Navtej Singh Johar v. Union of India 1 :
This case was related to section 377 of Indian Penal Code. Section 377 talks about the unnatural offences which means sexual activity between the same gender or sexual activity between a human and an animal. This case raised the issues that section 377 of the IPC is violating Article 14, 15, 19 and 21 of the Constitution of India.


Constitutionality on Section 377 of IPC first raised in the year 2009 by Naz Foundation in the case Naz Foundation v. Government of NCT &Ors. In this case the issue raised was the constitutionality of section 377 of IPC, this section criminalises the homosexuality. In this case it was argued that section 377 is violating the Article 14, 15, 19 and 21 of the Indian Constitution 2 . The Delhi High Court held that section 377 is violating the right to privacy and personal liberty and also this section is targeting the homosexual which violates the Article 15 and 19 of the Indian Constitution.

The judgement given by the Delhi High Court was challenged in the Supreme Court in the case Suresh Kumar Koshal & Ors. V. Naz Foundation & Ors in the year 2013 3 . In this case the Supreme Court held that section 377 of IPC des not violate any rights or section 377 is not unconstitutional.

A Writ Petition was filed in front of the Supreme Court against the judgement of Suresh Kumar Koshal case by few members of the LGBT Community, Navtej Singh Johar was a dancer and one of the member of the LGBT Community.


Facts of the case:
In Navtej Singh case the issues raised by the petitioner was the violation of Article 14, 15, 19 and 21 of the Indian Consitution which talks about the Right to Equality, Right against Descrimination, Freedom of Speech and Expression and Personal Right and liberty. The petitioner wanted the recognition to choose the sexual partner, right to sexuality and also stated that Section 377 of the IPC is unconstitutional 4 . It was argued that this section is not just unconstitutional but also creates a fear in the mind of LGBT Community.

Judgment:

Five judge bench was created for this case which include Chief Justice Deepak Mishra, Justice A.M. Khanwilkar, Justice D.Y. Chandrachud, Justice R.F. Nariman, Justice Indu Malhotra. The Court held that denying the Right to privacy to the LGBT Community only because they are the minority group is violation of their fundamental right. The court held that Section 377 of the IPC is unconstitutional and violation the rights of LGBT Community. Court also stated that only sex between same gender by consent is legal. Sex between non-consenting partners or involved with animal is still a criminal offence.

References:

  1. (2018)10 SCC 1

2. Wardahbeg.M. ( 2019, July 1). Navtej Singh Johar v. UOI- Judgement which decriminalized Homosexuality. Retrieved from https://blog.ipleaders.in/navtej-singh-johar-v-uoi-judgment-which-decriminalized-homosexuality.

3. Supreme court observer. Constitutionality on 377 ipc. Retrieved from: https://www.scobserver.in/court-case/section-377-case

4. Global freedom of expression Columbia university. Navtej Singh Johar v. Union Of India. Retreieved from https://globalfreedomofexpression.columbia.edu/cases/navtej-singh-johar-v-union-india.

(Author: Charu Shrivastava, LYT)

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