Navtej Singh Johar v. Union Of India

Legal Principle:

Decriminalized consensual homosexual sex between adults by partially striking down Section 377 of the IPC.

Related Provisions:

Section 377, IPC, 1860: Unnatural Offences

{Whoever voluntarily has carnal intercourse against the order of nature with any man, woman or animal, shall be punished with 2 [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. Explanation- Penetration is sufficient to constitute the carnal intercourse necessary to the offence described in this section.}

Facts:

1. In 2016, renowned Bharatnatyam dancer Navtej Singh Johar, along with four other petitioners from the LGBTQ+ community, filed a writ petition under Article 32 of the Constitution.
2. Writ Petition was filed for declaring “right to sexuality”, “right to sexual autonomy”, and “right to choice of a sexual partner” to be part of the right to life guaranteed under Article 21 of the Constitution of India.
3. It was also contended by the petitioners to declare Section 377 of IPC to be unconstitutional. They argued that Section 377 violated their fundamental rights to equality, dignity, privacy, freedom of expression, and personal liberty guaranteed under Articles 14, 15,19(1)(a) and 21 of the Constitution.
4. The petitioners contended that sexual orientation is an inherent and natural aspect of an individual’s identity and that criminalizing consensual same-sex relationships subjected
5. LGBTQ+ persons to discrimination, harassment, social stigma, and fear of prosecution.

Issues Raised:

Whether Section 377 of IPC as it criminalises consensual sexual acts of adults (i.e. persons above the age of 18 years who were competent to consent) in private, was violative of Articles 14, 15, 19, and 21 of Constitution.

Judgement:

A five-judge Constitutional Bench of the Supreme Court unanimously held that Section 377 of the Indian Penal Code, 1860, insofar as it criminalized consensual sexual acts between adults in private, was unconstitutional. The Court partially struck down the provision by reading it down, while retaining its applicability to non- consensual sexual acts, sexual offences involving minors, and bestiality.

The Court observed that, sexual and gender-based minorities cannot live in fear, if the Constitution has to have meaning for them on even terms. In its quest for equality and the equal protection of the law, the Constitution guarantees to them an equal citizenship. In de-criminalising such conduct, the values of the Constitution assure to the LGBT community the ability to lead a life of freedom from fear and to find fulfilment in intimate choices. The Court held that Section 377 violated the fundamental rights guaranteed under Articles 14, 15, 19(1)(a), and 21 of the Constitution. It ruled that criminalizing consensual same-sex relationships was arbitrary and discriminatory, thereby violating the guarantee of equality under Article 14. The Court further observed that discrimination based on sexual orientation is a form of discrimination based on sex and is prohibited under Article 15.

The Bench held that the freedom to express one’s sexual orientation and identity forms an integral part of the freedom of speech and expression under Article 19(1)(a).It also recognized that the right to privacy, dignity, autonomy, and the freedom to choose a life partner are essential components of the right to life and personal liberty under Article 21. The Court expressly overruled its earlier decision in Suresh Kumar Koushal v. Naz Foundation (2013), holding that constitutional rights cannot be denied merely because the affected group constitutes a minority.