Navtej Singh Johar V/s Union of India

Case Analysis

Navtej Singh Johar V/s Union of India

July 9, 2021

By:- Lakshay Sharma

In the Supreme Court of India

Name of the Case	Navtej Singh Johar V/s Union of India
Citation	AIR 2018 SC 4321; W. P. (Crl.) No. 76 of 2016; D. No. 14961/2016.
Date of the Case	6 September 2018
Petitioner	Navtej Singh Johar & Ors.
Respondent(s)	Union of India & Ors.
Bench/Judges	Dipak Misra, R. F. Nariman, D. Y. Chandrachud and Indu Malhotra.
Statutes/Constitution Involved	The Constitution of India, The Indian Penal Code.
Important Sections/Articles	Art. 14, 15, 19, 21, 25 of the Constitution of India, Right to Privacy under Fundamental Rights, S. 377 of the Indian Penal Code.

Abstract

Navtej Singh Johar V/s Union of India was one of the most crucial cases, which transformed our Indian laws and delivered us with a better interpretation of those laws. Right to Life under Art. 21 of The Indian Constitution is not just about letting a person live, but allowing everyone to live they want to live, in any means not hurting those of others. Neither The Indian Constitution talks about the Right to Equality on a discriminate basis. Every living being is to enjoy those rights without any discrimination or inequality.

Introduction

A person’s Natural Identity is to be treated as essential. What a person is born with is natural, the same way the personality a person is born with is natural and is to be respected and accepted rather than be despised or looked down upon. Deteriorating or obstructing a person’s personality and identity would be no less than crushing the values of Privacy, Choice, Freedom of Speech, and other Expressions. For long, the transgender community has been looked down upon, to which once Radhakrishnan, J. stated, Gender identity refers to each person‘s deeply felt internal and individual experience of gender, which may or may not correspond with the sex assigned at birth, including the personal sense of the body which may involve a freely chosen, modification of bodily appearance or functions by medical, surgical or other means and other expressions of gender, including dress, speech, and mannerisms.

Gender identity, therefore, refers to an individual‘s self-identification as a man, woman, transgender, or other identified category. Many religious bodies have opposed the Carnal intercourse against the Order of nature and some recognize it as an act ridiculing the constitutional concept of Dignity. The Navtej Singh Johar V/s Union of India, was the landmark case which led to the struck down of S. 377 of The Indian Penal Code, as it stated – Whoever voluntarily has carnal intercourse against the order of nature with any man, woman or animal, shall be punished with 1[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.

Background of the Case

Writ Petition (Crl) No. 76 of 2016 was filed for declaring 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 under A. 21 of the Constitution of India and to declare S. 377 of the Indian Penal Code to be unconstitutional. Mr. Arvind Datar, learned senior counsel appearing for the writ petitioners, submitted that the two-Judge Bench in Suresh Kumar Koushal and another v. Naz Foundation had been guided by social morality based on majoritarian perception whereas the issue, in actuality, needed to be debated upon in the backdrop of constitutional morality.

Also in a Nine-Judge Bench decision in K.S. Puttaswamy and another v. Union of India and Ors., has opined that sexual orientation is an essential component of rights guaranteed under the Constitution which are not formulated on majoritarian perception.

Mr. Arvind Datar stated that he does not intend to challenge the part of S. 377 that relates to carnal intercourse with animals, he confines consenting acts between two adults. The consent between two adults has to be the primary pre-condition. Otherwise, the children would become prey, and protection of the children in all spheres has to be guarded and protected.

Facts of the Case

Navtej Singh Johar, a dancer along with Sunil Mehra a journalist, a chef Ritu Dalmia, hoteliers Keshav, Aman Nath, and a Businesswoman Ayesha Kapur, collectively filed a writ petition in the Supreme Court seeking a declaration 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 under A. 21 of the Constitution of India and to declare S. 377 of the Indian Penal Code to be unconstitutional, as it was obstructing the rights of the LGBT community. It was stated that this section not only just violated A. 21 but also A. 15, 19 along with the Right to Privacy under the Fundamental Rights in The Indian Constitution. There had also been several cases in the past like the Naz Foundation v. Govt. of N.C.T. of Delhi and Suresh Kumar Koushal v. Naz Foundation, which were also kept in consideration during this case.

Issues Raised

Whether the rationale adopted in the Suresh Kaushal judgment was proper or not?
Whether S. 377 violates A. 14 and 15 of the constitution?
Whether S. 377 violates the right to privacy under A. 21?
Whether S. 377 has a ‘chilling effect’ on A. 19 (1) (a) by criminalizing gender expression by the LGBT community?

Arguments of the Petitioner

The Petitioner had grieved that, the members of the LGBT community were deprived of the right to life guaranteed by Art. 21 of the Constitution of India.
The S. 377 of The Indian Penal Code was in a clash with the A. 14, 15 of the Indian Constitution as they, as a human being were treated unequal to others and discriminated on basis of sex of a person’s sexual partner and they, were forced to not to choose a partner of their liking.
A. 19 of The Indian Constitution out of all was the most severed, as the community was denied to express their sexual identity through speech and choice of a partner of their liking.
Right to privacy under the Fundamental Duties was being affected as they were shunned by society on discovering their certain choice of living.
It was urged to the declaration of the S. 377 of The Indian Penal Code, unconstitutional and recognizing the right to sexuality, right to sexual autonomy, and right to choice of the sexual partner to be part of A. 21 of the Indian Constitution.

Arguments by the Respondents

The Union of India, taking a neutral side left the matter to the Hon’ble Court by giving remark of “It left the question of the constitutional validity of Section 377 to the wisdom of the Court”. And also asked whether the law laid down in Suresh Kumar Koushal v. Naz Foundation, is correct or not.
Shri K. Radhakrishnan, senior counsel, on behalf of intervenor-NGO, Trust God Ministries argued, there is no personal liberty to abuse one‘s organs and that the offensive acts proscribed by S. 377 are committed by abusing the organs. Such acts, as per the intervenor, are undignified and derogatory to the constitutional concept of dignity and if any infraction is caused to the concept of dignity, then it would amount to constitutional wrong and constitutional immorality.
The persons indulging in unnatural sexual acts which have been made punishable under S. 377 are more susceptible and vulnerable to contracting HIV/AIDS, also the percentage of prevalence of AIDS in homosexuals is much greater than heterosexuals, and that the right to privacy may not be extended to enable people to indulge in unnatural offenses and thereby contact AIDS.
Mr. Suresh Kumar Koushal, intervenor, by a written submission argued therein that the argument of the petitioners that consensual acts of adults in private have been decriminalized in many parts of the world and, therefore, it deserves to be decriminalized in India.
In the event consenting acts between two same-sex adults are excluded from the ambit of S. 377, then a married woman would be rendered remediless under the IPC against her bi-sexual husband and his consenting male partner indulging in any sexual acts.
On behalf of Raza Academy, intervenor, through its learned counsel Mr. R.R Kishore, it was argued that homosexuality is against the order of nature and S. 377 rightly forbids it.

Related Provisions

Art. 14 of the Constitution of India:

Equality before law The State shall not deny to any person equality before the law or the equal protection of the laws within the territory of India Prohibition of discrimination on grounds of religion, race, caste, sex, or place of birth

Art. 15 of the Constitution of India:

Prohibition of discrimination on grounds of religion, race, caste, sex, or place of birth

(1) The State shall not discriminate against any citizen on grounds only of religion, race, caste, sex, place of birth, or any of them

(2) No citizen shall, on grounds only of religion, race, caste, sex, place of birth, or any of them, be subject to any disability, liability, restriction, or condition with regard to

(a) access to shops, public restaurants, hotels, and palaces of public entertainment; or

(b) the use of wells, tanks, bathing ghats, roads, and places of public resort maintained wholly or partly out of State funds or dedicated to the use of the general public

(3) Nothing in this article shall prevent the State from making any special provision for women and children

(4) Nothing in this article or in clause ( 2 ) of Article 29 shall prevent the State from making any special provision for the advancement of any socially and educationally backward classes of citizens or for the Scheduled Castes and the Scheduled Tribes

Art. 19 of the Constitution of India:

Protection of certain rights regarding freedom of speech etc

(1) All citizens shall have the right

(a) to freedom of speech and expression;

(b) to assemble peaceably and without arms;

(d) to move freely throughout the territory of India;

(e) to reside and settle in any part of the territory of India; and

(f) omitted

(g) to practice any profession, or to carry on any occupation, trade, or business

(2) Nothing in sub-clause (a) of clause ( 1 ) shall affect the operation of any existing law, or prevent the State from making any law, in so far as such law imposes reasonable restrictions on the exercise of the right conferred by the said sub-clause in the interests of the sovereignty and integrity of India, the security of the State, friendly relations with foreign States, public order, decency or morality or in relation to contempt of court, defamation or incitement to an offense.

(3) Nothing in sub-clause (b) of the said clause shall affect the operation of any existing law in so far as it imposes, or prevent the State from making any law imposing, in the interests of the sovereignty and integrity of India or public order, reasonable restrictions on the exercise of the right conferred by the said sub-clause

(4) Nothing in sub-clause (c) of the said clause shall affect the operation of any existing law in so far as it imposes, or prevent the State from making any law imposing, in the interests of the sovereignty and integrity of India or public order or morality, reasonable restrictions on the exercise of the right conferred by the said sub-clause

(5) Nothing in sub-clauses (d) and (e) of the said clause shall affect the operation of any existing law in so far as it imposes, or prevent the State from making any law imposing, reasonable restrictions on the exercise of any of the rights conferred by the said sub-clauses either in the interests of the general public or for the protection of the interests of any Scheduled Tribe

(6) Nothing in sub-clause (g) of the said clause shall affect the operation of any existing law in so far as it imposes, or prevent the State from making any law imposing, in the interests of the general public, reasonable restrictions on the exercise of the right conferred by the said sub-clause, and, in particular, nothing in the said sub-clause shall affect the operation of any existing law in so far as it relates to, or prevent the State from making any law relating to,

(i) the professional or technical qualifications necessary for practicing any profession or carrying on any occupation, trade or business, or

(ii) the carrying on by the State, or by a corporation owned or controlled by the State, of any trade, business, industry, or service, whether to the exclusion, complete or partial, of citizens or otherwise.

Art. 21 of the Constitution of India:

Protection of life and personal liberty No person shall be deprived of his life or personal liberty except according to procedure established by law.

Art. 25 of the Constitution of India:

Freedom of conscience and free profession, practice and propagation of religion

(1) Subject to public order, morality, and health and to the other provisions of this Part, all persons are equally entitled to freedom of conscience and the right freely to profess, practice, and propagate religion

(2) Nothing in this article shall affect the operation of any existing law or prevent the State from making any law

(a) regulating or restricting any economic, financial, political, or other secular activity which may be associated with religious practice;

(b) providing for social welfare and reform or the throwing open of Hindu religious institutions of a public character to all classes and sections of Hindus Explanation I The wearing and carrying of kirpans shall be deemed to be included in the profession of the Sikh religion Explanation II In sub-clause (b) of clause reference to Hindus shall be construed as including a reference to persons professing the Sikh, Jaina or Buddhist religion, and the reference to Hindu religious institutions shall be construed accordingly

Right to Privacy under Fundamental Rights:

No person shall be deprived of his life or personal liberty except according to the procedure established by law

S. 377 of the Indian Penal Code:

Unnatural offences.—Whoever voluntarily has carnal intercourse against the order of nature with any man, woman or animal, shall be punished with 1[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. Explanation.—Penetration is sufficient to constitute the carnal intercourse necessary to the offense described in this section.

Judgment

S. 377 of The Indian Penal Code, insofar as it applied to the consensual sexual conduct between the adults in private was declared Unconstitutional.
The decision in the Suresh Kumar Koushal v. Naz Foundation was overruled.
Fundamental rights are available to the LGBT community even though they constitute a minority.
S. 377 is violative of A. 14 being wholly arbitrary, vague, and has an unlawful objective.
S. 377 penalizes a person based on their sexual orientation and is hence discriminatory under A. 15.
S. 377 violates the right to life and liberty guaranteed by A. 21 which encompasses all aspects of the right to live with dignity, the right to privacy, and the right to autonomy and self-determination concerning the most intimate decisions of a human being.

Conclusion

The judgment in the case was historic as it struck down the S. 377 of The Indian Penal Code and it gave them the freedom to the Homosexuals and all the members of the LGBT community to freely express themselves and to walk with a head high in the society. They don’t have to fear being shunned by society and their right to privacy being obliterated and declared as criminals just because they expressed their affection and feelings for their sexual partner.

This judgment was an overjoy for every member of the LGBT community and other Heterosexuals. The decision was appreciated even overseas by various NGO’s and groups named The Human Rights Watch, thus gaining international recognition.

Various interpretations were made to make clear what laws said and that they are to adhere to and everyone in the society is to be treated equally.