Case Analysis

Submitted By: Ria Saxena

Title: Navtej Singh Johar vs. Union of India.
Year: 6th September, 2018
Citation: AIR 2018 SC 4321
Court: Supreme Court of India
Bench: Chief Justice Dipak Misra, Justice A.M. Khanwilkar, Justice Rohinton Fali Nariman, Justice D.Y.
Chandrachud and Justice Indu Malhotra

FACTS OF THE CASE

Section 377 of the Indian Penal Code (IPC) criminalized consensual intercourse between individuals of the same
sex because it was "against the order of nature." In 2009, the Naz Foundation 1 (India) Trust ("Naz")
challenged the validity of Section 377 for violating Articles 14, 15, 19, and 21 of the Constitution before the
Delhi High Court. The court concluded that Section 377's punishment of sexual activity between two consenting
adults breaches their rights to equality, privacy, and personal liberty. This ruling was appealed to the Supreme
Court, which reversed the ‘Naz’ verdict in 2013 in Suresh Kumar Koushal & Anr. v. Naz Foundation & Anr 2. It
held that homosexuality could only be decriminalized by the Parliament.

Navtej Singh Johar, a dancer from the LGBT community, along with Ritu Dalmia, Ayesha Kapur, Aman Nath,
and Sunil Mehra, filed a writ petition on April 26, 2016, challenging the constitutionality of Section 377 of the
Indian Penal Code, which criminalizes consensual sexual intercourse between same-sex adults in private. In
their petition, the petitioners requested that "right to sexuality", "right to sexual autonomy", and "right to
choice of a sexual partner" be included in the right to life protected by Article 21 of the Indian Constitution.
The petitioners also requested that Section 377 of the Indian Penal Code be declared unconstitutional.

PROCEDURAL HISTORY
In ancient India, homosexuality was never a crime or punishable offence. The well-known Khajuraho temple,
the Manusmriti, which has been the source of numerous Indian laws, and the Arthshastra are examples of this.
With the enactment of numerous statutes, it was gradually criminalised. In the nineteenth century, British
Colonial Rulers drafted the Indian Penal Code. The entire code founded on a colonial-era statute that, among
other things, criminalised gay conduct as "unnatural offences" and was riddled with complexities. Section 377
of the Indian Penal Code was drafted in accordance with the Buggery Act, a 16th-century statute. The Buggery
Act, from which Section 377 is purportedly derived, categorised homosexual conduct, sodomy, and sexual
activity with animals as unnatural offences. This Act was passed by the English Parliament in 1533, during the
reign of King Henry VII. This act defined buggery as an act that is contrary to God's will. Under this law,

1
Naz Foundation Vs. Govt. of NCT of Delhi (160 Delhi Law Times 277)
2
Civil Appeal No.10972 of 2013, Supreme Court of India
unnatural offences carried the death penalty. The very first law commission of India, led by Thomas Macaulay,
introduced and authored section 377 of the Indian Penal Code of 1860..

There have been numerous cases challenging the legitimacy of Section 377 in independent India. Prior to this, a
few instances served as precedent for Navtej Singh Johar v. Union of India. In 1994, the AIDS Bhedbhav
Virodhi Abhiyan (ABVA) petitioned the Delhi High Court to decriminalise Statute 377, which was the first time
this section was challenged. In 2001, however, their plea was denied. In July 2009, the Delhi High Court ruled
for the first time in Naz Foundation v. Govt. of NCT of Delhi that elements of Section 377 were unconstitutional
due to violations of Articles 14, 15, and 21 of the Constitution. In 2013, in Suresh Kumar Koushal v. Naz
Foundation, the Supreme Court overruled the Delhi High Court's ruling in Suresh Kumar Koushal v. Naz
Foundation, stating that the topic and decision should be left to Parliament. The courts can only do so if it can be
demonstrated beyond a reasonable doubt that the statute violates constitutional requirements, and the matter
of Section 377 was rejected in 2015.

ISSUES RAISED

1. Whether the ruling in Suresh Kumar Koushal v. NAZ foundation correct or not?
2. Whether section 377 of the Indian Penal Code infringe article 14, 15 and 21 of the Indian
Constitution?
3. Whether Section 377 is in conflict with the fundamental Right to Privacy?
4. Does Section 377 have a "chilling impact" on Article 19 (1)(a) because it criminalizes gender
expression in the LGBT community?

HOLDING
The court determined that Section 377 violates Articles 14 and 15 of the Constitution by discriminating against
individuals based on their sexual orientation and/or gender identity. In addition, they determined that Section
377 breaches the Article 21 rights to life, dignity, and autonomy of choice. In violation of Article 19(1) of the
European Convention on Human Rights, it impedes the ability of LGBT individuals to fully fulfil their identity
(a). Accordingly, the five-judge bench of the Indian Supreme Court (Court) unanimously determined that
Section 377 of the Indian Penal Code, 1860, inasmuch as it applied to consensual sexual conduct between adults
in private, was unconstitutional.

RATIONALE

Arguments from Petitioner side:

• Homosexuality, bisexuality, and other sexual orientations are natural and are not illnesses of the body
or mind. It is a reflection of personal choice, and criminalising it would result in the destruction of
Article 21 of the Indian Constitution by damaging the dignity and gender identity of an individual.
 • It is also stated that a person will not become an alien if his community is not accepted by society as a
whole; therefore, it is necessary to recognise the rights of the LGBT community, which makes up 7-8
per cent of the Indian population.
• The morality and social norms of the Victorian age, in which sexual activity was merely viewed as a
reproductive procedure, form the foundation of Section 377. If homosexuality is criminalised once
more, the LGBT people will continue to face prejudice and abuse for the rest of their life if this section
is reinstated.
• If Section 377 is not amended, it will violate numerous fundamental rights of the LGBT community,
including their right to freedom of speech, right to privacy, right to equality, liberty, and dignity.
• Petitioners have also asserted that those who choose inter-religious and inter-caste marriages are
identical to those who choose a partner of the same gender, and that there is no distinction between the
two. Society may or may not disapprove of inter-caste and inter-religious marriages, but it is the court's
responsibility to uphold the constitutional rights of each individual. Even when the majority
disapproves of the LGBT community, it is the responsibility of the court to defend their constitutional
rights from being violated.
• There is no logical distinction between normal and unnatural sex, and the phrase "carnal intercourse
against nature's order" is not defined anywhere. Article 14 is thus violated by the arbitrariness and
ambiguity of Section 377.
• This clause also violates Article 15 of the Indian Constitution since it discriminates against the LGBT
population based on the sex of their partners, which is prohibited by Article 15 of the Indian
Constitution.
Arguments from Respondent side:
• They have voluntarily submitted it if section-377 is found unconstitutional, the family institution will
be shattered and many young corrupt Indians will begin engaging in homosexual acts for financial
gain. In addition, those who engage in such behaviors are more likely to get HIV/AIDS, which will
increase the proportion of AIDS victims in the country.
• It is also argued that the political, economic, and cultural history of countries in which consensual gay
acts have been decriminalized differs significantly from that of a cosmopolitan and diverse nation like
India.
• Fundamental rights are not absolute, and by decriminalizing Section 377, all religions practiced in the
country will be deemed unacceptable, in violation of Article 25 of the Indian Constitution, which also
requires careful study.
• They also argued that clarifications can be provided to section 377 by clarifying each contested term
that appears in the section. The section will then target those with malicious intent and nonconsensual
conduct.
• The primary rationale for criminalizing carnal intercourse against nature is to protect citizens from
harmful effects, as one of the goals of criminal law is to protect citizens from danger.
• Since Article 15 bans discrimination based on sex but not sexual orientation, section 377 of the IPC
does not violate Article 15. Moreover, it does not violate Article 14 either, as that provision specifically
specifies a particular offence and its punishment.
ORDER
Section 377 of the Indian Penal Code, 1860, insofar as it relates to consenting sexual behavior between adults in
private, was deemed unconstitutional by a five-judge bench of the Indian Supreme Court (Court).

JUDGEMENT
• The court stated that, regardless of the size of the LGBT community, they have the right to privacy,
which includes physical intimacy. Their choice of spouse may be dissimilar, but they will not be
prosecuted for it. Their right to privacy, which is protected by Article 21, is violated by Section 377,
which violates their human dignity and personal freedom.
• The primary reason for preserving section 377 is to protect women and children from being abused
and harassed by carnal intercourse; yet, voluntary carnal intercourse done by the LGBT community is
neither harmful to women nor children. In addition, non-consensual actions are already defined as a
crime by section 375 of the Indian Penal Code, which means that section 377 is redundant and
discriminatory against one segment of the population, therefore violating Article 14 of the Indian
Constitution and rendering it unconstitutional.
• Since our Constitution is liberal, it is unlikely that the right to choose will be absolute. Therefore, some
constraints have been placed on the choice principal. However, the right to choose an intimate partner
is entirely a matter of personal choice that cannot be curtailed. Inasmuch as Section 377 of the Indian
Penal Code inhibits the ability of the LGBT people to choose a sexual partner, it is irrational and
capricious.
• Public order, decency, and morality are reasons for imposing reasonable restrictions on the right to free
speech. Any act of affection performed in public by the LGBT community does not harm public order
or moral standards if it is respectable and not obscene. However, Section 377 is again illegal since it
does not meet the proportionality criteria and violates the LGBT group's fundamental right to freedom
of expression.
• The Supreme Court held that Section 377 is unconstitutional because it breaches Articles 14, 15, 19,
and 21 of the Indian Constitution, overturning the ruling in Suresh Koushal et al. v. Naz Foundation 3 et
al. In addition, it stated that section 377 shall exclusively govern nonconsensual sexual activities
performed against adults and minors.

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Civil Appeal No.10972 of 2013, Supreme Court of India
CONCLUSION
Even though homosexuality is no longer a criminal offence, the LGBT community is nevertheless facing
obstacles in the form of reactions from society as a whole and from various organisations. Despite the fact that
there are organisations who have voiced their dissatisfaction with the decision that the Supreme Court has made
over section-377. 4In addition, there are organizations and political parties that are content with the decision that
was reached. This landmark decision in Indian legal history was the culmination of years of struggle and
opposition inside the country's judicial system. There is still a considerable distance to travel before any culture
can fully accept any kind of change.

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Navtej Singh Johar vs. Union Of India (AIR 2018 SC 4321)
REFERENCES
1. https://indiankanoon.org/doc/168671544/
2. https://translaw.clpr.org.in/case-law/navtej-singh-johar-vs-union-of-india-section-377/
3. https://globalfreedomofexpression.columbia.edu/cases/navtej-singh-johar-v-union-india/
4. https://main.sci.gov.in/supremecourt/2016/14961/14961_2016_Judgement_06-Sep-2018.pdf