NAVTEJ SINGH JOHAR VS UNION OF INDIA
(2018) 10 SCC 1
CJI Dipak Mishra R.F. Nirman ,Jjustice Indu Malhotra , Justice A.M Khanwilker and Justice D.Y. chandrachud
Section 377 of the Indian penal code, 1860 (IPC) is a provision that criminalises homosexuality means, when the people are sexually attracted to the people of same sex and to the people of opposite sex. It was introduced in 1861 during the British rule in India. The section 377 reads;
“unnatural offences- Whoever voluntarily has carnal intercourse against the order of the nature with any man, women or animal, shall be punished with imprisonment of life, or with imprisonment of either description for a term which may extended to ten years, and shall also be liable to fine”
The issue in this case was originated for the first time in the year 2009, when the Delhi high court in the Naz Foundation vs. Government of N.C.T. of Delhi held section 377 of IPC unconstitutional, so far if the sexual intercourse between the people of same sex is consensual. In the year 2014 the supreme court in suresh kumar kaushal vs. Naz Foundation , overruled the judgement the petition was filed with a view to seek the recognition of right to sexuality, right to sexual partner to be part of the right to life guaranteed under Article 21 of the Indian constitution, of which Right to privacy is a pivotal fecet.
ISSUES AND THE FACT OF LAWS
The LGBTQ community cannot avail the fundamental right of freedom of expression of their sexual identity which is provided under Article 19(1)(a), because of prevalence of section 377 of IPC, 1860.
It also violates the right to form association of the LGBTQ person as given under article 19(1)(c) of the Indian constitution.
Section 377 is considered to be violative of Article 14 of the Indian constitution as it is vague, in the sense that carnal intercourse against the order of nature is neither defined in the section nor in IPC or any other law.
The court held that sexual orientation is one of the many biological phenomenons which is natural and inherent in an individual and is controlled by neurological and biological factor. Any discrimination on the basic of it would result in violation of the fundamental right of “freedom of expression”
On 6 september 2018, the court delivered its unanimous verdict, declaring portions of the law relating to consensual sexual act between adults unconstitutional. The decision overturns the 2013 ruling in Suresh Kumar Koushal v. Naz Foundation in which court upheld the law.
Credit: Shikha pandey