|In the Supreme Court of India|
|Name of the Case||Navtej Singh Johar v. Union of India|
|Citation||(2018) 10 SCC 1|
|Year of the Case||2018|
|Petitioner||Navtej Singh Johar & Ors.|
|Respondent||Union of India, Thr. Secretary, Ministry of Law and Justice|
|Bench/Judges||Dipak Misra, CJI, Rohinton Fali Nariman, J., A. M. Khanwilkar, J., D. Y. Chandrachud, J., and Indu Malhotra, J.|
|Acts Involved||Constitution of India, Indian Penal Code, 1860, Protection of Women From Domestic Violence Act, 2005, Criminal Law (Amendment) Act, 2013 [Repealed], Protection of Children From Sexual Offences Act, 2012, Parsi Marriage and Divorce Act, 1936, Special Marriage Act, 1954, Indian Divorce Act, 1869, Hindu Marriage Act, 1955, Punjab Excise Act, 1914, Information Technology Act, 2000, Criminal Law Amendment Act, 1885, Sexual Offences Act, 1967, Sexual Offences Act, 1986, Human Rights (Sexual Conduct) Act, 1994, Indian Succession Act, 1925, Criminal Tribes Act, 1871, Healthcare Act, 2017, Mental Healthcare Act, 2017, Punjab Municipal Act, 1911, Civil Rights Act, Employees’ State Insurance Act, 1948, Code of Civil Procedure, 1908 (CPC), Air India Employees’ Service Regulations|
|Important Sections||Constitution of India – Article 13(1), Article 14, Article 15, Article 15(1), Article 19, Article 19(1), Article 19(2), Article 21, Article 21A, Indian Penal Code, 1860 (IPC) Section 337|
This is a case commentary of the infamous case Navtej Singh Johar v. Union of India. It was in this case that section 377 of the Indian Penal Code, 1860 was decriminalized. It was a landmark judgment in Indian history and a turning point for the legal status of homosexuality in India.
Homosexuality in India has always been a controversial topic and matter of discussion. But the existence of homosexuality from the ancient time in India can be proved by sculptures in the Temple of Khajuraho and ancient scriptures such as Manu Smriti and Arthasastra. All these shreds of evidence show that homosexuality existed in India for a long time. But one almost also notes that the scriptures of Manu Smriti and Arthasastra punish homosexuality. This makes it evident that homosexuality has been frowned upon and was treated as a crime for a very long time. Laws of India even after the Independence had continued to criminalize homosexual acts. After a long line of cases in the Courts of India, homosexuality has been finally legalized in India. This exhibits the doctrine of Equality before Law in India.
Background of the Case:
Section 377 of the Indian Penal Code, 1860 criminalizes consensual sexual intercourse between people belonging to the same-sex as an offense which is against the order of nature.
The first-ever challenge to section 377 was from the NGO- AIDS Bhedbhav Virodhi Abhiyan (ABVA). The NGO had filed a petition to the Delhi High Court asking to provide condoms to the inmates of the Tihar Jail, as they claimed that most of the inmates engaged in homosexual activities. The then Prisons IG, Kiran Bedi, denied the fact and said that providing condoms to the inmates would be equal to encouraging homosexuality in India. And then the petition was dismissed.
The next milestone for the decriminalization of homosexuality was the case of Naz Foundation vs. the Government of NCT and Ors. (2009). In this case, the Naz Foundation, an NGO, filed a petition in the Delhi High Court asking to repeal section 377 of the Penal Code. It also said that it violates some of the fundamental rights such as Articles 14, 15, and 21. But, the Court said that section 337 of the penal code was unconstitutional and violates Articles 21, 14, and 15. But this verdict was challenged in the case, Suresh Kumar Koushal and Ors. Vs. NAZ Foundation and ors., and the constitutional validity of section 377 was upheld, saying that section 377 was gender-neutral and did not discriminate against any particular section of the society.
Five people from the LGBTQ community – Navtej Singh Johar, Sunil Mehra, Ritu Dalmia, Aman Nath, and Keshav Suri, Ayesha Kapur had filed a writ petition in the Supreme Court on April 27, 2016. This was an appeal against the 2013 judgment which upheld the constitutionality of section 377 of the Penal Code. On January 5, 2018, the Supreme Court formed a constitution bench consisting of five judges – Dipak Misra, CJI, Rohinton Fali Nariman, J., A. M. Khanwilkar, J., D. Y. Chandrachud, J., and Indu Malhotra, J. The Corum heard the matter on July 10th, 2018.
The issue of the case was that – Whether Section 377 of the Indian Penal Code, 1860 was constitutionally valid (Whether section 377 violates Articles 14, 15, and 21 of the Constitution of India).
Section 377 of the Indian Penal Code, 1860. – This section speaks about carnal intercourse against the order of nature with a man, woman, or animal and how such actions would be punished with life imprisonment, or for a term that may extend to ten years and also must be liable to fine.
Constitution of India, Articles 14, 15, and 21. – Article 14 of the Constitution of India talks about Equality before Law, that is, all people must be treated before law equally, and therefore, equal justice is guaranteed under this article.
Article 15 talks about the right against discrimination under race, caste, sex, creed, etc. This article is relevant here because the case deals with the sexuality of a group of individuals in society.
Article 21 talks about the Right to Life which includes the Right to Privacy as stated in the case of Justice K. S. Puttaswamy v. Union of India.
Suresh Kumar Koushal and Ors. Vs. NAZ Foundation and ors.
The Constitutionality of Section 377 of the Indian Penal Code was upheld in this case.
Section 377 was held unconstitutional and violative of fundamental rights under the Indian Constitution. There were many more cases cited by both parties to affirm their standing.
The Court held unanimously that section 377 of the Indian Penal Code is constitutionally invalid. The Court had said, “Sexual orientation is integral to the identity of the members of the LGBT communities. It is intrinsic to their dignity, inseparable from their autonomy, and at the heart of their privacy. Section 377 is founded on moral notions which are an anathema to a constitutional order in which liberty must trump over stereotypes and prevail over the mainstreaming of culture.”
The Court had also said that Sexual Orientation essentially forms a part of the right to privacy and discrimination based on sexual orientation is a violative right to privacy, hence violative of Article 21, which is the right to life.
The Court finally said that “It is declared that insofar as Section 377 criminalizes consensual sexual acts of adults (i.e. persons above the age of 18 years who are competent to consent) in private, is violative of Articles 14, 15, 19, and 21 of the Constitution.” It is also clarified that the sexual act must be consensual and devoid of any kind of duress or coercion. Therefore, the writ petitions filed were allowed.
It must be noted that section 377 was partially struck down in this judgment and not completely. It still covers sex with minors, non-consensual sexual acts, and bestiality.
In this case, learned bench highlighted the historical suffering endured by the LGBTQ people and how it must put an end to the suffering. The judgment uses the words, “History owes an apology to the members of this community and their families, for the delay in providing redressal for the ignominy and ostracism that they have suffered through the centuries.”
It is seen that that discrimination based on sex, is not only meaning biological sex of a person but also the sexual orientation and one must not be discriminated against because of that. The concept of sexual orientation is a quintessential part of the right to privacy has been highlighted in this judgment.
It must also be noted that section 377 was not completely decriminalized. It still covers acts such as bestiality and non–consensual sexual acts.
Frequently Asked Questions:
- 1. What does Section 377 of the Indian Penal Code talk about?
- 2. Has section 377 been completely struck down?
- 3. Is homosexuality in India legal now?
-  https://blog.ipleaders.in/navtej-singh-johar-v-uoi-judgment-which-decriminalized-homosexuality/#:~:text=The%20judgment%20passed%20in%20Navtej,the%20Indian%20Penal%20Code%2C%201860.
-  https://en.wikipedia.org/wiki/AIDS_Bhedbhav_Virodhi_Andolan
-  160 Delhi Law Times 277
-  (2014) 1 SCC 1
-  Indian Penal Code, 1860, Sec. 377
-  (2017) 10 SCC 1
-  (2014) 1 SCC 1
-  160 Delhi Law Times 277
-  (2018) 10 SCC 1