Navtej Singh Johar vs Union of India 2018 – Indian Judiciary – Free PDF Download

1. 1. 1. Indian Judiciary & Important SC judgment

   377. 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.
   • Explanation.—Penetration is sufficient to constitute the carnal intercourse necessary to the offence described in this section

                                        Criminalisation of Homosexuality

   The Buggery Act of 1533

   • Section 377 was drafted by Thomas Macaulay. This law in British India was modelled on the Buggery Act 1533.
   • This law defined ‘buggery’ as an unnatural sexual act against the will of God and man. Thus, this criminalized anal penetration, bestiality and in a broader sense homosexuality.

                                Battle which began over 20 years ago

   • November-December 1991: A document detailing the experiences of gay people in India is released by the AIDS Bhedbhav Virodhi Andolan (ABVA). The 70-page report reveals the shocking extent of blackmail, extortion, and violence that gay people faced, especially at the hands of the police.
   • The report calls for the repeal of legislation that discriminates against members of the LGBTQ community, including section 377.
   • May 1994:  ABVA files a writ petition in the Delhi high court, demanding that free condoms be provided and that section 377 be recognised as unconstitutional. Controversy erupts after Kiran Bedi, inspector general of the Tihar jail in Delhi, refuses to provide condoms  for inmates, saying it would encourage homosexuality, besides admitting that inmates indulge in it. Despite long-running efforts to mobilise support, the petition is eventually dismissed in 2001.
   • December 2001: The Naz Foundation, a sexual health NGO working with gay men, files a public interest litigation(PIL) in the Delhi high court, challenging the constitutionality of section 377 and calling for the legalisation of homosexuality.
   • September 2004: The Delhi high court dismisses the case, saying there is no cause of action and that purely academic issues cannot not be examined by the court. A review petition filed by the Naz Foundation was also dismissed a few months later.
   • February 2006: After the Naz Foundation files a special leave petition for the case, the supreme court reinstates it in the Delhi high court citing the fact that it is an issue of public interest. Voices Against 377, a coalition of NGOs, joins the petition, while India’s ministry of home affairs files an affidavit against the decriminalisation of homosexuality.
   • July 2009: In a landmark judgment, a Delhi high court bench consisting of chief justice Ajit Prakash Shah and justice S Muralidhar decides to strike down section 377, saying it violates the fundamental rights to life, liberty, and equality as enshrined in the Indian constitution
   • December 2013: Suresh Kumar Koushal and Ors. Vs. NAZ Foundation and ors
   • Suresh Kumar Koushal, a Delhi-based astrologer, challenge the Delhi high court’s decision in the supreme court.
   • The LGBTQ community suffers a significant blow when the supreme court overturns the Delhi high court’s judgment, saying section 377 “does not suffer from the vice of unconstitutionality and the declaration made by the division bench of the high court is legally unsustainable.”

   NATIONAL LEGAL SERVICES AUTHORITY (NALSA) VS. UNION OF INDIA

   • Citation: AIR 2014 SC 1863
   • Court: SUPREME COURT OF INDIA
   • Judges: K S RADHAKRISHNAN & A K SIKRI

   Judgment

   The Court has directed Centre and State Governments to grant legal recognition of gender identity whether it be male, female or third-gender.
   Navtej Singh Johar and ors. Vs. Union of Indian and ors.

   • Appeal- This case was an appeal against the judgment given by the Supreme Court in the previous case of 2013.
   • Coram- CJI-Dipak Misra, Justice A.M. Khanwilkar, Justice Rohinton Fali Nariman, Justice D.Y. Chandrachud and Justice Indu Malhotra.
   • Issue raised– The main issue here raised was about the constitutionality of section-377 of IPC.

   Submissions from Petitioner side

   • Homosexuality, bisexuality or any other sexual interest is something natural and is not a physical or mental illness. It is a reflection of personal choice.
   • Rights of the LGBT community who constitutes 7-8% of Indian population needs to be recognised.
   • Section-377 is based on the morals and social values of Victorian-era where sexual activities were just considered as a reproductive process and nothing more than that.
   • section-377 is the violation of various fundamental rights of the LGBT group i.e. right to freedom of expression, right to privacy, right to equality, liberty and dignity.
   • Petitioners have also mentioned that people who choose inter-religious and inter-caste marriages are the same as people who choose a partner of same-sex and there is no difference between them.

   Submissions from Respondent side 

   • If section-377 is declared as unconstitutional then the family system will be destroyed and many corrupt young Indians will see this as a trade and will start using homosexual activities for money.
   • Fundamental rights are not absolute and decriminalizing section-377 will leave all the religions practised in the country as objectionable.
   • They also submitted that clarifications can be added to section-377 by defining every word which is controversially mentioned in the section.
   • The main reason behind criminalizing carnal intercourse against nature is to protect the citizens from the injurious consequences as protecting the citizens from something hazardous is one of the aims of criminal law.
   • Article 15 prohibits discrimination on the basis of sex but not on sexual orientation, therefore section-377 of IPC is not violating Article 15.

   Judgment given

   • It doesn’t matter how small is the LGBT section, they also have the right to privacy which includes physical intimacy.
   • The main objective behind retaining section-377is to protect women and children from being abused and harasses by carnal intercourse but consensual carnal intercourse which is performed by the LGBT community is neither injurious to children nor women.
   • Right of choosing a partner for intimate relations is completely a matter of personal choice which cannot be restricted.
   • Any act done in affection by the LGBT coommunity in public  does not disturb the public order or moral values untill it is decent enough and is not obscene. Every person has a right to live with Dignity.
   • The Supreme Court declared that section-377is unconstitutional as it violates Articles 14, 15, 19 and 21 of the Indian Constitution and therefore overruled the judgment given in Suresh Koushal annd ors. vs. Naz Foundation and ors.

   Three years since Article 377 annulment, LGBTQ community still battling

   • Still facing social stigma.
   • Still facing harassment.
   • But the rate of coming out have been increased.

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