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Navtej Singh Johar v. Union of India

Navtej Singh Johar v. Union of India
Emblem of the Supreme Court of India.svg
Court Supreme Court of India
Full case name Navtej Singh Johar & Ors. versus Union of India thr. Secretary Ministry of Law and Justice
Decided 6 September 2018
Citation(s) W. P. (Crl.) No. 76 of 2016
D. No. 14961/2016
Legislation cited
Case history
Prior action(s) Suresh Kumar Koushal v. Naz Foundation
Appealed from Supreme Court of India
Court membership
Judge(s) sitting Dipak Misra, CJI; Rohinton Fali Nariman, J.; A. M. Khanwilkar, J; D. Y. Chandrachud, J; and Indu Malhotra, J
Case opinions
Decision by Dipak Misra, R. F. Nariman, D. Y. Chandrachud and Indu Malhotra
Plurality Dipak Misra, joined by A. M. Khanwilkar
Concurrence Rohinton Fali Nariman
Concurrence Indu Malhotra
This case overturned a previous ruling
Suresh Kumar Koushal v. Naz Foundation by Supreme Court of India

Navtej Singh Johar & Ors. versus Union of India thr. Secretary Ministry of Law and Justice is a landmark decision of the Supreme Court of India in 2018 that decriminalised all consensual sex among adults in private, including homosexual sex.[1]

The court was asked to determine the constitutionality of Section 377 of the Indian Penal Code, a colonial-era law which among others criminalised homosexual acts as an "unnatural offence". On 6 September 2018, the court unanimously declared the law unconstitutional "in so far as it criminalises consensual sexual conduct between adults of the same sex".[2] Portions of Section 377 relating to sex with minors, non-consensual sexual acts such as rape, and bestiality remain in force.[3]

Background

On 27 April 2016, five people from the LGBT community filed a new writ petition in the Supreme Court challenging the constitutionality of Section 377 of the Indian Penal Code. The petitioners claimed that the issues which they raised in their petition were varied and diverse from those raised in the pending curative petition in the 2013 Koushal v. Naz case, in which the Supreme Court had upheld the constitutionality of Section 377. The Naz case was earlier referred to a five-judge bench in order to decide whether the curative petition could be accepted for consideration. The petitioners were dancer Navtej Singh Johar, journalist Sunil Mehra, chef Ritu Dalmia, hoteliers Aman Nath and Keshav Suri, and businesswoman Ayesha Kapur.[4] Specifically, it happened to be the first case where the petitioners had argued that they had all been directly aggrieved because of Section 377 alleging it to be a direct violation of fundamental rights.[5][6] In a survey conducted by the Centre for the Study of Developing Societies and Konrad-Adenauer-Stiftung, only 25% of Indian youth approved of a homosexual relationship in April 2017.[7]

Trial

The petition was placed before Justice S. A. Bobde and Justice A. K. Bhushan on 29 June 2016 where an order was passed to post the matter before the Chief Justice of India, Justice Dipak Misra for appropriate orders as the bench was apprised of the curative petition pending before the constitution bench.[8][9] On 8 January 2018, the case (Navtej Singh Johar and others v. Union of India) was listed to be heard by Chief Justice's bench which passed an order stating that the case will be heard by a constitution bench.[10][11]

"Taking all the aspects in a cumulative manner, we are of the view, the decision in Suresh Kumar Kaushal's case (supra) requires re-consideration. As the question relates to constitutional issues, we think it appropriate to refer the matter to a larger Bench."[12]

The matter was heard from 17 January 2018 by a five-judge constitution bench of the Supreme Court.[13] On 10 July 2018, the SC commenced hearing of the pleas challenging the constitutionality of section 377.[14][15][16] The bench ended its hearing on 17 July and reserved its verdict, asking for both sides to submit written submissions for their claims by 20 July.[17]

Judgment

The judgement of the Supreme Court of India of 6 September 2018 overturning its own verdict in Suresh Kumar Koushal vs. Naz Foundation hence declaring all private consensual sexual acts between adults legal including homosexual ones.

On 6 September 2018, the court delivered its verdict, declaring portions of the law relating to consensual sexual acts between adults unconstitutional in a unanimous decision.[18][19] This decision overturns the 2013 ruling in Suresh Kumar Koushal vs. Naz Foundation in which the court upheld the law.[18][20] However, other portions of Section 377 relating to sex with minors, non-consensual sexual acts, and bestiality remain in force.[3]

The court found that the criminalisation of sexual acts between consenting adults violated the right to equality guaranteed by the Constitution of India. While reading the judgment, Chief Justice Misra pronounced that the court found that "[c]riminalising carnal intercourse" to be "irrational, arbitrary and manifestly unconstitutional".[18] The court ruled that LGBT people in India are entitled to all constitutional rights, including the liberties protected by the Constitution of India.[21] This included "the choice of whom to partner, the ability to find fulfilment in sexual intimacies and the right not to be subjected to discriminatory behaviour are intrinsic to the constitutional protection of sexual orientation".[21] The judgement also made note that LGBTs are entitled to an equal citizenship and protection under law, without discrimination.[21]

While the statute criminalises all anal sex and oral sex, including between opposite-sex couples, it has largely affected same-sex relationships.[18] As such, the verdict was hailed as a landmark decision for LGBT rights in India, with campaigners waiting outside the court cheering after the verdict was pronounced.[18]

Public opinion and specific reactions

The Government of India, decided to abstain from the hearings and had left the matter to the "[w]isdom of the [c]ourt".[22]

Political parties and organisations

The largest constituent party of the National Democratic Alliance, a right-wing Hindu nationalist coalition, currently having a majority in the Lok Sabha (House of the People), the Bharatiya Janata Party (BJP), was one of the few parties which officially stayed silent on the verdict.[23][24] Several party members did express their personal opinions on the subject, including the BJP spokesperson G. V. L. Narasimha Rao, who said that any decision on the matter "takes in sync with the jurisprudential developments on gay rights the world over would be welcome".[25] Meanwhile, Subramanian Swamy, a Rajya Sabha (Council of the States) member of the BJP, attacked the decision, questioning if the court will legalise sexual intercourse with animals in the name of personal liberty.[26] He was of the view that the decision could be overruled "[i]f it leads to excesses, including paedophilia, gay bars, increase in HIV cases, etc."[27] The Prime Minister of India, Narendra Modi, has a record of saying relatively little about LGBT rights compared to other socio-political issues, and refused to comment on the same.[19]

The right-wing organisation Rashtriya Swayamsevak Sangh conveyed its agreement with the court's verdict as it didn't believe homosexuality was a crime, but did label the orientation as "unnatural".[28] In January 2018, the BJP's coalition partner, the Shiv Sena had supported legalisation, with its member and a member of parliament in Lok Sabha for Mumbai South, Arvind Sawant Ganpat saying, "They have the right to live the way they want. What can we say on it."[25]

The largest opposition party in India, the Indian National Congress of the United Progressive Alliance, issued a statement welcoming the ruling. The organisation remarked that the judgement should bring about "the beginning of a more equal and inclusive society".[18] This was in contrast to its previous objection in the same case in 2009 when it was in government during the initial Naz Foundation case, stating that gay sex was 'immoral' and that it cannot be decriminalised.[29]

Overseas

In terms of non-governmental organisations, the group Human Rights Watch welcomed what happened, with its South Asia director labelling the judgement as "hugely significant".[19] Amnesty International also praised the ruling.[30] The United Nations welcomed the judgement, hoping that it will be the first step towards guaranteeing the full range of fundamental rights to LGBTI persons.[31]

Global News suggested that similar colonial laws in South Asia, modelled on India's Section 377, could be declared unconstitutional following this verdict. The agency stated that the ruling "emboldened activists in neighbouring countries".[32] In terms of LGBT rights in Sri Lanka, a similar law in that nation, which has not been enforced in decades, was declared unenforceable by its Supreme Court and is effectively dormant. However, differences in how constitutional matters are handled mean that the law cannot be removed without the consent of the electorate.[33][32] Global News also noted that the nations of Bangladesh, Myanmar, and Pakistan face problems with LGBT people suffering from public discrimination, outside of the context of laws restricting homosexuality.[32]

Simon Chesterman, dean of the National University of Singapore Faculty of Law, congratulated India on the verdict in a Facebook post. In response to Chesterman's post, Singaporean diplomat Tommy Koh wrote on Facebook that Singaporean LGBT activists should take the opportunity to overturn Section 377A of the Penal Code,[34] a position supported by Chief of Government Communications Janadas Devan. Later, on September 10, disc jockey and producer Johnson Ong Ming filed a lawsuit in court against Section 377A.[35] However, Law and Home Affairs Minister K. Shanmugam stated that “[t]his issue relates to social mores, values - so can you impose viewpoints on a majority when it so closely relates to a social value system?”[36]

See also

References

  1. ^ Navtej Singh Johar & Ors. v. Union of India thr. Secretary Ministry of Law and Justice, W. P. (Crl.) No. 76 of 2016 (Supreme Court of India) (“21. CONCLUSION i. In view of the aforesaid findings, it is declared that insofar as Section 377 criminalises consensual sexual acts of adults (i.e. persons above the age of 18 years who are competent to consent) in private, is violative of Articles 14, 15, 19, and 21 of the Constitution. It is, however, clarified that such consent must be free consent, which is completely voluntary in nature, and devoid of any duress or coercion.”). Text
  2. ^ Safi, Michael (2018-09-06). "Campaigners celebrate as India decriminalises homosexuality". The Guardian. Retrieved 2018-09-07. 
  3. ^ a b Pundir, Pallavi. "I Am What I Am. Take Me as I Am". Vice News. Retrieved 8 September 2018. 
  4. ^ "Gay sex decriminalised: History owes apology to LGBT community and kin, says Supreme Court". The Indian Express. Express Web Desk. New Delhi: Indian Express Group. September 6, 2018. OCLC 70274541. Retrieved September 6, 2018. 
  5. ^ Ganz, Kian. "Read the wonderful new 377 challenge by 5 out-and-proud celebrities that'll hit SC today". Legallyindia.com. Retrieved 15 January 2018. 
  6. ^ "Navtej Singh Johar & ors. vs. UoI: Supreme Court petition 29 June 2016 – Orinam Section 377". Orinam Section 377. 29 June 2016. Retrieved 15 January 2018. 
  7. ^ Harikrishnan, Charmy (2017-04-23). "Indian youth is a strange mix of conservative and liberal attitudes: Survey". The Economic Times. Retrieved 2018-09-11. 
  8. ^ FP Staff (29 June 2016). "Section 377: Supreme Court refers fresh petition on homosexuality to CJI". Firstpost. Retrieved 6 September 2018. 
  9. ^ "Supreme Court Order - Navtej Johar vs Union of India - 29 June 2016" (PDF). Archived from the original (PDF) on 15 January 2018. 
  10. ^ Taneja, Richa (8 January 2018). "Section 377: All you need to know". New Delhi Television Limited. Retrieved 6 September 2018. 
  11. ^ India TV News Desk (6 September 2018). "Section 377 verdict: What has happened so far in the case". India TV. Retrieved 6 September 2018. 
  12. ^ "Supreme Court Order - Navtej Johar vs Union of India - 8 January 2018" (PDF). Archived from the original (PDF) on 15 January 2018. 
  13. ^ "All You Want To Know About 8 Cases Listed For Hearing By Constitution Bench From Wednesday (17 Jan) [Read Notice] | Live Law". Live Law. 15 January 2018. Retrieved 15 January 2018. 
  14. ^ Correspondent, Legal; Correspondent, Legal (10 July 2018). "SC to hear pleas to scrap Section 377". The Hindu. ISSN 0971-751X. Retrieved 10 July 2018. 
  15. ^ Bench, Bar & (10 July 2018). "Section 377 hearing: Live Updates from the Supreme Court". Bar & Bench. Retrieved 10 July 2018. 
  16. ^ "Fall of Sec. 377 will embolden LGBTQ people: CJI". Clpr.org.in. 
  17. ^ TNM Staff (17 July 2018). "Marathon hearing on Section 377 concludes, SC reserves verdict". The News Minute. Retrieved 6 September 2018. 
  18. ^ a b c d e f "Historic India ruling legalises gay sex". BBC News. 6 September 2018. Retrieved 6 September 2018. 
  19. ^ a b c Gettleman, Jeffrey; Schultz, Kai (6 September 2018). "India Strikes Down Colonial-Era Law Against Gay Sex". The New York Times. Retrieved 6 September 2018. 
  20. ^ "Homosexualität ist in Indien nicht mehr strafbar". sueddeutsche.de (in German). 6 September 2018. ISSN 0174-4917. Retrieved 6 September 2018. 
  21. ^ a b c Navtej Singh Johar & Ors. v. Union of India thr. Secretary Ministry of Law and Justice, W. P. (Crl.) No. 76 of 2016 (Supreme Court of India). Text
  22. ^ "Section 377 Supreme Court hearing: Centre defers to 'wisdom of court'; Menaka Guruswamy says IPC section violates Article 15". Firstpost.com. Retrieved 2018-09-08. 
  23. ^ "Section 377: BJP Has Nothing To Say About Supreme Court's Historic Verdict Legalizing Gay Sex". HuffPost India. 2018-09-06. Retrieved 2018-09-08. 
  24. ^ "BJP mum on SC verdict on Section 377". Deccan Herald. 2018-09-07. Retrieved 2018-09-08. 
  25. ^ a b "Ruling and Opposition parties on the same side against Section 377". The Hindu. Special Correspondent. 2018-01-08. ISSN 0971-751X. Retrieved 2018-09-10. 
  26. ^ "Subramanian Swamy on Twitter". Twitter. Retrieved 2018-09-08. 
  27. ^ "'Step towards self-destruction': Far-right comes out against Supreme Court's Section 377 verdict". Firstpost.com. Retrieved 2018-09-08. 
  28. ^ "Homosexuality not a crime, but unnatural: RSS". The Times of India. Retrieved 2018-09-08. 
  29. ^ "Gay sex is immoral and can't be decriminalised, Govt tells HC". Outlookindia.com. Retrieved 14 September 2018. 
  30. ^ "India decriminalises gay sex". Amnesty.org.uk. 
  31. ^ "United Nations in India welcomes Supreme Court judgment on Section 377". UN India. Retrieved 2018-09-08. 
  32. ^ a b c "India legalized homosexuality, but many of its neighbours haven't". Global News. Retrieved 2018-09-10. 
  33. ^ "SL committed to non-discrimination based on sexual orientation: Nerin Pulle". Dailymirror.lk. Retrieved 14 September 2018. 
  34. ^ "Inspired by India, veteran Singapore diplomat calls for gays to challenge sex ban". Reuters. 7 September 2018. Archived from the original on September 2018. 
  35. ^ "After Section 377 verdict in India, Singapore DJ files court challenge against law banning gay sex". Firstpost.com. Retrieved 14 September 2018. 
  36. ^ "Singapore society has to decide which direction it wants to take on laws against gay sex: Shanmugam". Channelnewsasia.com. Retrieved 14 September 2018. 

External links

  • Navtej Singh Johar & Ors. v. Union of India thr. Secretary Ministry of Law and Justice, W. P. (Crl.) No. 76 of 2016 (Supreme Court of India). Text