NAVTEJ SINGH JOHAR V. UNION OF INDIA

AUTHOR: KETHAM MADHURI, DY PATIL COLLEGE OF LAW, NAVI MUMBAI , MAHARASHTRA

COURT: SUPREME COURT OF INDIA

YEAR: 2018

CITATION: AIR 2018 SC 4321

JUDGES SITTING:

Chief Justice Dipak Misra
Justice Dhananjaya Y. Chandrachud
Justice Ajay Manik Rao Khanwilkar
Justice Indu Malhotra
Justice Rohinton Fali Nariman

BRIEF OVERVIEW

In this case the “constitutional validity of section 377 of the Indian penal code”, which “criminalized consensual homosexual acts” and violating fundamental rights under articles 14, 19(1)(a) and 21 of “LGBTQIA community” is questioned before the supreme court of India.

PARTIES INVOLVED:

Plaintiff (s): NAVTEJ SINGH JOHAR & ORS

(versus)

Defendant (s): UNION OF INDIA

THR. SECRETARY

MINISTRY OF LAW AND JUSTICE

RELEVANT FACTS

The issue in this case originated in 2009 in the case Naz Foundation v. Government of N.C.T. of Delhi (2009), where the Delhi court held section 377 IPC Unconstitutional.

Later, the case of Suresh Kumar Koushal v. Naz foundation (2013), overruled the decision of Delhi high court.
In the present Navtej Singh Johar v. Union of India case, the petitioner who was a dancer and identified as a member of LGBTQ community filed a petition before supreme court in 2016.
The “petitioner pleaded the court of law to recognize the right to sexuality, right to sexual autonomy and right to choose a sexual partner to be a part of right to life guaranteed by article 21 of the constitution of India”.

PROCEDURAL HISTORY

2009- the Delhi high court, in Naz foundation v. govt of NCT of Delhi, declared section 377 unconstitutional as it applied to consensual acts between adults.

2013- Suresh Kumar Koushal v. Naz foundation- in this case the supreme court reversed the Delhi high court decision and held that section 377 of the Indian penal code was constitutional.

LEGAL ISSUES

Whether section 377 of the Indian penal code is unconstitutional?
Whether section 377 of Indian penal code is violating the article 14, 15 and 21 of Indian constitution?
Whether section 377 is violating article 19(1)(a) by criminalising the gender expression of the LGBTQIA community?

PETITIONERS’ ARGUMENTS

Petitioner Navtej Singh Johar filed a petition questioning the “constitutional validity of section 377” 0f IPC which “criminalised the homosexuality”.
The petitioner stated that members of LGBTQ community have the “right to choose their partner”.
Petitioner stated that section 377 is violating the fundamental rights of LGBTQ Community that are guaranteed under article 14, 15, 19 and 21 of Indian constitution.
Petitioner also argued that members of LGBTQ Community are also citizens of the country as they are declared as “third gender” in the society.
Petitioner argued that members of LGBTQ community are equally entitled to the rights guaranteed under article 14, 15, 19 and 21 of the constitution of India.
The Rights of LGBTQ Community shall be enforced and they should not be deprived from enforcing their rights.
Finally, the petitioner argued that, section 377 is violating the right to equality, right to freedom of expression and mainly it is violating the right to live with dignity of LGBTQ Community.
The petitioner urged the court of law to declare the section 377 of IPC as unconstitutional and to uphold the rights of LGBTQ community.

RESPONDENTS ARGUMENTS

Respondent argued that section 377 is not infringing the rights of LGBTQ Community.
Respondent also stated that section 377 criminalised homosexuality concerning the public perspective.
Respondent argued that, homosexuality is against the culture of Indian society therefore section 377 criminalised the homosexuality.
Respondents also stated that encouraging homosexuality may cause serious health issues.

JUDGEMENT

The Supreme Court of India by considering all the merits and demerits of the case held that section 377 of IPC which criminalised homosexuality was declared as “unconstitutional”.
The judgement was given in favour of the petitioner.

LEGAL REASONING

Supreme court of India declared section 377 0f IPC as unconstitutional by stating the following reasons:

Section 377 of IPC is violating the such as:

Right to equality, right to freedom of expression, right to privacy, right to live life with dignity.
“The Supreme Court stated that section 377 of IPC is infringing the fundamental rights of LGBTQ community”.
The supreme court of India declared section 377 of IPC as unconstitutional because it is violating the above-mentioned fundamental rights of LGBTQ community.
The court stated that “the members of LGBTQ community are also the citizens of the nation and they should not be deprived from enforcing their fundamental rights which are guaranteed under part 3 of the constitution of India”.
The court stated that LGBTQ community members should be treated equally as they are declared as third gender.
The court also stated that “the members of LGBTQ community have all the right to choose their partner with the reasonable consent of another person”.

RATIO DECIDENDI

Supreme court of India unanimously declared section 377 of IPC as unconstitutional .

CRITICAL ANALYSIS

The landmark judgement given by the supreme court of India which held section 377 of IPC is a progressive step which is necessary for creating awareness among the members of society about the LGBTQ community.

SOCIAL ASPECT

This judgement brings a positive change in the people that, being the citizens of the country, it is our duty to respect all the three genders of the society, to treat them equally without any type of discrimination.
“Creates awareness about the rights of LGBTQ community that are guaranteed in the constitution of India”.
Provides access to LGBTQ community to enforce their rights without any fear.
This judgement may “create a mental awareness that members of LGBTQ community are to be treated equally the same as remaining genders of the society”.
Hence, this judgement provided an opportunity to the members of LGBTQ Community to lead their lives with dignity, equality and respect in the society.

ECONOMICAL ASPECT

This judgement which upheld the rights of LGBTQ community can bring a greater change in economic status of the members of the LGBTQ Community and also to the country.
If “the government implements effective policies that promote access to education and create equal opportunities of employment, the members of LGBTQ community can become financially stable and they can improve their living standards and they can also contribute to the economy of the country”.