Open Access Research Article
NAVTEJ SINGH JOHAR V. UNION OF INDIA: A MILESTONE FOR LGBTQ+ 6 SEPTEMBER 2018 AIR 2018
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Article Details
NAVTEJ SINGH JOHAR V. UNION OF INDIA:
A MILESTONE FOR LGBTQ+
6 SEPTEMBER 2018 AIR 2018
AUTHORED BY - PRABHJOT SINGH CHAHAL,
CT UNIVERSITY
ABSTRACT
The historic case of Navtej Singh
Johar v. Union of India is credited with helping to establish LGBTQ+ rights in
India. The case's history, legal arguments, verdict, and social effects on
Indian society are all represented in this case brief.
Prior to the filing of this case,
homosexuality was illegal per colonial Indian Penal Code Section 377.
The article points out how important
it is for advocacy alongside legal reforms to tackle unfair treatment and
ensure equal rights for all, regardless of sexual orientation or gender
identity. Navtej Singh Johar and others challenged the constitutionality of the
law, arguing that it violated the fundamental rights of people guaranteed by
the Indian Constitution of India.
The court declared Section 377 unconstitutional,
decriminalizing same-sex relationships. The judgment was celebrated as a
victory for LGBTQ+ rights, legal recognition and social acceptance.
However, challenges of achieving full
equality and freedom for LGBTQ+ individuals in India are still going as still
society see LGBTQ as mental ill individuals, being a gap bisexual is not easy
as it is still deemed as Taboo.
CASE DETAILS
|
Judgment cause title
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Decriminalized homosexuality in
India
|
|
Case number
|
WRIT PETITION (CRIMINAL) NO. 76 OF
2016
|
|
Judgment date
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6 September 2018
|
|
Court
|
Supreme Court
of India
|
|
Bench
|
Chief Justice,
Rohinton Fali Nariman,
A.M. Khanwilkar,
D.Y. Chandrachud,
Indu Malhotra
|
|
Citation
|
AIR
2018 SUPREME COURT 4321
|
|
Legal provisions Involved
|
Section 377 IPC, Article 14,
Article 15, Article 19, and Article 21 of Constitution
|
INTRODUCTION AND BACKGROUND OF THE JUDGMENT
LGBT stands for Lesbian, Gay,
Bisexual, and Transgender. It's a group of people who love and identify
themselves differently from what some might consider 'normal'. They want to be
treated fairly and with respect, just like everyone else. They fight against
unfair treatment, like being judged or hurt because of who they love or how
they identify. They believe everyone should have the freedom to love who they
want and be who they truly are without being afraid or treated badly. The LGBT
community has a strong history of standing up for themselves and others, and
they're working hard to make the world a better and more accepting place for
everyone.
This milestone judgment
by the High Court of India has had huge effect, in legitimate terms as well as
in the cultural view and treatment of sexual minorities. This article intends
to dig into the case, its experience, the lawful contentions. Introduced, the
judgment delivered, and its more extensive effect on Indian culture. The Navtej
Singh Johar v. Union of India case stands out as a significant moment in the
struggle for LGBTQ+ rights in India.
Before this case, a law
called Section 377 made homosexuality illegal, causing discrimination and
hardship for LGBTQ+ individuals. Navtej Singh Johar and others decided to
challenge this unjust law in court, arguing that it went against the rights
guaranteed by the Indian Constitution. Finally, in 2018, the Indian Supreme
Court ruled in their favor, declaring Section 377[1]
unconstitutional and decriminalizing same-sex relationships. This decision was
a huge win for LGBTQ+ rights, marking a shift towards greater acceptance and
equality in Indian society.
FACTS OF THE CASE
Navtej Singh Johar is a
dancer and LGBTQ+ rights activist, along with four others, filed a petition in
the Indian Supreme Court in 2016 challenging the constitutionality of Section
377. Section 377[2] deals
with Unnatural offenses.
Whoever voluntarily has
carnal intercourse against the order of nature with any man, woman, or animal,
shall be punished with imprisonment for life, they argued that this law
violated fundamental rights guaranteed by the Indian Constitution, such as the
right to equality, privacy, and freedom of expression in the country.
LEGAL ISSUES RAISED
·
Article 145 discriminates against individuals based on their “sexual
orientation” and “gender identity?
·
The right to autonomy and dignity under Article 21 by penalizing private
consensual acts between same-sex persons?
·
The right to expression under Article4 19(1)(a) by
criminalizing the gender expression of the LGBTQI+ community?
APPELLANT’S ARGUMENTS
It is submitted by the petitioners
that the that homosexuality, bisexuality and other sexual orientations are equally
natural and reflective of expression of choice founded on consent of two
persons who are lawfully to express such
consent and it is neither a physical nor a mental illness, rather they are
natural variations of expression and free thinking process how it make it a
criminal offence is offensive of the well-established principles , individual
dignity and decisional autonomy inherent in the personality of a person, a
great discomfort to gender identity, destruction of the right to privacy which
is a pivotal facet of Article
21 the Constitution, unpalatable to the highly cherished idea of
freedom and a trauma to the conception of expression.
Biological desire which revolves
around the pattern of true manifestation of identity. The order of nature is
limited to the concept that may have been conceived as natural by a systemic
conservative and such limitations do not really take note of inborn traits or
developed orientations for that matter, consensual acts which relate to
responses to series of free exercise of assertions of one ‘s bodily autonomy.
It is further argued that their
growth of personality, relation building endeavor to enter a live-in
relationship or to form an association with a sense of commonality have become
the essential desires are crushed, which violates Article 19(1)(a) of the
Constitution.
Petitioner also submits that the LGBT
group suffer discrimination and abuse throughout their lives due to the
existence of Section 377
IPC[3]
which is nothing but a manifestation of a mindset of societal values during the
era where sexual activities were considered mainly for procreation. The said
community remains in a constant state of fear which is not conducive to their
growth. It is contended that they suffer at the hands of the law and are also
deprived of citizen rights. The LGBT persons cannot, according to the
petitioners, be penalized simply for choosing a same sex partner.
RESPONDENT’S ARGUMENTS
Respondent states that the Prohibition
against carnal intercourse involving penetration into non-sexual parts of the
body does not constitute discrimination as laws based on biological reality can
never be unconstitutional, for if a male is treated as a male, a female as a
female and a transgender as a transgender, it does not amount to
discrimination.
Criminal law is to protect the
citizens from something that is injurious and since carnal intercourse between
two persons is offensive and injurious.
JUDGMENT
The Supreme Court, in looked back at
the decision in Suresh Kumar Kaushal, acknowledged that it used the idea of a
very small minority to justify denying fundamental rights to the LGBT
community. It didn't consider the difference between consensual and non-consensual
sexual acts among adults. The Court pointed out that we need to distinguish
between private relationships where adults agree to be together, regardless of
whether they are heterosexual or homosexual. And these consensual relationships
among adults shouldn't be treated the same as crimes like sodomy, bestiality,
or non-consensual relationships.[4]
The court examined the
constitutionality of Section 377 based on principles outlined in Articles 14,
15, 19, and 21. It drew upon the NALSA judgment, which afforded equal
protection under the law to transgender individuals, to reaffirm that sexual
orientation and gender identity are integral aspects of one's personality.
Additionally, it referenced the Putta swamy judgment, which acknowledged the
connection between privacy and autonomy, asserting that the right to sexual
orientation falls within the purview of the right to privacy. Consequently, the
court advocated for an expansion of the right to privacy to encompass
"sexual privacy" as a means of safeguarding the rights of sexual
minorities. Court also referred to the Yogyakarta Standards.[5]
The Court determined that sexual
orientation is something people are born with and cannot change. It said that
when LGBTQ+ individuals choose to have intimate relationships with others of
the same gender, it's their own decision, showing their independence and
freedom to make choices. Even though LGBTQ+ people are a minority when it comes
to sexual preferences, the court said they have the same protection under the Constitution
as everyone else.
CONCLUSION AND COMMENTS
The court turning point for LGBTQ+
rights in India. The Supreme Court struck down Section 377 of the Indian Penal
Code, making consensual same-sex relationships legal. This decision recognized
the dignity and rights of LGBTQ+ individuals, stating that sexual orientation
and gender identity are important parts of who they are. The judgment
emphasized the right to privacy, including "sexual privacy,"
protecting sexual minorities from discrimination. It also rejected the idea
that LGBTQ+ people should change themselves and affirmed their right to live
authentically.
The Supreme Court made a big decision
in India for LGBTQ+ people. They said it's okay for people to love who they
want, even if they're the same gender. This decision was important because it
recognized that LGBTQ+ people deserve respect and fair treatment. The court
also said that everyone has the right to keep their personal life private,
including their romantic feelings.
This helps protect LGBTQ+ people from
being treated badly just because of who they love. Even though this decision
was a big win, some people still treat LGBTQ+ people unfairly. So, while things
are getting better, there's still work to do to make sure everyone is treated
the same, no matter who they love.
This ruling has not only changed laws
but also influenced how society sees LGBTQ+ individuals in India. Despite this
progress, discrimination and violence against them persist. So, while this case
was a big win, there's still work to do to ensure full equality for LGBTQ+
people in India.
REFERENCES
·
Navtej
Singh Johar v. Union of India, Writ Petition (Criminal) No. 76 of 2016, Supreme
Court of India (2018).
·
https://indiankanoon.org/doc/168671544/
·
Indian
Penal Code, 1860, s. 377, No. 45 of 1860, India.
·
National
Legal Services Authority v. Union of India, Writ Petition (Civil) No. 400 of
2012, Supreme Court of India (2014).
·
Indra
Sarma v. V.K.V. Sarma, (2013) 15 SCC 755, Supreme Court of India.
·
Report
of the Committee on Amendments to Criminal Law, 2013, India.
·
Yogyakarta
Principles on the Application of International Human Rights Law in relation to
Sexual Orientation and Gender Identity, 2006, International Commission of
Jurists.
·
Constitution
of India, art. 15, India.
Article Information
NAVTEJ SINGH JOHAR V. UNION OF INDIA: A MILESTONE FOR LGBTQ+ 6 SEPTEMBER 2018 AIR 2018
Authors: PRABHJOT SINGH CHAHAL
- Journal IJLRA
- ISSN 2582-6433
- Published 2024/03/21
- Issue 7
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International Journal for Legal Research and Analysis
- Abbreviation IJLRA
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