NAVTEJ SINGH JOHAR & ORS. versus UNION OF INDIA THR. SECRETARY MINISTRY OF LAW AND JUSTICE

Citation: [2018] 7 S.C.R. 379 · Decided: 06-09-2018 · Supreme Court of India · Bench: DIPAK MISRA · Disposal: Disposed off

Cited by 30 judgment(s) · cites 39 · see the full citation network in Lexace

Judgment (excerpt)

A
B
C
D
E
F
G
H
379
NAVTEJ SINGH JOHAR v. UOI THR. SECY. MINISTRY OF LAW & JUSTICE
[DIPAK MISRA, CJI ]
379
[2018] 7 S.C.R. 379
NAVTEJ SINGH JOHAR & ORS.
v.
UNION OF INDIA THR. SECRETARY
MINISTRY OF LAW AND JUSTICE
(Writ Petition (Criminal) No. 76 of 2016)
SEPTEMBER 06, 2018
[DIPAK MISRA, CJI, R. F. NARIMAN,
A. M. KHANWILKAR, DR. D.Y. CHANDRACHUD AND
INDU MALHOTRA, JJ.]
Penal Code, 1860 – s.377 – Constitutionality of – Held: s.377,
so far as it criminalises even consensual sexual acts between
competent adults, fails to make a distinction between non-consensual
and consensual sexual acts of competent adults in private space
which are neither harmful nor contagious to the society – s.377
subjects the LGBT community to societal pariah and dereliction and
is, therefore, manifestly arbitrary, for it has become an odious
weapon for the harassment of the LGBT community by subjecting
them to discrimination and unequal treatment – Therefore, s.377 is
liable to be partially struck down for being violative of Art.14 of
the Constitution – In other words, s.377, so far as it penalizes any
consensual sexual activity between two adults, be it homosexuals
(man and a man), heterosexuals (man and a woman) and lesbians
(woman and a woman), cannot be regarded as constitutional –
However, if anyone, both a man and a woman, engages in any kind
of sexual activity with an animal, the said aspect of s.377 is
constitutional and it shall remain a penal offence under s.377 –
Any act of the description covered under s.377 done between the
individuals without the consent of any one of them would invite
penal liability under s.377 – Constitution of India – Art.14 –
Homosexual – LGBT.  (Per Dipak Misra, CJI [for himself and
Khanwilkar, J.])
Penal Code, 1860 – s.377 – Expression ‘against the order of
nature’ – The expression ‘against the order of nature’ has neither
been defined in s.377 nor in any other provision of the IPC – The
connotation given to the expression by various judicial
A
B
C
D
E
F
G
H
380
SUPREME COURT REPORTS
[2018] 7 S.C.R.
pronouncements includes all sexual acts which are not intended for
the purpose of procreation – Therefore, if coitus is not performed
for procreation only, it does not per se make it ‘against the order of
nature’.  (Per Dipak Misra, CJI [for himself and Khanwilkar, J.])
Penal Code, 1860 – s.377 – Examination of s.377 on the anvil
of Art.14 of the Constitution – Held: The classification adopted
under s.377 has no reasonable nexus with its object as other penal
provisions such as s.375 and the POCSO Act already penalize non-
consensual carnal intercourse – s.377, insofar as it applies to same-
sex consenting adults, demeans them by having them prosecuted
instead of understanding their sexual orientation and attempting to
correct centuries of the stigma associated with such persons – s.377
offends Art.14 as it discriminates between heterosexual and
homosexual adults which is a distinction which has no rational
relation to the object sought to be achieved by the Section - namely,
the criminalization of all carnal sex between homosexual and/or
heterosexual adults as being against the order of nature –
Yogyakarta Principles on the Application of International Human
Rights Law in relation to Sexual Orientation and Gender Identity
give further content to the fundamental rights contained in Arts 14,
15, 19 and 21, and in the light of these principles also, s.377 is
unconstitutional.  (Per R.F. Nariman, J.)
Penal Code, 1860 – s.377 – Examination of s.377 on the anvil
of Art.19(1)(a) of the Constitution – Held: s.377 amounts to an
unreasonable restriction, for public decency and morality cannot
be amplified beyond a rational or logical limit and cannot be
accepted as reasonable grounds for curbing the fundamental rights
of freedom of expression and choice of the LGBT community –
Consensual carnal intercourse among adults, be it homosexual or
heterosexual, in private space, does not in any way harm the public
decency or morality – Therefore, s.377 in its present form violates
Art.19(1)(a) of the Constitution. (Per Dipak Misra, CJI [for himself
and Khanwilkar, J.])
Penal Code, 1860 – s.377 – Miniscule population of LGBT –
The mere fact that the percentage of population whose fundamental
right to privacy is being abridged by the existence of s.377 in its
present form is low does not impose a limitation upon the
Constitutional court from protecting the fundamental rights of those
A
B
C
D
E
F
G
H
381
NAVTEJ SINGH JOHAR v. UOI T

Excerpt shown. Read the full judgment & AI analysis in Lexace.