Author: Arpita Sengupta.
(2018) 10 SCC 1
NAMES OF THE PARTIES
Petitioner(s): Navtej Singh Johar and Others
Respondent(s): Union of India
Chief Justice of India Dipak Misra;
Justice Rohinton Nariman;
Justice D Y Chandrachud;
Justice A M Khanvilkar;
Justice Indu Malhotra.
This case analysis focuses on the role and uniqueness of one’s individuality and identity in society and its importance in one’s life. There should be equality in rights and opportunities, no discrimination of any kind that can infringe the fundamental rights of a person as enshrined in the Constitution of India and an acceptance of diversity to eliminate the stereotype and typical perception that is ingrained in the mindset of people in the society. The natural and original identity should always be cherished and it should not be treated as an object of shame. Consensual sex between the same genders should not be held unconstitutional or criminalized. Sexual orientation or choosing a partner of one’s choice is the sole right that cannot be snatched merely for the reason that it affects a majority section of the population. Social morality should never be justified and acceptable if it violates the fundamental rights of minorities. Further, no person should be discriminated against or face any kind of discrimination based on his/her sexual orientation.
In India, sexual intercourse between the same genders was highly unacceptable and was held unconstitutional and this action was extremely condemned in every section of society. There was a situation when individuals having different sexual orientations or individuals from the LGBT community feared to speak up for their rights and choices, as they knew that society will never accept and justify their rights and actions. For ages, this community was stigmatised and was not considered to be a part of society. Even, though they were not considered humans. In addition, to criminalise the sexual act between the same genders, we have a provision in the Indian Penal Code 1860 that punishes individuals of the same gender indulging in sexual intercourse. Section 377 of the Indian Penal Code 1860, criminalised consensual adult sex or sexual intercourse between same genders and was considered “against the order of nature”. In 2009, the Naz Foundation Trust challenged the constitutional validity of section 377 of the Indian Penal Code 1860 in the Delhi High Court which according to them violated Articles 14, 15, 19 and 21 of the Constitution of India. It was held by the court that section 377 violates the fundamental rights of the LGBT community such as the right to equality, right to privacy and right to personal liberty and held section 377 as unconstitutional.
This was a milestone judgment in the history of India, but in 2013, the decision in Naz Foundation was challenged in the Supreme Court in Suresh Kumar Koushal and another v. Naz Foundation and Others1 and the two-judge Supreme Court bench struck down the decision of unconstitutionality of section 377 and held that only Parliament has the power to decriminalize homosexuality. Later in Navtej Singh Johar v. State of Union of India, it was held that Section 377 was discriminatory towards the lesbian, gay, bisexual, and transgender (LGBT) community and unconstitutional as it violated the fundamental rights of the LGBT community such as the right to privacy, right to life, right to sexuality, right to liberty, right to sexual autonomy, right to human dignity, right to freedom of expression, and right to equality and also failed to differentiate the consensual and non-consensual acts between the individuals of the LGBT community.
- Section 377 of the Indian Penal Code deals with unnatural offences and states “whoever voluntarily has carnal intercourse against the order of nature with any man, woman or animal shall be punished with one-year 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”. The main issue revolving around section 377 was its constitutional validity as it held consensual sex of the same gender as an unnatural offence and unconstitutional and penalised all forms of non-penile-vaginal intercourse.
- A Writ Petition (Cr.) was filed in the Supreme Court in 2016, by the petitioners Navtej Singh Johar, Ritu Dalmia, Ayesha Kapur, Aman Nath and Sunil Mehra who were a part of the LGBT community, seeking the recognition of the right to sexuality, right to sexual autonomy, right to choice of a sexual partner to be a part of the right to life guaranteed under Article 21 of the Constitution of India and declared Section 377 of the Indian Penal Code to be unconstitutional.
- It was said by the petitioner that any sexual orientation whether be it homosexuality or bisexuality, is natural and is a reflection of choice and lawful consent between both partners, which cannot be declared as a physical or mental illness and make it a criminal or unnatural offence can be offensive that will have a repercussion effect on the gender identity, dignity and individuality of a person and will be violating the right to privacy which is the pivotal part of Article 21 of the Constitution of India.
- As per the petitioner section, 377 violates Article 14 of the Constitution as carnal intercourse against the order of nature is neither defined in Section 377 nor the Indian Penal Code. Moreover, if their rights are violated, or are refrained from entering into relationships, or forming associations, or if their essential desires are crippled, this will lead to a violation of Article 19(1)(a) of the Constitution. The petitioner emphasized the need for the recognition and equal protection of lesbian, gay, bisexual and transgender (LGBT) community rights.
- Whether Section 377 of the Indian Penal Code 1860 was unconstitutional and violated the fundamental right as guaranteed under Articles 14, 19 and 21 of the Constitution of India
- Whether consensual relationships between the same gender constitute sodomy, bestiality and non-consensual relationship
- Whether the LGBT community be granted the protection of Part III of the Constitution.
To test the constitutional validity of section 377 against Articles 14, 19 and 21, the Supreme Court observed that as per the classification, section 377 imposes punishments on individuals engaging in carnal intercourse against the order of nature just to protect women and children, but in reality section 377 criminalizes and punishes sexual intercourse between the same gender and this contradicts the classification made in section 377. Moreover, unnatural offences have been separately penalised under section 375 of the Constitution and the POCSO Act. Also, section 377 does not differentiate between consensual and non-consensual sexual acts between individuals. The court held that the unequal treatment of the LGBT community is violative of Article 14 of the Constitution and this amounts to discrimination against the community. The court acknowledged the fact that the LGBT community are normal humans and they have the right to express their choices without having any fear from society.
The court noted that section 377 criminalizes private consensual sexual activity between individuals of the same gender and this does not disturb the public order, decency or morality and imposing restrictions on the private acts of any person will violate the right to freedom of choice. For all these reasons the court held that section 377 violates the fundamental right to freedom of choice. The court held that section 377 prohibits the personal liberty of engaging in a consensual sexual activity and this is violative of Article 21 of the Constitution as every individual has the right to choose their sexual orientation or partner in their private space and the scope of the right to privacy must be widened to include and protect sexual privacy among individuals. Any specific part of society or society as a whole can always prefer different things for themselves and it is the sole duty of the courts to protect the fundamental rights of all citizens without harming the interests and rights of any section of society.
If any section or provision of the law is challenged in the courts and is held violative of the fundamental rights of any section of the society whether it is a majority or minority in the population, then in that situation constitutional morality would prevail over social morality and would be taken into consideration for aiding the court to arrive at a fair and just decision which would not infringe the fundamental rights of the citizens and in no situation the rule of law should be hampered by the rules of social morality. Also, under the Universal Declaration of Human Rights, the right to live with dignity is considered one of the important aspects of Article 21 which is inseparable from human life. The court opined to make a distinction between consensual and non-consensual sexual relationships between individuals in private and those consensual sexual relationships between the same genders will not constitute the offences of bestiality, sodomy and non-consensual relationships.
The court finally declared that section 377 criminalises voluntary and consensual sexual relationships between the same gender, which discriminates against them based on their sexual orientation, which is violative of the fundamental rights guaranteed by Articles 14, 19 and 21 of the Constitution and the LGBT community is a minority community in India which cannot be a ground for snatching or depriving of their fundamental rights as guaranteed under Part III of the Constitution and they are also equally and fully entitled to all the right enshrined under Article 14, 19 and 21 of the Constitution like the other individuals of the society. Also, the court relied upon the judgment given in National Legal Services Authority vs. Union of India (2014) 5 SCC 438, which held that gender identity and sexual orientation is a vital parts of an individual’s personality and denying that would amount to the violation of the individual’s personality and the judgment given in K.S. Puttaswamy v. Union of India,2 which held that sexual orientation is an essential attribute of one’s privacy.
Through the case analysis, we can assess that Navtej Singh Johar v. Union of India is a landmark case in India, which recognised and gave equal rights to the LGBT community and also gave them an equal chance to raise their voices against all the odds, injustice and tortured inflicted to them by the society. The judgments favoured the community and we further observed through the case analysis that sexual orientation is not an illness or a disease, but rather a natural condition, where any person can be attracted, sexually and emotionally toward the opposite or same-sex gender, and both situations are naturally equal. A same-sex relationship is indeed lesser in number in India but that does not mean that their rights will not be protected under the Constitution of India or they do not have the liberty and privacy to enjoy their life.
When a same-sex relationship is formed in private with equal consent from both partners, then it is unconstitutional to regard it as immoral or unnatural or something beyond immorality, and this will be a total infringement of the rights enshrined in Articles 14, 19, and 21 of the Constitution. Furthermore, it is a reality that those belonging to the LGBT community suffer abuse, outrage and huge discrimination since their birth, the reason being, that they are not considered a part of society, and are segregated if their original identity and personality are revealed. Even it is seen that sometimes parents disown them due to their different sexual orientations or are forced by their parents to accept the decision given by them or else they will not be allowed to live in the house. Although transgenders have been given recognition as the third gender, the rights given to them are not fully realized and due to the presence of Section 377, the LGBT community fears disclosing their identities.
The LGBT community is extremely stigmatised and to a great extent, they are forced to accept the rules laid down to them by society regarding their sexual orientation. They remain in constant apprehension and are deprived of basic civil rights. There can be situations that influence and compel individuals of the same gender to seek intimacy and form close relationships of physical nature. There should be no law that should regulate the consensual sexual activities between two adults of the same gender, as this would violate their fundamental rights and brutalize them in society. The LGBT community is the sexual minority in society and they need more protection as compared to heterosexuals to live life freely and without the fear of being discriminated against by other people in society. The LGBT community deserves the respect and equal rights like any other citizen in India and judging them solely based on their sexual orientation is highly offensive and cruel which can damage the dignity and self-worth of the community.
To conclude, we can say that any individual belonging to the LGBT community should be fairly and equally treated in society for their better growth and development and equal rights and opportunities must be given to them because they are also a human being who deserves the same right to live peacefully in society. We must never forget the essence of the fundamental rights of the Constitution and being citizens of the country we should try to protect their rights by not alienating or discarding them from society and making them believe that they are a part of the society. There must be mutual respect for each other’s sexual orientation as it is something present since birth and describes the actual identity of the individual. Lastly, the LGBT community should not be devalued, tortured, marginalized and ignored, and to live peacefully and with harmony, society has to change its traditional and orthodox perspective towards the community and have to accept their fundamental rights as well.
- Suresh Kumar Koushal and another v. Naz Foundation and Others (2014) 1 SCC 1[↩]
- K.S. Puttaswamy v. Union of India (2017) 10 SCC 1[↩]
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