Navtej Singh Johar vs Union Of India Ministry Of Law And ...

on 6 September, 2018

Facts-

 Writ Petitions filed in the Supreme Court to declare certain parts of Section 377, IPC
unconstitutional.

Analysis and Decision-

 JUDICIAL INTERPRETATION-

Essential Ingredients of Section 377:

Section 377 of the Indian Penal Code criminalizes "carnal intercourse against the order of
nature."

Punishable with life imprisonment or imprisonment up to ten years.

Applicable irrespective of gender, age, or consent.

Distinction from Sexual Intercourse:

The expression 'carnal intercourse' in Section 377 is distinct from 'sexual intercourse' in other
sections of the IPC.

'Carnal' is defined as pertaining to the fleshly nature, bodily appetites, sensual or sexual, and
worldly.

Judicial Interpretation of 'Carnal':

Judicial interpretations of 'carnal' emphasize acts outside penile-vaginal intercourse, not for
procreation.

Historical cases like Khanu v. Emperor, Khandu v. Emperor, and Lohana Vasantlal
Devchand & Ors v. State involved diverse acts like coitus per os and oral sex, leading to
convictions under Section 377.

Evolution of Interpretation:

The test for penal provisions under Section 377 evolved from non-procreative sexual acts to
imitative sexual intercourse and, later, to sexual perversity.

Notions of permissive society and changes in international perspectives did not influence
judicial thinking in Fazal Rab Choudhary v. State of Bihar.

Non-Consensual Sexual Acts:

The discussed cases primarily involved non-consensual sexual acts coerced upon victims.
Cases highlighted a shift in the test for attracting penal provisions under Section 377 over the
years.

These arguments outline the historical interpretation and judicial evolution of the essential
ingredients of Section 377, emphasizing the diverse acts that led to convictions, particularly
focusing on non-consensual situations.

 HOMOSEXUALITY – NOT AN ABERRATION BUT A VARIATION OF

SEXUALITY-

Complex Nature of Sexual Orientation:

Scientific research has explored various factors like genetic, hormonal, developmental,
psychological, social, and cultural influences on sexual orientation.

No conclusive findings link sexual orientation to any single factor.

Belief in the complex interplay between nature and nurture in determining sexual orientation.

Innate and Unalterable Nature of Sexual Orientation:

Sexual orientation is considered an innate attribute of one's identity.

It cannot be altered, and it is not a matter of choice.

Manifests in early adolescence and is viewed as a natural variant of human sexuality.

Legal and Scientific Perspectives:

The U.S. Supreme Court in Lawrence v. Texas acknowledged the normalcy of both
heterosexual and homosexual behavior, emphasizing that sexual orientation typically emerges
without prior sexual experience.

Statements from the American Psychological Association and the World Health Organization
supporting the natural condition of sexual attraction towards persons of the opposite or same
sex.

Evolution of Perspectives:

Historical views on homosexuality evolved, from initially being considered a disorder to later
being recognized as a natural condition.

Removal of 'homosexuality' from the Diagnostic and Statistical Manual of Psychological

Disorders by the American Psychiatric Association in 1973.

The World Health Organization removed homosexuality from the list of diseases in 1992.

Indian Psychiatric Society's Position:

The Indian Psychiatric Society has stated that sexual orientation is not a psychiatric disorder.
No scientific evidence supports the alteration of sexual orientation through any treatment.

Legal Standard under Mental Healthcare Act, 2017:

The Mental Healthcare Act, 2017, requires the determination of "mental illness" to align with
nationally and internationally accepted medical standards, including the World Health
Organization's International Classification of Diseases.

These arguments collectively establish the understanding of sexual orientation as an innate,

unalterable aspect of human identity, supported by scientific, legal, and psychiatric
perspectives.

 SECTION 377 IF APPLIED TO CONSENTING ADULTS IS VIOLATIVE OF

ARTICLE 14-

Constitutional Mandate of Article 14:

Article 14 guarantees the right to equality before the law and equal protection of laws within
the territory of India.

Asserts the right of equal treatment to all individuals in the country.

Twin-Test of Classification Under Article 14:

The twin-test for classification under Article 14 requires:

Reasonable classification based on intelligible differentia.

Rational nexus with the objective sought to be achieved.

Discrimination under Section 377:

Section 377 discriminates between two classes of persons based on their "sexual
orientation"—LGBT persons and heterosexual persons.

Criminalizes all forms of non-penile-vaginal intercourse, penalizing consensual relationships

between LGBT persons entirely.

Artificial Dichotomy and Intrinsic Traits:

Section 377 creates an artificial dichotomy where consensual heterosexual relationships are
permissible, but consensual relationships between LGBT persons are considered "carnal" and
against the order of nature.

Intrinsic and core traits of an individual, such as sexual orientation, cannot be a reasonable
basis for discrimination.

Equal Protection for LGBT Persons:

Refers to the granting of equal protection of laws to transgender persons in National Legal
Services Authority v. Union of India.

Argues that LGBT persons are entitled to the same protection under Article 14.

Manifest Arbitrariness:

Nariman, J., in Shayara Bano v. Union of India, introduced the doctrine of manifest
arbitrariness as a facet of Article 14.

Section 377 is manifestly arbitrary, as it criminalizes consensual sexual acts between adults in
private based on sexual orientation, without sound or rational principles.

Open-Ended Language and Scope for Misuse:

The phrase "carnal intercourse against the order of nature" in Section 377 lacks a clear
determining principle, leading to an open-ended and potentially misused provision against the
LGBT community.

Conclusion on Article 14:

Section 377, in criminalizing consensual sexual acts between adults based on sexual
orientation, violates Article 14 as it fails the twin-test and is manifestly arbitrary.

 SECTION 377 IS VIOLATIVE OF ARTICLE 15-

Expansive Interpretation of 'Sex' in Article 15:

In National Legal Services Authority v. Union of India, the Supreme Court interpreted 'sex' in
Article 15 broadly to include 'sexual identity' and 'character.'

The judgment emphasized that discrimination on the grounds of 'sex' includes discrimination
based on 'gender identity.'

Inclusion of 'Sexual Orientation' in 'Sex' Under Article 15:

The J.S. Verma Committee recommended that 'sex' under Article 15 should include 'sexual
orientation.'

The Human Rights Committee of the United Nations in Nicholas Toonen v. Australia noted
that 'sex' in international covenants includes 'sexual orientation.'

Immutable Status and Fundamental Choice:

Discrimination based on immutable characteristics (race, caste, sex, place of birth) or

fundamental choices (religion) undermines personal autonomy and autonomy in making
fundamental life choices.

Canadian Charter of Rights and Freedoms Analogy:

The Supreme Court of Canada, in Egan v. Canada and Vriend v. Alberta, held that sexual
orientation is a 'ground analogous' to other grounds specified in Section 15(1) of the
Canadian Charter, despite not explicitly mentioning 'sexual orientation.'

Discrimination on grounds such as race, religion, and sex adversely impacts personal
autonomy and personality.

Application to Indian Context:

In the Indian context, immutability and fundamental choice are considered essential aspects
in assessing discrimination.

The LGBT community, being a sexual minority, is entitled to protection under Article 15, as
it has faced unjustified and unwarranted hostile discrimination.

 SECTION 377 VIOLATES THE RIGHT TO LIFE AND LIBERTY GUARANTEED

BY ARTICLE 21, RIGHT TO LIVE WITH DIGNITY-

Expansive Interpretation of "Life" and "Personal Liberty" (Article 21):

The Supreme Court has interpreted "life" and "personal liberty" under Article 21 broadly,
recognizing a variety of rights that constitute the true scope of the right to life.

Article 21 is considered "the most precious human right" and includes more than mere
physical survival.

Dignity as a Core Intrinsic Value:

Dignity, though amorphous, is considered an essential core intrinsic value of every human
being, essential for a meaningful existence.

The right to life includes the right to live with human dignity, encompassing basic necessities
and activities that constitute the minimum expression of the human self.

Intrinsic Connection Between Sexual Orientation and Identity:

Sexual orientation is an innate attribute of a human being, integral to one's personality and
identity.

Homosexuality and bisexuality are recognized as natural variants of human sexuality.

LGBT persons have little or no choice over their sexual orientation, and their right to privacy
and dignity must be protected under Article 21.

Right to Sexual Autonomy and Freedom of Expression:

The right to life and liberty includes the right to sexual autonomy and freedom of expression.

LGBT individuals, like heterosexual persons, are entitled to privacy and the right to lead a
dignified existence without fear of persecution.
Criminalization of Homosexuality Violates Article 21:

Section 377 infringes upon the personal liberty of LGBT persons to engage in voluntary
consensual sexual relationships with a partner of their choice.

It inhibits the formation of enduring relationships, forcing LGBT individuals into a life of
solitary existence or a closeted life.

International Perspectives and Overruling of Bowers v. Hardwick:

The dissenting opinion in Bowers v. Hardwick emphasized the importance of sexual intimacy
in human existence.

The U.S. Supreme Court, in Lawrence v. Texas, overruled Bowers v. Hardwick, declaring
that criminalizing homosexual conduct violates the right to privacy and dignity.

Section 377 Prevents a Dignified Life for LGBT Persons:

Section 377 prevents LGBT persons from leading a dignified life as guaranteed by Article 21,
as it criminalizes their private sexual conduct and relationships.

 RIGHT TO PRIVACY-

Recognition of Right to Privacy:

The right to privacy is recognized as an intrinsic part of the right to life and personal liberty
under Article 21 of the Constitution.

Sexual orientation is considered an innate part of the identity of LGBT persons, and its
protection is fundamental to rights guaranteed by Articles 14, 15, and 21.

Broad Nature of Right to Privacy:

The right to privacy is broad and pervasive, covering decisional autonomy, intimate/personal
decisions, and preserving the sanctity of the private sphere.

It extends beyond the concept of simply being "let alone" to include spatial privacy and
privacy of choice.

The right encompasses the ability to make fundamental personal choices, including those
related to intimate sexual conduct, without unwarranted State interference.

Impact of Section 377 on Privacy:

Section 377 affects the private sphere of LGBT persons' lives, taking away their decisional
autonomy to make choices consistent with their sexual orientation.

Prohibiting expression of sexual orientation in private infringes upon the most intimate
spaces of one's existence.
International Perspective on Privacy:

The Constitutional Court of South Africa emphasizes the right to privacy as protecting a
sphere of private intimacy and autonomy, allowing the expression of sexuality without harm
as a core element.

Limitations on Right to Privacy:

The right to privacy, like other fundamental rights, is not absolute and is subject to reasonable
restrictions.

Any restriction must adhere to legality, a legitimate state interest, and proportionality.

Inclusiveness in Constitutional Principles:

The theme of inclusiveness is evident in Part III of the Constitution, including provisions like
Article 14, 15(1), 16, and others aimed at creating an inclusive society where rights are
guaranteed to all, irrespective of minority status.

 RIGHT TO HEALTH-

Legal Context:

The right to health and access to healthcare are crucial facets of the right to life guaranteed
under Article 21 of the Constitution.

LGBT persons, being a sexual minority, face societal prejudice, discrimination, and violence
due to their sexual orientation.

Impact of Section 377:

Section 377 criminalizes "carnal intercourse against the order of nature," compelling LGBT
persons to lead closeted lives.

This leads to serious disadvantages and prejudices in accessing health-care facilities for
LGBT persons, resulting in health issues, depression, and suicidal tendencies.

HIV Risk and Lack of Safe Spaces:

LGBT persons, especially MSM (Men who have Sex with Men) and transgender persons, are
at a higher risk of contracting HIV.

Lack of safe spaces inhibits them from engaging in safe-sex practices, and the threat of
exposure prevents them from seeking medical help for testing and treatment.

International Perspectives:

The Human Rights Committee of the United Nations in Nicholas Toonen v. Australia
highlighted that criminalizing homosexual practices is not a reasonable means to prevent the
spread of HIV/AIDS.
Various psychological associations emphasized that criminalization reinforces prejudice,
discrimination, and violence against LGBT individuals.

Mental Healthcare Act, 2017:

The Mental Healthcare Act, 2017 in India provides the right to access mental healthcare
without discrimination, including on the basis of sexual orientation.

This creates a paradoxical situation as Section 377 criminalizes LGBT persons, hindering
their access to healthcare.

In essence, the criminalization of LGBT individuals under Section 377 adversely affects their
right to health and access to healthcare, leading to serious consequences, including the risk of
HIV transmission and mental health issues. The contradiction with the Mental Healthcare Act
highlights the need for legal reform to ensure the well-being of the LGBT community.

 SECTION 377 VIOLATES THE RIGHT TO FREEDOM OF EXPRESSION OF

LGBT PERSONS-

Freedom of Expression and Impact on LGBT Persons-

Article 19(1)(a) guarantees freedom of expression.

Reasonable restrictions can be imposed under Article 19(2).

LGBT persons face fear of harassment due to Section 377, leading to staying 'in the closet.'

Inhibition from openly forming relationships impacts their mental well-being.

Gender Identity, Sexual Orientation, and Legal Precedents-

National Legal Services Authority v. Union of India recognizes gender identity and the right
to express it.

Sexual orientation is integral to one's personality and self-determination.

Section 377 cannot be justified as a reasonable restriction on the basis of public morality.

Overruling of Suresh Kumar Koushal-

Suresh Kumar Koushal v. Naz Foundation overruled Delhi High Court's decision.

Section 377 does not criminalize identity but regulates sexual conduct.

LGBT persons constitute a "miniscule fraction," and few prosecutions do not justify
overturning Section 377.

Critique of Suresh Kumar Koushal Judgment

Suresh Kumar Koushal's fallacy lies in not defining "carnal intercourse against the order of
nature."

The judgment fails to distinguish between consensual and non-consensual acts.

Criminalizing consensual acts based on sexual orientation violates fundamental rights.

Apology and Recognition of LGBT Rights-

History owes an apology to the LGBT community for the delay in addressing their suffering.

Misapplication of Section 377 denied them the Fundamental Right to equality and dignity.

LGBT persons deserve to live free from fear and persecution.

Conclusion and Declaration-

Section 377 is declared violative of Articles 14, 15, 19, and 21 for consensual acts among
adults.

The declaration does not reopen concluded prosecutions but can be relied upon in pending
matters.

Section 377 continues to govern non-consensual acts against adults, acts against minors, and
bestiality.

Conclusion-

Eminence of Identity:

Identity, as per the NALSA case, connects human rights and the constitutional guarantee of
life, liberty, and dignity.

Identity, constitutionally tenable, goes beyond orientation to embrace self-determination and

adherence to constitutional norms.

Rejection of Suresh Koushal's View:

Suresh Koushal's view upholding Section 377 was constitutionally impermissible.

The LGBT community's size shouldn't determine constitutional validity, as even a minuscule
fraction deserves protection.

Living Constitution and Progressive Role of Courts:

The Constitution is dynamic, requiring progressive and pragmatic interpretation.

Courts play a crucial role in safeguarding the rights of minority groups, ensuring a
transformative and inclusive society.
Constitutional Morality and Diversity:

Constitutional morality preserves a pluralistic and inclusive society.

Social morality cannot violate fundamental rights, and constitutional morality recognizes
diversity.

Right to Dignity and International Recognition:

The right to live with dignity is a human right and must be protected.

Sexual orientation is innate, and discrimination violates freedom of expression.

Privacy as a Fundamental Right:

Post the privacy judgment, Section 377's rationale on a minuscule population is fallacious.

Courts must protect fundamental rights even for a single individual.

Progressive Realization of Rights:

Rights under the Constitution evolve with society, emphasizing the doctrine of non-
retrogression.

Autonomy and Sovereignty Over Body:

Autonomy is individualistic, and intimacy is a matter of personal choice.

Autonomy establishes identity, contributing to an individual's dignity.

Section 375 vs. Section 377 Distinction:

Section 375 recognizes the absence of consent for rape; Section 377 lacks such qualification.

Section 377, not subject to Section 375, criminalizes consensual carnal intercourse.

Undefined Nature of "Against the Order of Nature":

The expression lacks a definition; judicial interpretations suggest acts not intended for
procreation.

Coitus not for procreation isn't inherently "against the order of nature."

Constitutional Scrutiny:

Section 377, violating the right to dignity and privacy, must be tested under Articles 14 and
19.

Classification under Section 377 lacks nexus and results in discrimination against the LGBT
community.
Discrimination and Arbitrariness:

Section 377, criminalizing consensual acts, leads to discrimination and unequal treatment.

The section is manifestly arbitrary and violates Article 14.

Protection of Consensual Relationships:

Section 377, penalizing consensual acts, violates Article 19(1)(a) as it is an unreasonable

restriction.

Consensual intercourse doesn't harm public decency or morality.

Partial Striking Down of Section 377:

Section 377, penalizing consensual relationships, is unconstitutional.

Overruling Suresh Koushal's decision as it's not in consonance with the current ruling.

Quoted Conclusion of the Judgement-

 21. In view of the aforesaid findings, it is declared that insofar as Section

377 criminalises consensual sexual acts of adults (i.e. persons above the age of 18
years who are competent to consent) in private, is violative of Articles 14, 15, 19, and
21 of the Constitution.

 It is, however, clarified that such consent must be free consent, which is completely
voluntary in nature, and devoid of any duress or coercion. The declaration of the
aforesaid reading down of Section 377 shall not, however, lead to the re- opening of
any concluded prosecutions, but can certainly be relied upon in all pending matters
whether they are at the trial, appellate, or revisional stages.

 The provisions of Section 377 will continue to govern non-consensual sexual

acts against adults, all acts of carnal intercouse against minors, and acts of
beastiality.

 The judgment in Suresh Kumar Koushal & Anr. is hereby overruled for the reasons
stated in paragraph 19 which 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.