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

Judgment of the Supreme Court of India which found that the criminalisation of same-sex activity is unconstitutional.

In 2018, the six writ petitions and impleadment applications were accepted by the Supreme Court. The first petition, Navtej Singh Johar v. Union of India, was accepted on January 8, 2018 and referred to a Constitutional Bench. The remaining five petitions and impleadment applications were then joined to this petition. Hearings were held from 10 to 17 July 2018 and the decision was published on 6 September 2018.

The Penal Code came into force during British colonial rule. Section 377 of Code criminalises “whoever voluntarily has carnal intercourse against the order of nature with any man, woman or animal”- a provision that has been interpreted as sexual acts not for the purpose of procreation and criminalised consensual same-sex acts.

The petitioners claimed that Section 377 of the Penal Code to the extent it penalizes consensual sexual relations between adults, is violative of Articles 14 (equality before the law), 15 (prohibition of discrimination), 16 (equality of opportunity), 19 (freedom of expression) and 21 (protection of life and personal liberty) of the Constitution. Further, that they are entitled to equality and non-discrimination before the law on the basis of their sexual orientation under Articles 14, 15 and 16.

In 2013, the Supreme Court in Suresh Koushal v. Naz Foundation overturned the High Court of Delhi decision. In doing so it affirmed the constitutionality of Section 377 and effectively re-criminalised consensual same-sex sexual acts.

In the present case, the issues to be considered were whether Section 377 violates rights under the Constitution, and whether the Supreme Court’s decision in Suresh Koushal & Another v. Naz Foundation & Others (2013) was correct.

The Court held that the provision violated Article 14, Article 15, Article 19, and Article 21. 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. The Court determined that Section 377 violates rights guaranteed by the Constitution – noting that “the LGBT community possess the same human, fundamental and constitutional rights as other citizens do since these rights inhere in individuals as natural and human rights.”

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