Navtej Singh Johar v. Union of India, commonly referred to as the “Section 377 case,” is a historic legal ruling by the Supreme Court of India. By overturning the court’s prior decision in Suresh Kumar Koushal & Anr vs Naz Foundation, this case had far-reaching consequences for LGBTQ+ rights and the decriminalization of consenting sexual intercourse between same-sex couples. Before this landmark decision, relationships between people of the same sex were illegal under Section 377 of the Indian Penal Code, 1860 (IPC).  This colonial-era regulation, enacted in 1861, was based on the 1553 Buggery Act, which declared sexual activities against nature illegal.

Facts of the case:

Navtej Singh Johar (the petitioner), who was a dancer and identified himself with the LGBT (Lesbian, Gay, Bisexual and Transgender) community, filed a lawsuit seeking sexual autonomy and right to choose a sexual partner within the scope of right to life under Article 21. The Navtej Johar case is not the first legal lawsuit involving LGBT rights in India. The present petition was brought by five members of the LGBT community: artist Navtej Singh Johar, Sunil Mehra, Ritu Dalmia Aman Nath and Keshav Suri, and Ayesha Kapur, challenging the legitimacy of section 377. The key issue in this case was the legality of Section 377 of the Indian Penal Code, 1860 (Section 377), specifically as it applied to voluntary sexual conduct between adults of the same sex in private. The issue was initially brought up in 2009, in a case called Naz Foundation v. Government of NCT of Delhi, in which the validity of section 377 IPC was questioned in the Delhi High Court, and it was argued that the law in question violated articles 14, 15, 19, and 21 of the constitution.

History of Judgements on Homosexuality:

1861- Section 377, introduced by British India

2009- NAZ Foundation v. Govt. of India

2013- Suresh Kumar Koushal v. NAZ Foundation

2014- NALSA v Union of India and ors

2018- Navtej Singh Johar v. Union of India

Contentions of Petitioners-  

–  Having taken guidance from the NALSA case, the Petitioners submit that the LGBT community’s rights are not fully realized and that they continue to be incomplete citizens because their personal sexual expression is restricted in its ability to be declared due to the criminality associated with sexual acts between these individuals, all of which requires that they be buried, and that, as a result, the LGBT community’s rights require equal, if not greater, constitutional protection.

– Although transgender people have been officially recognized as being a third gender and have been granted certain rights as a result of the NALSA case, their consensual acts are still considered illegal.

– The petitioners have emphasized the necessity for the rights of the lesbian, gay, bisexual, and transgender (LGBT) community—which makes about 7-8% of India’s overall population—to be acknowledged since sexual orientation is a fundamental and inherent aspect of each person’s identity.

– The petitioners demand the nullification of Section 377 IPC, which penalizes consensual sex between gays. They believe that section 377 should be completely limited to bestiality and non-consensual actions.

– The section violates Article 14 of the Constitution since there is no discernible distinction or justifiable classification between natural and unnatural sex. The phrases in question are not specified in the section or the Act, rendering them ambiguous.

Arguments of the respondents-

Along with the Petitioner and Respondent, various non-governmental organizations, religious entities, and other representative bodies submitted petitions to intervene in the case.

  • The respondent (Union of India) deferred to the wisdom of the court on the constitutional legitimacy of Section 377. The respondent, who was speaking as the representative of the intervener, stated that section 377 constitutes organ abuse and that these kinds of conduct are inappropriate, amounting to constitutional crime and constitutional morality.
  • Furthermore, the intervenor proposes that individuals who engage in unnatural sexual acts, which are considered punishable under Section 377 of the Indian Penal Code, tend to be more vulnerable and at risk to contracting HIV/AIDS, along with the fact that the percentage of AIDS prevalence in homosexuals is much higher than in heterosexuals.
  • According to the petitioners, the goal of criminal law is to protect citizens from harmful things. Since having sex with someone form the same sex is offensive and harmful, the state has the right to use legislation to impose reasonable restrictions that forbid such abnormal human behavior.

Judgement and Analysis:

Rohinton Fali Nariman:

Section 377 of the Indian Penal Code (IPC) is constitutionally lawful, however Justice Nariman’s ruling in the groundbreaking case of Navtej Singh Johar v. Union of India addressed important criminal law issues. He starts by discussing the stance of western world on sexual intercourse by same sex couples and addresses how Judaism and Christianity outlawed it and goes on discuss the Buggery Act of 1533.

He believed that the essential rights that transgender people are entitled to are privacy, self-identity, autonomy, and personal integrity. The State is required to uphold and recognize certain rights under Article 19(1)(a) of the Indian Constitution. A better understanding of the right to equality, a rethinking of the boundaries of criminal culpability and criminalization, and the broadening of the right to privacy are only a few of the components of the ruling that are pertinent to both criminal and constitutional law. This decision’s revision of the criminal law’s bounds has been one of its main effects.

This Court ruled that “self-determination of gender is a fundamental component of one’s freedom of choice and self-expression and falls within the purview of personal liberty guaranteed Under Article 21 of the Constitution of India” in a crucial portion pertaining to an individual’s right to personal autonomy. Nariman, J., in his judgment, which was concurred in by three other learned Judges, recognized the privacy of choice which protects an individual’s autonomy over fundamental personal choices. Justice Nariman references the World Health Organization’s decision to exclude homosexuality from its list of mental illnesses. This not only demonstrates shifting cultural and professional ideas and perspectives, but it also exposes the lack of any scientific foundation for criminalization.

Judge Nariman ruled that there is no legitimate constitutional ground for dismissing a claim based on privacy under Article 21 of the Constitution, notwithstanding the defendants’ claims concerning the spread of HIV/AIDS. The Court’s judgment notes that “a miniscule fraction of the country’s population constitutes lesbians, gays, bisexuals, or transgender people.” This is not a valid reason to deny someone the right to privacy, he adds, nor can the criminalization of homosexual activity be considered justified as an appropriate or feasible way to stop the spread of AIDS/HIV.

Section 377, which penalizes consenting homosexual intercourse, is found to be obviously arbitrary by the court, according to Chief Justice Nariman. These behaviors are obviously no longer “against the order of nature.” In light of this, he ends by declaring that homosexuals have a basic right to live in dignity and that Section 377 is illegal inasmuch as it forbids homosexual and transsexual intercourse between consenting adults. He and the other judges hold that Section 377 is unlawful insofar as it prohibits voluntary homosexual conduct between adults. In his conclusion, he mandated that the Union of India take every precaution needed to make public the ruling in order to put an end to the prejudice that the LGBT population faces in society.

Contributed By- Sri Moukthika

O.P Jindal Global University LLB(2023-26)

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