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Navtej Singh Johar v/s Union Of India: The Journey to Decriminalize Homosexuality in India

In INDIA, according to section 377 of IPC,1860, unnatural offences: Whoever voluntarily engages in carnal intercourse against the natural order with any man, woman, or animal shall be sentenced to life imprisonment, or to imprisonment of either description for a term up to ten years, or to death, as well as a fine. It means that homosexuality is a crime punishable under the Indian Penal Code (IPC) section 377.

Because of Section 377, LGBT people do not have the same rights as other people, but in the case of Navtej Singh Johar v. Union of India, the Supreme Court of India ruled in favour of LGBT people, who now have a better understanding of their rights and position in our country. India has joined the ranks of Asian countries that have de-criminalised homosexuality.

The Supreme Court of India unanimously ruled that Section 377 of the Indian Penal Code of 1860, which penalizes "unnatural sexual intercourse", is unconstitutional because it criminalizes homosexuality. among adults of the same sex. The lawsuit, filed by dancer Navtej Singh Johar, challenges section 377 of the Penal Code on grounds of violation of constitutional rights to privacy, freedom of expression, equality, dignity and protection against discrimination.

The court ruled that discrimination on the basis of sexual orientation violates equal rights, that the criminalization of adult consensual sex in private violates the right to privacy, that sexual orientation is an integral part of an individual's identity and to refuse it would violate the right to life and those fundamental rights cannot be denied on the grounds that they are of interest to only a small fraction of the population.

The focus of the case is the constitutional validity of section 377 of the Indian Penal Code of 1860, which refers to sexual behavior based on the personal consensus of adults of the same sex. Section 377, entitled "Unnatural Crimes," imposes life imprisonment or imprisonment of up to 10 years and fines for those who voluntarily desire men, women, or animals against the natural order.

The issue of the case was addressed in the Delhi High Court by the Naz Foundation in 2009. As far as N.C.T. Delhi's agreed sexual behavior between two adults of the same sex is concerned, Section 377 was considered unconstitutional. In 2014, two Supreme Court judges, in Suresh Kumar Koushal v. The Naz Foundation, overturned the same and has stamped section 377 of its approval. When the petition for the 2014 decision in this case was filed in 2016, the three judges' bench of Supreme Court felt that a larger bench should answer the questions posed. As a result, five judges' benches heard the matter.

The petitioner, Navtej Singh Johar, is a dancer who identifies himself as a member of the LGBT community and filed a written petition with the Supreme Court in 2016 forsexuality rights, sexual autonomy rights, and freedom of choice to be a part of the art. 21 of the Indian Constitution. He also demanded that section 377 be found unconstitutional. The petitioner also alleged that section 377 was ambiguous in the sense that it was not "the right to equality before the law" and therefore violated Article 14 of the Constitution (the right to equality before the law). There was no understandable difference or rational classification between natural and unnatural sex.

Among other things, the Petitioner further argued that:
  • Section 377 was violative of Art. 15 of the Constitution (Protection from Discrimination) since it discriminated on the basis of the sex of a person's sexual partner
  • Section 377 had a "chilling effect" on Article 19 (Freedom of Expression) since it denied the right to express one's sexual identity through speech and choice of romantic/sexual partner
  • Section 377 violated the right to privacy as it subjected LGBT people to the fear that they would be humiliated or shunned because of "a certain choice or manner of living.

The Respondent in the case was the Union of India. Along with the Petitioner and Respondent, certain nongovernmental organizations, religious bodies and other representative bodies also filed applications to intervene in the case.

The Union of India submitted that it left the question of the constitutional validity of Section 377 (as it applied to consenting adults of the same sex) to the "wisdom of the Court". Some interveners argued against the Petitioner, submitting that the right to privacy was not bridled, that such acts were derogatory to the constitutional concept of dignity, that such acts would increase the prevalence of HIV/AIDS in society, and that declaring Section 377 unconstitutional would be detrimental to the institution of marriage and that it may violate Art. 25 (Freedom of Conscience and Religious Expansion).

Issue Raised:
  1. Whether Section 377 of the Indian Penal Code, 1860 insofar as it applied to consensual sexual conduct between adults was unconstitutional and whether the judgment in Suresh Kumar Koushal should be upheld or set aside.
The petitioner claimed that homosexuality, bisexuality, and other sexual orientations were natural, based on legitimate consent, and not a physical or mental illness. The petitioner further argued that the criminalization of sexual orientation violates the concept of individual dignity and decision-making autonomy inherent in the individual's personality and the right to privacy under Article 21.

The petitioner argued that the rights of the LGBT community, which accounts for 7-8% of India's population, need to be recognized and protected. In Puttaswamy case it was argued that section 377 is unconstitutional because it discriminated against the LGBT community on the basis of sexual orientation, which is an essential attribute of privacy, claiming that sexual orientation and privacy are central to guaranteed fundamental rights. The petitioner demanded recognition of the right to sexuality, the right to sexual independence, and the right to select a sexual partner as part of the right to life guaranteed by Article 21.

Defendant argued that the constitutional validity of Article 377 concerns "private consensus of adults of the same sex" and leaves it to the wisdom of the court. Some interveners insisted on retaining Section 377 because it promoted "the state's highest priority interest in strengthening morality in public life." Arguing that basic rights are not absolute and sec 377 is not discriminatory because it criminalises acts only and not people. He claimed that it applies equally to all unnatural sexual behaviors.

The Supreme Court, while observing the judgment in Suresh Kumar Koushal, noted that it relied on the miniscule minority rationale to deprive the LGBT community of their fundamental rights and did not differentiate between consensual and nonconsensual sexual acts between adults. The Court noted in this regard that a "distinction has to be made between consensual relationships of adults in private, whether they are heterosexual or homosexual in nature." Moreover, consensual relationships between adults could not be classified along with offences of sodomy, bestiality and nonconsensual relationships.

Further, the Court analysed the constitutionality of Section 377 on the bedrock of the principles enunciated in Articles 14, 15, 19 and 21. The Court relied on the NALSA judgment, which granted equal protection of laws to transgender persons, to reiterate that sexual orientation and gender identity was an integral part of a person`s personality, and the Puttaswamy judgment, which recognised the inter-relationship between privacy and autonomy and that the right to sexual orientation was an intrinsic part of the right to privacy, to conclude that "it is imperative to widen the scope of the right to privacy to incorporate a right to `sexual privacy` to protect the rights of sexual minorities".

The Court further discussed the Yogyakarta Principles on Gender Identity and Sexual Orientation and the U.K Wolfenden Committee Report, 1957, which abolished penal offences involving same sex consenting adults amongst many other international comparative references. Court also relied on the Shakti Vahini v Union of India & Ors ruling. ((2018) 7 SCC 192) and Shafin Jahan vs. Asokan KM (AIR 2018 SC 1933) and stated that the right to choose a life partner that is characteristic of individual freedom and dignity and are protected in accordance with Articles 19 and 21. In addition, the court uses the maxim "Et Domus Sua His Cuique Est Tutissimum Refugium", which is interpreted as "a man's house is his castle" and sec 377 limits freedom of expression and does not protect public order and morals, dignity or morality.

The Court said, "the subjective notion of public or social morality that discriminates against LGBT people and punishes them based on their innate characteristics is contrary to the notion of the Constitution". It cannot form the basis of morality and legitimate national interests. "The court reiterated that "restrictions on the right to privacy must meet the requirements of legality, the interests of a legitimate state, and the existence of proportion."

In addition, one of the principles that emerged from the comparative analysis was that same-sex adults were outside the legal interests of the state. Court concluded that sexual orientation is natural, innate, and invariant in the expression of individual choice and autonomy and self-determination. In addition, the LGBT community, which was a sexual minority, was similarly protected by Part III of the Constitution.

Five judges unanimously declared Article 377 unconstitutional to the extent that sexual behavior was privately criminalized, whether based on consensus among adults of the same sex. However, the court has made it clear that consent is free and voluntary and that there should be no coercion or coercion.

Critical Analysis
The decision in Navtej Johar is undoubtedly historic. As a result of this decision, homosexuals are now able to live in a more dignified environment and express themselves freely. The ruling also emphasized the gradual realization of human rights. But is that the end of the problem? The answer is no, as homosexuals are still discriminated against because there is no proper law to deal with this issue.

The court ordered the government to take specific steps to protect the interests of homosexuals, but no specific steps were taken. The need for hours is an extensive law that guarantees equality for all based on sexual orientation, gender identity, and other reasons. The law should impose equal and indiscriminate obligations on all. Therefore, historical judgment needs to be complemented by active government efforts to give homosexuals a meaningful life. State institutions must coordinate with each other. This has an even more positive effect on the court's decision.

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