Author(s): Kirti Kumar, 5th year student at Lloyd law college.
It was an appeal filed against the judgement given by The Hon’ble Supreme Court of India in 2013 in the case of SURESH KUMAR KOUSHAL & Ors. Vs NAZ FOUNDATION & Ors. This case was decided by the five judge bench consisting the Chief Justice DEEPAK MISHRA, Justice D.Y. CHANDRACHUD, Justice INDU MALHOTRA, Justice A.M. KHANWILKAR and Justice ROHINTON FALI NARIMAN.
Essential details of the Case
Citation: Navtej Singh Johar v. Union of India, (2018) 10 SCC 1.
Petitioner(s): Navtej Singh Johar & Ors.
Respondent(s): Union of India thr. Secretary Ministry of Law and Justice.
Bench: CJI Dipak Mishra, Justice A.M Khanwilkar, Justice Rohinton fali Nariman, Justice D.Y. Chandrachud and Justice Indu Malhotra.
Concerned Statutes and Provisions: Section 377 of Indian Penal Code, Articles 14, 15 and 21 of the Indian Constitution.
Date of Judgement: 06 September, 2018.
Facts of the case
- There provisions of section 377 of the Indian Penal Code read that it criminalises the physical intercourse between same sex persons and considered it as an act which is against the order of nature.
- In 2009, the Naz Foundation Trust challenged this section in the high court of Delhi on the ground that it violates the provisions of articles 14, 15, 19 and 21 of the Indian constitution.
- The high court has ruled the section unconstitutional as it prohibits the rights of the community of LGBTQ+ and held that the section violates the rights of equality, procurator and personal liberty of two consenting adults.
- In 2013, this decision was appealed against the It in the Supreme Court and the court in its judgment reversed the Naz verdict and this case was known as Suresh Kumar Koushal & Anr. V. Naz Foundation & Ors. In this case it was also held that only Parliament could decriminalise this section and no other lower authority could do it.
- Later five individuals named as Navtej Singh Johar, Ritu Dalmia, Ayesha Kapur, Aman Nath and Sunil Mehra filed a new petition in the Supreme Court which challenges the verdict of the former case of 2013.
Issue of the case
- If Section 377 of IPC which lay down that sexual activities between adults which are other than penile-vaginal penetrative sex are considered unnatural and hence criminalised, shall be held unconstitutional ? Does the section promote curtailment of the right to privacy ?
- Whether the judgement passed in the case of Suresh Kumar Koushal & Ors. Vs Naz Foundation & Ors. (2013) shall be set aside or not?
- Whether Section 377 violates articles 14 and 15 of Indian Constitution?
- Whether 377 prohibits the gender expression of LGBTQ community promised under Article 19(1)(a).
Arguments of petitioner
- Petitioner states that first of all homosexuality or bisexuality our any sexual interest is quite natural and it’s not a physical or mental illness. It is a personal choice.
- Criminalizing these acts leads to the destruction of article 21 of the constitution by affecting the dignity of the individual and their gender identity.
- They also argued that 7-8% of the Indian population consists of homosexuals so if they will not be accepted then they have no choice and no place to go and they can’t become alien so it needs to be recognised.
- Section 377 violates various fundamental rights of LGBT groups such as rights to privacy, right to live with dignity, right to freedom of expression, right to equality and liberty.
- They express that the section 377 is the main reason that the LGBTQ community has suffered discrimination, abuse and cruelty through out their life and if this section does not get decriminalised then it will continue as same in future.
- Petitioners mentioned that people who inter-caste marriage or inter-religious marriage are the same as those who choose a same gender marriage and there is no difference between them. So society may or may not disapprove their same sex marriage but it’s the duty of courts to protect the constitutional rights and stop them who violates it.
- There is no classification between natural sex and unnatural sex and the expression that “ anal Sex is against the nature” is also not defined anywhere so Section 377 appears to be vague and is arbitrary and it violates article 14 of the Indian constitution.
- Section 377 also violates article 15 of Indian constitution as it discriminate homosexual and the community on the basis of sex of their partners which is prohibited.
Arguments of respondents
- They argued that if section 377 will be declared as unconstitutional then the family system will be destroyed and it can also be used for trade and for money.
- Respondents stated that people who indulge in homosexual activities are at high risk of getting HIV/AIDS and this will lead to the spreading of disease more and it will increase the victims more in our country.
- Decriminalising section 377 will lead to the condition where all religious practice will be objectionable and this will be the violation of article 25 of Indian constitution.
- One of the reason of criminalising this Act is that it would protect the citizens from injurious consequences arising from carnal sex.
- Section 377 does not violates article 15 of the community as the article only prohibits the discrimination on the basis of sex and not on the basis of sexual orientation.
- Respondents finally said that clarification can be made to section 377 by defining each and every word which is mentioned in the section. They will then target people with malafide intention and non-consensual acts.
- The court said that it does not matter how small the community is, but what matters is that they also have their right to privacy including physical intimacy. They should not be prosecuted because of their choice of partners.
- Judge said that section 377 restricts their personal choice and their dignity hence it violates their rights to privacy which comes under article 21 of the constitution.
- Earlier the main objective behind introducing this section was to protect women and children from abuse and harassment done by carnal sex but consensual carnal sex done by LGBT community is neither injurious to women nor children and moreover non consensual acts are covered under the article 375 of the constitution which deals with rape laws of women and minors. So there is no need for this section in particular.
- Any act done out of love by LGBT community in public which is decent enough and not obscene, does not disturb the public order or moral values same as heterosexual couples, this section violates the fundamental right of expression of LGBT group as it stop them to express themselves in public and calls it indecent and immoral.
- Right of choice is not absolute according to our constitution and there are some restrictions on rights to choice but choosing a partner for oneself is totally a private matter and it cannot be restricted. Since Section 377 restricts it for LGBT community hence the section is irrational and arbitrary.
- Finally The Hon’ble Supreme Court declared Section 377 as unconstitutional as it violates the article 14,15,19 and 21 of the Indian constitution and hence overruled the judgement given in case of SURESH KOUSHAL & Ors. Vs NAZ FOUNDATION & Ors. It was added that section 377 will still be applied on non-consensual sexual acts committed to any adult or minor and still applies on bestiality.