CASE COMMENT ON

NAVTEJ SINGH JOHAR V UNION OF INDIA

FACTS
1. The fact are as follows. Navtej Singh Johar (the applicant) who was a dancer and
associated with the LGBT (Lesbian, Gay, Bisexual, and Transgender) community
filed a written application in court requesting the inclusion of the right to sexual
autonomy and the right to choose a sexual partner within the context of the right to
life under section 21.
2. He also sought the promulgation of section 377 of the I.P.C. as unconstitutional. He
argued that the language of section 377 was vague and that there was no clear
distinction between natural and unnatural sexual acts.
3. He further added that section 377 discriminates against members of the opposite sex
and has a 'cool effect' on the freedom of expression and expression to express their
sexual orientation by selecting their partners. Also, section 377 violates the right to
privacy by placing LGBT people in fear of humiliation because of their lifestyle.
4. The three-judge panel of the Apex Court ruled that the matter should be considered by
a larger bench. Therefore, when an appeal is filed, five judges of the Supreme Court
overturn Section 377 as long as it makes consensual sex a criminal offence.

ISSUE RAISED
The issue raised here was-
1. Does Section 377 violate Sections 14 and 15 of the Constitution?
2. Whether Section 377 violates the right to privacy under Article 21?
3. That Section 377 has a ‘cooling effect’ in Article 19 (1) (a) criminalizing sexual
expression by a LGBT community?
CONTENTION
Petitioners Contention

1. Homosexuality, bisexuality and other sexual orientation are common to all persons and are
based on the consent of two legally trained persons; orientations it is not a physical ailment or
a mental illness

2. To engage in the sexual act of a criminal, it violates the established principles of human
dignity and independence; sexual preference is an important aspect of human privacy.1

3. Gays, lesbians, bisexuals and transgender (LGBT) communities make up 7-8% of the
population of India and need to be recognized and disregarded by their minority and they
need it. legal protection

4. Section 377 violates Article 14 as ambiguous in relation to the term “carnal sex against
natural order” and there is no logical distinction or logical distinction and it exists as long as
sex is consensual.2 This Section is contrary to Article 15 and has a negative impact on Article
19 (1) (a) as LGBT people are unable to express their identities and circumstances freely.3

6. Sexual independence and the right to choose one's partner are part of Article 21 of the
Constitution.4 The right to dignity is also removed under Article 377, which is part of Section
21.5

7. Section 377 restricts the ability of LGBT people to fulfil their constitutional right to
housing; LGBT people seek the help of private resources such as Gay Housing Assistance
Resources (GHAR) to access safe shelter and this is an indication that members of this
community are in dire need of immediate government and legal protection and protection.

Respondents Contention

1. No one has the freedom to injure human organs and to commit offensive acts the
provisions of Article 377 are made by the abuse of human organs;
2. The actions referred to in Article 377 are degrading and undermine the constitution
the concept of ‘dignity’ therefore, the removal of the Crime Section would be wrong
again constitutional misconduct;

1
K.S. Puttaswamy & Anr. v. Union of India & Ors. (2017) 10 SCC 1
2
Anuj Garg & Ors. v. Hotel Association of India & Ors. (2008) 3 SCC 1
3
3 S. Khushboo v. Kanniammal & Anr. (2010) 5 SCC 600
4
Shakti Vahini v. Union of India and Ors. (2018) 7 SCC 192;
5
Kishore Samrite v. State of U.P. & Ors. (2013) 2 SCC 398
 3. Section 377 makes it appropriate that the actions stated there were punished as the
Section was compiled after recognizing existing legal systems and principles ancient
India and now in 2018, this said Category is most active legally, medically, moral and
constitutional;
4. If Section 377 is declared unconstitutional, the family plan will intervene tensions and
the marriage arrangement will be affected; Notwithstanding the criminal removal of
various adult consent acts in some parts of the in the world, they will not be removed
from India because of political, economic differences and traditional cloth;
5. In a case where consent acts between two adults of the same sex are not included in
Part of Section 377, in which case a married woman shall be irreparable her bisexual
husband and her consenting male partner and moreover they will be adverse effect on
personal laws and regulations such as the Special Marriages Act;
6. The doctrine of manifest arbitrariness does not apply as the law is not clear either if
not, Section 377 applies regardless of sexual orientation or sexual orientation.
Permission can also be obtained with a wrong view, mental illness, drunkenness or
coercion;
7. Section 377 does not violate Section 14 as it only defines a particular case.
punishment and it is within the power of the State to decide who should be it is
considered a category for legal purposes and this is a reasonable distinction

RATIONALE
The bench found that Section 377 discriminates against people on the basis of their sexual
orientation and / or sexual orientation, in violation of Sections 14 and 15 of the Constitution.
In addition, they determined that Article 377 violates the right to life, dignity, and freedom of
choice under Article 21. They all referred to the Court's recent decisions on NALSA v Union
of India (known transgender identity) and Justice K.S. Puttaswamy v Union of India
(respected and respected basic right to privacy).

In 2013, at the Suresh Kumar Koushal v Naz Foundation, the Court agreed with Article 377
of the constitutional settlement. Suresh Koushal used the miniscule tract rationale, stating that
since only minor citizens are adversely affected by Section 377, the Court should not
intervene. The Constitution guarantees all citizens, regardless of gender or sexual orientation,
their basic rights. The Court is concerned with defending ‘constitutional ethics’, not ‘popular
morality’.

DEFECTS OF LAW
The case had many legal questions that had serious consequences and consequences. Various
constitutional provisions were considered in this case. First, let's look at the IPC's
controversial Article 377 - "Anyone who voluntarily has sexual intercourse with any man,
woman, or animal, shall be liable to imprisonment, or to imprisonment for any term of up
to ten years, and shall be liable to a fine". 6 The language of this section suggests that no one
should have sexual intercourse against the natural course with another person or animal and
as a result, homosexual acts were considered unnatural for a long time as homosexuality was
to be sanctioned by society as a whole through cultural, religious, and cultural practices.

It is not said that homosexuals suffer the consequences of this. They were not only seen as
criminals for no good reason but they were also severely discriminated against in the fields of
education, employment, etc. Fundamental human rights were denied them simply because of
their gender identity and sexual orientation. Various organs of state also ignored the issue
until the Naz Foundation v / s Govt. of the NCT, a Delhi case where homosexuality was
officially sanctioned by a high court. This was overturned by a high court decision in the case
of Suresh Kumar Kaushal v / s Naz Foundation. One of the main reasons taken from the
aforementioned issue is that as the LGBT community is small in the country, their interests
cannot be prioritized above social norms and values.

The constitution was widely condemned as illegal in the case of Navtej Johar in which the
court ruled that the constitution belonged to everyone in the country, whether he belonged to
a minority group or a majority. India does not support any majority party rule. All sections of
society have the right to equal treatment. The constitutional framework also points to this.
Therefore, the investigator ruled that the court had taken the right stand in the case and that
the consultation process was justified.

6
4 T. BHATTACHRYYA, INDIAN PENAL CODE 538-539 (Central Law Agency, 4 th 2004).
The court also held that discrimination was created in the community against homosexuality
and that out of fear of humiliation and punishment, in many cases, homosexuals hide their
sexual identity, ignore their basic needs such as health care, and, in fact, have stigma
associated with crime. Also, a major feature of the law is that it cannot stand still in the face
of ever-changing social demands. The law must be flexible and adaptable.

Therefore, homosexuality should be eliminated. The purpose of the constitution becomes

Now that we come to the issue of privacy, it should be noted that confidentiality, which is to
protect against unreasonable interference, is an essential element of a healthy and dignified
life. The researcher would like to link this issue with the denial of the right to free speech and
expression. Now, there must be a balance between basic rights and their reasonable limits.
Respondents' argument, in this case, was that homosexuality undermined public dignity and
respect. This conflict is not legally sustainable as what happens inside the four walls of the
room between two consenting adults regardless of their gender cannot be foreseen that it
could have a negative impact on public morality as a private act has no detrimental effect on
public morality. .

Also, Indian society has become much more liberal in modern times. Lawmakers may feel
‘disgusted’ by certain ‘off-line’ practices but it will not be seen as a valid reason to deny
fundamental rights in a particular segment of society. Also, many western countries have not
seen homosexuality. It is time for India to do the same. The court ruled in its favour that in
the absence of confidentiality, homosexuality violates the right to privacy and personal
freedom under section 21 and that by refusing to disclose homosexual acts in relation to their
sexual orientation, their right to freedom of expression is violated. unnecessarily reduced.
Therefore, section 377 would be invalidated with respect to any sexual activity agreed upon
between two adults. The other parts of the part had to remain the same.

INFERENCE
The decision in the case of Navtej Johar is undoubtedly historic. As a result of this judgment,
homosexuals are no longer able to live in a dignified environment and can now freely express
their feelings. The decision also emphasized the ongoing realization of human rights.
However, is this the end of the problem? The answer is ‘no’ as there is still discrimination
against homosexuals as there is no proper law to deal with this issue. The court ordered the
government to take certain steps to support gay rights but no concrete steps have been taken.

The need for an hour is a law that violates a law that provides equality for all people on the
basis of gender preference, gender identity, and other reasons. The law should impose the
obligations of equality and fairness on everyone7.

Thus, the historical judgment must be supplemented by the government's positive efforts to
give homosexuals a more meaningful life. Organs of state must work together. That will have
a far greater impact on the court's decision.

7
4 T. BHATTACHRYYA, INDIAN PENAL CODE 538-539 (Central Law Agency, 4 th 2004).