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Indian Case Summary

Navtej Singh Johar vs Union Of India Ministry Of Law And … on 6 September, 2018 – Case Summary

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In the case of Navtej Singh Johar vs Union Of India Ministry Of Law And Justice on 6 September 2018, the Supreme Court of India was confronted with a landmark decision that would shape the future of LGBTQ+ rights in the country. The case was a challenge to the constitutionality of Section 377 of the Indian Penal Code (IPC), a colonial-era law that criminalized “carnal intercourse against the order of nature,” effectively outlawing homosexuality.

Facts of the Case

The case was brought forward by Navtej Singh Johar and others, who petitioned against the Union of India, represented by the Secretary of the Ministry of Law and Justice. The petitioners sought to declare the “right to sexuality,” “right to sexual autonomy,” and “right to choice of a sexual partner” as part of the right to life guaranteed under Article 21 of the Constitution of India. They further sought to declare Section 377 of the IPC as unconstitutional.

Issues Raised

The central issue in the case was whether sexual orientation alone should be protected or both orientation and choice should be accepted as long as the exercise of these rights by an individual does not affect another’s choice and has the consent of the other where dignity of both is maintained and privacy, as a seminal facet of Article 21, is not dented. The petitioners argued that homosexuality, bisexuality, and other sexual orientations are natural variations of expression and free thinking process and to make it a criminal offence is offensive of the well-established principles pertaining to individual dignity and decisional autonomy inherent in the personality of a person.

Court’s Observations

The court observed that the determination of the “order of nature” is not a constant phenomenon and that social morality changes from age to age. The court emphasized that the individual autonomy and orientation cannot be atrophied unless the restriction is regarded as reasonable to yield to the morality of the Constitution. The court also noted that the rights of the lesbian, gay, bisexual, and transgender (LGBT) community, who comprise 7-8% of the total Indian population, need to be recognized and protected, for sexual orientation is an integral and innate facet of every individual’s identity.

The court further observed that the impact of sexual orientation on an individual’s life is not limited to their intimate lives but also impacts their family, professional, social, and educational life. The court noted that such individuals (sexual minorities in societies) need protection more than the heterosexuals so as to enable them to achieve their full potential and to live freely without fear, apprehension, or trepidation in such a manner that they are not discriminated against by the society openly or insidiously or by the State in multifarious ways in matters such as employment, choice of partner, testamentary rights, insurability, medical treatment in hospitals and other similar rights arising from live-in relationships.

The court also noted that individuals belonging to the LGBT group suffer discrimination and abuse throughout their lives due to the existence of Section 377 IPC which is nothing but a manifestation of a mindset of societal values prevalent during the Victorian era where sexual activities were considered mainly for procreation. The court observed that the said community remains in a constant state of fear which is not conducive for their growth. It was contended that they suffer at the hands of law and are also deprived of the citizenry rights which are protected under the Constitution.

Conclusion

The court concluded that the decision in Suresh Kumar Koushal’s case, which upheld the constitutionality of Section 377 IPC, required reconsideration. The court held that the issues raised should be answered by a larger Bench and, accordingly, referred the matter to the larger Bench. The court’s decision marked a significant step towards the recognition and protection of the rights of the

LGBTQ+ community in India, setting the stage for the eventual decriminalization of homosexuality in the country.