NAVTEJ SINGH JOHAR & ORS. v. UNION OF INDIA- (Case Commentary)
INTRODUCTION
The
case Navtej Singh Johar and Ors. v. Union of India[1]
primarily
revolved around the constitutional validity of Section 377 of Indian Penal Code
(IPC), 1860. Which talks about unnatural offences and such offences are
classified as those offences in which penetrative (carnal) intercourse is
involved against the order of nature subjecting to man, woman and animal. Once
such offence is committed it makes the person liable to a punishment up to 10
years imprisonment and imposition of fine.
The
cause in the section 377 of Indian penal code to the extent of penalizing
consensual sexual acts by two major people of same sex was declared
unconstitutional by Honourable High Court of Delhi in Naz Foundation v.
Government of N.C.T of Delhi[2]
in the year 2009 but section 377 was again declared legally and
constitutionally valid by the Honourable Supreme Court of India in Suresh
Kumar Koushal & Another v. NAZ Foundation & Others[3]
BACKGROUND
In
the same case the constitutional validity of Section 377 of Indian Penal Code
was challenged by the Petitioner which was upheld by Honourable Supreme Court
of India in the case Suresh Kumar Koushal & Another v. NAZ Foundation
& Others3
in
2014,
The
petitioner tends to be a choreographer by profession and a certified member of
LGBT community, asserted via a write petition in Supreme Court of India that
provision of Section 377 is unconstitutional as it is violative of Fundamental
right to Equality Before law (Art.14)
[4]
as the above provision “carnal sexual intercourse against the order of
nature” is not given in strict sense having very high subjectivity and
arbitrariness. It was also stated by the petitioner that, the same is against
Article 15 of the Indian constitution as it discriminated among the individuals
on the basis of sex and sexual orientation and against Article 19 of the Indian
constitution as it bars the individual to express ones sexual orientation and
identity through ones acts and choices, also against the Right to privacy as it
bars a person to have a certain kind of personal choice and to bear a certain
kind of living[5].
Respondent
Union of India asserts that they will not interfere and leave the judgement
onto the wisdom of court[6]
as it hold a matter of ones personal choice but certain religious bodies,
governmental organisations, and other opposing bodies filed applications to the
court to intervene in the matter and voice their opinions, It was opined by the
interveners that any fundamental right (Privacy, Equality, Free speech and
expression) is not absolute it does and must have some restrictions on the
basis of the current scenario and rights of the other people, moreover it was
asserted that the same will promote the STD’s like AIDS/HIV and many more, it
may also be derogatory to the pious institution of marriage and against the
sentiments and values and culture of the Indian society and India as a whole.[7]
The
judgement was at last declared in the favour of the Petitioner and it was
adjudicated by the Honourable Supreme Court of India that the same provision of
section 377 Indian penal code is against the Fundamental rights- ART. 21, 14
and 15 of constitution of India and allowed consensual sexual intercourse
between two major individuals.
JUDGEMENT
ANALYSIS
In
this case the epicentre of the issue is a clash between the actual biological
need of a person, fundamental rights of a person in a free democracy and on the
other side stringent mindset of a particular section of people deriving their
thought process from the ancient period religious and cultural practices. There
people often belong to a certain section of society reluctant about a fact that
rights, and law and order must be in accordance with the religious sentiments
and values so called derived inherently by them.
Now
the current case was up to the legal sanctity of the constitution and
constitution makers it can be proved by two ways:
The
one way is to counter the thought that some section of the society or
interveners has an issue with something as a sexual contact between the two
consenting individuals who are major to do so on the will degrade the values
and sentiments of people as it is against such values religiously or morally,
First of all from the very ancient India homosexuality is not considered as
something morally, religiously or ethically wrong, There have been innumerable
texts, and scriptural proofs and sculptors depicting homosexuality from the
very age of Delhi Sultanate and Mughal empires, Moreover major ancient texts
such as arthshastra validates the same and Khajuraho temples depict the arts
made up of stones the affirmative and completely acceptable validity of
relations between a man or a woman.
There
is nothing unnatural in one’s sexual orientation as the person feels the same
due to biological and chemical changes in one’s body and the same cannot be
acquired or developed over time nor it can be changed.
The
second view is criminalizing consensual sexual behaviour between two major
individuals is certainly against the minds of constitutional makers and very
constitution as the fundamental rights were given to the individual are the
most pious right which no government, no ideology or thought process have an
unreasonable control. It belongs to individuals irrespective of any one’s sentiment
or believes being disharmonised,
Yes,
it violates the most important Fundamental right of an individual as the same
is against the Right to life and personal liberty, living does not means mere
animal existence, it means living with utmost dignity and respect and being
acknowledged for the choices one makes and life one wants to live, Moreover by
our very act of entering into relations with the other person we express
ourselves and our choices and hence the same is also against the fundamental right
of free speech and expression, Being the provision inadequately mentioning the
phrase against the order of nature can be used arbitrability against a
particular person and group of persons or community and hence the same is also
against Article 14, which is equality before law. Also, one cannot
differentiate any solely on the basis of sex and hence this provision
differentiates the individual on the behalf of one’s sexual orientation the same
is also against Article 15 of Constitution of India.
Does
the repealing of this provision of section 377 a legally done move,
Certainly YES it is a full-fledged done move as the Article 13 of the Indian
constitution which is one of the most important provision of the Constitution
of India and also said as safeguards of fundamental rights says that the
legislature cannot legislate any law, ordinance, rules, bylaws, notification,
provision, etc which is inconsistent to the fundamental rights after date of
commencement of Indian constitution which is called doctrine of eclipse and
even if such law is legislated it will be from the inception of when it’s made
VOID (void-ab-initio) and will hold NO legal implementation and
sanctity.
Can
this provision adjust in today’s world, the answer is no, in
the ancient times there was a law in
very famous ancient books that the strong will supress the weak, the society
was divided into various castes, the evils like child marriage and sati etc
were as normal as eating food but now when we see these thing with the lens of
the present time these things seem utmost injustice to even imagine, same is
with society as we grow the lifestyle, urbanisation and technological
advancement very intricately evolves the human intelligence and thought
process, hence the unlawful things which were normal back till that date are a
offence today, the society keeps on developing and evolving and so should be
the laws, No law is constant and every law has to develop itself with the time,
Afterall the laws are made to regulate the conduct of an individual and not to
be ideal, and constitution also depicts the idea that the ultimate sovereignty
is with the people and not with any law or authority.
CONCLUSION
The
landmark case Navtej Singh Johar v. Union of India, it was overserved by
honourable Supreme Court of India that since criminalizing the consensual
sexual activities between two major individuals are against the fundamental
rights of an individual under articles 21,14 and hence it was repealed by the
court, moreover this provision is also wrongly considered that it is not
against to have consensual relations with the other person be it morally,
religiously and ethically and socially, if there cannot be a particular section
of the society be subjected to arbitrary provisions and unnecessary hate and
ridicule due to the personal choices they make and the way they want to carry
forward their life with.
[1]. WRIT
PETITION (CRIMINAL) NO. 76 OF 2016
[2]. WP
(C) No. 7455/2001
[3]. Civil
Appeal No. 10972 of 2013
[4]. p.25, para 26 (Judgement)
[5]. p.22, para 21 (Judgement)
[6]. p.270, para 8 (Judgement)
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