NAVTEJ SINGH JOHAR vs. UNION OF INDIA (2018) BY NILISHA PRIYA MENDONCA@LEXCLIQ

NAVTEJ SINGH JOHAR vs. UNION OF INDIA (2018)

 

 

JIST OF THE CASE:

 Navtej Johar and five others from the LGBT community filed a writ petition in the Supreme Court challenging the Section 377 of the Indian Penal Code in June 2016. On September 6, 2018, Section 377 of the Indian Penal Code was struck down unanimously by a five-judge Bench.

FACTS OF THE CASE:

The main issue of the case was the constitutional validity of Section 377 of the Indian Penal Code, 1860 (Section 377) in so far as it applied to the consensual sexual conduct of adults of the same sex in private. Section 377 was titled ‘Unnatural Offences’ and stated that “whoever voluntarily has carnal intercourse against the order of nature with any man, woman or animal shall be punished with 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.”

The issue in this case originated in 2009 when the Delhi High Court, in the case of Naz foundation .v. Govt. Of  N.C.T Delhi held Section 377 to be unconstitutional, in so far as it pertained to consensual sexual conduct between two adults of the same sex.

The Petitioner in this  case, Navtej Singh Johar, a dancer who identified as part of the LGBT community, filed a Writ Petition in the Supreme Court in 2016 seeking recognition of the right to sexuality, right to sexual autonomy and right to choice of a sexual partner to be part of the right to life guaranteed by Art. 21 of the Constitution of India.  Furthermore, he sought a declaration that Section 377 was unconstitutional. The Petitioner also argued that Section 377 was violative of Art. 14 of the Constitution (Right to Equality Before the Law) because it was vague in the sense that it did not define “carnal intercourse against the order of nature”.  There was no intelligible difference or reasonable classification between natural and unnatural consensual sex. Among other things, the Petitioner further argued that (i) Section 377 was violative of Art. 15 of the Constitution (Protection from Discrimination) since it discriminated on the basis of the sex of a person’s sexual partner, (ii) Section 377 had a “chilling effect” on Article 19 (Freedom of Expression) since it denied the right to express one’s sexual identity through speech and choice of romantic/sexual partner, and (iii) Section 377 violated the right to privacy as it subjected LGBT people to the fear that they would be humiliated or shunned because of a certain choice or manner of living.

The Respondent in the case was the Union of India. It submitted that it left the question of the constitutional validity of Section 377 (as it applied to consenting adults of the same sex) to the “wisdom of the Court”.  Some interveners argued against the Petitioner, submitting that the right to privacy was not unbridled, that such acts were derogatory to the “constitutional concept of dignity”, that such acts would increase the prevalence of HIV/AIDS in society, and that declaring Section 377 unconstitutional would be detrimental to the institution of marriage and that it may violate Art. 25  of the Constitution.

Judgement:

The court found that the criminalisation of sexual acts between consenting adults violated the right to equality guaranteed by the Constitution of India. The   court allowed consensual relationships among the individuals of the LGBT community which made it one of the historic Supreme Court judgments. Supreme Court also made it clear that the choice of LGBT persons to enter into physical relationship with persons of the same sex is their choice. They are equally entitled to the enforcement of their Fundamental Rights.

The Apex Court also decriminalized relationship in the same sex when it was consensual. The Court, however, upheld provisions in Section 377 that criminalize non-consensual acts performed on animals.

 

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