SECTION 377 – NAVTEJ JOHAR V.
UNION OF INDIA
- S.377, Indian Penal code relates to criminalising of ‘unnatural sex’ – homosexual
relationships – “Carnal intercourse against the order of nature”
- In Khanu v. Emperor, carnal intercourse against the order of nature was understood to
cover all non-procreative sexual acts.
- Relationship between s. 375 and S. 377- 2013 Criminal Law (Amendment) Act
ended the binary separation between two sections
- OVERRULES SURESH KUMAR KOUSHAL V. NAZ FOUNDATION
- In K.S Puttaswamy v. Union of India, the court recognized that Suresh Kumar
Koushal v. Naz Foundation (Appeal to the 2009 Delhi HC judgment) was wrongly
decided. Suresh Kumar Koushal case upheld the constitutionality of S.377
- 2009 Delhi HC- Naz foundation case- HC read sex to include sexual orientation-
declared s. 377 as unconstitutional.
- Suresh kumar Kaushal – overruled naz foundation - Delhi HC – this classification is
not arbitrary, based on intelligible differentia
- Suresh Kumar Koushal argued that since S.377 only criminalises “acts” and not
“persons”, it does not violate Fundamental Rights (available to persons)
- UNAMBIGUOUSLY HELD THAT THE LGTB+ COMMUNITY WAS ENTITLED
TO EQUAL RIGHTS UNDER ARTICLES 14, 15(1), 19(1)(A), 21, AND THE REST
OF THE CONSTITUTION’S FUNDAMENTAL RIGHTS CHAPTER
- No one can escape from their individuality, constitute your identity- closely related to
the concept of self-determination- dignity, Nature and choice are relevant in the case.
Identity is covered within Right to life under Article 21
- CARDINAL 4 CORNERS - Interrelationship between individual autonomy and
dignity,
- TRANSFORMATIVE CONSTITUTIONALISM- the purpose of the constitution is to
redress the evils and transform the society. Reliance on State of Kerela v. S N
Thomas-
- IDENTITY- natural identity of a person is essential and needs to be respected and not
despised upon,
- privacy, choice and free speech come within the loop of dignity of an individual.
- No discrimination on grounds of sex includes no discrimination on grounds of your
sexual orientation and gender identity – reliance on NALSA V. UOI
- IDENTITY AND DIGNITY AS CONCEPTS ARE CLOSELY RELATED
- Sexual orientation and choice both as concepts have to be considered in consideration
of the idea of privacy of an individual
- ARGUMENTS ON PART OF PETITIONER
- Sexual orientation is natural condition- attraction towards the same or opposite
gender is completely natural- biological impulse- APA reports
- Sexual orientation is innate part of their identity and their individualism cannot be
considered to be a victim of social stigma- even when less in number, need to be
protected
- Reliance on NALSA v. UOI- relief needed for transgender too, and consensual
relationship between transgender would be still criminalised, and thus relief
granted to them by NALSA V. UOI will not be effective
- SCRICT SCRUTINY TEST IN US –
- Various rigths get violated because of s. 377- privact, life, dignity,
- Sexual orientation lies at the core of fundamental rights –golden triangle of article
14,19,21
- Reliance on Shaheen jahan and Shakti bahani case- individual’s right to choose a
partner is part of a person’s right to life – and this extends to LGBTQ community
- Anuj garg case – this classification is based on stereotyping and thus violative of
article 14 – is arbitrary
- Violative of Article 19(1)(a) – freedom of expression is curbed- s. 377 puts a
chilling effect on the these rights
- Right to reputation is violated as they are being termed as criminals
- ARGUMENTS ON PART OF RESPONDENT
- Concepts of morality
- The idea of homosexuality being against religious tenants- Article 25,26 comes
into play
- Not violative of Article 15- sex given and not sexual orientation
- JUDGEMENT
- MAJORITARIAN MORALITY CANNOT DICTATE CONSTITUTIONAL
MORALITY
- IDEA OF IDENTITY AND AUTONOMY
- HOMOSEXUALITY IS NOT A MENTAL DISORDER- LIVE WITH
DIGNITY
- CHOICE
- Constitutional morality trumps societal morality
- Constitution is organic charter of living rights- dynamic concepts need to be taken
into consideration and leads to expansionism- DYNAMIC APPROACH TO THE
INTERPRETATION OF THE CONSTITUTION- living organism and
constitution
- Reliance on foreign judgements and NALSA case – to suggest that rule of law
shall protect this community- protects individual dignity and human rights
- Constitutional idealism means there is expansion of the concept of inclusiveness,
- Equality –
- Constitutional morality – definition derived from the constitution debates and
speech of B.R. Ambedkar the executive, judiciary and legislature needs to be on
the same page with respect to this, constitutional morality protects the choice of a
person
- Duty of constitutional courts – are expected to uphold the cherish principles of
the constitution, not driven by popular principles
- Common cause registered society v. union of india – the idea of dignity is
accepted and it is an abstract principle, self-respect , dignity is harmed by unfair
treatment, showing respect to the dignity of another is a constitutional duty of a
person
- Human rights committee decision – interference in privacy should be necessary
only then justifiable
- Justice Chandrachud opinion- New modern perception to the idea of privacy-
privacy as a concept helps the society too, not alone the individual
- Conclusions - test of manifest arbitrariness,
- OPINION OF JUSTICE NARIMAN – The law in UK earlier- death penalty was
the prescribed punishment then. Woolfenden Committee Report- even when you
consider homosexuality to be a disease but out of a person’s control,
- Anuj garg case- issues pertaining to stereotyping and unreasonable classification
- Parliament’s role has recognised privacy- mental health act, homosexuality is not
a disease, it is a normal variant
- examines the 2017 Mental Healthcare Act, which expressly prohibits
discrimination on grounds of sexual orientation (in the domain of mental health) –
concludes that S. 377 causes unnatural / natural distinction with no rational basis
and thus violative of Art. 14 (Para 82)
- PRE-CONSTITUTIONAL LAWS DO NOT ENJOY PRESUMPTION OF
CONSTITUTIONALITY- Indian Penal Code, 1860. This is so because
presumption of constitutionality of a statute is premised on the fact the parliament
understands the needs of the people, and cannot transgress the fundamental rights
of the citizens and other constitutional provisions in doing so
- However, a pre-constitution law is made by either a foreign legislature or body,
none of these parameters obtain. Thus IPC does not enjoy presumption of
constiutionality
- Yogyakarta principles given by distinguished experts in human rights law across
the world – have recognised that criminalising homosexuality is violative of a
person’s human rights and this has been taken into account by people.
- Privacy report- 122nd Law Commission Report- no reason to invalidate S. 377 by
the court.
- OPINION OF JUSTICE CHANDRACHUD – the idea of love, idea of social
justice and individual liberties, accommodation of differences of orientation too
included in the idea of social justice,
- Morality associated with homosexuality – Indian constitution has a
transformative power is such that it can enable citizens to recognise the idea of
equal citizenship. Just and compassionate existence of all
- Equality - Article 14 reflects the quest for ensuring fair treatment of the
individual in every aspect of human endeavour and in every facet of human
existence.
- Para 27 criticizes the “classification” test to judge equality violations (i.e., a law
is unconstitutional if there is either an “unintelligible differentia” between the
things that it classifies, or if the classification bears no rational nexus to the State
goal).
- Violates Article 15(1), any such provision needs to be assessed by the effect it has
on the individuals and on their FR’s.
- IMPORTANT -Any ground of discrimination, direct or indirect, which is
founded on a particular understanding of the role of the sex, would not be
distinguishable from the discrimination which is prohibited by Article 15 on the
grounds only of sex. (SEX INCLUDES SEXUAL ORIENTATION – INDIRECT
DISCRIMINATION)
- SOCIETAL ARGUMENT- “Section 377 criminalizes behaviour that does not
conform to the heterosexual expectations of society. If individuals as well as
society hold strong beliefs about gender roles – that men (to be characteristically
reductive) are unemotional, socially dominant, breadwinners that are attracted to
women and women are emotional, socially submissive, caretakers that are
attracted to men – it is unlikely that such persons or society at large will accept
that the idea that two men or two women could maintain a relationship.
(paragraph 44)
- ARTICLE 19(1)- S. 377 inhibits the sexual privacy of the LGBT+ community, by
forcing them into the closet (paragraph 61), “the right to autonomy of a free
individual”
- Article 21 also protects a right to intimacy (paragraph 67), and includes a detailed
discussion on how Section 377 inhibits the right to health (including the right to
mental health) (Part G).
- OPINION OF CHIEF JUSTICE AND J. KHANWILKAR
- sexual orientation is “natural”, and something beyond the individual’s power to
alter, then criminalising it is ipso facto irrational
- The concept of choice and individual self-determination is as important to the
exercise of constitutional rights as the “naturalness” of sexual orientation. while
defining the aspects sexual orientation, the Chief Justice refers both to “inherent
orientation” and “demonstration of choice.” (para140)
- Section 377 is both irrational and “manifestly arbitrary”, and violates Article 14
(paragraph 240). This is, of course, in addition to the violation of expressive
rights under Article 19(1)(a), and the right to privacy under Article 21 – which
too is defined in terms of “intimacy in privacy as a matter of choice” (Conclusion
X).
- Focusses on the idea of dignity of an individual (Para 132).
- Biological expression when faced with impediment, the natural and constitutional
rights of an individual are dented. (Para 132) – freedom of expression
- OPINION OF J. MALHOTRA
- ARTICLE 14- The natural or innate sexual orientation of a person cannot be a
ground for discrimination. Where a legislation discriminates on the basis of an
intrinsic and core trait of an individual, it cannot form a reasonable classification
based on an intelligible differentia.
- Whatever the differentia, and whatever the nexus, the State is not permitted,
under Article 14, to disadvantage groups on the basis of an “intrinsic or core”
trait.
