Navtej Singh Johar and ors V Union of India(Section 377 of IPC,1860)
Nilanjana Ganguly 11 Feb 2020

Navtej Singh Johar and ors V Union of India(Section 377 of IPC,1860)

Name of the case : NAVTEJ SINGH JOHAR AND ORS. V UNION OF INDIA(section 377 of IPC,1860)

Section 377 of the Indian Penal Code states- "Unnatural offences: Whoever voluntarily has carnal intercourse against the order of nature with any man, woman or animal shall be punished with imprisonment for life, or with imprisonment of either description for a term which may extend to ten years, and shall also be liable to fine"

Issues raised :

·         The Section 377 of the IPC is in violation of the equality right secured by Article 14 of the Constitution. Freedom of speech and expression under Article 19 of the Constitution on the right to privacy and the right to live with dignity under Article 21.

·         Whether it is arbitrary to make consensual relationship a crime contrary to the order of nature as per section 377 of the IPC?

·         Whether the fact that the law discriminates against people on the basis of sexual orientation is in violation of Article 15 of the Constitution?

Arguments :

Side Petitioner :

The plaintiff counsel relied on the ratio in Case K. S. Puttaswamy v. Union of India which stipulated that "sexual orientation is also an important privacy attribute. Protecting an individual's sexual orientation and his or her right to privacy is therefore extremely important, even without enjoying such personal and constitutional freedoms , individual identity may lose meaning, a feeling of trepidation will take over, and their life would be reduced to mere survival. "That the right to privacy often applies to LGBTs who have the right to exercise their choice without any fear of exposing themselves. No one has the power to direct how a person chooses to go to bed as if.

In the case of the Naz Foundation, though reaffirming the judgment of the Delhi HC, the counsel also put emphasis on the case of Manoj Narula v. Union of India as an example of cases in which constitutional morality had been averted. The Supreme Court is the protector of the Constitution, and this SC is "the ultimate arbiter of constitutional rights" and should uphold constitutional integrity and eradicate social disregard.

The petitioner's counsel, Francis Coralie Mullin v. Administrator, Union Territory of Delhi and others and Common Cause (A Registered Society) v. Union of India and another, in which the bench held that Article 21 guarantees the right to life and freedom, and liberty. And it is useless if it can not impose on everyone, including the LGBT community, human autonomy and positive self-expression.

The petitioners drew the Court's attention to the Committee on Criminal Law Amendments, J.S. Verma, which had found that "sex" arising in Article 15 includes sexual orientation and, according to the petitioners, Section 377 was also in violation of Article 15 of the Constitution on that count.

It was also claimed that when the LGBT people announced their identities, they feared punishment and persecution and therefore never addressed the court. They seek help from parents, teachers, non-governmental organizations, to speak on their behalf.

Side Respondent :

The counsel argued that Article 15 of the Constitution was not infringed as it only forbids discrimination on the grounds of religion, ethnicity, caste, age, birthplace or any of them but not sexual orientation.

He put emphasis on the case of Fazal Rab Choudhary v. Bihar State, in which it was observed that the section indicated sexual perversity, or sexual bestiality that was contrary to nature's order and that it was very well within the power of the State to impose ' reasonable restrictions ' on disruptive, perversive or immoral acts between a man and a woman.

Placing emphasis on the decision in State of Gujarat v. Mirzapur Moti Kureshi Kassab Jamat and others, the counsel contended that the interest of the state, country or culture as a whole is primary to the interest of an individual citizen despite how significant the citizen's interests are.

Firstly, the Court has no power to modify, add or delete language from a legislative clause. Traditionally thought to occur between a male and a female, it will create a number of social issues that the government is unable to address at this point in time, and these issues will also pose a threat to existing laws.


The 5 judge bench unanimously ruled Section 377 to be discriminatory to the degree that it criminalized, two people of the same sexual orientation had consensual sexual intercourse, and that is a matter of utmost privacy. In Suresh Koushal v Naz Foundation it overruled the bench's verdict.

The Court relied on its own decision in National Legal Services Authority v. Union of India, where it reiterated that “gender identity is intrinsic to one’s personality and denying the same would be violative of one’s dignity.” When we discriminate between the LGBT on the basis that they represent a minority of the population, it would violate their constitutional right to privacy.

The bench also touched on Shafin Jahan v. Asokan K.M., saying that it is the right of an adult to choose his or her life partner on their own.

Something that two members of the LGBT community want to do secretly in no way damages "public decency or morality."

The Chief Justice relied on the “principles of transformative constitutionalism and progressive realization of rights and held that the constitution must guide society’s transformation from an archaic to a pragmatic society where fundamental rights are fiercely guarded.” He further stated, “constitutional morality would prevail over social morality”. They also affirmed that homosexuality was “not an aberration but a variation in the sexual orientation of an individual”.

Effect of the judgement :

The judgment put emphasis on the principle of democratic constitutionalism that has paved the way for a plethora of very important legal changes and reforms. It was a landmark decision in the country's history, since it acknowledges not only the identity of individuals belonging to the LGBT community but it also confers global social recognition on them. After this relief through a landmark ruling, the next battle in the history of the legal arena would have the right to marry a person of the same sex or any other of their choosing for the social and economic arrangements for such individuals.




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