CASE COMMENT

Introduction:

The Navtej Singh Johar & Ors. Vs. Union of India & Ors. case is a critical milestone in India's acceptance of LGBTQ+ rights. By essentially reading down Section 377 of the Indian Penal Code (IPC) to exclude such actions between adults in private, the Supreme Court of India decriminalized consensual homosexual acts between adults. This overturned the colonial-era law that had long been used to criminalize the LGBTQ+ community, marking a historic shift towards equality and human rights, it represents a critical turning point in the struggle for LGBTQIA+ rights in India.

Background:

When the Indian Penal Code was first introduced in 1861, Section 377 specifically targeted LGBTQIA+ people and made sexual activity against the natural order illegal. Despite societal changes and movements for LGBTQIA+ rights, the law remained in place, leading to discrimination and human rights abuses. The High Court of Delhi ruled in 2009 that Section 377 was unconstitutional; however, the Supreme Court escorted it back into legality in 2013. This led to a fresh round of fighting for LGBTQIA+ rights in India, which culminated in the Navtej Singh Johar case.

Facts of the Case:

Navtej Singh Johar and other petitioners disputed the legality of Section 377 of the Indian Penal Code, 1860, which outlawed consenting to sexual relations between adults of the same sex. They argued that this section violated their constitutionally protected fundamental rights. A writ petition was filed before a three-judge bench of the Supreme Court on 08.01.2018, requesting the declaration of "right to sexuality", "right to sexual autonomy", and "right to choice of a sexual partner" as part of the right to life pledged by Article 21 of the Constitution of India, the Supreme Court brought down Section 377 after the three-judge panel of the Apex Court decided that a larger bench was required to resolve the matter.

Issues Involved:

Under the Indian Penal Code (IPC), "carnal intercourse against the order of nature" is prohibited by Section 377 The Supreme Court has decided whether or not this section infringes on the basic rights mentioned in the Indian Constitution. The court is debating whether Section 377 infringes upon the rights protected by Articles 21,19,15 and 14. The Court is also debating whether the right to privacy, as maintained in Justice K.S. Puttaswamy & Anr. v. Union of India & Ors. (2017), is violated by making consensual homosexual actions in private illegal. The court is also discussing whether Section 377 exposes LGBTQIA+ persons to discrimination in both the legal system and society, so violating their autonomy and dignity

Arguments:

Arguments on behalf of the Petitioner (Navtej Singh Johar)-

· Sexual orientations are natural and based on consent from legally qualified individuals, and they are not physical or mental illnesses. Making sexual orientations criminal is offensive to individual dignity and autonomy, as they are essential attributes of privacy.1

· The LGBT community, comprising 7-8% of India's population, needs recognition and legal protection. Section 377 violates Article 14 by being vague and contradicting Article 15 and Article 19(1)(a), as LGBT individuals cannot express their sexual identity freely.2

· Sexual autonomy and the right to choose a partner are inherent under Article 21 of the Constitution, and Section 377 takes away a person's right to reputation. Section 377 hampers the ability of LGBTs to realize their constitutional right to shelter, as they seek assistance from private sources like Gay Housing Assistance Resources (GHAR).1

· Articles 19, 21,15 and 14 are all violated by Section 377.1

· The petitioners rely on Justice K.S. Puttaswamy vs. Union of India (2017), which considered the right to privacy as a fundamental right. Adults having consensual sex in private should not be made a crime because it is an expression of personal freedom.2

Arguments On Behalf Of The Respondent (Union Of India):

· According to the Union of India, Section 377 was required to protect public decency and morals as well as to stop the spread of HIV/AIDS.1

· The provision was defended on the grounds that no person has the liberty to abuse one's organs, and the offensive acts mentioned in Section 377 are committed by abusing one's organs.2

· The Union argued that de-criminalizing the Section would be wrong and constitutionally immoral, as it is more relevant legally, medically, morally, and constitutionally.1

· If Section 377 were declared unconstitutional, it would affect the family system and marriage institution. The Union also argued that the de-criminalization of various consensual acts of adults in India would be in shambles due to its different political, economic, and cultural fabric.2

· If consenting acts between two same-sex adults were excluded from Section 377, married women would be rendered remediless against their bi-sexual husband and their consenting male partner, and this would have a cascading effect on personal laws and legislations like the Special Marriages Act.1

· The Union further contended that as Section 377 only specifies a specific crime and its penalty and the State has the authority to decide who counts as a class for the purposes of law, it does not infringe Article 14.2

Judgement

In response to Section 377 of the Indian Penal Code, which made consenting to sexual relations between two adults of the same sex illegal, dancer Navtej Singh Johar filed a writ suit. The three-judge bench referred to the Suresh Koushal case, which overturned the Naz Foundation judgement.4 The judges considered various aspects of the case, including the determination of "order of nature," social morality, rights of sections of people, constitutional foundations, and consenting adults.1

The five-judge bench of the Supreme Court unanimously ruled that Section 377 was unconstitutional, setting a unalterable precedent for all courts in India. Justices Dipak Misra and A.M. Khanwilkar argued that Section 377 violated the right to equality and dignity under Articles 14 and 21, while Justice Rohinton Fali Nariman argued it violated the right to privacy and autonomy under Article 21.2 Justice Dr. D.Y. Chandrachud argued that Section 377 was arbitrary and discriminatory, violating Articles 14 and 15. Justice Indu Malhotra argued that Section 377 perpetuated stigma and prejudice against the LGBTQ community, violating their fundamental rights.

Analysis:

A turning point in the worldwide fight for LGBTQ+ rights was reached in the Navtej Singh Johar v. Union of India case, which brought Indian law into line with progressive international human rights norms.1 Naz Foundation v. Government of the NCT of Delhi & Ors. was decided by the Delhi High Court noted that discrimination is forbidden on a number of reasons, including sex, under Article 15 of the Constitution.3

In light of Articles 14, 15, and 21 of the Indian Constitution, Section 377 was therefore divulge to be unconstitutional. However, this judgement was overruled in Suresh Kumar Koushal & Anr. v. Naz Foundation & Ors. by another Delhi High Court bench, which held that prohibition of acts under Section 377 only regulated sexual conduct regardless of gender identity and sexual orientation of a person. Section 377 would apply irrespective of age and consent, as it did not criminalize a particular people or identity or sexual orientation and only identified certain acts which, when committed, would constitute an offence.4

The concept of transformative constitutionalism is also of high importance, as it aims at ushering a diverse and inclusive society while adherence to the principles of constitutionalism is observed. Since 1860, our society has undergone huge amounts of progressive change, and sexual minorities have been accepted now and given space, especially since the NALSA judgement.5 Nevertheless, Section 377 in its first shape had a chilling impact on court decisions and acceptability. If this happens or if such a treatment to the LGBT community is allowed to persist, the Indian courts, under the obligation to protect the fundamental rights of citizens, would be failing in their obligation to perform.

On the argument of the LGBT community being statistically minor, the Supreme Court correctly stated that the idea of number, in this context, is meaningless; like zero on the left side of any number.1 The Petitioners contended that Section 377 violated Article 14 guaranteeing the right to equality because there existed ‘no intelligible differentia’. The same contention is true as what is ‘natural’ varies from time to time, especially in today’s times when sex is not only equivalent to generation of offspring. The Supreme Court correctly based its judgment on the aspects covered in the above analysis and de-criminalized consensual sexual acts of two adults and termed the acts as “natural”.

Impact Of The Judgement:

The Navtej Singh Johar judgement in India has significantly impacted LGBTQIA+ rights by decriminalizing consensual homosexual acts between adults. This decision dismantled a significant legal barrier to equality, promoting greater social acceptance and reducing stigma for the LGBTQ+ community. With this decision, the Constitution's values of equality, privacy, and dignity were upheld, and human rights law in the future was given a progressive start. The judgment not only enhances legal protections for LGBTQIA+ individuals but also encourages societal change, fostering an environment of inclusivity and respect.

This landmark ruling has inspired similar movements and legal challenges worldwide, emphasizing the importance of constitutional morality over societal prejudice. Additionally, it has strengthened the LGBTQIA+ community and promoted increased visibility and inclusion. The decision set a precedent for future legal reforms and provided a strong foundation for advocating further rights, such as marriage equality and anti-discrimination protections All things considered, the ruling was a huge win for India's human rights and everyone's right to dignity.

Conclusion:

The Supreme Court has decriminalized consensual sexual acts between two adults, regardless of gender or sexual orientation, in Navtej Singh Johar & Ors. Vs. Union of India & Ors. An important step has been taken in the direction of equality and the absence of prejudice with the Supreme Court's overturning of this ruling The Court retained bestiality, sex with minors, and non-consensual sexual activity within the ambit of Section 377, preventing any loopholes or abuse of law.

The ruling also overruled the Suresh Kumar Koushal decision The verdict, which upholds the core values of justice, equality, and human dignity and represents the victory of constitutional morality over social prejudice, is a ray of hope and development for the LGBTQIA+ community in India and throughout the world. In the framework of Indian constitutional law and human rights jurisprudence, this case analysis emphasizes the importance and ramifications of the Navtej Singh Johar ruling.

References:

1. Navtej Singh Johar & Ors. v. Union of India & Ors., AIR 2018 SC 4321.

2. Justice K.S. Puttaswamy (Retd.) v. Union of India, AIR 2017 SC 4161.

3. Naz Foundation v. Government of the NCT of Delhi & Ors., (2009) 160 DLT 277.

4. Suresh Kumar Koushal & Anr. v. Naz Foundation & Ors., (2014) 1 SCC 1.

5. National Legal Services Authority v. Union of India, (2014) 5 SCC 438.

6. Indian Penal Code, 1860.