December 3, 2020

CASE BRIEF: NAVTEJ SINGH JOHAR VS. UNION OF INDIA MINISTRY OF LAW AND JUSTICE SECRETARY(S)

Citation– AIR 2018 SC 4321

Court: The Supreme Court of India

Coram – A five-judge bench headed by Justice Dipak Misra along with Judges RF Nariman, AM Khanwilkar, DY Chandrachud, and Indu Malhotra

Date of Judgement – 06.09.2018

Theme- Section 377 IPC is not a crime anymore

Subject: Constitutional law

Judgement- India

INTRODUCTION

The hunt for identity as an essential human need has reigned the mind of every individual in many spheres like success, fame, economic power, political assertion, celebrity status, and social prevalence. All the more especially the sexual orientation character of an individual together with the sacred idea of “identity with dignity”, its social ramifications and lawful acknowledgement has been a much-discussed issue of the decade. In the present case of Navtej Singh Johar vs. UOI, the constitutionality of Section 377 of the Indian Penal Code, 1860 was challenged before the Supreme Court of India. Through the medium of this case, the concept of homosexuality along with Section 377 IPC was explored as the said provision deals with unnatural offences, particularly with “carnal intercourse against the order of nature”. It criminalized homosexuality as it was considered to be against the course of nature, impermissible and deplorable in the Indian society. Questions arose regarding the constitutional scope of the given concept and if it merely included sexual orientation or was wide enough to incorporate the sexual choice of partner. The Apex court of India unanimously held the provision to be unconstitutional as far as it concerned criminalization of consensual sex between to adults of the same gender. The court explained the rationale behind the same stating that the discrimination on the basis of sexual orientation was violative of fundamental rights of an individual as it mortified their privacy, even if it affected only a homuncular section of the society.

The main contentions in the writ petition revolve around the concepts of “Constitutional Morality”, “Transformative Constitutionalism” and how the provision stands in violation of Articles 14, 15, 19 and the right to sexuality,-the right to sexual autonomy and -right to choice of a sexual partner which is a part of the right to life guaranteed under article 21 of the Indian Constitution guaranteeing Fundamental Rights to its citizens.

FACTS

Section 377 of the Indian Penal Code states- “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.”

The issue was first raised in 2009, in a case named Naz Foundation v. Government of NCT of Delhi, where the constitutionality of section 377 IPC was challenged in Delhi High Court and it was contended that the given section is violative of article 14,15,19 and 21 of the constitution. It was argued that such victorian era law has no place in current society and there is a dire need to strike it down. The law made consensual sex between two consenting adults as a punishable offence which was not in any manner peno-vaginal. The High Court struck the law down seeing that the section unmistakably encroached the right to personal liberty, right to live with dignity and privacy of a person. It abused the privilege of equal protection ensured by the Constitution through Article 14.

The decision of the High Court was challenged in 2013 by the petitioner name Suresh Kumar Koushal. The Supreme Court in the case of Suresh Kumar Koushal v. Naz Foundation and Ors. overruled the decision by Delhi High Court and reinstated Section 377 stating that the scope and the power lie only to the Parliament to debate and declare the section as unconstitutional. The court further quoted that a minuscule fraction of the nation’s population comprises lesbians, gays, bisexuals or transgenders and that the High Court had incorrectly depended upon global precedents and reference in its uneasiness to secure the supposed rights of LGBT people. The bench involving Justice G. S. Singhvi and J. S. Mukhopadhyaya expressed ” “Considering the above conversation, we hold that Section 377 IPC doesn’t suffer from the vice of unconstitutionality and the affirmation made by the Division Bench of the High Court is legally unsustainable.”

The present Writ Petition was filed on 27th April 2016 to challenge the constitutional legitimacy of Section 377 of the Indian Penal Code, 1860 (“IPC”) on the particular ground that it criminalizes consensual sex between two adults with similar sex in private. The current petition was filed by five individuals all of which belonged to the LGBT community, artist Navtej Singh Johar, writer Sunil Mehra, chef Ritu Dalmia, hoteliers Aman Nath and Keshav Suri and businesswoman Ayesha Kapur. The petitioners asserted that the issues raised by them are not quite the same as those brought up in Suresh Koushal’s case. They challenged the section “punishing consenting adults having sexual intercourse and rendering it as an act against the order of nature”.

ISSUE

Whether Sec 377 of The Indian Penal Code,1860 is violative of Article 14, 15, 19 and 21 of the Constitution of India?

CONTENTIONS OF PETITIONER AND OTHERS

The contentions raised by the Ld. senior counsel Mr Arvind Datar on the behalf of petitioners were as follows;

  1. The sexual orientation of an individual is a natural and private expression of choice and freedom rooting from the consent of two qualified adults. (Francis Coralie Mullin v. Administrator, Union Territory of Delhi 9(2014) 9 SCC 1 and others).
  2. The fact that it is criminalized in itself flouts the principles of dignity and autonomy. It is an essential characteristic of one’s private life where an individual is entitled to the right to reputation, option to shelter and choose a partner. Article 21 of the Constitution talks about Right to Life and Personal Liberty where privacy is an inherent and underlying feature as laid down in KS Puttaswamy and Anr. v. Union of India & Ors. (2017) 10 SCC 1.
  3. Sec 377 IPC is violative of Article 14 as the term is indistinct and does not define ‘carnal intercourse against the order of nature’. Furthermore, there is no intelligible differentia or reasonable classification that exists between the natural and unnatural sex as long as it is consensual
  4. (Anuj Garg and others v. Hotel Association of India and others).
  5. Sec 377 IPC is violative of Article 15 as there is separation based on sexual identity and sexual preference of an individual. An individual is prosecuted under Section 376(c) to (e) IPC, for committing an act with the opposite-gender without her co, whereas if similar acts take place out of consent between people belonging to same-sex is condemned.
  6. Sec 377 IPC disregards the privilege of the LGBT people under Article 19(1)(c), denies them the option to form affiliations and furthermore, a conviction under Sec 377 IPC renders such people ineligible for appointment as a director of an organization.
  7. Sec 377 IPC also incapacitates their growth in terms of personality and relation-building endeavours to enter into live-in relationships standing in violation of Article 19(1)(a) of the Constitution.
  8. Fundamental rights are accessible to all citizens of the country including the LGBT community which comprise 7-8% of the Indian population constituting a minority. Such individuals need more protection in comparison to heterosexuals. Hence, they should be entitled to the same benefits and rights arising from a live-in relationship such as testamentary rights, medical treatments, choice of partner and insurability as laid down by Indra Sarma v. VKV Sarma.
  9. 8. The rights of LGBT (as perceived under the NALSA Judgment)where the transgenders have been recognized as the third gender but still any sexual act amongst them would remain an offence under the given provision and the LGBT stand in a vulnerable position where their choice of sexual orientation isn’t permitted and draws criminal attention if expressed due to lack of constitutional protection.
  10. 9. Sec 377 IPC is arbitrary as it makes the consensual relationship a criminal act on the ground that it is against the order of nature (Shayara Bano v. union of India and others) and is against the idea of fraternity as embodied in the Preamble of our Constitution.
  11. 10. The decision in Suresh Koushal and another v. Naz Foundation and others. are per incuriam as it failed to take into consideration the amendment to Sec 375 IPC which rendered sexual ‘carnal intercourse against the order of nature’ between opposite gender permissible, whereas it still continued to be an offence for same-gender consensual intercourse.
  12. 11. Section 377 IPC impedes the LGBTs tounderstand their rights with regard to shelter; they look for the help from private sources, such as, Gay Housing Assistance Resources (GHAR) so as to get to the safe house which means that these individuals are in scathing need of quick consideration and protection by the State.

CONTENTIONS OF THE RESPONDENTS

  1. There is no concept of personal liberty in abusing one’s organs and that the hostile act restricted by Section 377 IPC is committed by abusing the organs. Such acts are undignified and critical to the protected idea of liberty enshrined in the constitution and if any infraction is caused to the idea of dignity, it would tantamount to constitutional wrong and constitutional immorality.
  2. Section 377 IPC isn’t violative of Article 15 of the Constitution as the said Article forbid separation on the grounds of just religion, race, caste, sex, place of birth or any of them however not on the basis of sexual orientation.
  3. Section 377 IPC in its current structure doesn’t disregard Article 14 of the Constitution as it simply characterizes a specific offence and its punishment and it is well within the purview of the State to figure out who ought to be regarded as a class for the purpose of the legislation.
  4. The issue identifying the constitutional recognition and privileges of the transgender community has been thoroughly considered in the NALSA judgment and no further reliefs can be conceded to them.
  5. Sec 377 has been consolidated after observing the legal system and standards which prevailed in ancient India and the said section in the current scenario is relevant lawfully, medicinally, ethically and constitutionally.
  6. People indulging in unnatural sexual acts made culpable under Sec377 are more receptive and are at higher risk against HIV/AIDS and right to privacy can’t be expanded out to empower individuals to indulge in unnatural offences and in this manner contracting HIV/AIDS
  7. Fundamental rights are not absolute and there is no unreasonableness in Sec 377. Furthermore, decriminalizing the section would run foul to all religions practised in the nation, and, while choosing the ambit and extent of constitutional morality, Article 25 additionally has the right to be given due thought.
  8. In the event that Section 377 IPC is struck down it would render the complaints related to forced acts secured under the current Section 377 IPC remediless as the said Section not just encroaches on carnal intercourse against the order of the nature between two consenting adults but in addition, applies to forced penile non-vaginal sex between adults. It would likewise render a married woman remediless under the IPC against her bi-sexual spouse and his consenting male partner.
  9. The offence under Sec 377 suggests sexual perversity (Fazal Rab Choudhary v. Territory of Bihar) and includes Carnal intercourse between two people which is offensive, harmful and against the order of nature, it is well inside the purview of the state to put reasonable limitations on it
  10. The doctrine of manifest arbitrariness is of no application to the current case as the law isn’t plainly or in any way arbitrary, for Section 377 IPC is a punishable act which is independent of sex or sexual orientation of the people. It doesn’t comprise discrimination as laws dependent on biological reality can never be unconstitutional. The interest of a citizen or of the general public, however significant, is secondary to the interest of the nation or society as a collective (State of Gujarat v. Mirzapur Moti Kureshi Kassab Jamat and others ).
  11. Decriminalization of Section 377 IPC will ruin the family framework and negatively influence the organization of marriage, open a conduit of social issues in which the legislative domain isn’t capable enough for accommodating and would likewise have a falling impact on existing laws.
  12. Consent could also be obtained by misconception, unsoundness of mind, intoxication or coercion;
  13. If the court allows prayers of the petitioners then that would lead to judicial legislation, as the Courts have no power to add or delete words into a statute. It is stated that the words ‘consent’ and/or ‘without consent is not mentioned in Section 377 IPC and, therefore, such artificial distinctions cannot be made by the Courts. (Sakshi v. Union of India and others).

ANALYSIS AND SUMMARY OF JUDGEMENT

The judgment for the present case was pronounced on the 6th of September, 2008 where a five-judge bench unanimously struck down Section 377 of The Indian Penal Code, as unconstitutional to the extent it criminalized consensual sexual intercourse between two qualified adults of same-sex. The writ petition was presented by the petitioner Navtej Singh Johar, before a three-judge bench which felt that it was deemed fit to be considered by a larger bench. The Apex court referred to the Suresh Kumar Koushal vs. Naz Foundation case where the court declared the provision to be intra-vires and overturned the decision by division-bench in Naz Foundation vs. Government NCT of Delhi.

The court broached upon disparate arguments such as social morality, determination of “order of nature”, fundamental rights, foundations of our constitution, statistically minor community, etc. thus giving a landmark judgment.

The case took into consideration profound questions of law and morality which had significant implications and consequences on our society. Section 377 IPC, states that “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 be liable to fine”. The debated language of the provision “carnal intercourse against the order of nature” remains to be ambiguous and vague to the extent that no defined meaning was attributed to it. Sexual intercourse between two people of same-sex was considered to be an “unnatural offence” which was “against the order of nature”. This provision stems from the Victorian-era law which is long gone and there is no need for the continuance of the same as they are violative of Articles 14, 15, 19 and 21 of the Constitution (Justice Nariman). The reading down of the section did not have a retrospective effect but was to be applied to pending matters only. The issue first arose in Naz Foundation case where it was observed that under Article 15 of the Constitution of India, discrimination on the basis of sex was prohibited. It was overruled in Suresh kumar koushal case by another Delhi High Court bench holding that Section 377 IPC only regulated sexual conduct that amounted to unnatural offence and did not concern gender identity or consent of the offender. It did not aim at criminalizing a particular section of the society based on their sexual orientation but only acts that constituted the commitment of a punishable act.

The constitution guarantees the citizens of India certain fundamental rights which are sacrosanct in nature. However, one should be aware of the fact that these rights are dynamic and perennial. It would be against the principles of ‘equality, liberty and dignity’ and foundation of our constitution to attach a static and predetermined interpretation to them. Earlier judicial pronouncements were based on social morality instead of constitutional morality and being the guardian of the constitution, it is the responsibility of our judiciary to ensure that rights of the weaker or minority sections of our society are well taken care of. Our society has undergone progressive changes and there has been a pragmatic shift from the traditional and devout approach. The Court relied upon the judgment in the cases National Legal Services Authority v. Union of India (2014) 5 SCC 438 and K.S. Puttaswamy v. Union of India to recapitulate that gender identity and sexual orientation are intrinsic to one’s personality and denying the Lesbians, gay, bisexual and transgender the right to privacy and a right to choose a sexual partner irrespective of their sex, would be violative of a dignified life under Article 21 of the Constitution as sexual autonomy also falls under its ambit. It held that the provision led to an unreasonable restriction on the right to freedom of expression since consensual sexual intercourse was a private affair beyond the legitimate interests of the state and did not lead to degradation of public morality and decency. The LGBT constitutes of a sexual minority objected to humiliation and discrimination not only at the hands of the State and society but also their own families. If the provisions continue to remain in the statute then it will cause a chilling effect that would “violate the right under Art. 19(1)(a)”.

The principle of Transformative constitutionalism bestows upon the judicial organ a duty to ensure the ascendancy of the Constitution with the concept of constitutional morality maintaining the social fabric of the society. The doctrine of progressive realization of rights is a prominent feature of constitutional law which maintains checks and balances on the economic, social and cultural rights (Justice Dipak Misra and Justice Khanwilkar). The Court reiterated that ‘Homosexuality is not a mental disorder or mental illness’ as per The Mental Healthcare Act,2017 and treating it as a mental illness that can be cured can attract grave consequences for the mental health of the person. Homosexuality got accreditation globally, both domestic, as well as international courts, have developed strong jurisprudence against discrimination based on sexual orientation following theorists like Bentham and John Mill.

It does not matter if it caters to a minuscule fragment of the society, individuals from the LGBT community are equally entitled to enjoy the right of privacy and human dignity. Justice Malhotra affirmed that homosexuality is “not an aberration but a variation of sexuality”. It curtails a particular community based on their gender identity as the sodomy laws overstep the right to equality under Articles 14 and 15 of the Constitution. A State must ensure that the human rights of LGBT individuals are guarded regardless of a majoritarian approval of the government. Though Section 377 IPC was facially gender-neutral, its “effect was to efface identities” of the LGBT community (Justice Chandrachud). It was observed that provision puts forward the rule by the law instead of the rule of law. Sexual expression and intimacy of a consensual nature, between adults in private, cannot be treated as “carnal intercourse against the order of nature”. The stigma and social distancing faced by the LGBT Community is the outcome of social ethics and morality and is in opposition to the essential rule of liberty. The judiciary should undoubtedly ignore the social profound morality and maintain and ensure sacred constitutional morality.

Contributed by: Rishabh Bhardwaj and Arushi Gupta (Students, Jindal Global Law School)

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