India is one of the 28 Asian nations that has accepted lgbtqia+ rights and legalized homosexuality. Many people’s lives in the nation have changed as a result of the ruling in Navtej Singh Johar and others v. Union of India (2018). The Indian Penal Code, 1860 (hereafter referred to as the IPC) made homosexuality a crime, hence the community did not have these rights prior to this historic ruling.
It is a common misperception that the court has invalidated section 377 of ipc in its entirety with this ruling, although this is untrue. To the extent that it makes non-consensual sexual relations between people of the same sex illegal, section 377 of ipc is still in effect. The court has decriminalized this section to the extent that it punishes consensual sexual acts between members of this category. Despite the fact that heterosexuals who engaged in unlawful sexual behaviour were also covered by this clause, it was widely used to harass and punish lgbt community.
navtej singh johar vs uoi Case Facts
- Consensual sexual relations between people of the same sex were illegal under section 377 of ipc because it was “against the order of nature.”
- The Naz Foundation (India) Trust (“Naz”) contested the validity of section 377 of ipc in 2009 before the Delhi High Court, arguing that it violated Articles 14, 15, 19, and 21 of the Constitution.
- The court decided that punishing sexual behaviour between two consenting adults under section 377 of ipc is an infringement on their right to privacy, equality, and personal freedom.
- In Suresh Kumar Koushal & Anr. v. Naz Foundation & Ors. (“Koushal”), the Supreme Court overturned the Naz verdict in 2013, following an appeal of this decision. It said that decriminalizing homosexuality could only be done by the Parliament.
- Five LGBTQ people, Ritu Dalmia, Ayesha Kapur, Aman Nath, Sunil Mehra, and Navtej Singh Johar, filed a new writ suit contesting Section 377’s legitimacy.
navtej singh johar vs uoi Issues
- Because it discriminates against people based on their “sexual orientation” and “gender identity,” Article 14?
- the Article 21 right to autonomy and dignity by criminalizing private, consenting acts between people of the same sex?
- the freedom of expression guaranteed by Article 19(1)(a) by making the LGBTQI+ community’s gender expression illegal?
Contentions by the Parties
Petitioner:
- The petitioner claims that Section 377 of the IPC, which makes homosexuality illegal, is out of date and should be changed to reflect the requirements and preferences of contemporary society.
- Since private, consensual sexual interactions fall under the protection of the right to privacy under Article 21 of the Indian Constitution, Section 377 also violates that provision’s guarantee of the right to life.
- As stated in Article 15, Section 377 also discriminates against individuals based on their sexual orientation, contravening another essential right of homosexuals.
- Furthermore, there is no logical connection between the distinction made between procreative and non-procreative sexual actions and Section 377 of the IPC, which criminalizes “unnatural sexual acts.”
Respondent:
- In an affidavit filed with the Government of India’s Ministry of Home Affairs, it was stated that Section 377 of the IPC was added to guard against child sexual abuse.
- Furthermore, they have argued that the mere fact that two adults have given their permission does not make such acts acceptable. Furthermore, for the sake of public safety, health, and morals, it is acceptable for governmental authorities to meddle in private and familial affairs.
- The petitioner’s argument that the homosexual community is particularly susceptible to HIV/AIDS has been accepted by the National Aids Control Organization (NACO). They report that 25 lakh gays fall into the category of high-risk behavior. In their affidavit, NACO also listed a number of strategies to be used to reduce the high rate of HIV infection within this population.
navtej singh johar case Judgment
- A five-judge constitutional bench of the Indian Supreme Court rendered a historic decision on September 6, 2018, substantially overturning Section 377 of the Indian Penal Code (IPC) and so decriminalizing adult consensual gay encounters.
- Under British colonial authority, Section 377 was passed in 1860 and made “unnatural offences” illegal, including willful “carnal intercourse against the order of nature.” Despite not specifically mentioning homosexuality, the law was frequently applied to discriminate against LGBTQ people in India.
- Because Section 377 infringed against the fundamental rights to equality, freedom of expression, life, and privacy protected by Articles 14, 15, 19, and 21 of the Constitution, the Supreme Court declared it to be unconstitutional.
- Human rights advocates hailed the decision as a significant win for LGBTQ rights in India following years of prejudice and societal shame. The Supreme Court essentially abolished the prohibition of consensual same-sex relationships between adults by striking down Section 377 and declaring that these relationships are no longer “against the order of nature.”
In Navtej Singh Johar v. Union of India, important legal issues pertaining to the right to privacy and individual liberty were at issue. The petitioners claimed that by making consenting homosexual relations between adults illegal, Section 377 of the Indian Penal Code infringed their basic rights guaranteed by Articles 14, 15, 19, and 21 of the Constitution.
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