In The Supreme Court of India Criminal Original Jurisdiction Case No. Writ petition (criminal) no. 76 of 2016 Petitioner Navtej Singh Johar & Ors. Respondent Union of India thr. Secretary Ministry of Law & Justice Date of Judgement Decided on september 6, 2018 Bench Justice Deepak Misra, Justice A.M Khanwilkar, Justice D.Y Chandrachud, Justice Indu Malhotra, and Justice R.F Nariman.
The search of identity as a basic human ideal has reigned the mind of every individual in many spheres like success, fame, economic power, political assertion, celebrity status and social superiority. More particularly the gender identity of a person together with the constitutional concept of “identity with dignity”, its social implication and legal acceptance has been a much debated issue from the last few decades. Questions also arouse as to whether the constitutional concept included merely sexual orientation or was wide enough to be inclusive of the sexual choice. Against this background this Writ Petition was filed for declaring ―right to sexuality, ―right to sexual autonomy and ―right to choice of a sexual partner to be part of the right to life guaranteed under Article 21 of the Constitution of India and further to declare Section 377 of the Indian Penal Code (for short, ―IPC) to be unconstitutional.
The petitioners contented that homosexuality, bisexuality and other sexual orientations are natural and reflective of expression of choice. They are inclination founded on consent and is neither a physical nor a mental illness. To make it a criminal offence is offensive of the well-established principles pertaining to individual dignity, decisional autonomy and right to privacy which is a pivotal facet of Art21 of the Constitution. It was also contended that the law also affects relation building endeavor to enter into a live in relationship or to form an association with a sense of commonality and violates Art 19(1)a of the Constitution. The petitioners have highlighted that the rights of the lesbian, gay, bisexual and transgender (LGBT) community, who comprise 7-8% of the total Indian population. Furthermore Section 377 was also alleged to be violative of Art 14 of the Constitution and concept of fraternity as enshrined in the Preamble.
The respondent, Union of India submitted that so far as the constitutional validity of Section 377 IPC, to the extent it applies to ‘consensual acts of adults in private’, is concerned, the respondent leaves the same to the wisdom of this Court. Further contentions raised by the intervenor-NGO Trust God Ministries stated that there is no uncanlised and unbridled right to privacy and the said right cannot be abused. The intervener has contended that there is no personal liberty to abuse one‘s organs and that the offensive acts prescribed by Section 377 IPC are committed by abusing the organs. It was also alleged that decriminalization of Sec 377 will detrimentally affect the institution of marriage and will shamble social culture. The future possibility of misuse of decriminalization was also emphasized.
Considering the contentions of the petitioners and the respondents the five member constitutional bench gave the decision unanimously. It was observed that Sec 377 provides for rule by the law instead of the rule of law. The rule of law requires a just law which facilitates equality, liberty and dignity in all its facets. Rule by the law provides legitimacy to arbitrary state behavior and that it is difficult to locate any intelligible differentia between the indeterminate terms such as natural and unnatural. The proscription of a consensual sexual relationship under Section 377 is not founded on any known or rational criteria. Sexual expression and intimacy of a consensual nature, between adults in private, cannot be treated as “carnal intercourse against the order of nature”. Finally it was declared that insofar as Section 377 criminalizes 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 Writ Petition has been filed on 27th April 2016 to challenge the constitutional validity of Section 377 of the Indian Penal Code, 1860 (“IPC”) on the specific ground that it criminalises consensual sexual intercourse between adult persons belonging to the same sex in private. The petition was filed by five members of the LGBT Community, dancer Navtej Singh Johar, journalist Sunil Mehra, chef Ritu Dalmia, hoteliers Aman Nath and Keshav Suri and businesswomen Ayesha Kapur. The petitioners claimed that the issues raised by them are different from those raised in the curative petition in Suresh Koushal case. The writ petition was considered along with five other Writ Petitions namely WRIT PETITION (CIVIL) NO. 572 OF 2016 WRIT PETITION (CRIMINAL) NO. 88 OF 2018 WRIT PETITION (CRIMINAL) NO. 100 OF 2018 WRIT PETITION (CRIMINAL) NO. 101 OF 2018 WRIT PETITION (CRIMINAL) NO. 121 OF 2018.
1. Whether Sec 377 of IPC is violative of Right to Equality under Art 14 of the constitution?
2. Whether Sec 377 is violative of Freedom of Speech and Expression under Art 19 of the Constitution ?
3. Whether Sec 377 is violative of Right to Life with dignity and privacy under Art 21 of the Constitution ?
4. Whether discrimination based on sexual orientation under Sec 377 makes it violative of Art 15 of the Constitution ?
5. Whether Sec 377 is arbitrary as it makes consensual relationship a crime on th ground of it being against the order of nature ?
Arguments in favour of Petitioners
The arguments put forward by the petitioners are as follows;
- Homosexuality, bisexuality and other sexual orientations are natural expression of choice. They are based on inclination founded on consent of persons who are competent to give such consent. And making it a criminal offence is against individual dignity, right to reputation, right to shelter, decisional autonomy, right to choose a partner of one’s choice, sexual orientation and right to privacy under Art 21 of the Constitution ( S Puttaswamy and another v. Union of India and Others, Francis Coralie Mullin v. Administrator, Union Territory of Delhi and others, Shakti Vahini v. Union of India and others, Shafin Jahan v. Asokan K.M. and Common Cause (A Registered Society) v. Union of India and another).
- Sec 377 is violative of Art 14 as the section is vague and does not define ‘carnal intercourse against the order of nature’. And also there is no intelligible differentia or reasonable classification between the natural and unnatural sex as long as it is consensual (Anuj Garg and others v. Hotel Association of India and others).
- Sec 377 is violative of Art 15 as there is discrimination on the basis of sex of the person’s sexual partner under Section 376(c) to (e), a person can be prosecuted for acts done with an opposite sex partner without her consent, whereas the same acts if done with a same-sex partner are criminalized even if the partner consents.
- Sec 377 violates the right of the LGBT persons under Article 19(1)c, denies them the right to form associations and also a conviction under Sec 377 renders such persons ineligible for appointment as a director of a company.
- Sec 377 also cripples their growth of personality, relation building endeavour to enter into live in relationships thus violating Art 19(1)a of the Constitution.
- Fundamental rights are available to LGBT persons regardless of the fact that they constitute a minority. The LGBT community ought to be given recognition and protection similarly to those extended to partners in live in relationships.
- The rights of LGBT (as recognized under the NALSA Judgment) are not fully realized because their expression of sexuality is not allowed to be expressed by criminalizing them under Sec 377.
- The stigma and alienation faced by the LGBT Community is the consequence of the social morality and is contrary to the fundamental principle of liberty. The judiciary is bound to disregard the social morality and uphold and protect constitutional morality ( Judgment in Naz Foundation and Manoj Narula v. Union Of India).
- Sec 377 is arbitrary as it makes consensual relationship a crime on the ground that it is against the order of nature (Shayara Bano v. Union of India and others) and is against the concept of fraternity as enshrined in the Preamble to our Constitution.
- The decision in Suresh Koushal and another v. Naz Foundation and others. is per incuriam as it failed to take into consideration the amendment to Sec 375 IPC which has rendered sexual ‘carnal intercourse against the order of nature’ between man and women permissible.
Arguments in favour of the repondents
The arguments put forward by the respondents are as follows;
- There is no personal liberty to abuse one‘s organs and that the offensive acts proscribed by Section 377 IPC are committed by abusing the organs. Such acts are undignified and derogatory to the constitutional concept of dignity and if any infraction is caused to the concept of dignity, it would amount to constitutional wrong and constitutional immorality.
- Section 377 IPC is not violative of Article 15 of the Constitution as the said Article prohibits discrimination on the grounds of only religion, race, caste, sex, place of birth or any of them but not sexual orientation
- Section 377 IPC in its present form does not violate Article 14 of the Constitution as it merely defines a particular offence and its punishment and it is well within the power of the State to determine who should be regarded as a class for the purpose of a legislation.
- The issue relating to the constitutional recognition and rights of the transgender community has been exhaustively considered in the NALSA judgment and no further reliefs can be granted to them.
- Sec 377 has been incorporated after taking note of the legal systems and principles which prevailed in ancient India and the said section is more relevant legally, medically, morally and constitutionally in the present situation.
- Persons indulging in unnatural sexual acts made punishable under Sec377 are more susceptible and vulnerable to HIV/AIDS and right to privacy cannot be extended to enable people to indulge in unnatural offences and thereby contracting HIV/AIDS.
- Fundamental rights are not absolute and there is no unreasonableness in Sec 377 .
- If Section 377 is struck down it would render the victims complaining of forced acts covered under the existing Section 377 IPC remediless as the said Section not only impinges on carnal intercourse against the order of nature between two consenting adults but also applies to forced penile non- vaginal sexual intercourse between adults.It would also render a married women remediless under the IPC against her bi-sexual husband and his consenting male partner..
- The offence under Sec 377 implies sexual perversity (Fazal Rab Choudhary v. State of Bihar) and involves Carnal intercourse between two persons which is offensive, injurious and against the order of nature, it is well within the jurisdiction of state to put reasonable restrictions on it.
- The doctrine of manifest arbitrariness is of no application to the present case as the law is not manifestly or otherwise arbitrary, for Section 377 criminalizes an act irrespective of gender or sexual orientation of the persons. It does not constitute discrimination as laws based on biological reality can never be unconstitutional.
- The interest of a citizen or a section of the society, howsoever important, is secondary to the interest of the country or community as a whole (State of Gujarat v. Mirzapur Moti Kureshi Kassab Jamat and others ).
- If the prayers of the petitioners herein are allowed, it would amount to judicial legislation, for the Courts cannot add or delete words into a statute. It is stated that the words ‘consent’ and/or ‘without consent’ are not mentioned in Section 377 IPC and, therefore, the Courts cannot make such an artificial distinction (Sakshi v. Union of India and others).
- Decriminalization of Section 377 IPC will shamble the family system and detrimentally affect the institution of marriage, open a floodgate of social issues which the legislative domain is not capable of accommodating and would also have cascading effect on existing laws.
The judgment was pronounced on 6th Sep, 2018. The judgments declared that insofar as Sec 377 criminalizes consensual acts of adults (i.e., persons above the age of 18 years who are competent to consent) in private, is violative of Art 14,15, 19 and 21 of the Constitution. It was however, clarified that such consent must be free consent, which is completely voluntary in nature, and devoid of any duress or coercion.
It was also stated that the reading down of Sec 377 shall not, lead to the reopening of any concluded prosecutions, but can certainly be relied upon in all pending matters.
The significant points considered in the judgment are as follows:
1. Indian Constitution is a great social document, almost revolutionary in its aim of transforming a medieval, hierarchical society into a modern, egalitarian democracy. The principle of transformative constitutionalism also places upon the judicial arm of the State a duty to ensure and uphold the supremacy of the Constitution, while at the same time ensuring that a sense of transformation is ushered constantly and endlessly in the society by interpreting and enforcing the Constitution as well as other provisions of law in consonance with the object.
2. The concept of constitutional morality strives and urges the organs of the State to maintain such a heterogeneous fiber in the society. And it is the responsibility of theses organs of the state to curb any propensity of popular sentiment or majoritarianism. Devotion and fidelity to constitutional morality must not be equated with popular sentiment prevalent at a point of time.
3. It is not only the duty of the State and the Judiciary to protect this basic right to dignity, but the collective at large also owes a responsibility to respect one another’s dignity, for showing respect for the dignity of another is a constitutional duty. It is an expression of the component of constitutional fraternity.
4. Apart from orientation, there can be situations which influence the emotional behavior of an individual to seek intimacy in the same gender that may bring two persons together in a biological pattern. It has to be treated as consensual activity and reflective of consensual choice.
5. The test of popular acceptance, in view of the majority opinion, was not at all a valid basis to disregard rights which have been conferred with the sanctity of constitutional protection. The Court noted that the discrete and insular minorities face grave dangers of discrimination for the simple reason that their views, beliefs or way of life does not accord with the ‘mainstream’, but in a democratic Constitution founded on the Rule of Law, it does not mean that their rights are any less sacred than those conferred on other citizens.
6. The observation made in Suresh Koushal case that gays, lesbians, bisexuals and transgender constitute a very minuscule part of the population is perverse due to the very reason that such an approach would be violative of the equality principle enshrined under Article 14 of the Constitution. The indeterminacy and vagueness of the terms ‘carnal intercourse’ and ‘order of nature’ renders Section 377 constitutionally infirm as violating the equality clause in Article 14.
7. The doctrine of progressive realization of rights which is a feature of constitutional law says that the State has an obligation to take appropriate measures for the progressive realization of economic, social and cultural rights. The doctrine also gives birth to the doctrine of non-retrogression which says that there must not be any regression of rights.
8. Sec 377 IPC fails to make distinction between consensual and non consensual sexual acts between competent adults and also fails to take into account that the consensual sexual acts between adults in private space are neither harmful nor contagious to the society.
9. The Court reinstated the recognition that ‘Homosexuality is not a mental disorder or mental illness’ under The Mental Healthcare Act,2017. The treatment of homosexuality as a disorder has serious consequences on the mental health and well-being of LGBT persons. The mental health of citizens “growing up in a culture that devalues and silences same-sex desire” is severely impacted
10. The right to intimacy emanates from an individual’s prerogative to engage in sexual relations on their own terms. It is an exercise of the individual’s sexual agency, and includes the individual’s right to the choice of partner as well as the freedom to decide on the nature of the relationship that the individual wishes to pursue.
11. Section 377 has a significant detrimental impact on the right to health of those persons who are susceptible to contracting HIV – men who have sex with men (“MSM”) and transgender persons. It has had far reaching consequences for this “key population”, pushing them out of the public health system.
12. International human rights treaties and jurisprudence impose obligations upon States to protect all individuals from violations of their human rights, including on the basis of their sexual orientation. International agreements including UDHR, ICCPR and the ICESCR establishes that the criminalization of consensual acts between same sex adults in private contravenes the right the right to equality, privacy and freedom from discrimination.
13. International and domestic courts have developed a strong body of jurisprudence against discrimination based on sexual orientation. In 1967, England and Wales decriminalized same sex relationships between consenting adult males in private. This was followed by other countries like Scotland.
14. The Court also took into consideration the opinions and propositions of jurists globally like Bentham who was one of the earliest supporters for reform in sodomy laws and who remarked that, homosexuality, if viewed outside the realms of morality and religion, is neutral behavior which gives the participants pleasure and does not cause pain to anyone else. And concluded that such an act cannot constitute an offence. Similarly John Stuart Mill’s theory called the ‘harm principle’ suggests that the state can intrude into private life by way of sanction only if harm is caused to others or if the conduct is “other affecting”.
Finally the judgment has also taken a critical approach towards the Judgment in Suresh Koushal & Anr. v. Naz Foundation & Ors and has overruled the same.
The judgment has taken a very reformative stand by declaring that the members of the LGBT community are entitled like all other citizens, to the full range of constitutional rights including the liberties protected by the constitution. It can also be a relieving movement for the members of the LGBT Community as it stated out that they are entitled to the benefit of an equal citizenship, without discrimination, and to the equal protection of law.
Moreover the judgment has taken forth the concept of Transformative Constitutionalism to a whole new level, which may pave the way for a number of amendments and reformation in the legal realm of the country bringing changes in consonance with those in the global society.
The judgment has also been successful to a very large extend in building confidence in the public that however small or trivial the number of members of a community may be, the judiciary of this country will stand for them and protect their rights.
However the judgment would have been more impressive if in addition to recognizing the sexual rights of the LGBT Community, it has also attempted to make suggestions or provisions for the social and economical inclusion and development of the Community.