FACTS OF THE CASE
The writ petition filed by, dancer Navtej Singh Johar who confirmed himself as the part of the LGBTQ community, with journalist Sunil Mehra, chef Ritu Dalmin, hoteliers Aman Nath and Keshav Suri, businesswoman Ayesha Kapur, which comprised of some considerable questions of law on Section 377 of Indian Penal Court, 1860, challenging the constitutional validity of “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 for 10 years, and shall also be liable to fine.”
This issue arised in 2009 before Delhi High Court, in the case NAZ foundation Trust v. Government of NCT of Delhi, challenging the constitutionality of Section 377 of IPC under Article 14, 15, 19 and 21 of the constitution. The Delhi High Court read down the section 377 of IPC as unconstitutional, on the grounds, that it violates the right to equality, protection from discrimination, freedom of expression and human dignity of consenting adults having consensual sexual intercourse.
In 2013, the decision of the case NAZ foundation trust v. Government of NCT of Delhi, was appealed by Suresh Kumar Koushal, before the Supreme Court in the case Suresh Kumar Koushal v. NAZ foundation. The Supreme Court overturned the Delhi High Court verdict of decriminalizing Section 377 of IPC, and held that only the Parliament could have the decision of decriminalized homosexuality.
The Supreme Court on 2018, formed a constitutional bench of Chief justice Dipak Mishra, Justice D.Y. Chandrachud, Justice A.M. Khanwilkar, Justice R. Nariman and Justice Indu Malhotra for hearing the challenge to Section 377 of IPC.
- Whether Section 377 of IPC violates Article 14 and 15 of the Constitution by allowing discrimination on the basis of ‘sexual orientation’ and ‘gender identity’?
- Whether Section 377 of IPC violates the fundamental right to expression under Article 19(1)A of the constitution by criminalizing the gender expression of the LGBTQ community?
- Whether Section 377 of IPC violates the right to privacy under Article 21 of the constitution by penalizing private consensual acts between two consenting same sex adults?
On 6th September 2018, the 5 judges bench of the Supreme Court unanimously partially struck down Section 377 of Indian Penal Court, 1860, to the extent that it decriminalizing same sex relations between consenting adults but criminalise non-consensual acts or sexual acts performed on animals.
In Navtej Singh Johar v. Union of India case, the Supreme Court overruled the decision made in Suresh Kumar Koushal v. NAZ foundation, that had upheld the constitutionality of Section 377. The language of Section 377 is vague in the sense that it did not define “carnal intercourse against the order of nature” and there is no intelligible differentia between natural and unnatural sexual acts. The intimacy between consenting adults of same sex is beyond the legitimate interests of the state. Sodomy laws violate the right to equality under Article 14 and 15 of the Constitution, by targeting a segment of the population for their sexual orientation, without any reasonable grounds.
The court held that Section 377 amounts to an unreasonable restriction on the right to freedom to expression since consensual carnal intercourse in private “does not in any way harm public decency or morality” and held a “chilling effect” on Article 19 of the Constitution, since it denied the right to express one’s sexual identity through speech and choice of romantic or sexual partner.
Further, the court held that not granting privacy to LGBT community merely because they are a minority is violative of the fundamental right to live with dignity under Article 21 of the Constitution.
The court relied upon its decision in National legal services authority (NALSA) v. Union of India, no discrimination on the basis of gender, gender identity is innate to one’s personality and denying the same would be violative of one’s dignity. The court relied upon its decision in K.S. Puttaswamy v. Union of India, held that denying the LGBT community its right to privacy on the ground that they form a miniscule minority of the population would be violative of their fundamental rights. Further, the court also relied upon its decision in Shafin Jhan v. Asokan A.M. and Shakti Vahini v. Union of India to reiterate that an adult’s right to “choose a life partner of his/her choice” is a facet of individual liberty.
The court reasoned that discrimination on the basis of sexual orientation was violative of the right to equality, that criminalizing consensual sex between adults in private was violative of the right to privacy, that sexual orientation forms an inherent part of self-identity and denying the same would be violative of the right to life, and that fundamental rights cannot be denied on the ground that it only affect a miniscule section of the population.
Lloyd Law College