Critical Analysis of Navtej Johar vs Union of India (2018) - By Isha

 Critical analysis of Navtej Singh Johar Vs Union of India (2018) – By Isha

Introduction

• Sec 377 of the Indian Penal Code 1860, a relic of British India, states that “ whoever voluntarily has carnal intercourse against the order of nature with any man, woman or animal shall be punished”.

• This included private consensual sex between adults of same-sex.

• After the recent Supreme Court judgment, provisions of Section 377 remain inapplicable in cases of non-consensual carnal intercourse with adults, all acts of carnal intercourse with minors, and acts of bestiality.

History

• Section 377 of IPC declares consensual sex between homosexuals as an “unnatural offence” and criminalizes it. It discriminates against a minority solely on the basis of their sexual orientation which violates Art 14, 15 and 21 of the Constitution.

Landmark judgements related to this issue

1. Naz Foundation v Govt. Of NCT of Delhi (2009)

• This section was also challenged in the case of Naz Foundation v. Government of N.C.T of Delhi (2009). Naz Foundation is an organisation that deals with HIV AIDS and various other health issues.

• In this case also it was held that Sec 377 is unconstitutional as it deprives the LGBTQ community of their right to equality, right to dignity, privacy, and unreasonably discriminates homosexuals as a class. It also violates Article 15 which prohibits discrimination on the grounds of sex as it not only includes biological sex but also sexual orientation.

2. Suresh Kumar Koushal Case (2013)

• This section was again challenged in Suresh Kumar Koushal Case (2013)

• In this, SC overturned the decision it made in the Naz Foundation case and again homosexuality was criminalized.

• It was stated in this case that homosexuality is a criminal offence and only parliament can decriminalize it. The courts should not interfere as far as this section is concerned.

• Secondly, it stated that the right to privacy cannot be extended to that limit which would enable an offence to be committed. Therefore, the right to privacy will not cover homosexual acts. 

• This judgement was criticised by many international organisations stating it to be an insignificant step because the people who started disclosing their identity and freely expressing their sexual orientation were targeted and seen as criminals.

3. Justice K.S. Puttaswamy vs. Union of India ( 2017)

• SC ruled that the right to privacy is intrinsic to life and liberty and thus comes under Article 21.

• SC stated that bodily autonomy is an integral part of the right to privacy.

• This bodily autonomy has within its ambit the sexual orientation of an individual.

Navtej Johar vs. Union of India ( 2018)

• Navtej Johar and four other members of the LGBTQ community filed a writ petition in the Supreme court challenging Section 377 of the Indian Penal Code. 

• According to the petitioner, the right to choose a sex partner and sexual autonomy should come in the ambit of Article 21 of the constitution.

• This case was headed by a five-judge constitutional bench. The judges were CJI Dipak Mishra, Justice A.M. Khanwilkar, Justice Rohinton Fali Nariman, Justice D.Y. Chandrachud and Justice Indu Malhotra.

• The judgement overruled the decision of the Suresh Koushal case.

• It decriminalized consensual homosexuality.

Impact of Decriminalizing Homosexuality

• LGBTQ community will come out in the open with their sexual preferences.

• They would be one step closer to living with dignity.

• Discrimination based on health issues and fundamental rights and their harassment by police will cease.

• This would increase their confidence and self-acceptance.

• It would be a step in their acceptance by society.

• This judgement will help to demand more progressive laws like Gay marriage, the right to inheritance, employment equality etc.

Conclusion

So it is clear that Section 376 is arbitrary and irrational as it restricts the LGBTQ community to enjoy their fundamental rights. Navtej Singh Johar Vs Union of India was properly adjudicated by the Hon’ble judges as there is a need to uphold the rights of the LGBTQ community, change the mentality of the people and bid adieu to prejudice.