Difference between constitutional morality and public morality


Court :
Supreme Court of India

Brief :
Upon hearing the parties the Court held that, section 377 grossly violated right to dignified life, privacy, equality and hence unconstitutional.

Citation :
REFERENCE:WRIT PETITION (CRIMINAL) NO. 76 OF 2016 PARTIES Petitioner:Navtej Singh Johar Respondent:Union of India

  • JUDGMENT SUMMARY:Navtej Singh Johar v. Union of India
  • DATE OF JUDGMENT:06/09/2018
  • JUDGES:Dipak Misra, CJI ;Rohinton Fali Nariman, J. ; A. M. Khanwilkar, J; D. Y. Chandrachud, J; and Indu Malhotra, J

SUBJECT:

The judgment clearly establishes the difference between constitutional morality and public morality. 

FACTS:

The petitioners in the present case challenged the validity of section 377 of the Indian Penal Code.

IMPORTANT PROVISIONS:

  • Article 21: No person shall be deprived of his life or personal liberty except according to the procedure established by law. 
  • Article 14:  The State shall not deny to any person equality before the law or the equal protection of the laws within the territory of India
  • Section 377 of IPC:  Unnatural offences.—Whoever voluntarily has carnal inter­course against the order of nature with any man, woman or animal, shall be punished with 1[imprisonment for life], or with impris­onment of either description for a term which may extend to ten years, and shall also be liable to fine.

Explanation: Penetration is sufficient to constitute the carnal intercourse necessary to the offence described in this section.

ISSUES:

Whether section 377 of the Indian Penal Code stands constitutionally valid?

ANALYSIS OF THE JUDGEMENT:

The petitioner contended that,

  • The natural identity of an individual should be treated to be absolutely essential to his being.  Hence it is a matter of right to privacy.
  • The SC in the case of National Legal Services Authority v. Union of India recognised sexual orientation as a part of Article 21, therefore the same is applicable for LGBT community members also. 
  • The judgment in Naz foundation v. Government of NCT Delhi should be upheld. 
  • Constitutional morality which lays down the condition of complete adherence to the principles of the Constitution should be given more importance than Public morality.

The respondents contended that,

  • The judgment in Suresh Kumar Koushal v. Union of India which declared section 377 as constitutionally valid holds good.
  • It cannot be disputed that; section 377 applies to non-consensual sex.
  • If Section 377 is declared unconstitutional, then the family system which is the bulwark of social culture will be in shambles, the institution of marriage will be detrimentally affected and rampant homosexual activities for money would tempt and corrupt young Indians into this trade.
  • Considering the multicultural and multi-linguistic features of the country decriminalisation of Section 377 will lead to destruction of all such traditions and practices.

Upon hearing the parties the Court held that, section 377 grossly violated right to dignified life, privacy, equality and hence unconstitutional

 

Nandhini SR
on 10 July 2020
Published in Constitutional Law
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