+ Follow
Photo by EKATERINA BOLOVTSOVA: pexels
  • Citation: AIR 2018 SC 4321.
  • Bench: Dipak Misra CJI, A. N. Khanwilkar Judge, D.Y. Chandrachud Judge, Indu Malhotra Judge, R F Nariman Judge.
  • Date of Judgement: September 06, 2018 Statute Referred: Constitution of India, 1949. Indian Penal Code, 1860.
  • Petitioner: Navtej Singh Johar.
  • Respondent: Union of India. 

Facts of the Case

In 2009, Naz Foundation (India) Trust challenged the constitutionality of section 377 of IPC, 1860 under Article 14, 15, 19 and 21 of the Constitution. The Delhi High Court in the case of Naz Foundation vs. Government of N.C.T of Delhi1 held section 377 of Indian Penal Code, 1860 to be unconstitutional, which pertained to consensual sexual conduct between two adults of same sex stating that classifying and targeting homosexual will violate right to equality guaranteed under Article 14 of the Constitution of India. Then, in the year 2014, the two-judge bench of Hon’ble Supreme Court in the case of Suresh Kumar Koushal vs. Naz Foundation2 overturned the decision of the Delhi High Court and held section 377 of Indian Penal Code, 1860 to be constitutional. Thus, a petition was filed in the Hon’ble Supreme Court challenging the decision of the two-judge bench in 2014. A three-judge bench was constituted but they opined that a larger bench must answer the issues raised. Thus, this matter is being heard by a five-judge bench.

The petitioner in the present case, Navtej Sigh Johar, a dancer who was recognized as a part of LGBT community, filed a writ petition in the Hon’ble Supreme Court seeking them to recognize Right to choice of Sexual Partner, Right to Sexuality and Right to Sexual Autonomy as a part of Right to Life under Article 21 of the Constitution of India and also sort to declare section 377 of Indian Penal Code, 1860 to be unconstitutional.

  1. 160 Delhi Law Times 277.
  2. CIVIL APPEAL 10972 OF 2013.

Issues of the Case

  1. Whether Section 377 of IPC, 1860 violates the fundamental right to expression under Article 19(1)(a) by criminalizing the gender expression of persons belonging to the LGBTQI+ community?
  2. Whether Section 377 of IPC, 1860 violates Article 14 and 15 by allowing discrimination based on “Sexual Orientation” and “Gender Identity”?
  3. Whether section 377 of IPC, 1860 violates right to autonomy and dignity under Article 21 by penalizing private consensual acts between same-sex persons?

Arguments on behalf of the Petitioner

  1. Homosexuality, sexual orientation, and bisexuality is natural to all persons founded on consent of two legally qualified persons and such orientation are neither a physical illness nor mental illness.
  2. Irrespective of being minority by constituting 7-8% of India’s population, but still Lesbians, Gay, Bisexual, Transgender (LGBT) needs to be recognized and should be provided legal protection.
  3. Section 377 violates Article 14 as the term “carnal intercourse against the order of nature” is vague and if sex is consensual there exists no intelligible differentia or reasonable classification.
  4. Reliance was placed upon the decision in Khusboo vs. Kanniammal & Anr wherein it was held that law should not be used in such a manner that it has a chilling effect on the freedom of speech and expression.
  5. It was against the principles of individual dignity and autonomy to make the sexual orientation of a person criminal because “sexual orientation is an essential attribute of one’s privacy” held in the case of K.S. Puttaswamy & Anr vs. Union of India & Ors.
  6. Right to choose partner is an inherent right under Article 21 as held in the case of Shakti Vahini vs. Union of India & Ors and the reputation of a person is also taken away under section 377 of IPC, 1860 which is a facet of Article 21.
  7. The LGBTs to access safe shelter are seeking the assistance of private sources such as Gay Housing Assistance Resources (GHAR) and this indicates that they are in the dire need of immediate protection and care of the Judiciary and Government.
  8. The petitioners have also placed reliance on this court’s decision in the NALSA case , where the court has given recognition to transgender as third gender, distinct from male and female and given certain rights.
  9. If section 377 of IPC, 1860 were kept in current form, then it would violate not only one, but various rights of LGBT people such as Right to Freedom of Speech and Expression, Right to Dignity, Right to Reputation, Right to Equality, Right to Liberty, etc.

Arguments on behalf of the Respondent

  1. The respondent leaves the constitutional legitimacy of Section 377 IPC, 1860 to the extent that it pertains to ‘Consensual acts of adults in private’ to the wisdom of this Court.
  2. If section 377 of IPC, 1860 is overturned, then those victims who have complaints about forced acts protected by the existing Section 377 of IPC, 1860 will not get justice. Even a married woman would be helpless in the event her husband is bisexual and his consenting sexual partner are engaged in any sexual act.
  3. People engaging in unnatural sex, which is an offence under section 377 of IPC, 1860 are more susceptible to contracting HIV/AIDS than heterosexuals, increasing the number of AIDS victims.
  4. The offensive activities prohibited by section 377 of IPC, 1860 are performed by abusing one’ organs and abusing one’s organ is not a personal liberty.
  5. The respondent leaves the Constitutional legitimacy of section 377 of IPC, 1870 to the wisdom of court.
  6. Other than constitutional validity of section 377 of IPC, 1860, allowing any other issue to be argued without giving the Union of India an opportunity to file a counter affidavit would be gross violation of principles of natural justice.
  7. The Intervenor also argues that if section 377 of IPC, 1860 is struck down, victims of forced acts covered under this section will not get justice, because the said section also includes forced penile non-vaginal sexual intercourse between a man and woman.
  8. Article 15 of the Constitution prohibits discrimination based on race, sex, caste, place of birth or any combination of these factors and section 377 of IPC, 1860 does not violate article 15 because there is no mention of “sexual orientation”. And an amendment would be required to replace the word “sex” with “sexual orientation.”
  9. The respondents also stated that granting petitioner’s prayer would result in judicial intervention because courts can neither add nor delete words from statute.

Judgement

The Hon’ble Apex court ruled that Section 377 of IPC, 1860 was unconstitutional as it violated Article 14, 15, 19 and 21 of the Constitution. The Court also overruled the decision held in the case of Suresh Koushal and ors vs. Naz Foundation and Ors. Furthermore it went on and held that section 377 would be applicable only to non-consensual sexual activities committed against any minor or adult. The court also observed that criminalizing sexual acts between consenting adults violates right to equality guaranteed by the Constitution of India. The Court also extended the Fundamental Rights to the LGBT community people which are available to the ordinary citizen of the country.

I quote the judgement as follows:

“The fact that only a minuscule fraction of the country’s population constitutes lesbians and gays or transgenders, and that in the last 150 years less than 200 persons have been prosecuted for committing the offence under Section 377, is neither here nor there. When it is found that privacy interests come in and the State has no compelling reason to continue an existing law which penalizes same-sex couples who cause no harm to others, on an application of the recent judgments delivered by this Court after Suresh Kumar Koushal (supra), it is clear that Articles 14, 15, 19 and 21 have all been transgressed without any legitimate state rationale to uphold such provision.”

Ratio Decidendi

The court also highlighted the role of the ‘Transformative Constitutionalism.’ The court observed and applied this principle to hold that the ideals and values enshrined in our Constitution must be a reformatory nudge to bring about change in the societal beliefs.

I quote the judgement as follows:

“Transformative constitutionalism not only includes within its wide periphery the recognition of the rights and dignity of individuals but also propagates the fostering and development of an atmosphere wherein every individual is bestowed with adequate opportunities to develop socially, economically, and politically. Discrimination of any kind strikes at the very core of any democratic society. When guided by transformative constitutionalism, the society is dissuaded from indulging in any form of discrimination so that the nation is guided towards a resplendent future.”

The principle of transformative constitutionalism also states that the Constitution should guide the transformation of society towards a pragmatic society from an archaic society.

Application of Interpretation of Statute

  • The Hon’ble Apex Court has adopted Golden Rule of Interpretation to interpret section 377 of IPC, 1860 to avoid any sort of injustice which would not be possible by a mechanical interpretation of the statute.

The Court has adopted the interpretation of the word ‘sex’ in Article 15 of the Constitution made in the case of National Legal Services Authority v. Union of India & Ors10 which is as follows: “66…Both gender and biological attributes constitute distinct components of sex. The biological characteristics, of course, include genitals, chromosomes, and secondary sexual features, but gender attributes include one’s self- image, the deep psychological or emotional sense of sexual identity and character. The discrimination on the ground of sex under Article 15 and 16, therefore includes discrimination on the ground of gender identity. The expression sex used in Articles 15 and 16 is not just limited to biological sex of male and female, but intended to include people who consider themselves neither male nor female.” (emphasis supplied and internal quotations omitted) Sex as it occurs in Article 15, is not merely restricted to the biological attributes of an individual, but also includes their “sexual identity and character”.

While interpreting section 377 of IPC, 1860, the court got rid of Doctrine of Presumption of Constitutionality of precolonial laws as those laws have been made by non-democratic or colonial powers.

The judgement is quoted below:

“The presumption of constitutionality of a statute is premised on the fact that Parliament understands the needs of the people, and that, as per the separation of powers doctrine, Parliament is aware of its limitations in enacting laws – it can only enact laws which do not fall within List II of Schedule VII of the Constitution of India, and cannot transgress the fundamental rights of the citizens and other constitutional provisions in doing so. Parliament is therefore deemed to be aware of the aforesaid constitutional limitations. Where, however, a pre-constitution law is made by either a foreign legislature or body, none of these parameters obtain. It is therefore clear that no such presumption attaches to a pre-constitutional statute like the Indian Penal Code.”

Analysis

The case Navtej Sigh Johar vs. Union of India emerged as a landmark case, which recognized and gave equal rights to the LGBT community people and also gave them an equal chance to raise their voice against the injustice, torture from the society and all other odds. And, also from this judgement we understand that sexual orientation is not any sort of mental illness or disease, rather it’s a natural condition, where any person can get attracted towards anyone, be it towards opposite sex or even same sex.

The ability of the Constitution to transform and adapt with the changing times is known as ‘Transformative Constitutionalism.’ This principle places an onus on the judiciary of the country to uphold the values of the Constitution. Thus, the rights of the LGBT community were considered important to be recognized under Article 14, 19 and 21 of the Constitution of India.

Our society has undergone many progressive changes such as accepting the sexual minorities and giving them separate space, since the judgement of NALSA case. If the discrimination against the LGBT community persist, then the Indian Courts who are under the obligation to protect the Fundamental Rights of the citizen, would not succeed in discharging its duty. This would also result in reducing the belief of a common man towards the judiciary because judiciary is the guardian of the Constitution.

One of the arguments advanced by the respondents was that LGBT Community being statistically minor, Fundamental rights does not apply to them, but as per the Constitution of India, the Fundamental rights apply to each and every citizen of the country irrespective of their size in population. Even the court on this point held that “The idea of number, in this context, is meaningless, like zero on the left side of any number”.

With regards to Article 15 of the Constitution of India regarding the term ‘sex’, the court using the tool of Golden rule Interpretation has interpreted ‘sex’ to involve ‘sexual orientation’. The scope of Right to Privacy got even more wider after the Puttaswamy Judgement.15 Even the NALSA case which recognized Transgender as third gender and provided them with all the rights which were enjoyed by the citizen of the country played an important role in recognizing LGBT community people and protecting their rights.

Suggestion

After the historic step of the Court in recognizing the LGBT Community people and their Fundamental Rights, the Courts should also recognize the marital tie between the people of this community because, in India still there are no laws framed or amended to regulate the marriage between the people of LGBT Community. As held in the case of Shakti Vahini vs. Union of India where the court held that ‘Right to choose their partner’ is an instinct part of Right to Life under Article 21 of the Constitution of India. Thus, the courts should interpret the provisions of Special Marriage Act, 1954 in such a way that even the marriage between the people of LGBT+ Community is recognized.

.   .   .

Abbreviations:

  • Vs. - Versus
  • AIR - All India Reporter
  • SCC - Supreme Court Case
  • CJI - Chief Justice of India
  • IPC - Indian Penal Code
  • SC - Supreme Court 

Case Law Referred:

  • Naz Foundation vs. Government of N.C.T of Delhi 160 Delhi Law Times 277.
  • Suresh Kumar Koushal vs. Naz Foundation CIVIL APPEAL 10972 OF 2013.
  • Khusboo vs. Kanniammal & Anr (2010) 5 SCC 600.
  • K.S. Puttaswamy & Anr vs. Union of India & Ors (2017) 10 SCC 1.
  • Shakti Vahini vs. Union of India & Ors (2018) 7 SCC 192.
  • National Legal Services Authority vs. Union of India AIR 2014 SC 1863.
  • Kishore Samrite v. State of U.P. & Ors. (2013) 2 SCC 398.

Webliography:

References: 

  • 2010 (5) SCC 600.
  • (2017) 10 SCC 1.
  • (2018) 7 SCC 192.
  • Kishore Samrite v. State of U.P. & Ors. (2013) 2 SCC 398.
  • National Legal Services Authority vs. Union of India AIR 2014 SC 1863.
  • Supra 2.
  • Navtej Singh Johar & Ors vs. Union of India AIR 2018 SC 4321 p.95.
  • Supra 7. 
  • Ibid.
  • Navtej Singh Johar case. P.90.
  • Supra 7.
  • Navtej Singh Johar vs. Union of India p. 120. 
  • Supra 4. 
  • Supra 7.
  • Supra 5. 

Discus