Navtej Singh Johar v/s Union Of India – Case Comment
In India, homosexuality was considered as “gay-sex taboo” and people belonging to Lesbian Gay Bisexual Transgender (LGBT) Community were not treated as normal human beings because of their different sexual orientation but through the present case, which created a watershed moment for India, the Hon’ble Supreme Court keeping in mind that change is the only constant, struck down Sec 377 of IPC, 1860 and through its dynamic approach and liberal interpretation has given a new dimension to the “Right to life”. It has not only decriminalized the voluntary sexual activity between homosexuals but also recognize the LGBT minority community provided them their rights which apparently changed the life of many in the country. After this judgement, India got placed among 28 countries of the world to legalize homosexuality.
Homosexuality means when a person is sexually attracted to people of their own sex. homosexuals have different sexual preference and sexual orientation and that is why people tend to alienate them and having this fear of missing out, many homosexuals never dared to publicize their originality which makes them deprived of their fundamental rights such as right to live with dignity and right to equality.
In Ancient India, homosexuality was never considered as an offence as there are many instances such as sculptors on Khujraho temple of Madhya Pradesh displaying homosexual acts and Arthashashtra, an ancient manual which levy duty on king who punishes homosexuals. They both depict that being homosexual is an emotion of nature and is natural god-gifted process then why it was considered as an unnatural offence later on. Answer to that is, that Indian Penal Code was based on British laws and in the 16th century “Buggery Act,1533” was passed by England’s Parliament under the kingship of King Henry VII which describes sodomy, buggery and bestiality as an unnatural offence.
Therefore, Thomas Macaulay who drafted IPC, has drafted Sec-377 which criminalizes voluntary consensual sexual acts of adults against the order of nature, though, in the entire code, the phrase “order of nature” has not been defined/given which makes it meaning vague, incomplete and arbitrary further it is only limited to natural procreative concept which make its approach conservative and in reality, such limitation cannot be imposed on inborn traits.
In year 2001, Naz Foundation, a Non-Governmental Organization (NGO) which works for prevention of HIV/AIDS, filed a PIL on behalf of homosexuals before Delhi High Court under Article 226 of Indian Constitution seeking decriminalization of Sec- 377 IPC and challenged its constitutionality as it appears to them that this section is violative of certain fundamental rights of homosexuals because of which LGBT community not only face discrimination from society but got abused and humiliated by public authorities as well. This petition was dismissed in year 2004 on the ground that the petitioners cannot contest case on behalf of homosexuals. Followed by this judgement, aggrieved petitioners’ approach to same court by way of SLP which was decided in year 2009 and it decriminalized Sec 377, IPC and it was held unconstitutional. But this was not an end, in the case Suresh Kumar Koushal and Others. v. Naz Foundation and Other (2014) 1 SCC 1, the judgement of Naz Foundation (supra) was challenged before Hon’ble Supreme Court, in which two judge-bench overturned the decision of Delhi High Court in 2013. Lastly, on 27th April, 2016, five petitions were filed in Hon’ble Supreme Court under Article 32, which were clubbed together and were tried as Navtej Singh Johar v. Union Of India, (2018) 10 SCC 1. Here, all the five petitioners contends that they personally face the violation of their Fundamental Rights because of Sec 377 IPC and challenged the Constitutional Validity of Sec 377. They also stated that this time issue raised in this petition are different from that of Suresh Kumar Koushal case . And it was contended that said section is violative of Article 14, 15, 19 and 21.
On 6th Sept, 2018, after considering the facts of case and hearing the arguments of both sides, Hon’ble five-judge bench unanimously allowed the wit petition and reversed the judgement of Suresh Kumar Kaushal case . It was held, that Sec 377 IPC is unconstitutional as it does not withstand with the sanctity of dignity of an individual, one’s freedom of choice and not allows an individual to lead his life in a way which his natural orientation commands therefore, the bench struck down Sec-377 IPC and gave its one of the landmark judgements which became an important not only for LQBT community but for entire progressive India. Following observations were given-
1. The said Section is unconstitutional in the sense that it penalizes “consensual sexual relationship between two adults”. Though it can criminalize the sexual relation between a man/woman with animal or involuntary sexual relationship between two individuals which is already provided u/s 375 IPC but mere criminalization on the ground that two adults of same gender having sexual relationship is “against the order of nature” because they cannot procreate is not valid. Even today marriage is not even equated for procreation of children. It is freedom of choice of two consenting adults as to perform sex for procreation or otherwise.
2. Homosexuality should not be misunderstood as mental disorder or mental illness it a natural orientation which is as much ingrained, inherent and innates as heterosexuality and is controlled by neurological and biological factors of an individual. According to present definition of “Mental Illness” under Mental HealthCare Act, 2017, homosexuality is not a mental illness which amply clears the intention and approval of Parliament that earlier stigma on homosexuality has gone for good and is no more a taboo.
3. No matter, how minuscule the entire population of LGBT community is or less than 200 people are prosecuted u/s 377 IPC but it has to be kept in mind that Constitution belongs to all and provides Fundamental Rights to each and every citizen. Relying on the judgment of K.S. Puttaswamy V. Union of India (2017) 10 SCC 1, it was stated, that every citizen has a fundamental right to privacy under Art 21, which includes right to choose inmate partner.
4. This Section, prevents a homosexual to live with dignity in the society, compel them to live in closet, discriminates them on the basis of their sexual orientation and does not provide them equal protection of law therefore, this tantamount to clear breach of Article 21, 15, and 14.
5. Sec 377 prohibits non-procreative sex but also other forms of intimacy which society finds ‘disturbing’ and against public order, morality and decency but until and unless any act done by LGBT in affection constitutes obscene act, it will not be justified to say that this Section works as a reasonable restriction under Article 19(1)(a).
Every person has right to love, to show their affection, to embrace their originality but if this right is restricted by imposing barriers/limits of class, caste, sex, religion, community, etc., then it will become a battle for all and combating such battle will be impossible for all of us. But through this judgement, Hon’ble Supreme Court has ensured and safeguarded this right. The protection of rights of LGBT individual and anyone similarly situated, is not only about guaranteeing a minority their rightful place in the constitutional scheme, but speaks equally of the vision of the kind of country we want to live in. Although, Same-Sex marriage has not been legalized in India yet, but homosexuals can have sexual intercourse in private. Now, no more discrimination, abusive behavior from society will have to be tolerated by LGBT community. Living in 21st century, people should accept the fact that each person has it own uniqueness and if a person has different orientation in whatever sense they should not discriminate them rather accept them whole-heartedly. It is a bitter truth that being in 21st century, LGBT community have to fight for their rights and are still figuring out their position in the society but the brighter side is that atleast the youth of nation accept them and consider them as equals and not less, but relation between homosexuals is still unacceptable in rural areas and within the boundaries of many urban families which is still a challenge.
Author: kashish gupta,
Invertis University, 5th year