Skip to main content

CASE COMMENTARY ON NAVTEJ SINGH JOHAR & ORS. VS. UNION OF INDIA & ORS

 CASE COMMENTARY ON NAVTEJ SINGH JOHAR & ORS. VS. UNION OF INDIA & ORS


INTRODUCTION 

Section 377 of the Indian Penal Code imposes criminal liability on anyone who “voluntarily has carnal intercourse against the order of nature”. When the abovementioned Section was challenged in the Supreme Court of India, the Court decided to de-criminalise specific conduct as indicated in the following analysis, and the decision was hailed as a landmark precedent. By issuing this decision, the Supreme Court reaffirmed its commitment to keeping up with changing circumstances and public opinion.


THE FACTS OF THE CASE 

On January 8, 2018, a writ petition was filed at the Supreme Court before a three-judge bench. The petitioners pleaded that the "right to sexuality," "right to sexual autonomy," and "right to choose a sexual partner" be declared to be part of the right to life provided by Article 21 of the Indian Constitution. The petitioners also asked for Section 377 of the Indian Penal Code to be declared illegal. The Apex Court's three-judge bench concluded that the matter needed to be heard by a larger panel. As a result, when the petition was transferred, our Supreme Court's learned five judges struck down Section 377 inasmuch as it criminalised consensual sex.


ISSUES 

The fundamental question in the case was whether the non-recognition and consequent denial of expression of choice under Section 377 was in violation of the ruling in Suresh Kumar Koushal & Anr. v. Naz Foundation & Ors.


SUMMARY OF COURT DECISIONS AND JUDGEMENT

When the writ petition was first presented by dancer Navtej Singh Johar, before the threejudge bench, the bench referred to the Suresh Koushal case in which the Supreme Court overturned the Naz Foundation judgement. The three-judge bench felt that there were a lot of aspects to be considered regarding Section 377- determination of “order of nature”, social morality, rights of sections of people, constitutional foundations, consenting adults, etc. Thus, the judges deemed the case fit to be considered by a larger bench. Considering the petitions and examining the same through various aspects, the learned fivejudge bench of the Apex Court gave its judgement in favour of the petitioner and unanimously held that Section 377 was unconstitutional as far as it criminalized consensual sex between two adults of same or different sex. As the judgement was given by a five-judge bench, it is a binding precedent on all courts in India.




CONCLUSION 

As a result, the Supreme Court's decision to decriminalise consensual sexual activities between two adults, regardless of gender or sexual orientation, was correct. The Court's decision to keep bestiality, sex with minors, and non-consensual sexual conduct within the scope of Section 377 was likely to close any loopholes or abuses of the legislation. As a result, the Court reversed Suresh Kumar Koushal's decision. After suffering at the hands of society and family and being labelled as "untouchables," it was past time for our Supreme Court to embrace a progressive and open mentality and accept the LGBT community as a legitimate component of Indian society.


Comments

Popular posts from this blog

Section 58B of The Advocates Act - Special provision relating to certain disciplinary proceedings

 Section 58B The Advocates Act Description (1) As from the 1st day of September, 1963, every proceeding in respect of any disciplinary matter in relation to an existing advocate of a High Court shall, save as provided in the first proviso to sub-section (2), be disposed of by the State Bar Council in relation to that High Court, as if the existing advocate had been enrolled as an advocate on its roll. (2) If immediately before the said date, there is any proceeding in respect of any disciplinary matter in relation to an existing advocate pending before any High Court under the Indian Bar Councils Act, 1926 (38 of 1926), such proceeding shall stand transferred to the State Bar Council in relation to that High Court, as if it were a proceeding pending before the corresponding Bar Council under clause (c) of sub-section (1) of section 56: Provided that where in respect of any such proceeding the High Court has received the finding of a Tribunal constituted under section 11 of the Indian B

Case Laws related to Defamation in favour of ClaimantCase Laws related to Defamation in favour of Claimant. TOLLEY Vs, J.S FRY & SONS LTD – (1931) Facts The defendants were owners of chocolate manufacturing company. They advertised their products with a caricature of the claimant, who was a prominent amateur golfer, showing him with the defendants’ chocolate in his pocket while playing golf. The advertisement compared the excellence of the chocolate to the excellence of the claimant’s drive. The claimant did not consent to or knew about the advertisement. Issue The claimant alleged that the advertisement suggested that he agreed to his portrait being used for commercial purposes and for financial gain. He further claimed that the use of his image made him look like someone who prostituted his reputation for advertising purposes and was thus unworthy of his status. At trial, several golfers gave evidence to the effect that if an amateur sold himself for advertisement, he no longer maintained his amateur status and might be asked to resign from his respective club. Furthermore, there was evidence that the possible adverse effects of the caricature on the claimant’s reputation were brought to the defendants’ attention. The trial judge found that the caricature could have a defamatory meaning. The jury then found in favor of the claimant. Held The House of Lords held that in the circumstances of this case – as explained by the facts – the caricature was capable of constituting defamation. In other words, the publication could have the meaning alleged by the claimant. The Lords also ordered a new trial limited to the assessment of damages. NEWSTEAD V LANDON EXPRESS NEWSPAPER LTD, (1939) Facts: A newspaper published a defamatory article about Harold Newstead. However, another person with this name brought an action in libel. He claimed that the article had been misunderstood as leading to him. The defendant newspaper recognised that they published the article. Also, they denied that they had the intention of being defamatory of him. Consequently, the claimant argued that the newspaper was under a duty. The duty was to give a clear and complete description of the correct person. Moreover, the claimant argued that the defendants were in breach of the duty. Issues: The issue in Newstead v London Express Newspaper, was if the reasonable persons would have understood the words complained of to refer to the plaintiff. Held: The Court of Appeal stated that in accordance with the current law on libel, liability for libel does not depend on the intention of the defamer; but on the fact of the defamation. Accordingly, a reasonable man, in this case a newspaper publisher, must be aware of the possibility of individuals with the same name and must assume that the words published will be read by a reasonable man with reasonable care.

  Case Laws related to Defamation in favour of Claimant.  TOLLEY  Vs,  J.S FRY & SONS LTD – (1931) Facts The defendants were owners of chocolate manufacturing company. They advertised their products with a caricature of the claimant, who was a prominent amateur golfer, showing him with the defendants’ chocolate in his pocket while playing golf. The advertisement compared the excellence of the chocolate to the excellence of the claimant’s drive. The claimant did not consent to or knew about the advertisement.   Issue The claimant alleged that the advertisement suggested that he agreed to his portrait being used for commercial purposes and for financial gain. He further claimed that the use of his image made him look like someone who prostituted his reputation for advertising purposes and was thus unworthy of his status. At trial, several golfers gave evidence to the effect that if an amateur sold himself for advertisement, he no longer maintained his amateur status and might be aske

Rules as to delivery of goods

                             Rules as to delivery of goods Section 2(2) of Sale of Goods Act defines ‘delivery’ as a ‘voluntary transfer of possession from one person to another.’ Thus, if the transfer of goods is not voluntary and is taken by theft, by fraud, or by force, then there is no ‘delivery. Moreover, the ‘delivery’ should have the effect of putting the goods in possession of the buyer. The essence of the delivery is a voluntary transfer of possession of goods from one person to another. There is no delivery of goods where they are obtained at pistol point or theft. 1. Mode of Delivery: According to Section 33, delivery of goods sold may be made by doing anything which the parties agree shall be treated as delivery or which has the effect of putting the goods in the possession of the buyer or of any person authorized to hold them on his behalf. Delivery of goods may be actual, symbolic or constructive. 2. Expenses of Delivery: According to Section 36(5), unless otherwise agree