Navtej Singh Johar & Ors. V. Union of India, (2018) – Case Digest

Navtej Singh Johar & Ors. V. Union of India, (2018) – Case Digest

On 6th September 2018, the Supreme Court of India held that section 377 of the Indian Penal Code, which criminalised “carnal intercourse against the order of nature”, was unconstitutional to the extent that it criminalised consensual same-sex intimacy. In particular, it held that the provision violated Article 14 (equality before the law), Article 15 (prohibition of discrimination), Article 19 (freedom of expression), and Article 21 (protection of life and personal liberty - encompassing privacy, dignity and health). In doing so, the Court overruled as “constitutionally impermissible” and “fallacious” the Supreme Court’s earlier approach in Suresh Koushal v. Naz Foundation, in which it had in effect re-criminalised same-sex intimacy.

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McEwan et al v Attorney General of Guyana [2018]

McEwan et al v Attorney General of Guyana [2018]

The Caribbean Court of Justice (CCJ) ruled that a law in Guyana, which makes it a criminal offence for a man or a woman to appear in a public place while dressed in clothing of the opposite sex for an “improper purpose”, is unconstitutional. The law, Section 153(1)(xlvii) of the Summary Jurisdiction (Offences) Act, is to be struck from the laws of Guyana. The Court held that the law violated fundamental rights to equality, non-discrimination and freedom of expression and was unconstitutionally vague.

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Navtej Singh Johar & Ors. v. Union of India, Thr. Secretary & Ministry of Law and Justice (2018)

Navtej Singh Johar & Ors. v. Union of India, Thr. Secretary & Ministry of Law and Justice (2018)

On 6th September 2018, the Supreme Court of India held that section 377 of the Indian Penal Code, which criminalised “carnal intercourse against the order of nature”, was unconstitutional to the extent that it criminalised consensual same-sex intimacy. In particular, it held that the provision violated Article 14 (equality before the law), Article 15 (prohibition of discrimination), Article 19 (freedom of expression), and Article 21 (protection of life and personal liberty - encompassing privacy, dignity and health). In doing so, the Court overruled as “constitutionally impermissible” and “fallacious” the Supreme Court’s earlier approach in Suresh Koushal v. Naz Foundation, in which it had in effect re-criminalised same-sex intimacy.

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Puttaswamy v. Union of India WRIT PETITION (CIVIL) NO 494 OF 2012

Puttaswamy v. Union of India WRIT PETITION (CIVIL) NO 494 OF 2012

On 24 August 2017, the Supreme Court of India issued a judgment on the protection of the right to privacy under the Constitution of India. Crucially, it was recognised (at para. 126) that “sexual orientation is an essential attribute of privacy.” The Court was also explicitly critical of the approach previously adopted by the Court in Suresh Koushal v. Naz Foundation (2013).

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COI & GMN v Principal Magistrate Ukunda Law Courts & 4 others, [2018], Civil Appeal 56 of 2016, The Court of Appeal at Mombasa

COI & GMN v Principal Magistrate Ukunda Law Courts & 4 others, [2018], Civil Appeal 56 of 2016, The Court of Appeal at Mombasa

The Appellants were arrested in a bar in Diani on 18 February 2015 on suspicion of engaging in same-sex sexual activities and distributing pornographic material. They were taken to Makadara General Hospital and subjected to anal examinations and forcibly tested for HIV/AIDS and Hepatitis B. The Court of Appeal held that there was no proper basis for issuing the order compelling the Appellants to undergo medical examinations and testing and the examinations were found to be not only unconstitutional, but unreasonable and totally unnecessary.

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Caleb Orozco v. Attorney General of Belize, 2016 – Judgment

Caleb Orozco v. Attorney General of Belize, 2016 – Judgment

The Supreme Court found that a law criminalising consensual sexual conduct between adults in private, including same-sex intimacy, violates the constitutional rights to dignity, privacy, equality before the law, and non-discrimination on grounds of sex, and cannot be justified on the basis of ‘public morality’. The Court also found that international treaty obligations must inform the interpretation of the Constitutional rights. As a result, the law was declared void and struck out to the extent that it captures consensual sexual conduct between adults in private. The court awarded costs to the Claimant.

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