Navtej Singh Johar v. Union of India


Author: Aayush Akar, NLUO

India was among Asia’s 28 countries in banning homosexuality and acknowledging LGBT rights. The decision passed in “Navtej Singh Johar v. Union of India” has improved many people’s lives within the nation. The LGBT Community had no such rights before this decision as homosexuality was a criminal offence under “Section 377 of the IPC of 1860”. “Section 377 was based on the Burggery Act, 1553 which defined buggery an act against the will of God.” “The very first Law Commission brought this law in Section 377 in IPC 1860.”

Appeal- This case is an appeal against the judgment by the same court in 2013 in the case of “Suresh Kumar Kousal v. NAZ Foundation”.

Quorum- “CJI-Dipak Misra, Justice A.M. Khanwilkar, Justice Rohinton Fali Nariman, Justice D.Y. Chandrachud and Justice Indu Malhotra”

Issue- The present case deals with the constitutionality of “Section 377 IPC”.

Arguments from the petitioner side- Homosexuality, bisexuality, or other sexual interest is a natural thing and is not a physical or mentally disorder. It represents sexual preference and criminalizing it would contribute to the infringement of “Article 21 of the Indian Constitution” by impacting the privacy of a person and his or her gender identity.

It is also contended that an individual will never become an alien if the society as a whole does not accept his community, and thus the privileges of the LGBT community, which constitutes 7-8 percent of the population, must be accepted.

“Section-377” is focused on the morality and societal ideals of the Victorian period, when sexual intercourse was perceived to be a natural mechanism and nothing other than that. That segment is the sole explanation that the LGBT group has been discriminated against and oppressed all their life and will continue to struggle if homosexuality is outlawed again.

If “Section-377” remained unchanged, it will result in the infringement of numerous constitutional rights of the LGBT community, i.e. the right to freedom of speech, privacy rights, the right to liberty, democracy, and integrity.

“Article 15” proscribes discrimination on grounds of sex but not on grounds of gender identity, and therefore “Article 15” is not in breach of “Section 377 of the IPC”. It is also not in violation of “Article 14”, as the section only states a specific offence and its punishment.

Arguments from the respondent side- They have contended if “Section 377” is ruled outlawed, then the household structure will be shattered and several corrupt young Indians will see this as commerce and begin using homosexual intercourse for money. Also, individuals engaged in such practices are more prone to contract Aids which will increase the proportion of AIDS victims in the nation.

It is also argued that the social, cultural and economic identity of nations where consensual homosexual acts were outlawed is very distinct from that of a multi-ethnic and diverse nation like India.

Fundamental rights are not absolute and the decriminalization of “Section-377” leaves all religions practiced in the nation to be objectionable and leads to an infringement of “Article 25 of the Indian Constitution”, which must also be given adequate regard.

“Article 15” forbids discrimination based on sex, but not based on sexual orientation, and therefore “Article 15 does not contravene section-377 of the IPC”. It is also not in violation of Article 14, as the section just states a specific offence and its punishment.

Judgment- No matter how tiny the LGBT segment is, they have a privacy right that involves physical sexual desire. Their choice of partner may be distinct, but that doesn’t mean they’re going to be punished for that. “Section-377” restricts their fundamental human rights and their individual choice, thereby infringing their privacy rights, which is the subject of “Article 21”.

The principal purpose of preserving Section 377 is to safeguard against violence and harassment of women and children by carnal relations, but consensus carnal relations carried out in the LGBT group are neither harmful to women nor children. Also, “non-consensual acts” have been made as an offence under “Section-375 of the IPC”, which means that Section-377 is obsolete and discriminatory towards one segment of society so it violates “Article 14 of the Indian Constitution”, which makes it inadmissible.

Since our Constitution is progressive, it is not feasible that the right of preference will be utter. Since restrictions have thus been levied on the principle of choice but the right to choose a companion for a relationship is entirely a personal choice that cannot be constrained. While “Section-377 of the IPC” restricts the right of the LGBT group to choose a partner and is thus unreasonable and illogical.

Law and order, decency, and ethics are justification that may enforce reasonable limits on the fundamental human right of expression. Any act carried out by the LGBT community will not endanger law and order or ethical values unless it is sufficiently decent and absurd. But, “Section-377” is indeed unlawful in the context that it does not comply with the reasonableness parameters and violates the fundamental human rights of the LGBT community.

In violation of “Articles 14, 15, 19, and 21” of the Constitution, the Top Court ruled that “Section-377” is unlawful, thus reversing the “Suresh Koushal and the Naz Foundation”. Also, it claimed that only non-consensual sexual crimes committed against adults and minors would be regulated in “Section-377”.