Vodafone International Holding v UOI
- 2022-02-16
Citation: 2018 10 SCC 1(2018)
Decided on: September 6, 2018
Presiding Judge (s): CJI-Dipak Misra, Justice A.M. Khanwilkar, Justice Rohinton Fali Nariman, Justice D.Y. Chandrachud and Justice Indu Malhotra.
Court : Supreme Court of India
Facts of the case: The Petition was filed by dancer Navtej Singh Johar challenging Section 377 of the Penal Code on the ground that it violated the constitutional rights to privacy, freedom of expression, equality, human dignity and protection from discrimination. It was an appeal against the judgment in the case of Suresh Kumar Koushal V. NAZ Foundation & ors.
Issue : If Section 377 of IPC is constitutionally valid
Judgment: Section 377 of IPC refers to ‘unnatural offences’ and says whoever voluntarily has carnal intercourse against the order of nature with any man, woman or animal, shall be punished. This included private consensual sex between adults of same sex. The Supreme Court while considering the legality of Section 377 made it clear that Article 14 of the Constitution guarantees equality before law and this applies to all classes of citizens including LGBTQ Community. It was observed by the court that constitutional morality is given precedence to religious morality in the country . This means equality before law cannot be denied on the ground that it would affect the public or religious morality. In its judgement, the Supreme court specified that the Right to Privacy and the protection of sexual orientation lie at the core of the fundamental rights guaranteed by Article 14 (Equality before Law), Article 15 (Prohibition of discrimination on the basis of race, religion, caste, sex, place of birth), Article 21 (Protection of life and liberty) and Article 19 (Freedom of expression) of the Constitution. The Court reasoned that criminalizing consensual sex between adults in private was violative of Right to privacy embedded in the constitution and Justice Puttuswamy case. The Court also referred to cases such as NALSA vs. Union Of India , Naz Foundation and like.
Sexual orientation of a person forms an inherent part of self-identity and denying the same would be violative of the right to life, and that fundamental rights cannot be denied on the ground that they only affect a minuscule section of the population. Moreover, the court dispelled the myth that such acts are against the order of nature.
The 5-judge bench unanimously held that Section 377 of IPC, to the extent applicable to consensual sexual conduct between adults, was unconstitutional. All the judges of the court were of the opinion that Suresh Kumar Koushal case was not properly adjudicated. The portion of Section 377 has been retained for the purpose of ensuring the protection of children and women from sexual abuse.
The impact of this judgment is monumental and far-reaching. India has joined the cohort of countries that does not criminalize homosexuality. The judgment by legalizing homosexuality has also opened up an avenue for grievances for those in LGBTQ community.
