Navtej Singh Johar v. Union of India
AIR 2018 SC 4321
In the Supreme Court of India
W.P. 76/2016
Before Chief Justice Dipak Misra, Justice A.M. Khanwilkar, Justice Indu Malhotra, Justice D.Y. Chandrachud and Justice R.F. Nariman
Decided on September 06, 2018

Relevancy of the case: Right to privacy covers an individual’s sexual orientation

Statutes and Provisions Involved

• The Indian Penal Code, 1860 (Section 377)
• The Constitution of India, 1950 (Article 14, 15, 19(1)(a), 19(2), 21)

Relevant Facts of the Case

• The Delhi High Court held Article 377 as unconstitutional in Naz Foundation v. Government of NCT of Delhi. However, the Supreme Court overruled this decision in Suresh Kumar Koushal v. Naz Foundation.
• After the Supreme Court’s judgement in K. S. Puttaswamy v. Union of India, the matter came to a larger bench for the reconsideration of the decision in the Suresh Kumar Koushal case.

Prominent Arguments by the Advocates

• The petitioner’s counsels argued that sexual orientation is natural and it is an expression and choice of two persons eligible to give such content.
• Section 377 is violative of fundamental rights to privacy, equality and right to freedom of expression. It has a chilling effect on the freedom of speech and expression and is an unreasonable restriction. It is violative of Article 15 as it discriminates against a person on the basis of their partner’s sex.
• Individuals of the LGBT community suffer abuse and discrimination due to Section 377, which causes alienation and stigma.

Opinion of the Bench

Chief Justice Dipak Misra and Justice AM Khanwilkar :

• The Constitution is an organic document, and its concepts are dynamic in nature. It expands with the principle of inclusivity. It transforms with changing times, and so does constitutional morality. The veil of social morality must not outlaw the members of the LGBT community.
• The expression of choice and inclination is an important facet of liberty as well as dignity. Homosexuality is based on the sense of identity and is every bit as inherent as heterosexuality.
• The Supreme Court had recognised that a person’s sexual orientation is also a part of their right to privacy in the Puttaswamy judgement. In the Suresh Kumar Koushal case, it was wrong to observe that the LGBT community is a small minority. This notion is violative of Article 14. Sustenance of fundamental rights does not need majoritarian sanction.
• Section 377 fails to distinguish between consensual and non-consensual acts. It doesn’t take into account that these acts are not harmful to society. Therefore, it is disproportionate and manifestly arbitrary.
• Therefore, Section 377 violates Articles 14, 19 and 21 of the Constitution. Hence, it must be stuck down so far as it criminalises consensual sexual relationships between two adults.

Justice R.F. Nariman (concurring):

• Homosexual people have the fundamental right to live with dignity. They are entitled to the protection of equal laws and be treated without any stigma.
• The Union of India should ensure the publicity of the judgement. They should conduct sensitisation training for government and police officials.

Justice D.Y. Chandrachud (concurring):

• People of the LBGT community are entitled to the full range of constitutional rights and liberties. The right to choose a partner is intrinsic to the constitutional protection of sexual orientation.

Justice Indu Malhotra (concurring):

• History owes an apology to the members of the LGBT community. The majority ignored that homosexuality is completely natural. The misapplication of Section 377 violates Articles 14, 15, and 21.

Final Decision

• The bench allowed the petition and overruled the judgement in the Suresh Kumar Koushal case.
• Further, the bench struck down Section 377, so far as it penalises consensual sexual relationships between two adults.