Navtej Singh Johar vs. Union of India- Supreme court of india has descriminalized the section 377 of Indian penal code 1860 Through secretary minister of law and justice in 2018. It was said all consensual sex among adults, including homosexual sex( sex with the same gender) is ceased to be criminal offence under section 377 of ipc.
The court was asked to determine the constitutionality of IPC section 377, a colonial law according to which among other things, criminalized homosexual acts as an “unnatural offence”. While the statute criminalize anal sex and oral sex, including between opposite-sex couples, it largely affected same-sex relationships.
the court has made an unanimously unambiguous declaration that the law section 377 is unconstitutional (“in so far as it criminalises consensual sexual conduct between adults of the same sex”) On 6 September 2018, . The verdict was hailed as a landmark decision for LGBT rights in our country, the long time waited campaigners start cheering after the verdict was pronounced.
Rest elements of Section 377 relating to sex with minors, non-consensual sexual acts such as rape, and bestiality remain in effect
Five people filed a new writ petition in the Supreme Court of India, challenging the constitutionality of S-377 IPC. The petitioners claimed the issues, which raised in their petition were varied and diverse from those raised in the pending curative petition in the 2013 koushal vs Naz, in which the SC had upheld the constitutionality of 377. The Naz had been referred to a five-judge bench earlier in order to decide whether the curative petition could be accepted for consideration or not. The petitioners were dancer Navtej S Johar, journalist Sunil Mehra, chef Ritu Dalmia, hoteliers Aman Nath and Keshav Suri, and business woman Ayesha Kapur.
This case was the first instance wherein the petitioners argued that they had all been directly aggrieved because of IPC Section 377, alleging it to be a direct violation of fundamental rights. The opposition to discriminatory petitions was led by Apostolic Alliance of Churches, Utkal Christian Council and Trust God Ministries. Advocate Manoj George represented the first two and Senior Advocate KS Radhakrishnan the third. The NDA Govt. have taken a neutral stance, leaving the decision to the “wisdom of the court” as long as it applies to “consensual acts of adults in private”.
The petition was first placed before the former , Justice Sharad A Bobde and Justice AK bhushan on 29 June 2016. An order was passed to send the matter before justice Dipak Misra for appropriate orders since a curative petition was already pending before the Constitution Bench., the case Navtej S Johar and others v. Union of India) was listed to be heard by the chief Justice’s bench., which passed an order stating that the case would be heard by a constitution bench On 8 January 2018.
The matter was heard from 17 January 2018 by a five-judge constitution bench of the SCI. the SC commenced hearing of the pleas challenging the constitutionality of section 377 on 10 July 2018,. The bench concluded its hearing on 17 July and reserved its verdict, asking for both sides to submit written submissions for their claims by end of the 20th July 2018.
The judgment of the SCI of 6 September 2018 overturning its own verdict which was made in Suresh k koushal vs Naz Foundation, and made declaration that all private consensual sexual acts between adults legal including homosexual ones.
the court delivered its unanimous verdict, declaring portions of the law relating to consensual sexual acts between adults unconstitutional. This decision overturns the 2013 ruling in Suresh K Koushal Vs Naz foundation in which the court upheld the law.
However, other ingredients of Section 377 relating to sex with minors, non-consensual minors, non-consensual sexual acts and bestiality remain in effect
The court found that the criminalisation of sexual acts between consenting adults violated the right to equality guaranteed by our Constitution. While reading the judgment, the then Chief Justice of India Dipak Misra pronounced that the court found “criminalising carnal intercourse” to be “irrational, arbitrary and manifestly unconstitutional”.
The court ruled that LGBT people in India are entitled to all constitutional rights, including the liberties protected by the our Constitution.
It held that “the choice of whom to partner, the right and the ability to find fulfilment in sexual intimacies not to be subjected to discriminatory behaviour are intrinsic to the constitutional protection of sexual orientation”.
“History posses an apology to the members of this community and their families, for the delay in providing redressal for the ignominy and ostracism that they have suffered through the centuries. The members of this community were compelled to live a life full of fear of reprisal and persecution. This was on account of the ignorance of the majority to recognise that homosexuality is a completely natural condition, part of a range of human sexuality.” Said J. indu Malhotra. The judgment also made note that LGBT community is entitled to get equal citizenship and protection under law, without discrimination.
