The present petition was filed in the Navtej Singh Johar v Union of India case in 2018 to legalize homosexuality and recognize the rights of the LGBT community. Earlier in the year 2009, the Delhi High Court deemed that the first portion of Section 377 IPC was unconstitutional and the matter was rejected by Supreme Court in 2015. The present writ in Navtej Singh Johar vs Union of India was filed to challenge the constitutional validity of section 377 of IPC, which criminalizes consensual sexual intercourse between the same adults in private.
Writ Petition Criminal No. 76 of 2016
AIR 2018 SC 4321
BENCH IN NAVTEJ JOHAR VS UNION OF INDIA
Hon’ble Chief Justice Dipak Misra
Hon’ble Justice A.M. Khanwilkar
Hon’ble Justice Rohinton Fali Nariman
Hon’ble Justice D.Y. Chandrachud
Hon’ble Justice Indu Malhotra
DATE OF JUDGEMENT IN NAVTEJ SINGH JOHAR VS UOI
6th September 2018
RELEVANT SECTION NAVTEJ JOHAR VS UOI
- Section 377 of Indian Penal Code, 1860:
“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 offence described in this section.”
- Article 14, 15, and 21 of Constitution of India, 1950
FACTS OF THE CASE
- That the petitioner, i.e. Navtej Singh Johar, who is a dancer from LGBT community had filed a writ petition along with the other five members of the said community to challenge the constitutional validity of Section 377 IPC.
- Further, he stated in this petition for the declaration of their rights relating to Right to sexuality, Right to sexual autonomy and Right to choose sexual partner, which is the part of the Article 21 of the Constitution of India.
- The petition also included to declare the Section 377 of Indian Penal Code as unconstitutional. Navtej Johar also contended that the people of LGBT community faced humiliation because of their lifestyle or for certain choices, which also violates their right to privacy.
- Whether the Section 377 of IPC violates the Right to equality under Article 14 of the Constitution of India?
- Whether the Section 377 discriminates based on sexual orientation which violates Article 15 of the Constitution of India?
- Whether the Section also violates the Right to choose their partner, Right to live their life with dignity, which violates the Article 21 of the Constitution of India?
CONTENTION OF THE PARTIES
Petitioner- The petitioner argued that in this modern era, section 377 of IPC which criminalizes homosexuality was outdated and it needs to be changed with passaging time according to the needs of society.
Further, it was also contended that the LGBT community faced fear in prosecution, and upon revealing their identity, therefore they never approach the courts.
Respondent- The Respondent i.e. Union of India submitted their arguments by stating that Section 377 of IPC was included in the statute to prevent child sexual abuse. They said that these acts cannot be legitimate because two adults consented to them and public authorities need to interfere for public safety and morals.
That according to the National Aids Control Organization has agreed that homosexuality is extremely vulnerable to HIV/AIDS. That reports of 25 lakhs homosexuals had submitted who are under High-Risk behavior i.e. people getting affected by HIV.
That they further argued that Article 15 of the Constitution does not get violated because it prohibits discrimination based on religion, race, caste, sex, place of birth, and not specifically sex orientation.
That it did not violate Article 14 as it is well within the power of State to determine who should be regarded as the class of legislation.
RATIO OF NAVTEJ SINGH CASE
The Hon’ble Chief Justice Dipak Misra opined his viewpoint by stating there is a need for transformative constitutionalism and progressive approach towards the realization of rights that it must guide the constitution towards the society’s transformation where the fundamental rights are properly guarded. The Hon’ble Chief Justice further stated that “Constitutional morality should prevail over social morality” to ensure that human rights of the LGBT community are protected whether that such rights had or had not the approval of majoritarian Government.
The Honourable Justice Nariman stated his opinion that since section 377 was having namely Victorian morality, there was no moral in continuing that law. He also concluded that there Union of India should take all measures to eliminate the stigma faced by the LGBT community in society. That Police officials and government should work to ensure the favorable treatment to them.
The Honorable Justice DY Chandrachud makes his opinion that if Section 377 continues to prevail, it would marginalize the LGBT community from the health services and the prevalence of HIV will exacerbate. He further stated that law should not discriminate them against the same-sex relationship and there should be necessary steps taken to achieve equal protection and grant them equal citizenship to their community in all its manifestations.
The Honorable Justice Indu Malhotra in the Navtej Johar case was of the opinion that homosexuality is not a disability but a variation of sexuality. Further, she stated that the right to privacy not only means the right to be left alone but also extends to spatial and decisional privacy. She concluded that history should owe an apology towards the members of the LGBT community and their families for delaying in seeking redress for the hardships for which they are suffering for a long time.
After hearing and observing all the facts of the Navtej Singh Johar case, the Honorable Supreme Court declared that Section 377 of IPC is unconstitutional as it violates the Article 14, 15 and 21 of Constitution of India.
Therefore, the Court overruled the judgment given in Suresh vs NAZ Foundation case. It also declared that Section 377 of IPC only governs non-consensual sexual acts committed against any adult and minor.
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