Case Name: Navtej Singh Johar & Ors v. Union of India thr. Secretary ministry
Sec 377 of IPC categorized consensual sex between homosexuals as “unnatural offence” and
criminalized it. It discriminates a minority solely on the ground of their sexual orientation
which is analogous to prohibited ground of sex. The section was challenged in Suresh Kaushal and Anr Vs. NAZ Foundation and Ors
. Stating it violates Art 14,15 and 21 of the
Constitution. To which the SC passed a very vague judgement stating that the decision of
decriminalizing homosexuality should have been made by Parliament instead of courts. The
courts can only do so if it is proved beyond reasonable doubts that the law infringes
Furthermore, the court also highlighted that since less than 200
cases have arisen in 150 years, therefore it's not a sound basis for declaring that section 377 IPC ultra vires the provision of Art 14,15 and 21 of the Constitution. In conclusion, The SC
said that Sec 377 does not suffers from the vice of unconstitutionality with no further
elaboration. The same judgement was challenged in Navtej Singh case through a petition
made by five individuals from the LGBTQ community for scrapping off Section 377 IPC in
so far as it criminalized consensual sex between homosexuals.
AIR 2018 SC 4321; W.P. (Crl.) No. 76 of 2018 D. No. 14961/2016
6 September 2018
- Navtej singh Johar
- Ritu Dalmia
- Ayesha Kapur
- Aman Nath
- Sunil Mehra
Ministry of Health , represented by Tushar Mehta
CJI Dipak Misra, Justice A.M. Khanwilkar, Justice Rohinton Fali Nariman,
D.Y. Chandrachud and Justice Indu Malhotra.
Issues: Constitutionality of Section 377 of IPC
Arguments From Petitoner:
Arguments From Respondent:
- Homosexuality, Bisexuality and others sexual orientations are equally natural and
cannot be considered as some form of illness. Criminalizing it destroys a
dignity, creates discomfort regarding gender identity and invades the right
to privacy guaranteed under Art 21 of the constitution. It also affects
growth of personality, relation building, forcing association and other
essential desires provided under Art 19(1)(a) of the Constitution.
- LGBT community comprises of 7-8% of the total Indian Population and are
discriminated and abused on the basis of their sexual orientation and therefore need
protection more than majority communities to achieve their full potential and live
freely without fear, apprehension or trepidation.
- Transgender section got recognition as third gender and have been given certain rights
under NALSA case yet their consensual activities are treated as an offence.
- The petitioners seek for scrapping off Section 377 IPC in so far as it criminalizes
consensual sex between homosexuals. They are of the view that sec 377 should be
confined to offences of bestiality and non-consensual acts.
- The Petitioner propounded that Sec 377 violates several fundamental rights namely,
right to dignity, right to equality, privacy, liberty and right to freedom of expression.
- Due to lack of intelligible differentia or reasonable classification between natural and
unnatural sex, the section violates Art 14 of the constitution. The said terms are
nowhere defined in the sec or the statute making it vague in nature.
- The section also violates Art 15 of the constitution as art 15 includes sexual
orientation and sec 377 is biased on the basis of sex of a person's sexual partner.
- The respondent on behalf of Intervener said that sec 377 constitutes abusing the
organs and such acts are undignified and derogatory and amount to constitutional
wrong and constitutional immorality.
- Sufficient rights are provided to the community by this court in NALSA and
further reliefs asked by petitioners are mere abuse to privacy and personal liberty
transgressing the concept of public morality.
- Criminalization of acts in sec 377 is more relevant now as Homosexuals indulging
in those acts are more prone to contact HIV than heterosexuals and henceforth
right to privacy should not be extended for the same.
- Apart from the fact that declaring Sec 377 unconstitutional would completely
destroy the family system, institution of marriage and social culture, it will ruin
the political, economic and cultural heritage of the country.
- Sec 377 does not violate the constitutional rights of a person as it is the duty of
state to put reasonable restrictions on certain acts like carnal intercourse to protect
the citizens from something offensive and injurious.
- It does not violates Art 14 as the state has the power to identify who should be
regarded as a class for making laws under reasonable classification. Moreover, the
Section only defines an offence and its punishment.
- It does not violates Art 15 as the article mainly prohibits discrimination on the
basis of sex and not sexual orientation which is nowhere described.
- It will also impact Parsi Marriage and Divorce Act, Special Marriage Act, Indian
Divorce Act and Hindu Marriage Act.
The SC struck down the 158 years old law on homosexuality that made carnal intercourse
against order of nature a criminal offence. The court overruled its previous judgement given
in Suresh Kaushal case and declared Sec 377 as unconstitutional as it violated Art 14,15,19
and 21 of the Constitution.
It was one of the major landmark judgements of Supreme Court given in regard for the right
of equality of LGBTQ community of which they were robbed by the Victorian era law. The
community deserves equal rights and respect as any other individual and discrimination
against an individual on the basis of sexual orientation is deeply offensive to the dignity and
self-worth of the Individual.