Supreme Court of India
Singh Johar & Ors. v. Union of India thr. Secretary Ministry of Law and Justice is a landmark decision of the Supreme Court of India in 2018 that decriminalised all consensual sex among adults, including homosexual sex.
The court was asked, among other things, to check the constitutionality of Article 377 of the Indian Penal Code, which qualifies homosexual acts as an “unnatural crime”. The law criminalizes all anal and oral sex, including between heterosexual couples, but mainly affects same-sex relationships. On September 6, 2018, a court unanimously declared the law unconstitutional "as it punishes consensual sexual relations between persons of the same sex." The decision was seen as a landmark decision on LGBT rights in India, and activists waited in court to approve the decision.
On April 27, 2016, five people filed a new motion with the Supreme Court regarding the constitutionality of Article 377 of the Indian Penal Code. The applicants argued that the issues raised in the petition were different from those raised in the pending medical application in the Koushal v Naz case in 2013, when the Supreme Court upheld the constitutionality of Article 377 for review. The applicants were dancer Navtej Singh Johar, journalist Sunil Mehra, chef Ritu Dalmiya, hotel owners Aman Nat and Keshav Suri and businessman Ayush Kapoor.
This is the first case in which the plaintiffs argue that Article 377 is a direct violation of fundamental rights and directly harms everyone. The fight against the petition for decriminalization was led by the Apostolic Alliance of Churches, the Christian Council of Utkal and the Ministries of Trust in God, the first two were represented by Attorney Manoj George, and the third by Chief Attorney K.S. Radhakrishnan. The NDA government took a neutral position, leaving the decision to "discretion of the court" regarding "adult consent by private individuals."
The petition was first placed before the former Chief Justice of India, Justice S. A. Bobde and Justice A. K. Bhushan on 29 June 2016. An order was passed to post the matter before Justice Dipak Misra for appropriate orders since a curative petition was already pending before the constitution bench. On 8 January 2018, the case (Navtej Singh 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.
This issue was discussed on January 17, 2018 at the Constitutional Commission of five judges of the Supreme Court. On July 10, 2018, Pleas began hearings on the constitutionality of Article 377. The court concluded the proceedings on July 17 and upheld the decision, asking both parties to submit it in writing by July 20. their requirements.
On 6 September 2018, 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 Kumar Koushal v. Naz Foundation in which the court upheld the law.However, other portions of Section 377 relating to sex with minors, non-consensual sexual acts, and bestiality remain in force.
The court found that the criminalisation of sexual acts between consenting adults violated the right to equality guaranteed by the Constitution of India. While reading the judgment, Chief Justice 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 Constitution of India. It held that "the choice of whom to partner, the ability to find fulfilment in sexual intimacies and the right not to be subjected to discriminatory behaviour are intrinsic to the constitutional protection of sexual orientation". The judgement also made note that LGBT community is entitled to equal citizenship and protection under law, without discrimination.
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