NAVTEJ SINGH JOHAR Vs. UNION OF INDIA – Riddhi Gupta

NAVTEJ SINGH JOHAR Vs. UNION OF INDIA

FACTS 

Section 377 of India Penal Code 1860, codified law states and criminalizes the sexual activities or intercourse which was also consensual between the two individuals with same sex or gender as it was said to be “AGAINST THE NATURE” 

In 2009, Naaz Foundation Trust constituently challenged the verdict and law in from of Delhi High Court stating that the Section 377 deliberately violates the Article 14,15,19 and 21 of Indian Penal Code. The court stated that punishing the individual of same sex would violate the right to privacy, equality and personal liberty.

In 2013, Infront of Supreme Court in Suresh Kumar Kaushal & Amr. v. Naz Foundation & Kaushal, the Court overturned the Naz ruling. It said that decriminalising homosexuality could only be done by the Parliament. 

ISSUES

• The Kaushal decision’s soundness was discussed by the Court. Additionally, it examined whether Section 377 contravenes: 
• Because it discriminates against people based on their “sexual orientation” and “gender identity,” Article 14? 
• the Article 21 right to autonomy and dignity by criminalising private, consenting acts between people of the same sex? 
• the freedom of expression guaranteed by Article 19(1)(a) by making the LGBTQI+ community’s gender expression illegal?

LAW APPLICATIONS

• Section 377 – This law came to applicability in British Colonial Rule, which also criminalised the “carnal intercourse against the order of nature.”
• The Petitioner argued that Section 377 of IPC violated article. 

1. Article 14 (Right to Equality)
2. Article 15(Prohibition of Discrimination)
3. Article 19(Freedom of Speech and Expression)
4. Article 21(Right to Life and Personal Liberty)

ANALYSIS OF SECTION 377

• Freedom of Expression: The Court recognised that everyone, including members of the LGBTQI community, has the right to freely express their opinions without fear. It recognised same-sex relationships as a typical form of human sexuality. The Court specifically noted out that transgender people face prejudice and subjected to discrimination under Section 377.The Court then considered whether Article 19(1)(a) permits adequate limitations on the right to express one’s sexual orientation in accordance with public order, decency, and morality. It was mentioned that private, consensual acts that do not violate public decency or morals or disturb public order are illegal under Section 377. It is impossible to see sexual actions only through the prism of morality, which limits activities to being done for the purpose of procreation. 
• Right to Equality and Non-discrimination: The Court noted that same-sex partners are liable for cruel and unusual punishment under Section 377. In support of this, the Court pointed out that in order to safeguard women and children, Section 377 divides and punishes those who engage in carnal intercourse as going against the order of nature. However, as unnatural acts are also punished separately under Section 375 and the POCSO Act, this goal has no legitimate connection to the classification. Therefore, the Court decided that it is against Article 14 to treat LGBT people differentially. Also, the Court determined that as Section 377 does not distinguish between adult consensual and non-consensual sexual conduct, it is obviously arbitrary. It fostered assumptions and discriminated against those who made particular choices, considering them as “less than humans.”
• “THE ORDER OF NATURE”

Since “unnatural sex” is “against the order of nature,” it is illegal per Section 377. The Court determined that it is illegal to define sexual activity as either natural or unnatural. One should not let a phenomenon’s naturalness determine whether it is acceptable or lawful. It is difficult to impose penalties for a conduct that is abnormal or immoral without a good reason.

LGBTQ can freely realise their identing in the country. Section stated the natural connections between the two same sex individuals, whereas the Court stated that its legally invalid (naturalness shouldn’t   bother in determine the privacy of people. Furthermore, naturality and unnaturalistic things doesn’t determine legality and acceptance of phenomena.

Provisions don’t violate fundamental rights and should be guided under constitutional morality rather than being judged on the basis of society morality.

CONCLUSION

The Court ruled that every member of the LGBTQI community in India has the right to equal citizenship. As a result, it considered Section 377 to bar consensual adult sexual relationships, whether they include partners of the same sex or not. Homosexual actions against minors, unlawful sexual activity against adults, and bestiality will continue to be prohibited by Section 377.