Name- Aditi Raj
Course -Ballb
Semester-2nd
College Name- Galgotias University, Greater Noida
Navtej Singh Johar V. Union of India
Summary of Facts: Petitioner was a
dancer who belongs to the LGBT community. Petition was filed for declaring Section 377 of IPC to be
unconstitutional, for declaring right to sexuality, right to sexual autonomy
and right to choose sexual partner to be part of right to life guaranteed under
Article 21 of Constitution of India. It is vigorously propounded by petitioners
that sexual autonomy and right to choose partner of one’s choice is inherent
aspect of right to life and right to autonomy.Petioner filed this case
challenging it’s decision in Suresh Kumar Koshal.Petioners contend that
section 377 is violative of Article 14 of Constitution as said Section is vague
in sense that carnal intercourse against order of nature is neither defined in
the Section nor in IPC or, for that matter, any other law. Petitioners also
contended that section 377 violates rights of LGBT persons under Article
19(1)(c) and denies them the right to form associations.
Issues:1) Criminalizing “
consensual acts of adults in private” falling under 377 IPC .Whether
constitutionally valid?
2) Whether constitutional standards in penalizing
consensual sexual conduct between adults of same sex fulfilled by Section 377
of IPC?
3) Whether the judgement in Suresh Kumar Koshal
should be upheld or set aside?
Arguments-
Petitioners- The Petitioners
contended that homosexuality, bisexuality and other sexual orientations were
natural and supported lawful consent and were neither a physical nor a mental disease.
The Petitioners further contended that criminalising sexual orientations
violated the concept of individual dignity and decisional autonomy inherent
within the personality of an individual, and also the right to privacy under
Article 21. The Petitioners submitted that the rights of the LGBT community,
who form 7-8 percent of the Indian population must be recognised and guarded.
They relied on the Puttaswamy case to argue that Section 377 was
unconstitutional because it discriminated against the LGBT community on the
idea of sexual orientation, which was a vital attribute of privacy, which the
sexual orientation and privacy lay at the core of fundamental rights guaranteed
under Articles 14, 19 and 21. The Petitioners sought recognition of the proper to
sexuality, the proper to sexual autonomy and also the right to choice of a
sexual partner as a part of the correct to life guaranteed under Article 21.
Respondent:The Respondents
submitted that insofar the constitutional validity of Section 377 was concerned
with the 'consensual acts of same sex adults in private', they would leave it
to the wisdom of the Court. Some Intervenors argued in favour of retention of
Section 377 as it furthered “a compelling state interest to reinforce morals in
public life”. Arguing that fundamental rights were not absolute, the
Intervenors submitted that Section 377 was not discriminatory as it
“criminalises acts and not people” and applied equally to all unnatural sexual
conduct, irrespective of sexual orientation and criminalised some forms of
carnal intercourse by both heterosexual and homosexual couples
Section Applied: The court was
asked to see the constitutionality of Section 377 of the Indian Penal Code, a
colonial era law which among other things ,criminalized homosexual acts as an
“unnatural offence”. While the statute criminalizes all sodomy and sexual
perversion including between opposite -sex couples, it largely affected
same-sex relationships. The decision was hailed as a landmark decision for
LGBT. Elements of Section 377 referring to sex with minors, non-consensual
sexual acts like rape and bestiality remain effective. We hold that Section 377 of IPC doesn’t suffer from the vice of
unconstitutionality and also the declaration made by the Division Bench of the
state supreme court is legally unsustainable.
It means section 377 of IPC isn’t unconstitutional
and also the Court is additionally of the view that Section 377 is against an
act which if performed by any individual regardless of age and consent and not
with any particular section of the society. The respondent within the
particular case also didn’t present the quantity of cases of harassment and
assault against sexual minorities. The decision of this case merits a rich
tribute for its transformative constitutionalism
by following merits-
1)An Affirmation of human dignity-The critical
examination provided a powerful indication of the worldwide trend acknowledging
the error of the approach previously taken in penal legislation like Section
377. By reference to this stream of jurisprudence, the NavtejJohar decision
shows that laws such as Section 377 represent a serious overreach of criminal
law.
2)Correcting a basic error-Instead of viewing
prospective legislation as the solution, the court diagnosed the long history
of legislative inactivity as the problem in the Section 377 case. The concept
of the Indian nation and people as a pluralistic, diverse and inclusive modern
society, the long-operating colonial law was judged to abridge constitutionally
guaranteed fundamental rights and human dignity when applied to the private conduct
of consenting adults. The burden of the penal law targeting sexual minorities
was lifted. The understanding and
expression of legal principle in the Navtej Singh Johar judgment was greatly
moving and uplifting. The vital point made was that for constitutional
purposes, the LGBT minority is part of, and incontestably included in, the
diverse plural Indian nation.
3) Realigning public policy-The enduring legacy of
the Supreme Court on social policy is in inverse proportion to the brevity of
his tenure. In that compressed time period, the court delivered several
far-reaching judgments. Those verdicts shone a light on the constitutional
morality of contested and evolving social mores and the need to realign public
policy to changing social contexts.
Court held:There was a 5Judge
bench who passed landmark judgement in NavtejSingh Johar V. Union of India.The
honorable judges were CJI Dipak Mishra, Justice A.M Khanwilkar, Justice
RohintonFaliNariman, Justice D.Y. Chandrachudand JusticeIndu Malhotra.The
Supreme court while observing the
judgement in Suresh Kumar Koshal, noted that it relied on the miniscule
minority rationale to deprive the LGBT community of their fundamental rights
and didn’t differentiate between consensual and non-consensual sexual acts
between adults. The Court noted this regard that a distinction must be made
between consensual relationships of adults privately, whether or not they’re
hetero-sexual or homosexual in nature. Moreover consensual relationships
between adults couldn’t be classified along with offences of sodomy, bestiality
and non-consensual relationships.
Further, the court analysed the constitutionality of
Section 377 from the principles enunciated in Article 14,15,19and 21. The Court
relied on the NALSA judgement, which granted equal protection of laws to
transgender, to restate that sexual orientation and private identity was an integerala
component of a person’s personality, and thus the Puttaswamy judgement, which
recognised the interrelationship between privacy and autonomy in which the
right to sexual orientation was an important part of the right to privacy, to
conclude that it is imperative to widen the scope of the right to privacy to
protect the rights of sexual minorities. The court further discussed the Yogyakarta
Principles on individuality and sexual orientation.
The Court also relied on its judgement in Shakti
Vahini V. Union of India to reaffirm that the right to choose on a life partner
was a feature of individuals liberty and dignity protected under Article 19 and
21. To hold that Section 377 was irrational , arbitrary and violative of
Article 14 because it made consensual relationships privately spaces a criminal
offence and subjected the LGBT community to discrimination and unequal treatment.
Moreover the court used the maxim “et domussuacuiqueesttutissimumrefugium” which
means that “a man’s house is his castle” to hold that Section 377 was disproportionate
and unreasonable for restricting LGBT person’s right to freedom of expression
and selection because these restrictions did not protectpublic order, decency
and morality. Therefore court said that consensual carnal intercourse among
adults, be it homosexual or hetero-sexual in private space, does not in any way
harm public decency and morality.
The Court lastly held that sexual orientation was
natural. It held that choice of LGBT person to enter into intimate sexual
relations with persons of identical sex is an exercise of their personal choice
and an expression of their autonomy and self determination. Further, although
the LGBT community constituted a sexual minority, they were equally protected
under Part 3 of the Indian Constitution. The five judge Bench unanimously held
Section 377 to be unconstitutional and read down Section 377 to the extend it
criminalized consensual sexual conduct adults, whether of identical sex or
otherwise in private. However the court clarified that consent must be free
voluntary and devoid of any coercion.
