Case Summary:
The Supreme Court of India unanimously held that Section 377 of the Indian Penal Code, 1860,
which had at that time criminalized ‘carnal intercourse against the order of nature’, was
nature unconstitutional in so far as it criminalized consensual sexual conduct between adults of the
same-sex, whether consensual or not.
This petition was filed by a dancer Navtej Singh Johar who had challenged the Section 377 of
the Penal Code on the ground that it violated his constitutional rights to privacy, freedom of
expression, equality, human dignity, and protection from discrimination.
The Court reasoned and came to a conclusion that the discrimination of individuals on the basis of
sexual orientation was and is violative of the right to equality, and further that criminalizing
consensual sex between adults in private was violative of the right to privacy as per Article 21 of
the Constitution of India, and that sexual orientation forms an inherent part of self-identity and
denying the same would be violative of the right to life, right to equality and that such
fundamental rights cannot be denied on the ground that they only affect a minuscule section of
the population.
Facts:
- The Petitioner, Navtej Singh Johar, a dancer who identified themselves as a part of the
LGBT community, filed a Petition in the Supreme Court in 2016 seeking recognition of
the right to sexuality, right to sexual autonomy, and right to choice of a sexual partner to
be part of the right to life guaranteed by Art. 21 of the Constitution of India. Furthermore,
he sought a declaration that Section 377 was unconstitutional. - The Petitioner also argued that Section 377 was violative of Article 14 of the Constitution
i.e (Right to Equality Before the Law) because it was vague in the sense that it did not
define “carnal intercourse against the order of nature”. There was no intelligible
differentia or reasonable classification between natural and unnatural consensual sex. - Among other things, the Petitioner further argued that (i) Section 377 was violative of
Art. 15 of the Constitution (Protection from Discrimination) since it discriminated on the
basis of the sex of a person’s sexual partner, (ii) Section 377 had a “chilling effect” as
said by the petitioner on the Article 19 of the Consitution of India i.e (Freedom of
Expression) since it denied the right to express one’s sexual identity through speech and
choice of romantic/sexual partner and (iii) Section 377 violated the right to privacy as it
subjected LGBT community to the fear that they would be humiliated or should be
shunned because of “a certain choice or manner of living.” - The Union of India submitted that it left the question of the constitutional validity of
Section 377 (as it applied to consenting adults of the same sex) to the wisdom and
understanding of the court. Some interveners argued against the Petitioner, submitting
that the right to privacy was not unbridled, and that such acts were derogatory to the
“constitutional concept of dignity” as per their arguments. Further also stated and
suggested that such acts would increase the prevalence of HIV/AIDS in society, and that
declaring Section 377 unconstitutional would be detrimental to the institution of marriage
and that it may violate Article 25 of the Constitution (Freedom of Conscience and
Propagation of Religion
Judgement
The five-judge bench of the Indian Supreme Court (Court) unanimously held that Section 377 of
the Indian Penal Code, 1860, and that insofar as it applied to consensual sexual conduct between
adults in private was unconstitutional. With this, the Court overruled its decision in Suresh
Koushal v. Naz Foundation (( Suresh Koushal v. Naz Foundation, (2014) 1 SCC 1) that upheld
the constitutionality of Section 377. The Court was of the opinion that “intimacy between
consenting adults of the same sex is beyond the legitimate interests of the state” and that the
sodomy laws violate the right to equality under Article 14 and Article 15 of the Constitution of
India by targeting a segment of the population for their sexual orientation.
Justice Chandraud was of the opinion that not only must the law not discriminate against the same
sex relationships, it must also take a positive step to achieve equal protection and to grant the
community “equal citizenship in all its manifestations” and also that homosexuality is not an
aberration but a variation of sexuality.
Conclusion:
This judgment was welcomed by the LGBT Community and various other international
organizations as it is a step in the right way. Even though it is very sad that it took so long, we
must look towards a more acceptable future for all kinds of people ahead. Just like Justice
Malhotra concludes the judgment “We owe an apology to the members of the LGBT
community and their families for the delay in providing redress for the ignominy and ostracism
that they have suffered for years and centuries
