IN THE

HON’BLE
SUPREME COURT OF India

In the matter of

NAVTEJ SINGH JOHAR …….……………...………………PETITIONER

VERSUS

UNION OF INDIA…………………………………………. RESPONDENT

ON SUBMISSION TO THE HON’BLE SUPREME COURT OF INDIA

MOST RESPECTFULLY SUBMITTED

COUNSEL APPEARING ON BEHALF OF NATEJ SINGH JOHAR

Shantanu Vaishnav
Semester – III
Roll No. - 142

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 TABLE OF CONTENTS

TABLE OF CONTENTS………………………………………………………………..………2

LIST OF ABBREVIATIONS……………………………………………………………...……3

INDEX OF AUTHORITIES…………………………………………….………………….…...4

STATEMENT OF JURISDICTION……………………………………………………………6

STATEMENT OF FACTS…………………………………………………………………....7-9

ISSUES RAISED…………………………………………………………………………...…...10

SUMMARY OF ARGUMENTS……………………………………………………………….11

PLEADINGS/ARGUMENTS ADVANCED………………………………………………12-19

PRAYER FOR RELIEF………………………………………………………………………20

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 TABLE OF ABBREVIATIONS AND SYMBOLS-

S. No. ABBREVIATION DEFINITION

1. & And

2. AIR All India Reporter

3. Art. Article

4. Ed. Edition

5. EWCA Court of Appeal of England and Wales

6. Hon’ble Honourable

7. Ors. Others

8. SC Supreme Court

9. SCC Supreme Court Cases

10. SCR Supreme Court Reporter

11. Supp. Supplement

12. Supra Pages above

13. S. Section

14. UOI The Union of India

15. U.P. Uttar Pradesh

16. v. Versus

17. Vol. Volume

INDEX OF AUTHORITIES
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CASES CITED-

S. No. Cases Citation

1. Anuj Gargand others v. Hotel Association of India (2008) 3 SCC 1

and others
2. Francis Coralie Mullin v. Administrator, Union (1981) 1 SCC 608
Territory of Delhi,
3. National Legal Services Authority v. Union of India
(2014) 5 SCC 438

4. Indra Sarma v. V.K.V. Sarma (2013) 15 SCC 755

5. K.S Puttaswamy v. Union of India (2017) 10 SCC 1
6. Shakti Vahini v. Union of India and others A.I.R 1979 SC 1628
7. Shafin Jahan v. Asokan AIR 2018 SC 1933: 2018
(5) SCALE 422
8. S. Khushboo v. Kanniammal and another (2010) 5 SCC 600
9. Common Cause (A Registered Society) v. Union of (2018) 5 SCC 1.
India and another
10. Kishore Samrite v. State of U.P. and others (2013) 2 SCC 398
11. Umesh Kumar v. State of Andhra Pradesh and (2013) 10 SCC 591
another

BOOKS REFERRED-

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 S. No. Name
1. M.P Jain, Indian Constitution Law (6th Ed. Reprint 2012, Lexis Nexis Butterworth
Wadhwa, Nagpur)
2. Dr. Durga Das Basu, Introduction to the Constitution of India, LexisNexis (21st ed.
2013)
3. Black’s Law Dictionary, Bryan A. Garner, 8th edition
4. Oxford English Dictionary, 2nd edition

STATUTES REFERRED-

S. No. Name

1. Indian penal code, 1860

MISCELLANEOUS-

S. No. Name

1. The Constitution of India, 1950

STATEMENT OF JURISDICTION

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The Hon’ble Supreme Court of India is empowered to hear this case by the virtue of Article 32 of
the Constitution of India, 1950.

The Operative part of Art.32 provides-----“

(1) The right to move the Supreme Court by appropriate proceedings of the enforcement of the
rights conferred by the part is guaranteed.
(2) The Supreme Court shall have power to issue directions of orders of writs, including writs in
the nature of habeas corpus, mandamus, prohibition, quo warranto and certiorari, whichever may
be appropriate, for the enforcement of any of the rights conferred by this part.”

All of which is urged in detail in the written submission and is submitted most respectfully.

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 STATEMENT OF FACTS

1. The case concerns the constitutionality of Section 377 of the Indian Penal Code which was
enacted during the British administration in India in 1860. Section 377 created an offence of
voluntarily having carnal intercourse “against the order of nature” with any man, woman or
animal, punishable by up to ten years imprisonment or a fine. Although the provision appears
to be neutral on its face, it was argued to have a discriminatory effect on LGBT persons,
particularly homosexual men.

2. In 2001 the NAZ Foundation – a non-governmental organization working in the field of

HIV/AIDS intervention and prevention – filed a writ petition before the Delhi High Court
seeking a declaration that Section 377, to the extent that it penalized sexual acts in private
between consenting adults, violated the India Constitution, specifically, Articles 14 (equality
before the law), 15 (non-discrimination), 19(1)(a)-(d) (freedom of speech, assembly,
association and movement) and 21 (right to life and personal liberty). The Naz Foundation
argued that the law had a discriminatory effect because it was predominantly used against
homosexual conduct, thereby criminalizing activity practiced more often by homosexual men
and women. This was said to jeopardize HIV/AIDS prevention methods by driving
homosexual men and other sexual minorities underground. It was further argued that, as private
consensual relations were protected under Article 21 of the Constitution, Section 377 was
invalid as there was no compelling state interest to justify the curtailment of a fundamental
freedom. The Naz Foundation also argued that Section 377 violated Article 14 on two grounds:
first, because it was unreasonable and arbitrary to criminalize non-procreative sexual relations,
and secondly, because the legislative objective of penalizing “unnatural” acts had no rational
nexus with the classification between procreative and non-procreative sexual acts.

3. In 2004, the High Court dismissed the writ petition on the grounds that only purely academic
issues had been submitted which could not be examined by the court. It did the same in relation
to a subsequent review petition. The NAZ Foundation challenged both orders and the writ petition were
remitted for a fresh decision in 2006.
4. In its 2009 decision, the High Court found in favor of the NAZ Foundation and accepted its
arguments that consensual same-sex sexual relations between adults should be decriminalized,
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 holding that such criminalization was in contravention of the Constitutional rights to life and
personal liberty, equality before the law and non-discrimination. In reaching its decision, whilst
the court placed a great deal of emphasis on domestic judgments, the court also relied on
comparative law in reaching its decision, referring to judgements from various jurisdictions
including the European Court of Human Rights, the United Kingdom, the Republic of Ireland,
South Africa and the USA. The court also relied upon a number of progressive international
legal frameworks including the Yogyakarta Principles and the 2008 Declaration of Principles
of Equality produced by the Equal Rights Trust as well as a number of reports and documents
demonstrating the discriminatory effect of Section 377. In its reasoning, the High Court stated
that Section 377 “grossly violates [homosexual individuals’] right to privacy and liberty
embodied in Article 21 insofar as it criminalizes consensual acts between adults in private”.
The court also held that:

“Section 377 criminalizes the acts of sexual minorities, particularly men who have sex with men.
It disproportionately affects them solely on the basis of their sexual orientation. The provision runs
counter to the constitutional values and the notion of human dignity which is considered to be the
cornerstone of our Constitution”.

5. The decision was appealed to the Supreme Court and attracted a large number of interveners.
Interveners supporting the Appellants included organizations and individuals who have stated
that they had an interest in protecting the moral, cultural and religious values of Indian society.
Interveners for the Respondents are composed of individuals and organizations arguing that
Section 377 caused harm to the LGBT community and homosexual men in particular.

6. The panel of two Supreme Court judges deciding the case allowed the appeal and overturned
the High Court’s previous decision, finding its declaration to be “legally unsustainable”. The
Supreme Court ultimately found that Section 377 IPC does not violate the Constitution and
dismissed the writ petition filed by the Respondents.

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1. On 27 April 2016, five people from the LGBT community filed a new writ petition in the
Supreme Court challenging the constitutionality of Section 377 of the Indian Penal Code.
The petitioners claimed that the issues which they raised in their petition were varied and
diverse from those raised in the pending curative petition in the 2013 Suresh kumar
Kaushal & Anr v. Naz foundation case, in which the Supreme Court had upheld the
constitutionality of Section 377. The Naz case was earlier referred to a five-judge bench in
order to decide whether the curative petition could be accepted for consideration. The
petitioners were dancer Navtej Singh Johar, journalist Sunil Mehra, chef Ritu Dalmia,
hoteliers Aman Nath and Keshav Suri, and businesswoman Ayesha Kapur. Specifically,
it happened to be the first case where the petitioners had argued that they had all been
directly aggrieved because of Section 377 alleging it to be a direct violation of fundamental
rights. In a survey conducted by the Centre for the Study of Developing
Societies and Konrad-Adenauer-Stiftung, only 25% of Indian youth approved of a
homosexual relationship in April 2017.

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 ISSUES RAISED

ISSUE A:

WHETHER THE PRESENT WRIT IS MAINTAINABLE OR NOT?

ISSUE B

WHETHER SECTION 377, IN SO FAR IT CRIMINALIZES CONSENSUAL SEXUAL ACTIVITY

OF TWO ADULTS OF THE SAME SEX IN PRIVATE, IS VIOLATING ARTICLE 21(RIGHT TO
LIFE AND PERSONAL LIBERTY) GUARANTEED BY THE CONSTITUTION OF INDIA?

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 SUMMARY OF ARGUMENTS

ISSUE A:

WHETHER THE PRESENT WRIT UNDER ARTICLE 32 OF THE CONSTITUTION OF INDIA

IS MAINTAINABLE OR NOT?

Yes, section 377 violates the rights to equality, free speech, and life under Articles 14, 19(1)(a)
and 21 (THE GOLDEN TRIANGLE) of the Constitution. Section 377 violates the right of
members of the LGBTQ community to dignity, identity, and privacy, all covered under Article 21
of the Constitution it also violates the right to health, because the criminalization of homosexual
intercourse makes members of the LGBTQ community hesitate to seek medical advice and that
They are therefore more susceptible to sexually transmitted diseases.

ISSUE B:

WHETHER SECTION 377, IN SO FAR IT CRIMINALIZES CONSENSUAL SEXUAL ACTIVITY

OF TWO ADULTS OF THE SAME SEX IN PRIVATE, IS VIOLATING ARTICLE 21(RIGHT TO
LIFE AND PERSONAL LIBERTY) GUARANTEED BY THE CONSTITUTION OF INDIA?

Section 377, if retained in its present form, would involve the violation of, not one but, several
fundamental rights of the LGBTs, namely, right to privacy, right to dignity, equality, liberty and
right to freedom of expression. The petitioners contend that sexual orientation which is a natural
corollary of gender identity is protected under Article 21 of the Constitution and any discrimination
meted out to the LGBT community on the basis of sexual orientation would result in the violation
of article 21.

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 PLEADINGS

ISSUE A:

WHETHER THE PRESENT WRIT UNDER ARTICLE 32 OF THE CONSTITUTION OF INDIA

IS MAINTAINABLE OR NOT?

The present writ petition is maintainable because-

A.1 THAT THERE IS A VIOLATION OF THE FUNDAMENTAL RIGHTS (ARTICLES

14, 19,21).

1. It is humbly submitted that the fundamental rights of the petitioners are being violated in
the present case. Their rights of Equality, Life and Liberty, Livelihood are being violated
by the respondents. The petitioners have further contended that Section 377 is violative of
Article 14 of the Constitution as the said Section is vague in the sense that carnal
intercourse against the order of nature is neither defined in the Section nor in the IPC or,
for that matter, another law. There is, as per the petitioners, no intelligible differentia or
reasonable classification between natural and unnatural sex as long as it is consensual in
view of the decision of this Court in Anuj Gargand others v. Hotel Association of India
and others1 which lays down the principle that classification which may have been treated
as valid at the time of its adoption may cease to be so on account of changing social norms.

2. Article 19(1)(a) guarantees freedom of expression to all citizens. However, reasonable

restrictions can be imposed on the exercise of this right on the grounds specified in Article
19(2). LGBT persons express their sexual orientation in myriad ways. One such way is
engagement in intimate sexual acts like those prescribed under Section 377. Owing to the
fear of harassment from law enforcement agencies and prosecution, LGBT persons tend to

1
(2008) 3 SCC 1

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 stay ‘in the closet’. They are forced not to disclose a central aspect of their personal identity
i.e. their sexual orientation, both in their personal and professional spheres to avoid
persecution in society and the opprobrium attached to homosexuality. Unlike heterosexual
persons, they are inhibited from openly forming and nurturing fulfilling relationships,
thereby restricting rights of full personhood and a dignified existence. It also has an impact
on their mental well-being.

3. This Court has expansively interpreted the terms “life” and “personal liberty” to recognize
a panoply of rights under Article 21 of the Constitution, so as to comprehend the true scope
and contours of the right to life under Article 21. Article 21 is “the most precious human
right and forms the ark of all other rights” as held in Francis Coralie
Mullin v. Administrator, Union Territory of Delhi2, wherein it was noted that the right
to life could not be restricted to a mere animal existence, and provided for much more than
only physical survival.

• Comment by justice Bhagwati on Article 21 (Right to life and personal liberty)

We think that the right to life includes the right to live with human dignity and all that
goes along with it, namely the bare necessaries of life such as adequate nutrition,
clothing and shelter and facilities for reading, writing and expressing oneself in
diverse forms, freely moving about and mixing and commingling with fellow human
beings…it must in any view of the matter, include the right to the basic necessities of
life and also the right to carry on such functions and activities as constitute the bare
minimum expression of the human-self. Every act which offends against or impairs
human dignity would constitute deprivation pro tanto of this right to live and it would have
to be in accordance with reasonable, fair and just procedure established by law which
stands the test of other fundamental rights.”

2
(1981) 1 SCC 608

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 4. In National Legal Services Authority v. Union of India3 this Court recognised the right
of transgender persons to decide their self-identified gender. In the context of the legal
rights of transgender persons, this Court held that sexual orientation and gender identity
is an integral part of their personality.

The relevant excerpt from Radhakrishnan, J.'s view is extracted hereinbelow:

“Each person's self-defined sexual orientation and gender identity is integral to their
personality and is one of the most basic aspects of self-determination, dignity and
freedom…”

• sexual orientation is innate to a human being. It is an important attribute of one's personality

and identity. Homosexuality and bisexuality are natural variants of human sexuality. LGBT
persons have little or no choice over their sexual orientation. LGBT persons, like other
heterosexual persons, are entitled to their privacy, and the right to lead a dignified
existence, without fear of persecution. They are entitled to complete autonomy over the
most intimate decisions relating to their personal life, including the choice of their partners.
Such choices must be protected under Article 21. The right to life and liberty would
encompass the right to sexual autonomy, and freedom of expression.

3
(2014) 5 SCC 438

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ISSUE B:

WHETHER SECTION 377, IN SO FAR IT CRIMINALIZES CONSENSUAL SEXUAL ACTIVITY

OF TWO ADULTS OF THE SAME SEX IN PRIVATE, IS VIOLATING ARTICLE 21(RIGHT TO
LIFE AND PERSONAL LIBERTY) GUARANTEED BY THE CONSTITUTION OF INDIA?

1. It is submitted on behalf of the petitioners and the intervenors that homosexuality,

bisexuality and other sexual orientations are equally natural and reflective of expression of
choice and inclination founded on consent of two persons who are eligible in law to express
such consent and it is neither a physical nor a mental illness, rather they are natural
variations of expression and free-thinking process and to make it a criminal offence is
offensive of the well-established principles pertaining to individual dignity and decisional
autonomy inherent in the personality of a person, a great discomfort to gender identity,
destruction of the right to privacy which is a pivotal facet of Article 21 of the Constitution,
unpalatable to the highly cherished idea of freedom and a trauma to the conception of
expression of biological desire which revolves around the pattern of mosaic of true
manifestation of identity. That apart, the phrase ―order of nature‖ is limited to the
procreative concept that may have been conceived as natural by a systemic conservative
approach and such limitations do not really take note of inborn traits or developed
orientations or, for that matter, consensual acts which relate to responses to series of free
exercise of assertions of one ‘s bodily autonomy. It is further argued that their growth of
personality, relation building endeavour to enter into a live-in relationship or to form an
association with a sense of commonality have become a mirage and the essential desires
are rippled which violates Article 19(1)(a) of the Constitution. It is urged that the American
Psychological Association has opined that sexual orientation is a natural condition and
attraction towards the same sex or opposite sex are both naturally equal, the only difference
being that the same sex attraction arises in far lesser numbers.

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 2. The petitioners have highlighted that the rights of the lesbian, gay, bisexual and
transgender (LGBT) community, who comprise 7-8% of the total Indian population, need
to be recognized and protected, for sexual orientation is an integral and innate facet of
every individual ‘s identity. A person belonging to the said community does not become
an alien to the concept of individual and his individualism cannot be viewed with a stigma.
The impact of sexual orientation on an individual ‘s life is not limited to their intimate lives
but also impacts their family, professional, social and educational life. As per the
petitioners, such individuals (sexual minorities in societies)need protection more than the
heterosexuals so as to enable them to achieve their full potential and to live freely without
fear, apprehension or trepidation in such a manner that they are not discriminated against
by the society openly or insidiously or by the State in multifarious ways in matters such as
employment, choice of partner, testamentary rights, insurability, medical treatment in
hospitals and other similar rights arising from live-in relationships which, after the decision
in Indra Sarma v. V.K.V. Sarma4 is recognized even by the ―Protection of Women from
Domestic Violence Act, 2005‖ for various kinds of live-in relationships. The same
protection, as per the petitioners, must be accorded to same sex relationships.

3. The petitioners have referred to the decision of this Court in NALSA case wherein
transgenders have been recognized as a third gender apart from male and female and have
been given certain rights. Yet, in view of the existence of Section 377 in the IPC,
consensual activities amongst transgenders would continue to constitute an offence.
Drawing inspiration from the NALSA case, the petitioners submit that the rights of the
LGBT group are not fully realized and they remain incomplete citizens because their
expression as regards sexuality is not allowed to be pronounced owing to the criminality
attached to the sexual acts between these persons which deserves to be given a burial and,
therefore, the rights of the LGBT community also need equal, if not more, constitutional

4
(2013) 15 SCC 755

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 protection. Accordingly, the petitioners are of the view that Section377 of the IPC be read
down qua the LGBT community so as to confine it only to the offence of bestiality and
non-consensual acts in view of the fact that with the coming into force of the Criminal
Law(Amendment) Act, 2013 and the Protection of Children from Sexual Offences Act,
2012 (POCSO Act), the scope of sexual assault has-been widened to include non peno-
vaginal sexual assault and also criminalize non-consensual sexual acts between children
thereby plugging important gaps in the law governing sexual violence in India.

4. The petitioners have also relied upon the view in K.S. Puttaswamy v. Union of India 5 to
advance their argument that sexual orientation is also an essential attribute of privacy.
Therefore, protection of both sexual orientation and right to privacy of an individual is
extremely important, for without the enjoyment of these basic and fundamental rights,
individual identity may lose significance, a sense of trepidation may take over and their
existence would be reduced to mere survival. It is further urged that sexual orientation and
privacy lie at the core of the fundamental rights which are guaranteed under Articles 14,
19 and 21 of the Constitution and in the light of the decision in Puttaswamy, it has become
imperative that Section 377 be struck down. It is contended that the right to privacy has to
take within its ambit and sweep the right of every individual, including LGBTs, to make
decisions as per their choice without the fear that they may be subjected to humiliation or
shunned by the society merely because of a certain choice or manner of living.22. Having
canvassed with vehemence that sexual orientation is an important facet of the right to
privacy which has been raised to the pedestal of a cherished right, the learned counsel for
the petitioners have vigorously propounded that sexual autonomy and the right choose
partner of one ‘s choice is an inherent aspect of the right to life and right to autonomy. In
furtherance of the said view, they have relied upon the authorities in
Shakti Vahini v. Union of India and others6 and Shafin Jahan v. Asokan7. wherein it
has been clearly recognized that an individual ‘s exercise of choice in choosing partner is

5
(2017) 10 SCC 1

6
A.I.R 1979 SC 1628
7
AIR 2018 SC 1933: 2018 (5) SCALE 422
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 a feature of dignity and, therefore, it is protected under Articles 19 and 21 of the
Constitution.

5. The LGBT persons cannot, according to the petitioners, be penalized simply for choosing
a same sex partner, for the constitutional guarantee of choice of partner extends to the
LGBT persons as well. Learned counsel for the petitioners and the supporting intervenors
have submitted that sexual orientation, being an innate facet of individual identity, is
protected under the right to dignity. To bolster the said argument, reliance has been placed
upon Francis Coralie Mullin v. Administrator8, Union Territory of Delhi and others
and Common Cause (A Registered Society) v. Union of India and another9 wherein it
was held that the right to life and liberty, as envisaged under Article 21, is meaningless
unless it encompasses within its sphere individual dignity and right to dignity includes the
right to carry such functions and activities as would constitute the meaningful expression
of the human self.

6. It is argued with astuteness that Section 377 has a chilling effect on Article 19(1)(a) of the
Constitution which protects the fundamental right of freedom of expression including that
of LGBT persons to express their sexual identity and orientation, through speech, choice
of romantic/sexual partner, expression of romantic/sexual desire, acknowledgment of
relationships or any other means and that Section 377 constitutes an unreasonable
exception and is thereby not covered under Article 19(2) of the Constitution. To buttress
the said stance, reliance is placed upon the decision in S. Khushboo v.
Kanniammal and another10 wherein it has been held that law should not be used in such
a manner that it has a chilling effect on the freedom of speech
and expression. Additionally, the view in NALSA case has also been strongly pressed into
service to emphasize that the said decision clearly spells out that the right

8
(1981) 1 SCC 608
9
(2018) 5 SCC 1.

10
(2010) 5 SCC 600
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 under Article 19(1)(a) includes one s right to expression of his/her self -identified gender
which can be expressed through words, action, behaviour or any other form.

7. The petitioners have also contended that Section 377 violates the rights of LGBT persons
under Article 19(1)(c) and denies them the right to form associations. Similarly, such
persons are hesitant to register companies to provide benefits to sexual minorities due to
the fear of state action and social stigma. Further, a conviction undersection 377 IPC
renders such person’s ineligible for appointment as a director of a company.

8. It is averred that Section 377 IPC, by creating a taint of criminality, deprives the LGBT
persons of their right to reputation which is a facet of the right to life and liberty of a citizen
under Article21 of the Constitution as observed by this Court in Kishore Samrite v. State
of U.P. and others11 and Umesh Kumar v. State of Andhra Pradesh and another12 to
the effect that reputation is an element of personal security and protected by the
Constitution with the right to enjoyment of life and liberty. This right, as per the petitioners,
is being denied to the LGBT persons because of Section 377 IPC as it makes them
apprehensive to speak openly about their sexual orientation and makes them vulnerable to
extortion, blackmail and denial of State machinery for either protection or for enjoyment
of other rights and amenities and on certain occasions, the other concomitant rights are
affected.

9. The petitioners have advanced their argument that Section 377IPC impedes the ability of
the LGBTs to realize the constitutionally guaranteed right to shelter. To illustrate the same,
the petitioners have drawn the attention of the Court to the fact that LGBTs seek assistance
of private resources such as Gay Housing Assistance Resources (GHAR) in order to access
safe and suitable shelter and this is an indication that the members of this community need
immediate care and protection of the State.

11
(2013) 2 SCC 398
12
(2013) 10 SCC 591
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 PRAYER FOR RELIEF

Wherefore, in light of the facts stated, arguments advanced and authorities cited, the Petitioners,

humbly prays before the Hon’ble Supreme Court of India, that:

• The present petition is maintainable.

• The gender based discrimination has violated fundamentals rights (the golden triangle).

• The petitioner being denied at the post of make-up artists has violated the directive

principles of state policies.

• The gender based discrimination is violating the general principles of the international

treaties undersigned by India.

• The impugned act is subjected to the doctrine of severability.

The Court may also be pleased to pass any other order, which the Court may deem fit in light of

justice equity and good conscience.

And for this act of kindness the appellants shall duty bound ever pray.

COUNSEL ON BEHALF OF PETITIONERS

Shantanu Vaishnav

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