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Summary of Navtej Singh Johar v/s Union Of India

Main Issues:
  • 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
Cases Mentioned:
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 other individuals.

Judgment:
  • 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 unconstitutional.
     
  • 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 groups.
     
  • 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.

Effect of the Judgement
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

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