Libertatem Magazine

Navtej Singh Johar and Ors. V. Union of India

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The writ petition was filed under Article 32 of the Indian Constitution before the Hon’ble Supreme Court for the rights of the LGBT community and the petitioner was a dancer who belongs to the LGBT community. Petitioner contended that Section 377 of IPC is against the community of LGBT and people of this community can’t enjoy their rights. 

Petitioner also stated that the right to choose a sex partner and the right to sexual autonomy should come under the scope of Article 21 of the Constitution of India. According to the petitioner, the language of Section 377 is unclear. It is not clearly explained in IPC that what is against the order of nature and there is an infringement of the Right to Privacy of LGBT community people which is a fundamental right under Art. 21 of Indian Constitution


The main issues raised in this case:

  1. Whether judgment given in Suresh Kumar Koushal v. NAZ foundation was proper or not?
  2. Whether section 377 of IPC violates articles 14 and 15 of the Constitution of India or not?
  3. Whether section 377 is against the Right to privacy which is a fundamental right?
  4. Whether section 377 has a ‘chilling effect’ on Article 19 (1) (a) by criminalizing gender expression of the LGBT community? 


Submissions from Petitioner side

Petitioner argued that homosexuality, bisexuality, or any other sexual interest is something natural and is not a physical or mental illness. It is a reflection of personal choice and criminalizing it will lead to the violation of Article 21 of the Indian Constitution by affecting an individual’s dignity and his or her gender identity. 

They contended that Section 377 of IPC is very old and is based on the morals and social values of the Victorian period where sexual activities were just considered as a reproductive process and nothing more than that. 

According to the Petitioner, this could be the only section that became a reason that the LGBT community has suffered discrimination and abuse all their lives and will continue to suffer if homosexuality is criminalized again.

They argued that we should recognize the rights of the LGBT community who constitutes 7-8% of the Indian population as a person belonging to the LGBT community will not become an alien if his community is not accepted by the society at large.

If Section 377 is preserved without making any amendments then it will violate various fundamental rights of the LGBT group i.e. right to freedom of expression, right to privacy, right to equality, liberty, and dignity.  

Petitioners have also mentioned that there would be no difference between people who choose inter-religious or inter-caste marriages and people who choose a partner of same-sex. The Court must implement the constitutional rights of every citizen as the society may or may not disapprove of inter-caste and inter-religious marriages. 

Section 377 of IPC is also contradictory to Article 15 as it discriminates against the LGBT community based on the sex of their partners which is prohibited under Article 15 of the Indian Constitution. 

According to the Petitioner, there is no reasonable classification of natural and unnatural sex and the IPC doesn’t define the expression “carnal intercourse against the order of nature”. Therefore Section 377 is arbitrary and is a violation of Article 14.

Submissions from Respondent side 

Respondent argued that people may misuse and they will start using homosexual activities for money if Section 377 is declared unconstitutional. They also stated that the family system will be destroyed and many corrupt young Indians will see this as a trade. Moreover, this could increase the number of cases of HIV/AIDS as individuals indulging in such activities is more likely to contract HIV/AIDS.

According to the Respondent, fundamental rights are not absolute, and decriminalizing Section 377 will leave all the religions practiced in the country as objectionable and that will lead to the violation of Article 25 of the Indian Constitution which also needs to be given due consideration. 

They stated that the main reason behind criminalizing carnal intercourse against nature is to protect the citizens from injurious consequences and protecting the citizens of a country from something hazardous is one of the aims of criminal law. 

They also suggested that Court should add clarifications to Section 377 by defining every word which is controversially mentioned in the section. Then, the section will target people with mala fide intentions and non-consensual acts.

They stated that Article 15 prohibits discrimination based on sex but not on sexual orientation, therefore Section 377 of IPC is not contradictory to Article 15. Moreover, it is not also violating Article 14 as the section only mentions a particular offense along with its punishment.


The court stated that it doesn’t matter how small the LGBT section is, they also have the right to privacy which includes physical intimacy. They might select their partner of the same sex but it does not mean they will be prosecuted for that. Section 377 does reduce their human dignity and their personal choice and this section also violates their right to privacy which is covered under Article 21.

Court mentioned that the main idea behind keeping Section 377 constitutional, is to protect children and women from being harassed by carnal intercourse but intercourse which is performed by the LGBT community is not harmful to children and women. Section 377 is unnecessary and discriminative towards one section of society because non-consensual acts have already been mentioned under Section 375 of IPC as an offense. So, Section 377 of IPC is violative of Article 14 of the Indian Constitution. Therefore, it is unconstitutional. 

Our Constitution being liberal, it’s unattainable that the right of choice is going to be absolute. Thus, some restrictions are obligatory on the principle of choice. However, the right of selecting a partner for intimate relations is a matter of personal choice that can’t be restricted. Whereas Section 377 of the Indian Penal Code restricts the right of the LGBT community of selecting a partner for sexual matters so, it is arbitrary and irrational. 

Government can impose reasonable restrictions on the Fundamental Right of Expression only on the grounds of public order, decency, and morality. If any act done by the LGBT community is decent enough and not obscene then it doesn’t disturb the public order or moral values. Section 377 of IPC is violating the fundamental right of Expression of the LGBT community so, it is unconstitutional and this section doesn’t connect with the criteria of proportionality.

The Supreme Court pronounced Section 377 as unconstitutional because it violates Articles 14, 15, 19, and 21 of the Indian Constitution. Supreme Court overruled the judgment given in Suresh Koushal & Ors. V. Naz Foundation & Ors. Now, it is also declared that Section 377 will govern only non-consensual sexual acts committed against any adult and minor.


In this case, various constitutional provisions were taken into account. Section 377 of IPC was the disputed section and the case focuses on this Section. This case consisted of substantial questions of law which had far-reaching implications and consequences. It was mentioned in Section 377 that “Whoever voluntarily has carnal intercourse against the order of nature with any man, woman, or animal, shall be punished with imprisonment for life, or with imprisonment of either description for a term which may extend to ten years, and shall be also liable to fine”. The language of this section suggests that no person is allowed to have carnal intercourse against the course of nature with another person or animal. Consequently, the intercourse by homosexuals was considered as against the course of nature for a long period as heterosexuality was believed to be mandated by the whole society through the respective customs, traditions, and religious beliefs.

Homosexuals have faced severe consequences of this law. They were discriminated against in the fields of education, work, etc. and they were treated as criminals without any reasonable justification. Because of their sexual orientation and gender identity, basic human rights were denied to them. Many organs of the state were also ignorant of this issue until the case of Naz Foundation V. Govt of NCT, Delhi in which homosexuality was legalized by the court. But, this judgment was overruled in the case of Suresh Kumar Kaushal V. Naz Foundation.

One of the major arguments which were mentioned in the aforementioned case was that as the LGBT community is a minority group so, their interest cannot be given priority over the values and morality of society. This ground was struck as invalid in the Navtej Johar case wherein the court said that the “constitution is for every individual in the country, regardless of whether it is a part of a minority group or that of majority. India doesn’t support any majority group rule. Every section of society is entitled to equal treatment.”

So, the decision of the court is correct and the reasoning was proper according to me.

The criminalization of homosexuality is not good in any way as many people were belonging to the LGBT community have hidden their actual gender identity to protect themselves from being humiliated and punished as there has been a stigma attached with being homosexual due to criminality attached to them.

A major characteristic of law is that it can’t stay rigid at the time of the rapidly changing society. The law has to evolve itself according to the change in society. 

Indu Malhotra, J. declares in this case that “homosexuality is a variation, not abhorrence. Due to the pressure upon the homosexuals, they turn into bisexuals and this has large social ramifications.” The spirit of the Indian constitution is violated due to such behavior of the society.


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