INTRODUCTION

The case of Navtej Singh Johar v. Union of India is a landmark judgement which decriminalized homosexuality and, within the process, addressed some important constitutional questions.
On 6th September 2018 a 5 Judge bench unanimously struck down Section 377 of Indian Penal Code 1860 to the extent that it criminalized same gender relation between consenting adults. India has acquired a place among the 28 countries of Asia to legalize homosexuality and to acknowledge LGBT rights. Before this judgment, the LGBT Community didn’t have such rights as Homosexuality was a punishable offence under sec-377 of the Indian Penal Code, 1860.
This Section 377 originated from The Buggery Act, 1533. This act defined sexual acts between same gender and sexual activities with animals as unnatural offences. The Parliament of England passed this Act in 1533 under the leadership of King Henry. According to this act, unnatural offences should be punishable by death. The 1st Law Commission of India under leadership of Lord Macaulay brought this concept in India and drafted it under Section 377 of IPC 1860.

FACTUAL BACKGROUND

• Navtej Singh Johar who was a dancer and identified himself with the LGBT community filed a writ petition together with 4 other members within the court seeking inclusion of right to sexual autonomy and right to decide the sexual partner within the ambit of right to life under Article 21.
• He believed that the language of section 377 was vague and there’s no such intelligible differentia between natural and unnatural sexual acts.
• He also intended that section 377 violates freedom of speech and expression by denying the expression of one’s sexual identity through choice of partners.
• Section 377 resulted into humiliation in LGBT people thereby violating their Right to privacy. The respondent (UOI) left the question of the constitutional validity of section 377 to the wisdom of the court.

ISSUES RAISED

Whether Section 377 discriminates on the basis of “sexual preference” and “gender identity” thereby violating individual rights provided to them under Article 14 and Article 15 of Constitution.
Whether Section 377 violates the fundamental right to expression under Article 19(1)(a) by criminalizing the gender expression of persons belonging to the LGBT community?
Whether Section 377 violates right to autonomy and dignity under Article 21 by penalizing private consensual acts between same-gender individuals?

ARGUMENTS RAISED BY PETITIONERS

The section is violative of Article 15 because it discriminates the LGBT community on the basis of sex of their partners which is prohibited under Article15 of the Indian Constitution.
Homosexuality, bisexuality or the other sexual interest are a few natural things and isn’t a physical or mental illness. It’s depends on our personal choice and criminalizing it will result in the destructing of Article21 of the Indian Constitution by affecting an individual’s dignity and his or her gender identity.
If section-377 is retained in without making any changes in it then it’d result in the violation of various fundamental rights of the LGBT group i.e. right to freedom of expression, right to privacy, right to equality, liberty and dignity.
There is no reasonable classification between natural and unnatural sex and even the expression “carnal intercourse against the order of nature” is not defined anywhere. Therefore section-377 is unfair and vague and is violative of Article14.

ARGUMENTS RAISED BY RESPONDENTS

It has been submitted by them that if section-377 is asserted as unconstitutional then the family system are going to be destroyed and lots of corrupt young Indians will see this as a trade and can start using homosexual activities for money. Moreover, individuals indulging in such activities are more likely to contract HIV/AIDS which can increase the share of AIDS victim within the country.
Fundamental rights aren’t absolute and decriminalizing section-377 will leave all the religions practiced within the country as objectionable and can cause the violation of Article 25 of Indian Constitution which also must incline due consideration.

Article15 prohibits discrimination on the basis of sex but not on sexual preference; thus section- 377 of IPC isn’t violating Article15. Moreover, it’s also not violative of Article 14 because the section only mentions a separate offence together with its punishment.
The main idea behind criminalizing carnal intercourse against nature is to guard the citizens from the injurious issues as protecting the citizens from something hazardous is one of the aims of criminal legal code.

JUDGEMENT

5 Judge Bench – CJI Dipak Misra, Justice A.M. Khanwilkar, Justice Rohinton Fali Nariman, Justice D.Y. Chandrachud and Justice Indu Malhotra.
The Supreme Court declared that section-377 is unconstitutional because it violates Articles14, 15, 19 and 21 of the Indian Constitution and thus overruled the judgment given in Suresh Koushal and ors. V. Naz Foundation and ors. It had been cleared that Section-377 will only be dealing with non-consensual sexual acts committed against any adult and minor.
“It doesn’t matter how minute the LGBT section is; they still have the right to privacy which has physical intimacy. Their choice of partner may well be different but it doesn’t mean they’ll be prosecuted for that. It was said that Section-377 does curtail their human dignity and their personal choice, therefore violating their right to privacy which is provided to them under Article21 of Indian Constitution”.
“The main idea behind retaining Section-377 is to guard women and youngsters from being abused and harassed by carnal intercourse but consensual carnal intercourse which is performed by the LGBT community is neither injurious to children nor women. Moreover, non-consensual acts have already been referred to as an offence under section-375 of IPC which means that section-377 is redundant and discriminative towards one section of the society and is therefore violative of Article14 of the Indian Constitution rendering it unconstitutional”.
“Our Constitution being liberal, its unimaginable that right of choice are going to be absolute. Therefore, some restrictions are imposed on the principal of choice. However, right of selecting a partner for intimate relations is totally a matter of non-public choice which can’t be restricted. Whereas, section-377 of the IPC restricts the right of LGBT community of selecting a partner for sexual matters and is therefore irrational and arbitrary.”

WAY AHEAD

Framers of the Constitution never intended to shield fundamental rights of individuals who are in majority living in India. They drafted Fundamental rights and included the identical in Constitution so as to safeguard the rights of every and each citizen of country. Though they are in minority number but they still are the citizens of India and it is the duty of Hon’ble Court to protect the rights of each and every citizen of this country. Thus with this view only the judgment was passed during this case.
In my view the Court gave a good judgement in this case. The judgement upheld constitutional morality and also indicated towards the shift of the Indian society from an archaic to a realistic one. This judgement focused more on the specified goals of the basic rights instead of on societal perceptions. Also, the problems in concern were answered properly.
However, to stand freely and comfortably in Indian society is still a challenge for LGBT community people but this problem are solved with the time and implementation of proper legislation and also by creating awareness in people to not think like orthodox people but to simply accept the fact and understand that these people also deserves to live like them freely in society as they need equivalent rights like us.

SUBMITTED BY – ANIKET DIMRI
(AMITY LAW SCHOOL NOIDA)