Section 377 IPC - Navtej Singh Johar Vs. Union of India [Supreme Court of India, 06-09-2018] Reference

Penal Code, 1860 - Section 377 - The Constitution – an organic charter of progressive rights - Transformative constitutionalism and the rights of LGBT community - Constitutional morality and Section 377 IPC - Perspective of human dignity - Sexual orientation - Privacy and its concomitant aspects - Doctrine of progressive realization of rights - International perspective - Other Courts / Jurisdictions - Comparative analysis of Section 375 and Section 377 IPC - The litmus test for survival of Section 377 IPC.

IN THE SUPREME COURT OF INDIA

CRIMINAL ORIGINAL JURISDICTION
(Dipak Misra, CJI) (R.F. Nariman, J.) (A.M. Khanwilkar, J.) (Dr. Dhananjaya Y. Chandrachud, J.) (Indu Malhotra, J.)
September 6, 2018

WRIT PETITION (CRIMINAL) NO. 76 OF 2016

NAVTEJ SINGH JOHAR & ORS. …Petitioner(s)

VERSUS

UNION OF INDIA THR. SECRETARY MINISTRY OF LAW AND JUSTICE …Respondent(s)

WITH

WRIT PETITION (CIVIL) NO. 572 OF 2016

WRIT PETITION (CRIMINAL) NO. 88 OF 2018

WRIT PETITION (CRIMINAL) NO. 100 OF 2018

WRIT PETITION (CRIMINAL) NO. 101 OF 2018

WRIT PETITION (CRIMINAL) NO. 121 OF 2018

J U D G M E N T

Dipak Misra, CJI (for himself and A.M. Khanwilkar, J.)

C O N T E N T S

A. Introduction

B. The Reference

10. Writ Petition (Criminal) No. 76 of 2016 was filed for declaring ―right to sexuality‖, ―right to sexual autonomy‖ and ―right to choice of a sexual partner‖ to be part of the right to life guaranteed under Article 21 of the Constitution of India and further to declare Section 377 of the Indian Penal Code (for short, ―IPC‖) to be unconstitutional. When the said Writ Petition was listed before a three-Judge Bench on 08.01.2018, the Court referred to a two-Judge Bench decision rendered in Suresh Koushal (supra) wherein this Court had overturned the decision rendered by the Division Bench of the Delhi High Court in Naz Foundation (supra). It was submitted by Mr. Arvind Datar, learned senior counsel appearing for the writ petitioners, on the said occasion that the two-Judge Bench in Suresh Koushal (supra) had been guided by social morality leaning on majoritarian perception whereas the issue, in actuality, needed to be debated upon in the backdrop of constitutional morality. A contention was also advanced that the interpretation placed in Suresh Kumar (supra) upon Article 21 of the Constitution is extremely narrow and, in fact, the Court has been basically guided by Article 14 of the Constitution. Reliance was placed on the pronouncement in NALSA case wherein this Court had emphasized on ―gender identity and sexual orientation‖. Attention of this Court was also invited to a nine-Judge Bench decision in K.S. Puttaswamy and another v. Union of India and others, (2017) 10 SCC 1 wherein the majority, speaking through Chandrachud, J., has opined that sexual orientation is an essential component of rights guaranteed under the Constitution which are not formulated on majoritarian favour or acceptance. Kaul, J, in his concurring opinion, referred to the decision in Mosley v. News Group Newspapers Ltd., [2008] EWHC 1777 (QB) to highlight that the emphasis for individual‘s freedom to conduct his sex life and personal relationships as he wishes, subject to the permitted exceptions, countervails public interest. 11. The further submission that was advanced by Mr. Datar was that privacy of the individual having been put on such a high pedestal and sexual orientation having been emphasized in the NALSA case, Section 377 IPC cannot be construed as a reasonable restriction as that would have the potentiality to destroy the individual autonomy and sexual orientation. It is an accepted principle of interpretation of statutes that a provision does not become unconstitutional merely because there can be abuse of the same. Similarly, though a provision on the statute book is not invoked on many occasions, yet it does not fall into the sphere of the doctrine of desuetude. However, Suresh Koushal's case has been guided by the aforesaid doctrine of desuetude.

12. Appreciating the said submissions, the three-Judge Bench stated that:-

“Certain other aspects need to be noted. Section 377 IPC uses the phraseology "carnal intercourse against the order of nature". The determination of order of nature is not a constant phenomenon. Social morality also changes from age to age. The law copes with life and accordingly change takes place. The morality that public perceives, the Constitution may not conceive of. The individual autonomy and also individual orientation cannot be atrophied unless the restriction is regarded as reasonable to yield to the morality of the Constitution. What is natural to one may not be natural to the other but the said natural orientation and choice cannot be allowed to cross the boundaries of law and as the confines of law cannot tamper or curtail the inherent right embedded in an individual under Article 21 of the Constitution. A section of people or individuals who exercise their choice should never remain in a state of fear. When we say so, we may not be understood to have stated that there should not be fear of law because fear of law builds civilised society. But that law must have the acceptability of the Constitutional parameters. That is the litmus test.

It is necessary to note, in the course of hearing on a query being made and Mr. Datar very fairly stated that he does not intend to challenge that part of Section 377 which relates to carnal intercourse with animals and that apart, he confines to consenting acts between two adults. As far as the first aspect is concerned, that is absolutely beyond debate. As far as the second aspect is concerned, that needs to be debated. The consent between two adults has to be the primary pre-condition. Otherwise the children would become prey, and protection of the children in all spheres has to be guarded and protected. Taking all the apsects in a cumulative manner, we are of the view, the decision in Suresh Kumar Koushal's case (supra) requires re-consideration.”

The three-Judge Bench expressed the opinion that the issues raised should be answered by a larger Bench and, accordingly, referred the matter to the larger Bench. That is how the matter has been placed before us.

C.	Submissions on behalf of the petitioners
D.	Submissions on behalf of the respondents and other intervenors
E.	Decisions in Naz Foundation and Suresh Koushal
F.	Other judicial pronouncements on Section 377 IPC
G.	The Constitution – an organic charter of progressive rights
H.	Transformative constitutionalism and the rights of LGBT community
I.	Constitutional morality and Section 377 IPC
J.	Perspective of human dignity
K.	Sexual orientation
L.	Privacy and its concomitant aspects
M.	Doctrine of progressive realization of rights
N.	International perspective
	(i) United States
	(ii) Canada
	(iii) South Africa
	(iv) United Kingdom
	(v) Other Courts / Jurisdictions
O.	Comparative analysis of Section 375 and Section 377 IPC
P.	The litmus test for survival of Section 377 IPC
Q.	Conclusions