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Case Comment on Navtej singh Johar v. Union of India

There are so many countries in the world who have legalized homosexuality with the time as the number of people of LGBT community (lesbian, gay, bisexual and transgender) have increased with the time and this peoples also deserves rights equivalent to other community peoples.

In India, According to section 377 of Indian Penal Code, 1860, 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 or with a death penalty, and shall also be liable to fine.

It means that homosexuality is an offence punishable under section 377 of IPC. LGBT community people can't enjoy the rights like other people because of section 377 but in the case of Navtej singh johar v. Union of India, the Supreme Court of India passed a verdict in favour of LGBT community people understanding their rights and their position in our country decriminalized homosexuality. India has acquired a place like other countries of Asia who decriminalized homosexuality.

History
Section 377 was made from the Buggery Act, 1533. This act defined homosexual acts and sexual activities with animals as unnatural offences and it should be punished. This act defined buggery as an act against the will of god was passed by the parliament of England in the year 1533 under the leadership of King henry 7.

According to this act, any person who is guilty of unnatural offences were liable for punishment of death. Thomas Babington Macaulay who chaired the 1st ever law commission brought this law and drafted this law under section 377 of IPC.

In India, Fight to decriminalize section 377 of IPC was started in the year 1994 when an NGO (Aids Bhedbhav Virodhi Abhiyan) filed a petition before the High Court of Delhi to decriminalize section 377 of IPC but the petition was dismissed in the year 2001. Then an NGO (NAZ Foundation) filed a PIL before High Court of Delhi in the year 2001 to challenge the constitutionality of Section 377 of IPC but that PIL was dismissed on the ground of locus standi.

An appeal was filed before the Supreme Court of India challenging the verdict of High Court of Delhi by the same NGO and Supreme Court ordered High Court of Delhi to reconsider the PIL as the petitioner had the grounds to file a PIL. Later the Delhi High Court passed a judgment and declared Section 377 of IPC as unconstitutional on the ground that it is violative of Article 21, 14 and 15 of the Constitution of India.

In the case of Suresh Kumar Koushal V. NAZ Foundation and ors, an Appeal was filed in the year 2013 before the Supreme Court of India challenging the judgment passed on section 377 of IPC declaring it as unconstitutional. In divisional bench of Supreme Court, the Court is of the view that Section 377 is Constitutional and people performing act against order of nature should be punished.

The Court said that:
In view of the above discussion, we hold that Section 377 IPC does not suffer from the vice of unconstitutionality and the declaration made by the Division Bench of the High court is legally unsustainable[1]

It means that section 377 of IPC is not unconstitutional and the Court is also of the view that Section 377 is against an act which if performed by any person irrespective of age and consent and not with any particular section of the society. The respondent in the particular case also failed to present the number of cases of harassment and assault against sexual minorities.

Thus once again section 377 of IPC was declared as constitutional and the one performing an act which falls under the ambit of section 377 is liable for the punishment given under the same section.

Fact of the case
Petitioner was a dancer who belongs to the LGBT community (lesbian, gay, biological and transgender) who files a writ petition under article 32 of the Constitution of India before the Hon'ble Supreme Court for the rights of the LGBT Community. According to the petitioner section 377 of IPC is against this community and LGBT community people can't enjoy their rights.

According to the petitioner right to choose sex partner and right to sexual autonomy should come under the ambit of article 21 of Constitution of India. According to him the language of section 377 of IPC is vague and there is no such difference between natural and unnatural sex. What is against the order of nature is not explained anywhere clearly and there is an infringement of Right to privacy of LGBT community people which is a fundamental right guaranteed under article 21 of the Constitution of India.

Issues
The main issues before Hon'ble Court were:
  1. Whether judgment given in Suresh Kumar Koushal v. NAZ foundation was proper or not?
  2. Whether section 377 of IPC violates article 14 and 15 of Constitution of India or not?
  3. Whether section 377 is against Right to privacy which is a fundamental right?
  4. Whether section 377 has a ‘chilling effect' on Article 19 (1)(a) by criminalizing gender expression of LGBT community?

Judgment
There was a 5 judge bench who passed landmark judgment in Navtej singh johar v. Union of India. Judges were CJI Dipak Mishra, Justice A.M Khanwilkar, Justice Rohinton fali Nariman, Justice D.Y. Chandrachud and Justice Indu Malhotra.

This judgment overruled the judgment passed in Suresh Kumar Koushal case and upheld the rights of LGBT community by partially decriminalizing Section 377 of IPC.

This judgment declared section 377 of IPC as unconstitutional as LGBT community people are in minority number but our Constitution provides equal rights to the citizens of our country.

LGBT community people are also the citizens of India who have the rights which are guaranteed under part 3 of the Constitution of India and section 377 of IPC was violating fundamental rights of LGBT community.

As for the 1st Issue, the Hon'ble court is of the view that LGBT community people are in minority number still they are citizens of our country and are equally protected under Fundamental rights of Constitution of India. So Judgment passed in the case of Suresh Kumar Koushal v. NAZ foundation and ors was not proper.

The fallacy in the Judgment of Suresh Kumar Koushal & Anr. v. Naz Foundation & Ors. (supra) is that:
The offence of carnal intercourse against the order of nature has not been defined in Section 377. It is too wide, and open-ended, and would take within its sweep, and criminalise even sexual acts of consenting adults in private[2].

In the words of Justice A.M Khanwilkar
An argument was made by the Petitioners that Section 377, being vague and unintelligible, should be struck down on this ground as it is not clear as to what is meant by against the order of nature.

Since Section 377 applies down the line to carnal sex between human beings and animals as well, which is not the subject matter of challenge here, it is unnecessary to go into this ground as the Petitioners have succeeded on other grounds raised by them.

For all these reasons therefore, we are of the view that, Suresh Kumar Koushal (supra) needs to be, and is hereby, overruled

It is clear from the words of Hon'ble Judges of Supreme Court that Judgment passed in the case of Suresh Kumar Koushal v. NAZ Foundation was arbitrary and unconstitutional and it also don't describes what is the true meaning of against the order of nature and also abridges the Fundamental rights of LGBT community by punishing them under the said section.

As for the 2nd issue, the Court is of the view that:
Section 377 IPC, so far as it criminalises even consensual sexual acts between competent adults, fails to make a distinction between non-consensual and consensual sexual acts of competent adults in private space which are neither harmful nor contagious to the society.

Section 377 IPC subjects the LGBT community to societal pariah and dereliction and is, therefore, manifestly arbitrary, for it has become an odious weapon for the harassment of the LGBT community by subjecting them to discrimination and unequal treatment. Therefore, in view of the law laid down in Shayara Bano (supra), Section 377 IPC is liable to be partially struck down for being violative of Article 14 of the Constitution[3]

In the words of CJI Dipak Mishra it means that:
section 377 of IPC failed to make any differences between consensual sexual acts and non-consensual sexual acts. He declared section 377 of IPC as arbitrary because it restrain LGBT community from enjoying their fundamental rights and same section can be used as an weapon to target the LGBT community and harass them which is totally not acceptable and this kind of discrimination is against article 14 as well as article 15 of the Constitution of India.

As for the 3rd issue, the Court is of the view that:

After the privacy judgment in Puttaswamy (supra), the right to privacy has been raised to the pedestal of a fundamental right. The reasoning in Suresh Koushal (supra), that only a minuscule fraction of the total population comprises of LGBT community and that the existence of Section 377 IPC abridges the fundamental rights of a very minuscule percentage of the total populace, is found to be a discordant note.

The said reasoning in Suresh Koushal (supra), in our opinion, is fallacious, for the framers of our Constitution could have never intended that the fundamental rights shall be extended for the benefit of the majority only and that the Courts ought to interfere only when the fundamental rights of a large percentage of the total populace is affected.

In fact, the said view would be completely against the constitutional ethos, for the language employed in Part III of the Constitution as well as the intention of the framers of our Constitution mandates that the Courts must step in whenever there is a violation of the fundamental rights, even if the right/s of a single individual is/are in peril[4].

In the case of Suresh Kumar Koushal v. NAZ foundation and ors it was decided by Hon'ble Court that section 377 of IPC does not abridges fundamental right to privacy of LGBT community because the said community is in minuscule fraction of total population. This view of Court is not appropriate in the eyes of Apex Court. So in the words of CJI, the framers of our Constitution could never imagine that fundamental rights are made in order to protect the rights of majority community and not for the interest of minority community.

According to him the view given in Suresh Kumar Koushal Case was fallacious and is also against the constitutional ethos and it is the duty of the Court to protect the fundamental rights of every citizen of this country irrespective of their community that whether they are in major numerical number or lower. So Section 377 of IPC was also against Right to privacy which is an integral part of article 21 of the Constitution of India.

As for the 4th issue, the Court is of the view that
Section 377 of IPC violates Article 19(1)(a) of LGBT community people which it restricts them from expressing their words or their choices. It established unreasonable restriction in the name of public decency and morality. Consensual carnal intercourse between the same sex people in private space among the adults does not harm public decency and morality because this people also have right to choose partner of their choice which is not against the law but restricting them for speaking in public or restraining them for expressing their words or speech on the ground of choosing same sex partner for consensual carnal intercourse is violative of article 19(1)(a) of LGBT community people.

From the above discussed issues it is clear that section 377 of IPC is Unconstitutional as it violates article 14, 15, 19(1)(a) and article 21 of LGBT community people.

CJI Dipak Mishra said in his words that any homosexual, heterosexual or lesbian cannot be considered as unconstitutional and people performing such act cannot be punished under section 377 of IPC but if people performing any sexual activity with animals then said section 377 is constitutional and that same person is liable for punishment given under section 377 of IPC.

All the other Judges are of the same view that Judgment given in Suresh Kumar Koushal was not properly adjudicated and it should be overruled and upheld the rights of LGBT community people by partially decriminalizing section 377 of IPC.

Justice A.M. Khanwilkar even stated in his judgment that people performing homosexual deserves right to live with dignity under article 21 of Constitution of India, which is the larger framework of Preamble of India.

This judgment have secured Fundamental rights of LGBT community people in full range as like other citizens of Country.

Views
Framers of the Constitution never intended to protect fundamental rights of people who are in majority living in this country. They drafted Fundamental rights and included the same in Constitution in order to protect rights of every citizen of country. Judgment given in Navtej singh johar v. Union of India was passed and I am satisfied with Judgment because it upheld the rights of LGBT community people.

They are in minority number but they are still the citizens of India and it is the duty of Hon'ble Court to protect the rights of each and every citizen of this Country. Apex Court partially decriminalized section 377 of IPC, Hon'ble Court once again followed their duty and protected rights of LGBT community people because section 377 of IPC was violating article 14,15,19(1)(a) and article 21 of LGBT community which are fundamental rights guaranteed under part 3 of Constitution of India.

Judgment given in Suresh Kumar Koushal v. Naz Foundation was overruled because that judgment was not proper and same judgment failed to describe meaning of against the order of nature and according to apex Court, judgment can't be passed on the basis of majority, even the minority people have the rights to enjoy their fundamental rights.

Judgment is undoubtedly a historical and landmark judgment because after so many efforts and time finally LGBT community people can live freely in this country without any fear.
Constitution of India is a living document that can be changed with the change in time or according to the needs of the society but social morality cannot be used as a ground to violate the fundamental right of any single individual.

Section 377 of IPC was used as an weapon to target the LGBT community people. Before decriminalization of section 377 of IPC, LGBT community people can't travel openly in this Country, don't have freedom to keep their thoughts in public and always getting discriminated by the society, don't have right to choose same sex partner but after same Section is decriminalized, LGBT community people got the right to live with dignity and cannot be discriminated by society now because they cannot be punished in the name of  against order of nature.

However, to live freely and comfortably in Indian society is still a challenge for LGBT community people but this problem will be solved with the time and implementation of proper legislation and also by creating awareness in people to not think like orthodox people but to accept the reality and modern time and understand that these people also deserves to live like them freely in society as they have equivalent rights like us. Section 377 of IPC is partially decriminalized because it is applicable if such acts are performed with animals but people choosing same sex partner cannot be punished and also it will be governing on non consensual sexual act committed against any minor.

So it is clear that Section 377 of IPC was arbitrary and irrational as it restricts LGBT community people to enjoy their fundamental rights and Navtej Singh Johar v. Union of India was properly adjudicated by the Hon'ble Judges which upheld rights of LGBT community people and gave equivalent stand in the society like other community people.

End-Notes:
  1. Civil appeal no. 10972 of 2013
  2. W. P. (Crl.) No. 76 of 2016 D. No. 14961/2016
  3. Para no. 253 (15) W. P. (Crl.) No. 76 of 2016 D. No. 14961/2016
  4. Para no. 253 (8) W. P. (Crl.) No. 76 of 2016 D. No. 14961/2016

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