- Whether Section 377 of the IPC violated-Right to Equality guaranteed by Article
14 of the Constitution Freedom of Speech and Expression under Article 19 Right
to Privacy and Right to live with dignity under Article 21 of the Constitution?
- Whether, rendering consensual relationship a crime as being against the
order of nature according to Section 377 of the IPC is arbitrary?
- Whether the fact that the law discriminates between individuals based on
sexual orientation is violative of Article 15 of the Constitution?
Summary of Navtej Singh Johar v/s Union Of India
WP (Crl.) 76/2016
Five judges bench:
- Chief Justice Dipak Misra
- Justice A.M. Khanwilkar,
- Justice D.Y. Chandrachud,
- Justice R.F. Nariman and
- Justice Indu Malhotra
The court mentioned the following cases in the judgement:
National Legal Services Authority v. Union of India:
The court reiterated that 'gender identity is intrinsic to one's personality and
denying the same would be violative of one's dignity.' So it would be violative
of their fundamental right to privacy if we discriminate between the LGBT based
on the ground that they form a minority of the population.
Shafin Jahan v. Asokan K.M. and Shakti Vahini v. Union of India:
The court reinstated that 'an adult's right to choose a life partner of his/her
choice is an aspect of individual liberty.' Thus, when two individuals belonging
to the LGBT community decide to do in private it in no manner harms the public
decency or morality. Intimacy between consenting adults of the same sex is
beyond the legitimate interests of the state.
Justice K.S. Puttaswamy (Retd.) and Anr. v. Union of India and Ors.:
The court reiterate that there is a fundamental right of privacy which endured
in favour of all persons, the concomitant of which was that the right to make
choices that were fundamental to a person's way of living could not be
interfered with by the State without compelling necessity and/or harm caused to
Effect of the Judgement
- It doesn't matter how minuscule is the LGBT section, they also have the right
to privacy which includes physical intimacy. Their choice of partner might be
different but it does not mean they will be prosecuted for that. Section-377
does curtail their human dignity and their personal choice, therefore violating
their right to privacy which is covered under Article 21.
- The main objective behind retaining section-377 is to protect women and
children 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 implies that section-377 is
redundant and discriminative towards one section of the society and is therefore
violative of Article 14 of the Indian Constitution rendering it
- Our Constitution being liberal, it is not possible that the right of
choice will be absolute. Therefore some restrictions have been imposed on
the principle of choice. However, the right of choosing a partner for
intimate relations is completely a matter of personal choice which cannot be
restricted. Whereas, section-377 of the Indian Penal Code restricts the
right of LGBT community to
choose a partner for sexual matters and is therefore irrational and arbitrary.
- Public order, decency and morality are the grounds which can impose
reasonable restriction on the fundamental right of expression. Any act done
in affection by the LGBT community in public does not disturb the public order or moral values
until it is decent enough and is not obscene. However, section-377 is again
unconstitutional in the sense that it does not connect with the criteria of
proportionality and is violating the fundamental right of expression of LGBT
- The Court while delivering judgment relied on the 'principles of
transformative constitutionalism and progressive realisation of rights' and held that the
constitution must guide society's transformation from an archaic to a pragmatic
society where fundamental rights are fiercely guarded. It further stated,
constitutional morality would prevail over social morality and affirmed that
homosexuality was not an aberration but a variation in the sexual orientation
of an individual.
- Thus the Supreme Court declared that section-377 is unconstitutional as
it violates Articles 14, 15, 19 and 21 of the Indian Constitution and
therefore overruled the judgment given in Suresh Koushal and ors. v. Naz Foundation and
ors. Moreover, it also declared that section-377 will be governing only
non-consensual sexual acts committed against any adult and minor.
The judgement has placed reliance on the concept of transformative
constitutionalism which has paved a way for a plethora of very essential
amendments and reformations in the legal field. It has been a landmark judgement
in the history of the country since it not only recognises the identity of
individuals belonging to the LGBT community but also confers upon them global
acceptance by the society.
After this relief through a landmark judgement, the
next fight in the history of legal arena would for the social and economic
provisions for such individuals including the right to marry a person of the
same sex or any person of their choice.
Written By: Shashwata Sahu, Advocate
LLM, KIIT School of Law