Navtej Singh Johar and Others v. Union of India,2018 (10) SCALE 386

Introduction

• This is a landmark case of Section 377 of the Indian Penal Code, 1860 (IPC).
• In this case the Supreme Court held Section 377 of the IPC partially unconstitutional observing it as violative of Article 14, 19 and 21 of the Constitution of India, 1950.
• By this verdict, the Apex Court established a precedent in case of the rights of LGBTQ community.

Facts

• The issue in this case originated in 2009 in the case of Naz Foundation v. Govt. of N.C.T. of Delhi (2009), where the Delhi High Court held Section 377 IPC unconstitutional.
• Later, the case of Suresh Kumar Koushal v. Naz Foundation (2013), overturned the decision of Delhi High Court.
• In the present case, the petitioner who was dancer and identified as a member of LGBTQ community filed a petition before the Supreme Court in 2016.
• The petitioner sought recognition of the right to sexuality, right to sexual autonomy and right to choose a sexual partner to be part of the right to life guaranteed by Article 21 of the Constitution of India, 1950.

Issues Involved

• Whether Section 377 should be struck down as it is unconstitutional?
• Whether Section 377 defines reasonable classification between natural and unnatural consensual sex?

Observations

• The Court relied on the case of National Legal Services Authority v. Union of India, (2014) to reiterate that gender identity is intrinsic to one’s personality and denying the same would be violative of one’s dignity.
• The Court relied upon the decision in K.S. Puttaswamy v. Union of India, (2017) and held that denying the LGBTQ community its right to privacy on the ground that they form a minority of the population would be violative of their fundamental rights.
• The Court affirmed that “intimacy between consenting adults of the same sex is beyond the legitimate interests of the state”.
• Sodomy laws violate the right to equality under Article 14 and Article 15 of the Constitution of India, 1950 by targeting a segment of the population for their sexual orientation.
• The Court again relied on Shakti Vahini v. Union of India, (2018) 7 SCC 192 to reaffirm that an adult’s right to “choose a life partner of his/her choice is a facet of individual liberty.

Important Opinions of Judges

• Chief Justice Dipak Misra (on behalf of himself and Justice Khanwilkar):
  • He opined that the “Constitutional morality would prevail over social morality” and further said the rights of the LGBTQ should be protected irrespective of the fact they are in majority or not.
• Justice R F Nariman:
  • Analyzed that there is no need to continue this law.
  • He further said this is the obligation of the Union of India to ensure the publication of this judgment to eliminate the stigma faced by the LGBTQ community in society.
• Justice D Y Chandrachud:
  • Law must not discriminate against same-sex relationships, and it must also take positive steps to achieve equal protection and grant the community “equal citizenship in all its manifestations”
• Justice Indu Malhotra:
  • He affirmed by stating that history owes an apology to members of the LGBTQ community and their families for the delay in providing redress for the ignominy and ostracism that they have suffered through the centuries.
  • She stated that the right to privacy does not only include the right to be left alone but also extends to “spatial and decisional privacy”.

Conclusion

• The Court partially struck down Section 377 by finding it unconstitutional and violative of fundamental rights.
• The decision is historic in nature and holds an extremely high precedential value as it has been decided by a Five-judge Constitutional Bench of the Supreme Court of India.

Note

Section 377 of IPC - Unnatural Offences-Whoever voluntarily has carnal inter­course against the order of nature with any man, woman or animal, shall be punished with 1[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.

Explanation -Penetration is sufficient to constitute the carnal intercourse necessary to the offence described in this section.