Navtej Singh Johar v. UOI [AIR 2018 SC 4321]

It overturned Suresh Kumar Koushal judgement and unanimously repealed Section 377, making same-sex relationships amongst consenting individuals of majority age legal.

Bench – Dipak Misra, DY Chandrachud, Rohington Nariman, AM Khanvilkar, and Indu Malhotra.

Facts – Consensual sexual activity between people of the same sex was illegal under Section 377 of the IPC because it was “against the order of nature”. The Naz Foundation Trust questioned the constitutional validity of Section 377 in the Delhi High Court in 2009, claiming that it violated Articles 14, 15, 19, and 21 of the Constitution. The court concluded that penalizing sexual intercourse between two consenting adults by Section 377 infringes on such individual’s right to equality, privacy, and personal liberty. However, Suresh Kumar Koushal & Anr. V. Naz Foundation, the Apex Court reversed the Naz ruling. It was decided that homosexuality could only be decriminalised by Parliament.

Navtej Singh Johar, Ritu Dalmia, Ayesha Kapur, Aman Nath, and Sunil Mehra, all members of the LGBTQ community, later registered a new writ suit contesting Section 377’s constitutionality.

Issues –

• Whether Section 377 of IPC is in contravention to Article 14 on the grounds of discrimination against individuals by their sexuality and gender identity or not?
• Whether Section 377 violates the right to dignity as enshrined under Article 21 or not?
• Whether Section 377 is in violation of the right to express as per Article 19 (1) (a) by way of penalizing gender expression of LGBTQ+ community or not?

Judgment – The judgement in the Koushal case was overturned by all five judges. To hold that rights should not be cancelled, the Court relied on the idea of progressive realisation of rights. The Court also cited the K.S. Puttaswamy decision, which established a basic right to privacy, and concluded that the Koushal case’s finding that Section 377 only impacted a “minority” could not be used to restrict the right to privacy of individuals. Minorities experience prejudice since their opinions and beliefs differ from those of the majority, and the Koushal ruling violated everyone’s right to equal protection under the law.

The Apex Court examined Section 377’s validity in light of Articles 14, 19, and 21’s ideals of equality, liberty, and dignity. As a result, the Court determined that discrimination against LGBT people is a violation of Article 14. The court went on to declare that the section targeted people who made specific choices and viewed them as “less than humans,” which is a breach of Article 14.

The Court considered whether public order, decency, and morality are sufficient reasons to limit the right to freedom of sexual expression under Article 19(1) (a). Section 377 forbids individual consensual actions that do not disrupt public order or harm public decency or morality. The Court found that Section 377 is disproportionate and infringes the basic right to freedom of expression envisaged under Article 19 (1) (a) because it imposes an arbitrary restriction on activities in a person’s private space.

Regarding Article 21, the Court adjudged that Section 377 undermines human dignity, decisional autonomy, and the fundamental right to privacy. Every person has the right to select their sexual orientation, pursue companionship, and practise it in their own personal space. Section 377 is in violation of Article 21 because it restricts the exercise of personal liberty to participate in consensual sexual actions.

Lastly, Section 377 makes it illegal to engage in “unnatural intercourse,” which is “against the natural order.” The Court ruled that distinguishing between natural and unnatural sexual relations does not hold water when it comes to legality. The legality or acceptability of a phenomenon should not be determined by its naturalness.