NAVTEJ SINGH JOHAR VERSUS UNION OF INDIA, Thr. SECRETARY, MINISTRY OF LAW AND JUSTICE

WRIT PETITION (CRIMINAL) NO. 76 OF 2016

Decided on- 6th September, 2018

Bench- Dipak Misra CJI, A. N. Khanwilkar Judge, D.Y. Chandrachud Judge, Indu Malhotra Judge, R F Nariman Judge.

FACTS OF THE CASE

Section 377 of the Indian Penal Code states- “Unnatural offences: 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.”

In 2009, in a case named Naz Foundation v. Government of NCT of Delhi, the Delhi High Court struck down section 377 of the IPC. The petitioners challenged the provision’s constitutionality and contended that the section was violative of Article 14, 15, 19 and 21 of the Constitution. The parties contended that it was a victorian- era law and had no place in today’s society. It also punished two consenting adults having consensual sexual intercourse which was not in any manner peno- vaginal or beastly. The HC struck the section down observing that the section clearly infringed the right to personal liberty, right to live with dignity and privacy of an individual. It violated the right of equal protection guaranteed by the Constitution through Article 14.

Then in 2013, a petitioner Suresh Kumar Koushal challenged the decision of the Delhi High Court in the above case. The Supreme Court in this case, Suresh Kumar Koushal v. Naz Foundation and Ors., overruled the Delhi HC’s decision and reinstated Section 377 based on the reasoning that only the Parliament had the power to debate and declare the section unconstitutional. “A miniscule fraction of the country’s population constitutes lesbians, gays, bisexuals or transgenders and that the High Court had erroneously relied upon international precedents in its anxiety to protect the so-called rights of LGBT community.” The bench comprising of Justice G. S. Singhvi and J. S. Mukhopadhyaya stated- “ “In view of the above discussion, we hold that Section 377 IPC does not suffer from the vice of unconstitutionality and the declaration made by the Division Bench of the High Court is legally unsustainable.”

Five individuals from the LGBT community, dancer Navtej Singh Johar, journalist Sunil Mehra, businesswoman Ayesha Kapur, hoteliers Aman Nath and Keshav Suri and chef Ritu Dalmia filed a writ petition before the Supreme Court, challenging the constitutional validity of Section 377 of the IPC and the decision of the two judge bench in the Suresh Koushal case. They challenged the section “punishing consenting adults having sexual intercourse and rendering it as an act against the order of nature”.

ISSUES RAISED

• Whether Section 377 of the IPC violated-Right to Equality guaranteed by Article 14 of the Constitution
  Freedom of Speech and Expression under Article 19 Right to Privacy and Right to live with dignity under Article 21 of the Constitution.
• Whether, rendering consensual relationship a crime as being against the order of nature according to Section 377 of the IPC is arbitrary?
• Whether the fact that the law discriminates between individuals based on sexual orientation is violative of Article 15 of the Constitution?

ARGUMENTS BY BOTH SIDES

PETITIONER

The counsel for the petitioners relied on the ratio in the case K. S. Puttaswamy v. Union of India, which laid down that “ sexual orientation is also an essential attribute of privacy. Therefore, protection of both sexual orientation and right to privacy of an individual is extremely important, for without the enjoyment of these basic and fundamental rights, individual identity may lose significance, a sense of trepidation may take over and their existence would be reduced to mere survival.” That the right to privacy also extends to LGBTs who have a right to exercise their choice without any fear of being subjected to humiliation. No person has the power to direct how an individual chooses to go to bed as.
The counsels while re-affirming the Delhi HC’s decision in the Naz Foundation case, also placed reliance on the case of Manoj Narula v. Union of India, as an example of cases where constitutional morality had been averted to. The Supreme Court is the guardian of the Constitution, and it is this SC who is “the final arbiter of constitutional rights” and that should protect the constitutional morality and do away with the social disregards.
To substantiate their contentions, counsel for the petitioner, sought reference from the cases, Francis Coralie Mullin v. Administrator, Union Territory of Delhi and others and Common Cause (A Registered Society) v. Union of India and another, wherein the bench held that Article 21 guarantees the right to life and liberty, and it is meaningless if it cannot confer individual dignity to all including the LGBT community, and the meaningful expression of human self.
The petitioners drew the attention of the Court to the Justice J.S Verma Committee on Amendments to Criminal Law which had observed that “ ‘sex’ occurring in Article 15 includes sexual orientation and, thus, as per the petitioners, Section 377 was also violative of Article 15 of the Constitution on this count.”
It was also contended that the LGBT community feared prosecution and persecution upon revealing their identity and therefore they never approach the court. They seek help from parents, teachers, NGOs, to speak on their behalf.

RESPONDENT

The counsel contended that Article 15 of the Constitution was not violated since it only prohibits discrimination on the grounds of only religion, race, caste, sex, place of birth or any of them but not sexual orientation.
They placed reliance on the case of Fazal Rab Choudhary v. State of Bihar wherein it was observed that the section implied sexual perversity, or sexual bestiality that was against the order of nature and it was very well within the jurisdiction of the State to put ‘reasonable restrictions’ on the activities between a man and woman that were offensive, perversive or against the order of nature.
Placing reliance on the decision in State of Gujarat v. Mirzapur Moti Kureshi Kassab Jamat and others, the counsel contended that the interest of the society, country or community as a whole is primary to the interest of an individual citizen notwithstanding how important the citizen’s interests are.
Firstly, the Court does not have the authority to amend a statutory provision, add or delete words from it. Secondly, if the section is decriminalised insofar as it penalizes sex between two people of the same sexual orientation, it will affect the family system and the institution of a marriage, traditionally believed to happen between a male and female, it will give rise to a number of social issues, which the legislature cannot accomodate at this point of time, and these issues will create a menace for the existing laws too.

JUDGEMENT

The judgement order dated September 6th, 2018 reads-

The 5 judge bench unanimously declared that Section 377 was unconstitutional in so far as it criminalised, two adults of the same sexual orientation having consensual sexual intercourse and that is was a matter of utmost privacy. It overruled the decision of the bench in Suresh Koushal v Naz Foundation.

The Court relied on its own decision in National Legal Services Authority v. Union of India, where it reiterated that “gender identity is intrinsic to one’s personality and denying the same would be violative of one’s dignity.”
It would be violative of their fundamental right to privacy if we discriminate between the LGBT based on the ground that they form a minority of the population.

The bench also referred to Shafin Jahan v. Asokan K.M. and Shakti Vahini v. Union of India to reinstate that an adult’s right to “choose a life partner of his/her choice” is an aspect of individual liberty.
Something that two individuals belonging to the LGBT community decide to do in private in no manner harms the “public decency or morality”. “Intimacy between consenting adults of the same sex is beyond the legitimate interests of the state”

The Chief Justice relied on the “principles of transformative constitutionalism and progressive realization of rights and held that the constitution must guide society’s transformation from an archaic to a pragmatic society where fundamental rights are fiercely guarded.” He further stated, “constitutional morality would prevail over social morality”. They also affirmed that homosexuality was “not an aberration but a variation in the sexual orientation of an individual”.

EFFECT OF THE JUDGEMENT

The judgement has placed reliance on the concept of transformative constitutionalism which has paved a way for a plethora of very essential amendments and reformations in the legal field. It has been a landmark judgement in the history of the country since it not only recognizes the identity of individuals belonging to the LGBT community but also confers upon them global acceptance by the society. After this relief through a landmark judgement, the next fight in the history of legal arena would for the social and economic provisions for such individuals including the right to marry a person of the same sex or any person of their choice.