place among the 28 countries of Asia to legalize homosexuality and to recognize LGBT rights. The judgment passed in Navtej Singh Johar v. Union of India has changed the life of many in the country. Prior to this judgment, the Lesbian Gay Bisexual Transgender Community didn’t have such rights as Homosexuality was a punishable offence under sec-377 of the Indian Penal Code, 1860.  Case summary and Outcome: The Supreme Court of India unanimously held that Section 377 of the Indian Penal Code, 1860, which criminalized ‘carnal intercourse against the order of nature’, was unconstitutional in so far as it criminalized consensual sexual conduct between adults of the same sex. The petition, filed by dancer Navtej Singh Johar, challenged Section 377 of the Penal Code on the ground that it violated the constitutional rights to privacy, freedom of expression, equality, human dignity and protection from discrimination. The Court reasoned that discrimination on the basis of sexual orientation was violative of the right to equality, that criminalizing consensual sex between adults in private was violative of the right to privacy, that sexual orientation forms an inherent part of self-identity and denying the same would be violative of the right to life, and that fundamental rights cannot be denied on the ground that they only affect a minuscule section of the population.  Case Facts:  The central issue of the case was the constitutional validity of Section 377 of the Indian Penal Code, 1860 (Section 377) insofar as it applied to the consensual sexual conduct of adults of the same sex in private. Section 377 was titled ‘Unnatural Offences’ and stated that however voluntarily has carnal intercourse against the order of nature with any man, woman or animal shall be punished with 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.”  The issue in the case originated in 2009 when the Delhi High Court, in the case of Naz Foundation v. Govt. of N.C.T. of Delhi, held Section 377 to be unconstitutional, in so far as it pertained to consensual sexual conduct between two adults of the same sex. In 2014, a two-judge bench of the Supreme Court, in the case of Suresh Kumar Koushal v. Naz Foundation, overturned the Delhi HC decision and granted Section 377 “the stamp of approval”. When the petition in the present case was filed in 2016 challenging the 2014 decision, a three-judge bench of the Supreme Court opined that a larger bench must answer the issues raised. As a result, a five-judge bench heard the matter.  The Petitioner in the present case, Navtej Singh Johar, a dancer who identified as part of the LGBT community, filed a Writ Petition in the Supreme Court in 2016 seeking recognition of the right to sexuality, right to sexual autonomy and right to choice of a sexual partner to be part of the right to life guaranteed by Art. 21 of the Constitution of India (Constitution). Furthermore, he sought a declaration that Section 377 was unconstitutional. The Petitioner also argued that Section 377 was violative of Art. 14 of the Constitution (Right to Equality Before the Law) because it was vague in the sense that it did not define “carnal intercourse against the order of nature”. There was no intelligible differentia or reasonable classification between natural and unnatural consensual sex. Among other things, the Petitioner further argued that (i) Section 377 was violative of Art. 15 of the Constitution (Protection from Discrimination) since it discriminated on the basis of the sex of a person’s sexual partner, (ii) Section 377 had a “chilling effect” on Article 19 (Freedom of Expression) since it denied the right to express one’s sexual identity through speech and choice of romantic/sexual partner, and (iii) Section 377 violated the right to privacy as it subjected LGBT people to the fear that they would be humiliated or shunned because of “a certain choice or manner of living.”  The Respondent in the case was the Union of India. Along with the Petitioner and Respondent, certain non-governmental organizations, religious bodies and other representative bodies also filed applications to intervene in the case.  The Union of India submitted that it left the question of the constitutional validity of Section 377 (as it applied to consenting adults of the same sex) to the “wisdom of the Court”. Some interveners argued against the Petitioner, submitting that the right to privacy was not unbridled, that such acts were derogatory to the “constitutional concept of dignity”, that such acts would increase the prevalence of HIV/AIDS in society, and that 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 : It doesn’t matter how minuscule is the LGBT section, they also have the right to privacy which includes physical intimacy. Their choice of partner might be different but it does not mean they will be prosecuted for that. Section-377 does curtail their human dignity and their personal choice, therefore violating their right to privacy which is covered under Article 21. The main objective behind retaining section-377 is to protect women and children from being abused and harasses by carnal intercourse but consensual carnal intercourse which is performed by the LGBT community is neither injurious to children nor women. Moreover, non-consensual acts have already been referred to as an offence under section- 375 of IPC which implies that section-377 is redundant and discriminative towards one section of the society and is therefore violative of Article 14 of the Indian Constitution rendering it unconstitutional. Our Constitution being liberal, it is not possible that right of choice will be absolute. Therefore some restrictions have been imposed on the principal of choice. Public order, decency and morality are the grounds which can impose reasonable restriction on the fundamental right of expression. Any act done in affection by the LGBT community in public does not disturb the public order or moral values until it is decent enough and is not obscene. However, section-377 is again unconstitutional in the sense that it does not connect with the criteria of proportionality and is violating the fundamental right of expression of LGBT group. The Supreme Court declared that section-377 is unconstitutional as it violates Articles 14, 15, 19 and 21 of the Indian Constitution and therefore overruled the judgment given in Suresh Koushal and ors. vs. Naz Foundation and ors. Moreover, it also declared that section-377 will be governing only non-consensual sexual acts committed against any adult and minor.   Conclusion: So now homosexuality has been decriminalized but the reaction of society and different organizations is still a challenge for the LGBT community. Though there are organizations such as All India Muslim Personal Law Board and the Jamaat-e-Islami Hind who expressed their disappointment towards the verdict given by the Apex Court on section-377. There also exist organizations and parties who are satisfied with the given verdict, namely, Amnesty International, RSS, CPI(M) and UN. According to the surveys conducted by various LGBT activists in different parts of the country, life is much better and simple for the LGBT group. Every society needs time to accept any change. The time is not so far when the society will accept the LGBT community and their rights.