This Case Commentary is written by Pranita Dhara, a Third-Year Law Student of Lloyd Law College

Name of the case:

Navtej Singh Johar v Union of India. Citation:

AIR 2018 SC 4321

Petitioner:

Navtej Singh Johar

Respondent:

Union of India

Court:

The Supreme Court of India

Coram:

A five-judge bench headed by Justice Dipak Misra along with Judges RF Nariman, AM Khanwilkar, DY Chandrachud, and Indu Malhotra.

Date of Judgement:

06.09.2018

Theme:

Section 377 IPC is not a crime anymore

Subject:

Constitutional law

Introduction:

The quest for identity, recognized as a fundamental human necessity, has occupied the thoughts of individuals across various domains, including success, fame, economic influence, political power, celebrity recognition, and social standing. Particularly significant is the aspect of an individual's sexual orientation, alongside the profound notion of "identity with dignity," which has sparked extensive discourse regarding its social implications and legal recognition over the past decade. In the remarkable instance of Navtej Singh Johar vs. Union of India, the lawfulness of Section 377 of the IPC, 1860, was examined by the Supreme Court of India. This case gave a stage to look at the idea of homosexuality with Section 377 IPC, which tends to unnatural offenses, explicitly "carnal intercourse against the nature request."

This arrangement condemned homosexuality, considering it as opposed to the normal request and socially inadmissible inside Indian culture. This brought up basic issues about the sacred translation of the term and whether it incorporated only sexual direction or stretched out to the decision of sexual accomplices. The High Court of India arrived at a consistent choice pronouncing the arrangement illegal concerning the criminalization of consensual sexual relations between grown-ups of a similar orientation. The court enunciated that separation in light of sexual direction encroaches upon essential freedoms, as it disregards individual security, regardless of whether it relates to a minority section of society.

The essential contentions introduced in the writ request focus on the standards of "Constitutional Morality," "Transformative Constitutionalism," and the statement that the arrangement negates Articles 14, 15, and 19, as well as the right to sexuality, which envelops the right to sexual independence and the option to pick a sexual accomplice. This right is basic to one side of life as revered in Article 21 of the Indian Constitution, which ensures Principal Freedoms to all residents.

Facts:

On April 26, 2016, a writ request was presented by Navtej Singh Johar, an artist addressing the LGBT people group, alongside four co-solicitors, to challenge the sacred authenticity of Section 377 of the Indian Punitive Code. This part condemns consensual sexual relations between same-sex grown-ups led in confidential settings. The candidates looked for a legal statement certifying the "right to sexuality," "right to sexual independence," and "right to pick a sexual partner" as essential parts of the right to life as revered in Article 21 of the Indian Constitution. Moreover, they mentioned that Segment 377 be pronounced unlawful.

Issue:

Whether Section 377 of The IPC,1860 is violative of Articles 14, 15, 19, and 21 of the Constitution of India?

Petitioner Arguments:

An individual's sexual orientation represents a fundamental and private expression of personal choice and freedom, originating from the mutual consent of two competent adults (Francis Coralie Mullin v. Administrator, Union Territory of Delhi 9(2014) 9 SCC 1 and others). The criminalization of such orientation fundamentally undermines the principles of dignity and autonomy. It constitutes a vital aspect of one's private life, wherein individuals possess the right to reputation, the option to seek shelter, and the freedom to select a partner. Article 21 of the Constitution addresses the Right to Life and Individual Freedom, wherein security is perceived as an innate and fundamental part, as laid out in KS Puttaswamy and Anr. v. Union of India and Ors. (2017) 10 SCC 1.

Section 377 of the Indian Penal Code (IPC) negates Article 14 because of its dubious phrasing, neglecting to sufficiently characterize 'bodily intercourse against the nature request.' Additionally, there exists no understandable difference or sensible arrangement recognizing regular and unnatural sexual demonstrations, if they are consensual (Anuj Garg and others v. Hotel Association of India and others).

Additionally, Section 377 IPC violates Article 15 by creating a distinction based on an individual's sexual identity and preferences. An individual may face prosecution under Section 376(c) to (e) IPC for engaging in acts with the opposite gender without consent, while similar consensual acts between individuals of the same sex are subject to condemnation.

Furthermore, Section 377 IPC disregards the rights of LGBT individuals under Article 19(1)(c), denying them the ability to form associations, and a conviction under this section disqualifies them from serving as directors of organizations. It also hinders their personal development and relationship-building efforts, particularly in pursuing live-in arrangements, thereby violating Article 19(1)(a) of the Constitution.

Fundamental rights are available to all citizens of India, including the LGBT community, which represents approximately 7-8% of the population and is classified as a minority group. This demographic requires greater protection compared to heterosexual individuals. Consequently, they should be granted the same rights and benefits associated with live-in relationships, such as testamentary rights, access to medical care, partner choice, and insurability, as established in the case of Indra Sarma v. VKV Sarma[i]. The rights of LGBT individuals, as interpreted in the NALSA Judgment, recognize transgender individuals as a third gender; however, any sexual activity among them remains criminalized under existing laws. This places the LGBT community in a precarious situation, where expressing their sexual orientation can lead to legal repercussions due to insufficient constitutional safeguards. Section 377 of the Indian Penal Code is deemed arbitrary, as it criminalizes consensual relationships based on being contrary to the natural order, as highlighted in Shayara Bano v. Union of India and others, and contradicts the principle of fraternity enshrined in the Preamble of the Constitution. The ruling in Suresh Koushal and another v. Naz Foundation and others is considered per incuriam, as it overlooked the amendment to Section 375 IPC, which permits sexual acts deemed 'carnal intercourse against the order of nature' between opposite genders, while still criminalizing consensual acts between individuals of the same gender. Furthermore, Section 377 IPC obstructs the LGBT community's understanding of their rights concerning housing, compelling them to seek assistance from private organizations such as Gay Housing Assistance Resources (GHAR) to find safe accommodations, thereby underscoring the urgent need for state intervention and protection for these individuals.

Respondents Arguments:

The notion of personal liberty does not extend to the misuse of one's bodily autonomy, and the actions deemed unlawful under Section 377 of the Indian Penal Code (IPC) involve such misuse. These actions are not only undignified but also undermine the fundamental concept of liberty as protected by the Constitution. Any violation of dignity equates to a constitutional transgression and moral failing. Section 377 IPC does not contravene Article 15 of the Constitution, which prohibits discrimination solely based on religion, race, caste, sex, or place of birth, but does not address sexual orientation. Furthermore, Section 377 IPC, in its present form, aligns with Article 14 of the Constitution, as it delineates a specific offense and its corresponding penalties, allowing the State to determine classifications for legislative purposes. The constitutional rights and recognition of the transgender community have been extensively examined in the NALSA judgment, leaving no room for additional remedies. The provisions of Section 377 have been established in light of historical legal frameworks and remain pertinent in contemporary legal, medical, ethical, and constitutional contexts. Individuals engaging in unnatural sexual acts, as defined by Section 377, are more vulnerable to HIV/AIDS, and the right to privacy cannot be interpreted to permit such acts, which may lead to health risks. Fundamental rights are not absolute, and Section 377 does not exhibit unreasonableness. Moreover, decriminalizing this section would conflict with the religious beliefs upheld in the country, and in determining the scope of constitutional morality, Article 25 must also be duly considered.

Should Section 377 of the Indian Penal Code be invalidated, it would leave individuals without recourse for grievances related to coerced acts currently addressed under this provision. This section not only prohibits carnal intercourse that contravenes the natural order between consenting adults but also encompasses forced non-vaginal sexual acts between adults. Furthermore, it would leave a married woman without legal protection under the IPC against her bisexual spouse and his consenting male partner. The offense defined under Section 377 is indicative of sexual deviance (Fazal Rab Choudhary v. State of Bihar) and pertains to carnal relations between individuals that are deemed offensive, harmful, and contrary to the natural order. It is within the state's authority to impose reasonable restrictions on such conduct. The principle of manifest arbitrariness does not apply in this context, as the law is neither overtly nor inherently arbitrary; Section 377 IPC constitutes a punishable offense that is not contingent upon the sexual orientation of the individuals involved. Discrimination is not present, as laws grounded in biological realities cannot be deemed unconstitutional. The interests of individual citizens or the public, while important, are subordinate to the collective interests of the nation or society (State of Gujarat v. Mirzapur Moti Kureshi Kassab Jamat and others).[ii] The decriminalization of Section 377 IPC could undermine the family structure and adversely affect the institution of marriage, potentially leading to a cascade of social issues that the legislative framework may be ill-equipped to address, while also impacting existing laws. Consent may be obtained through misunderstanding, mental incapacity, intoxication, or coercion. If the court were to grant the petitioners' requests, it would result in judicial legislation, as courts lack the authority to modify statutory language. The terms 'consent' and 'without consent' are not explicitly included in Section 377 IPC, thus making it inappropriate for the courts to create such artificial distinctions. (Sakshi v. Union of India and others).

Judgement:

The bench determined that Section 377 discriminates against individuals based on their sexual orientation and/or gender identity, thereby contravening Articles 14 and 15 of the Constitution. Additionally, the ruling indicated that Section 377 infringes upon the rights to life, dignity, and personal autonomy as enshrined in Article 21. Furthermore, it was concluded that the provision obstructs an LGBT individual's capacity to fully express their identity, violating the right to freedom of expression under Article 19(1)(a). The bench referenced recent judicial decisions, including NALSA v Union of India[iii], which acknowledged transgender identity, and Justice K.S. Puttaswamy v Union of India, which affirmed the fundamental right to privacy.

In the earlier case of Suresh Kumar Koushal v Naz Foundation in 2013, the Court upheld the constitutionality of Section 377. The bench criticized Suresh Koushal for failing to acknowledge the fundamental rights violations caused by Section 377 and for relying on a rationale deemed constitutionally unacceptable. Koushal's argument was based on the minuscule minority rationale, which posits that the Court need not intervene since only a small segment of the population is adversely affected by Section 377. The Constitution guarantees fundamental rights to all citizens, regardless of their sexual orientation or gender identity. The Court's focus is on preserving 'constitutional morality' rather than 'popular morality.'

Consequently, the five-judge bench of the Indian Supreme Court unanimously declared that Section 377 of the Indian Penal Code, 1860, as it pertains to consensual sexual conduct between adults in private, is unconstitutional.

Conclusion:

The decriminalization of homosexuality by the Hon’ble Supreme Court of India marks a significant milestone; however, societal reactions continue to pose challenges for the LGBTQIA+ community. Regrettably, certain organizations, including the All India Muslim Personal Law Board and Jamaat-e-Islami Hind, have publicly expressed their discontent with the Supreme Court's ruling on Section 377. Conversely, other entities such as Amnesty International, the RSS, CPI(M), and the United Nations have welcomed this decision. Surveys conducted by various LGBTQIA+ activists across the nation indicate an improvement in the quality of life for individuals within this community. Societal acceptance of change often requires time, yet it is anticipated that the LGBTQIA+ community and their rights will eventually gain broader acceptance.

The Supreme Court's decision to read down Section 377 allows consensual sexual acts between same-sex adults while maintaining its applicability to non-consensual acts, offenses against minors, and bestiality. Historically, courts have played a pivotal role in advancing social progress, exemplified by their rejection of the long-standing stigma associated with criminalizing homosexuality as an unnatural offense. This ruling has not only acknowledged the fundamental rights of LGBTQIA+ individuals but also calls for a reevaluation of their marital rights, particularly in light of the Shakti Vahini v. Union of India (2018) case, which affirmed that the right to choose a partner is encompassed within the right to life as stipulated in Article 21. Furthermore, the right to marry is recognized in various international human rights instruments, including Article 12 of the European Convention on Human Rights, Article 16(1) of the Universal Declaration of Human Rights (1949), Article 23(2) of the International Covenant on Civil and Political Rights (1966), and Article 23(1)(a) of the United Nations Convention on the Rights of Persons with Disabilities (2006).

References:

[i] Indra Sarma vs V.K.V.Sarma on 26 November, 2013 (indiankanoon.org)

[ii] State Of Gujarat vs Mirzapur Moti Kureshi Kassab Jamat & Ors on 26 October, 2005 (indiankanoon.org)

[iii] National Legal Ser.Auth vs Union Of India & Ors on 15 April, 2014 (indiankanoon.org)