• Ms Arushi Singh

Navtej Singh Johar and Ors vs Union of India (Writ Petition (Crl.) No. 76 Of 2016)

CASE

Navtej Singh Johar and Ors vs Union of India through Ministry of Law and Justice Secretary


CITATION

Writ Petition (Crl.) No. 76 Of 2016


CORAM

Supreme Court of India (Criminal Original Jurisdiction)

Constitutional Bench - Hon’ble Chief Justice Deepak Misra (author), Hon’ble Mr. Justice A.M. Khanwilkar, Hon’ble Mr. Justice R.F. Nariman (authored concurring judgment)

Hon’ble Dr. Justice D.Y. Chandrachud (authored concurring judgment) and Hon’ble Ms. Justice Indu Malhotara (authored concurring judgment)


ALSO KNOWN AS

Decriminalisation of Homosexuality Case or Sec 377 Case


POINT OF CONSIDERATION

Whether, criminalisation of homosexuality, constitutionally permissible or not?


FACTS

  1. In 2009, Delhi High Court in Naz Foundation v. Government of NCT of Delhi ((2009) 111 DRJ 1) struck down Section 377 of Indian Penal Code “IPC” which criminalized even a consensual relationship between adults of the same gender who engaged in sexual conduct as being violative of Article 15, which prohibited any discrimination on the ground of sex, and held that sexual orientation forms part of “sex”.

  2. Section 377 of IPC read as – “Unnatural offences – Whoever voluntarily has carnal inter­course against the order of nature with any man, woman or animal, shall be punished with imprisonment for life, or with impris­onment of either description for a term which may extend to ten years, and shall also be liable to fine…..”

  3. In 2014, The Hon’ble Supreme Court in Suresh Kumar Koushal v. Naz Foundation ((2014) 1 SCC 1) overturned the decision of Delhi High Court in Naz Foundation v. Government of NCT of Delhi and hence restored Section 377 in the statute book.

  4. The present batch of Writ Petitions were filed to challenge the constitutional validity of Section 377 of the Indian Penal Code, 1860 (“IPC”) on the specific ground that it criminalised consensual sexual intercourse between adult persons belonging to the same sex in private.

  5. The issue as to whether the decision in Suresh Koushal whereby a two Judge Bench of Supreme Court upheld the constitutional validity of Sec 377 IPC required re-consideration or not was referred to the present five Judge Constitution Bench vide Order dated 8th January 2018.



ISSUES RAISED & RATIO

  • Whether Section 377 discriminates on the ground of sex and hence violates Article 15 or not?

The court held that the prohibition of sex discrimination was meant to change traditional practices which legally, and often socially and economically, disadvantaged persons on the basis of gender. The court explained that the case for gay rights undoubtedly sought justice for gays, but it went well beyond the concern for the gay community. Relationships that undermined the male/female divide were inherently required for the maintenance of a socially imposed gender inequality. Relationships which questioned the divide were picked up for target and abuse. Section 377 allowed this. Therefor the concluded that Section 377 constituted discrimination on the grounds only of sex (which included sexual orientation) and violated the guarantee of non-discrimination in Article 15(1).


  • Whether Section 377 criminalises only acts and not people or not?

The intervenors in the case argued that Section 377 criminalized acts and not people. However, the court rejected the above contention and held that the effect of Section 377 was not merely to criminalize an act, but to criminalize a specific set of identities. Though facially neutral, the effect of the provision was to efface specific identities. These identities were the soul of the LGBT community.


  • Whether the enactment of Section 377 negatives the Right to Privacy as held in Justice Puttaswamy Case or not?

It was held by the court that the social ramifications of Section 377 were enormous. The impact of criminalising non-conforming sexual relations was that individuals who fell outside the spectrum of heteronormative sexual identity were perceived as criminals. The denial of the right to sexual orientation was also a denial of the right to privacy. The application of Section 377 caused a deprivation of the fundamental right to privacy which inhered in every citizen.


  • Whether the decision taken by two Judges’ Bench upholding the validity of Section 377 in Suresh Kaushal (2014) bad in law or not?

The court accepted the contention of the petitioners that in Suresh Koushal the court had been guided by social morality leaning on majoritarian perception whereas the issue needed to be discussed in the backdrop of constitutional morality. Therefore, the court held that Section 377 did not fulfil the mandate of constitutional morality by violating Article 14, Article 15 and Article 21 et al. Hence, Suresh Kaushal was held bad in law and was overruled.



IMPORTANT CASES REFERRED

  1. Suresh Kumar Koushal & Anr. v. Naz Foundation & Ors (2014) 1 SCC 1

  2. Naz Foundation v. Government of NCT of Delhi and others (2009) 111 DRJ 1

  3. National Legal Services Authority v. Union of India and others (2014) 5 SCC 438

  4. Justice K.S. Puttaswamy (Retd.) and Anr. v. Union of India and Ors. (2017) 10 SCC 1



The author is a LL.B Graduate of University School of Law and Legal Studies, GGSIPU, New Delhi

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