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Case Analysis

 LANDMARK JUDGEMENT


Navtej Singh Johar & Ors. versus Union of India through Secretary Ministry of Law and Justice


Citation: AIR 2018 SC 4321

Bench : Chief Justice Dipak Misra, Justice A.M. Khanwilkar, Justice Rohinton Fali Nariman, Justice D.Y. Chandrachud and Justice Indu Malhotra


In India, According to 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 imprisonment for life, or with imprisonment of either description for a term which may extend to ten years or with a death penalty, and shall also be liable to fine.

It indicates that homosexuality is a crime punishable under the Indian Penal Code (IPC) section 377. Because to Section 377, LGBT individuals do not have the same rights as other people, but in the case of Navtej singh johar v. Union of India, the Supreme Court of India ruled in favour of LGBT persons, who now have a better knowledge of their rights and status in our nation. India has acquired a place like other countries of Asia who decriminalized homosexuality.

HISTORY 

The Buggery Act of 1533 gave rise to Section 377. This statute characterised homosexuals conduct and sexual interactions with animals as unnatural and punishable offences. This act, which defined buggery as an act against God's will, was approved by the English parliament in 1533, under the reign of King Henry 7. According to this act, any person who is guilty of unnatural offences were liable for punishment of death. Thomas Babington Macaulay who chaired the 1st ever law commission brought this law and drafted this law under section 377 of IPC.

In India, the fight to decriminalise section 377 of the Indian Penal Code began in 1994, when an NGO (Aids Bhedbhav Virodhi Abhiyan) filed a petition with the Delhi High Court to do so, however the plea was dismissed in 2001. Then, in 2001, an NGO (NAZ Foundation) filed a PIL in the High Court of Delhi, challenging the legality of Section 377 of the IPC, but it was dismissed due to a lack of locus standi.


The same NGO filed an appeal with the Supreme Court of India, contesting the High Court of Delhi's decision, and the Supreme Court directed the High Court of Delhi to review the PIL as the petitioner was entitled to file a PIL. Later, the Delhi High Court issued an order declaring Section 377 of the IPC illegal, citing violations of Articles 21, 14, and 15 of the Indian Constitution.

In the matter of Suresh Kumar Koushal V. NAZ Foundation and ors, an appeal was filed in the Supreme Court of India in 2013 contesting the verdict pronouncing section 377 of the Indian Penal Code to be unconstitutional. The Supreme Court's divisional bench believes that Section 377 is constitutional and that those who act against nature's order should be punished.

The Court said that:

In view of the above discussion, we keep that Section 377 IPC does now no longer be afflicted by the vice of unconstitutionality and the announcement made with the aid of using the Division Bench of the High courtroom docket is legally unsustainable.

It approach that segment 377 of IPC isn't always unconstitutional and the Court is likewise of the view that Section 377 is towards an act which if completed with the aid of using any individual regardless of age and consent and now no longer with any unique segment of the society. The respondent withinside the unique case additionally didn't gift the variety of instances of harassment and attack towards sexual minorities.

Thus over again segment 377 of IPC become declared as constitutional and the only acting an act which falls below the ambit of segment 377 is chargeable for the punishment given below the identical segment.

FACTS

The petitioner was a dancer from the LGBT community (lesbian, gay, bisexual, and transgender) who filed a writ case before the Hon'ble Supreme Court for the rights of the LGBT community under Article 32 of the Indian Constitution. According to the petitioner, section 377 of the IPC discriminates against this community, and members of the LGBT community are unable to exercise their rights.

According to the petitioner, the freedom to select one's sex partner and the right to sexual autonomy should be protected by Article 21 of the Indian Constitution. According to him, section 377 of the IPC's wording is ambiguous, and there is no distinction between natural and unnatural sex. What is against the natural order is not defined clearly anywhere, and there is a violation of the LGBT community's right to privacy, which is guaranteed under Article 21 of the Indian Constitution.

ISSUES 

  1. Whether judgment given in Suresh Kumar Koushal v. NAZ foundation was proper or not?

  2. Whether section 377 of IPC violates article 14 and 15 of Constitution of India or not?

  3. Whether section 377 is against Right to privacy which is a fundamental right?

  4. Whether section 377 has a chilling effect' on Article 19 (1)(a) by criminalizing gender expression of LGBT community?

JUDGEMENT 

There was a 5 judge bench who passed landmark judgment in Navtej singh johar v. Union of India. Judges were CJI Dipak Mishra, Justice A.M Khanwilkar, Justice Rohinton fali Nariman, Justice D.Y. Chandrachud and Justice Indu Malhotra.

This judgment overruled the judgment passed in Suresh Kumar Koushal case and upheld the rights of LGBT community by partially decriminalizing Section 377 of IPC. This judgment declared section 377 of IPC as unconstitutional as LGBT community people are in minority number but our Constitution provides equal rights to the citizens of our country. LGBT community people are also the citizens of India who have the rights which are guaranteed under part 3 of the Constitution of India and section 377 of IPC was violating fundamental rights of LGBT community.

Regarding the first issue, the Hon'ble court believes that while the LGBT community is a small minority, they are still citizens of our country and are entitled to equal protection under the Indian Constitution's Fundamental Rights. As a result, the judgement in the matter of Suresh Kumar Koushal v. NAZ Foundation and Others was erroneous.

The misconception in Suresh Kumar Koushal & Anr. v. Naz Foundation & Ors. (above) is that: Section 377 does not define the offence of carnal intercourse against the order of nature. It's extremely broad and open-ended, and it may criminalise even sexual actions between consenting adults in private.

In the words of Justice A.M Khanwilkar ; 

An argument was made by the Petitioners that Section 377, being vague and unintelligible, should be struck down on this ground as it is not clear as to what is meant by against the order of nature. Since Section 377 applies down the line to carnal sex between human beings and animals as well, which is not the subject matter of challenge here, it is unnecessary to go into this ground as the Petitioners have succeeded on other grounds raised by them. For all these reasons therefore, we are of the view that, Suresh Kumar Koushal (supra) needs to be, and is hereby, overruled.

From the words of Hon'ble Judges of Supreme Court that Judgment passed in the case of Suresh Kumar Koushal v. NAZ Foundation was arbitrary and unconstitutional and it also don't describes what is the true meaning of against the order of nature and also abridges the Fundamental rights of LGBT community by punishing them under the said section.

The 2nd issue, the Court is of the view that:

Section 377 IPC, so far as it criminalises even consensual sexual acts between competent adults, fails to make a distinction between non-consensual and consensual sexual acts of competent adults in private space which are neither harmful nor contagious to the society.

Section 377 IPC makes the LGBT community a social pariah and a dereliction of duty, and as a result, it is obviously arbitrary, since it has become an obnoxious tool for harassing the LGBT community through discrimination and unequal treatment. As a result of the law established in Shayara Bano (above), Section 377 IPC may be partially thrown down as violating Article 14 of the Constitution.

In the words of CJI Dipak Mishra it means that:

Section 377 of IPC failed to make any differences between consensual sexual acts and non-consensual sexual acts. He declared section 377 of IPC as arbitrary because it restrain LGBT community from enjoying their fundamental rights and same section can be used as an weapon to target the LGBT community and harass them which is totally not acceptable and this kind of discrimination is against article 14 as well as article 15 of the Constitution of India.

On the third point, the Pre requisite that:

The right to privacy has been elevated to the status of a basic right following the Puttaswamy (supra) decision. The argument in Suresh Koushal (supra), that the LGBT community represents a miniscule percentage of the whole population and therefore Section 377 IPC abridges the basic rights of a very minuscule percentage of the total population, is determined to be a discordant note. In the case of Suresh Kumar Koushal v. NAZ foundation and ors it was decided by Hon'ble Court that section 377 of IPC does not abridges fundamental right to privacy of LGBT community because the said community is in minuscule fraction of total population. This view of Court is not appropriate in the eyes of Apex Court. So in the words of CJI, the framers of our Constitution could never imagine that fundamental rights are made in order to protect the rights of majority community and not for the interest of minority community. According to him the view given in Suresh Kumar Koushal Case was fallacious and is also against the constitutional ethos and it is the duty of the Court to protect the fundamental rights of every citizen of this country irrespective of their community that whether they are in major numerical number or lower. So Section 377 of IPC was also against Right to privacy which is an integral part of article 21 of the Constitution of India.

Concerning the fourth point, the Court believes that

Section 377 of IPC violates Article 19(1)(a) of LGBT community people which it restricts them from expressing their words or their choices. It established unreasonable restriction in the name of public decency and morality. Consensual carnal intercourse between the same sex people in private space among the adults does not harm public decency and morality because this people also have right to choose partner of their choice which is not against the law but restricting them for speaking in public or restraining them for expressing their words or speech on the ground of choosing same sex partner for consensual carnal intercourse is violative of article 19(1)(a) of LGBT community people.

CJI Dipak Mishra said in his words that any homosexual, heterosexual or lesbian cannot be considered as unconstitutional and people performing such act cannot be punished under section 377 of IPC but if people performing any sexual activity with animals then said section 377 is constitutional and that same person is liable for punishment given under section 377 of IPC.

All the other Judges are of the same view that Judgment given in Suresh Kumar Koushal was not properly adjudicated and it should be overruled and upheld the rights of LGBT community people by partially decriminalizing section 377 of IPC.

Justice A.M. Khanwilkar even stated in his judgment that people performing homosexual deserves right to live with dignity under article 21 of Constitution of India, which is the larger framework of Preamble of India.

This judgment have secured Fundamental rights of LGBT community people in full range as like other citizens of Country.

CONCLUSION 

The decision is unquestionably historic and landmark because, after so much struggle and time, LGBT people may now live freely in our nation without fear.

The Indian Constitution is a living constitution that can be altered over time or in response to societal demands, but social morality cannot be used as a justification for violating a person's fundamental rights.

The IPC's Section 377 was utilised to attack members of the LGBT community. Before the decriminalisation of section 377 of the IPC, LGBT community members were unable to travel freely in this country, did not have the freedom to express their thoughts in public, and were constantly discriminated by society; they also did not have the right to choose a partner of the same sex; but after same Section is decriminalized, People in the LGBT community now have the right to live in dignity and cannot be discriminated against by society since they cannot be penalised for acting against nature's order.

However, to live freely and comfortably in Indian society is still a challenge for LGBT community people but this problem will be solved with the time and implementation of proper legislation and also by creating awareness in people to not think like orthodox people but to accept the reality and modern time and understand that these people also deserves to live like them freely in society as they have equivalent rights like us. Section 377 of IPC is partially decriminalized because it is applicable if such acts are performed with animals but people choosing same sex partner cannot be punished and also it will be governing on non consensual sexual act committed against any minor.

So it is clear that Section 377 of IPC was arbitrary and irrational as it restricts LGBT community people to enjoy their fundamental rights and Navtej Singh Johar v. Union of India was properly adjudicated by the Hon'ble Judges which upheld rights of LGBT community people and gave equivalent stand in the society like other community people.
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