Navjot Singh Johar v. Union of India

• Citation- AIR 2018 SC 4321
• Date of judgment- 06/09/2018
• Bench- Dipak Misra CJI, Indu Malhotra Judge, D. Y. Chandrachud Judge, A. N. Khanwilkar Judge, and R. F. Nariman Judge.

Facts of the Case

In 2018, a writ petition was filed in the Supreme Court to decriminalize Section 377 of IPC, according to which the act of voluntarily having carnal intercourse against the order of nature, a criminal offence and it imposes a criminal liability. The petition was on the ground that right to sexuality and right to choice of sexual partner, is a part pf Right to Life under Article 21 of the Constitution of India. It challenged the constitutionality of Section 377.

Issues raised in the Case

1. Whether Section 377, IPC is constitutionally valid?
2. Whether Section 377, IPC violates Article 14 and Article 15 of the Constitution?
3. Whether Section 377, IPC violates Article 21 and Article 19 of the Constitution?

Arguments of Petitioners

• Sexual interest is personal choice and criminalizing homosexuality, bisexuality or other sexual orientations is a violation of Right to live with Dignity and is vital element to one’s privacyunder Article 21.
• Section 377 violates Article 14 as it does not provide any reasonable classification between natural and unnatural sex.
• Section 377 violates Article 15 as the LGBT community is discriminated on the basis of their gender of their partners.
• Section 377 violates Article 19 as the Right to freedom of expression of sexual orientation and identity of LGBT community is violated.

• LGBT community comprise 7-8% of India’s population and their rights needs to be recognized.

Arguments of Respondents

• Decriminalization of Section 377 will destroy family system& the institution of marriage, will corrupt young minds and will increase the non-consensual acts.
• The offense of Section 377 is to punish the abuse of one’s organs because no one has the liberty to abuse one’s organs.
• Decriminalizing Section 377 will be constitutionally immoral as it punishes the undignified and derogatory acts which are against the concept of dignity.
• The countries that decriminalized homosexuality have a different economic, political and cultural heritage than India.
• Section 377 does not violate Article 14 as it discriminates people on the basis of the sex of their partner and not on their sexual orientation. 
• Decriminalization of Section 377 will act as a threat to religious practices in India and will violate Article 25.

Ratio Decidendi

• The Supreme Court overrule the Suresh Kumar Kaushal & Another v. Naz Foundation & Others judgment and declared Section 377 unconstitutional.
• Section 377 curtails the personal choice & dignity of The LGBT community and violates the Right to Privacy provided under Article 21.
• The consensual intercourse practiced by this community is not injurious to women and children, hence the decriminalization of the provision will not hinder its objective.
• Section 377 is discriminative towards the LGBT community and violates Article 14 as the non-consensual acts have already been dealt in Section 375 of IPC.
• Section 377 also violates the fundamental right of freedom of expression as it infringes the right to express sexual orientation.

Relevant Case laws

• Suresh Kumar Kaushal & Another v. Naz Foundation & Others (2013)
• Naz Foundation v. Government of NCT of New Delhi and Others(2009)
• K.S. Puttaswamy & Another v. Union of India & Others (2017)
• National Legal Services Authority of India v. Union of India & Others (2014)