NAVTEJ SINGH JOHAR & ORS. versus UNION OF INDIA THR. SECRETARY MINISTRY OF LAW AND JUSTICE
Headnote
Penal Code, 1860 — s.377 — Constitutionality — Consensual sexual acts between adults — Expression 'against the order of nature' — LGBT community — Constitution of India — Arts.14, 15, 19(1)(a), 21 — Constitutional morality — Transformative constitutionalism — Right to privacy, dignity and autonomy — Sexual orientation — Reading down of statute Held: (i) Section 377 IPC, insofar as it criminalises consensual sexual acts between competent adults (whether homosexual, heterosexual or lesbian), is unconstitutional and violative of Arts.14, 15, 19 and 21 of the Constitution; s.377 shall continue to govern non-consensual sexual acts against adults, all acts of carnal intercourse against minors, and acts of bestiality. (ii) Section 377 is manifestly arbitrary — it fails to distinguish between consensual and non-consensual acts of adults in private, subjects the LGBT community to societal pariah and dereliction, and has become an odious weapon for harassment. (iii) The classification in s.377 has no rational nexus with its object since ss.375 and the POCSO Act already penalise non-consensual carnal intercourse; it offends Art.14 as it discriminates between heterosexual and homosexual adults without rational basis. (iv) The expression 'against the order of nature' is undefined; consensual sex between adults otherwise than for procreation does not per se make it against the order of nature. (v) Section 377 amounts to an unreasonable restriction on freedom of expression under Art.19(1)(a); public decency and morality cannot be amplified beyond a rational limit to curb fundamental rights of the LGBT community. (vi) Victorian morality, the rationale for s.377, must yield to constitutional morality — the soul of the Constitution found in its Preamble and Part III assuring dignity of the individual. (vii) Sexual orientation is innate, natural and controlled by neurological and biological factors; 'sex' in Art.15 encompasses sexual identity and character, making discrimination on grounds of sexual orientation a prohibited ground under Art.15(1). (viii) Section 377 impacts identity of the LGBT community, denying them equal citizenship, autonomy and the right to health including access to HIV/AIDS prevention, in violation of Art.21. (ix) The declaration of reading down shall not re-open concluded prosecutions but may be relied upon in all pending matters at trial, appellate or revisional stages. (x) All government and police officials shall be given periodic sensitisation and awareness training on the plight of LGBT persons.
Issue
1. Whether s.377 IPC, insofar as it criminalises consensual sexual acts between competent adults, is constitutionally valid. 2. Whether s.377 violates Art.14 of the Constitution as manifestly arbitrary and lacking reasonable classification with rational nexus to its object. 3. Whether s.377 violates Art.15(1) by discriminating on grounds of sex/sexual orientation. 4. Whether s.377 violates Art.19(1)(a) by imposing unreasonable restrictions on freedom of expression and choice of the LGBT community. 5. Whether s.377 violates Art.21 by denying LGBT persons the right to privacy, dignity, sexual autonomy, choice of partner, and right to health. 6. What is the meaning and ambit of the expression 'against the order of nature' in s.377. 7. Whether constitutional morality must prevail over social or public morality when fundamental rights of a minority are at stake.
Facts
Navtej Singh Johar and others filed Writ Petition (Criminal) No. 76 of 2016 before the Supreme Court challenging the constitutional validity of s.377 of the Indian Penal Code, 1860, insofar as it criminalised consensual same-sex acts between adults. The petitioners contended that s.377 violated the fundamental rights of LGBT persons under Arts.14, 15, 19 and 21 of the Constitution. The Union of India, through the Secretary, Ministry of Law and Justice, was the respondent. A five-judge Constitution Bench comprising Dipak Misra CJI, R.F. Nariman J., A.M. Khanwilkar J., Dr. D.Y. Chandrachud J. and Indu Malhotra J. heard and decided the petition on 6 September 2018, with each judge delivering a separate concurring opinion.
Holding
Section 377 IPC is partially read down and struck down insofar as it penalises consensual sexual activity between adults. It is violative of Arts.14, 15, 19 and 21 of the Constitution. The provision remains valid to govern non-consensual sexual acts against adults, all acts of carnal intercourse against minors, and bestiality. Constitutional morality, not social morality, is the governing standard; sexual orientation is innate and cannot be a basis for discrimination or criminalisation.
Disposition
allowed