Authored By: Janvi Kashyap
Maharishi Markandeshwar (Deemed to be University)
- Case Citation and Basic Information
Full case name : Navtej Singh Johar & Ors. V. Union of India, Ministry of Law and Justice
Citation : AIR 2018 SC 4321; (2018) 10 SCC 1; Writ Petition (Criminal) No. 76 of 2016
Court : Supreme Court of India (Constitution Bench)
Date of Judgment : 6 September 2018
Bench Composition : Five-Judge Constitution Bench comprising Chief Justice Dipak Misra, Justice A.M. Khanwilkar, Justice R.F. Nariman, Justice D.Y. Chandrachud, and Justice Indu Malhotra
- Introduction
Meet the gay Couple who pleaded with India’s top court for the right of love, Navtej Singh Johar, a 59 year old classical dancer and yoga teacher from Chandigarh Punjab, filed a petition to the Supreme Court against the section 377 of IPC,1860, along with his partner, Sunil Mehra, who is a journalist by profession. Section 377 of IPC,1860 criminalises carnal intercourse against the order of nature. Thomas Macaulay enacted this act from Buggery Act,1533 which says that carnal intercourse against the order of nature and it is considered as unnatural and punishable under law.
This judgement is one of the historical landmark judgement because it transformed the constitutional history of India. It doesn’t solely concern Section 377 of IPC1860, but it does affect article 14, 15, 19 and 21, under Constitution, which talks about the criminalisation of homosexuality under the constitution on grounds of intelligible differentia and rational nexus under Article 14. The judgement was delivered by five-judges Constitution bench of the Supreme Court of India, On 6 September 2018 , the decision partially struck down section 377 of IPC, 1860 to the extent it criminalised consensual intercourse between adults of same sex.
- Facts of the Case
The challenge to section 377 of IPC,1860 began with the Naz foundation v. Govt. of NCT Delhi case in which they said that Section 377 of IPC, 1860 is unconstitutional. According to this case, Naz foundation is a NGO which works for HIV patients and they filed a petition. In context of descriminalisation of homosexuality under Section 377 of IPC,1860 it says that intercourse between same sex is criminalised, but the judgement under this petition was held that sex between two adults can’t be punishable. Back in 1994 in Tihar jail under the superintendence of Kiran Bedi, the male prisoners were engaged in sexual intercourse with each other and they were denied access to protection and health resources due to fear of prosecution under Section 377 of IPC, 1860, increasing risk of HIV and AIDS transmission. Then in the case of Suresh Kumar Kaushal v. Naz foundation case, 2013. They overturned the judgement of Delhi high court with 3 main major arguments, which says that this is a parliamentary act, not a Judiciary matter. So the Judiciary can’t interfere for a small fraction of the act. Also, section 377 targets certain acts or people, not the group of people Then, in case of National Legal Service Authority v. Union of India, 2014. This judgement is also known as the NALSA judgement. In this case, the Supreme Court made a clear distinction between biological and psychological sex and the Supreme Court also prioritised psychological sex over biological and gave recognition to transgender person as a third gender under legal recognition. In the case of Puttaswamy v. Union of India, the court held in 2017, that minorities are also important and under right to privacy sexual orientation is an essential attribute. Against all of these Navtej Singh Johar and other four petitioner, with journalist, Sunil Mehra, chef Ritu Dalmia hotelier Ayesha Kapoor and business Executive Aman Nath filed writ petition (Criminal) No.76 of 2016 directly before the Supreme Court and challenging section 377 of IPC,1860 as violating the fundamental rights under article 14, 15, 19 and 21 under constitution.
4.Legal Issues
These were following questions, which were addressed by the Constitution bench
Ques.1 Does Section 377 of IPC,1860 violate the right to equality of constitution of India. Because it creates an unreasonable classification with no rational nexus
Ques.2 Does Section 377 of IPC,1860 discriminate against people discriminate against people based on their sexual identity and also, it includes the discriminate based on sexual orientation.
Ques.3 Does the Section 377 of IPC,1860 take away the right to life and personal liberty. Article 21, right to life and liberty include the right to be treated with dignity and autonomy
Ques.4 Does Section 377 of IPC,1860 violates the right to freedom of expression.And this also includes the right to express one’s sexual identity as a stated in article 19(1)(a) of Constitution
Ques.5 Was the judgment in the case suresh kumar kaushal versus naaz foundation case decided correctly in 2013, and does this judgement need to be reconsidered to see if it was fair or not.
- Arguments Presented
5.1 Petitioners Arguments
Here are the points from Navtej Singh Johar’s side.
The first point is on the ground of article 14 of Indian Constitution. They said that section 377 created an unreasonable classification. And it’s not fair because they treat people differently for no reason. It makes no sense to differentiate between homosexual acts when they are consensual
The second point talks about the Article 15 of Indian Constitution, in which Navtej Singh johar says that sexual orientation is a part of who they are and so when they discriminate because of someone’s orientation, it directly violates the Article 15 under constitution.
The third point is, talk about article 21 of Indian Constitution. After the Puttaswamy case of 2017, we all knew that our right to privacy includes our choices. When government criminalises the consensual adults act, it hurts the dignity and autonomy of the people. And it is against the article 21 of Indian Constitution.
The fourth point talks about constitutional morality. It says what is right according to the constitution, and what is wrong? The government can’t use the laws to force its opinion on everyone. Because majority people think that’s way, the Constitution for protecting people who are in minorities also.
The people from petitioner sides also said that sexual orientation is something they are born with, not something they can change or choose, making such a law serves no purposefor the state. So the petitioners believe that sexual orientation is who they are, it’s not something they can choose or change. The main point is: Is criminalising sexual orientation serves any purpose for a state?
5.2 Respondents Arguments
This is the point from Union on India and interveners.
The very first point is to talk about where the government stands. The union of India is mostly left it to Judiciary to take the lead and don’t interfere strongly against it.
The second point is what the interveners said. They said that section 377 of IPC,1860. Is necessary for protecting morality and preventing disease. interveners believes that it serves a purpose to state.
The third point is about where the legislature stands and what they think they said that a small fraction of matters can’t be decided by the Judiciary. These types of changes are decided by the legislature. In this argument, They take the support from the judgement of Suresh Kumar Kaushal v. Naz foundation case to prove their facts an argument.
- Court Reasoning & Analysis
CJI Dipak Misra
Deepak Mishra delivers his main concern about morality. He said that the constitution should be prioritised over morality. This majority does not overrule the rights of minorities. He believes, that the constitution is like a living document. The Constitution has to be understand in every aspect that help people, those who are not in the majority. This is what he said and he thinks thats the constitution should be interpreted in a way that protect the right of minority groups from being overshadowed by the view of majority In every aspect, a person’s dignity is directly connected with their identity , making LGBT people criminalize and make them feel like second class citizens which clearly serves no purpose.
Justice R.F Nariman
His main concern is regarding manifest arbitratiness. He used a test to check if something is fair or not under article 14. And when he tests the section 377 of IPC,1860, it eventually fails the test because it’s unfair. He believes there is no sense to criminalise consensual adults relationships between people of same-sex. He said that how someone feels about their sexuality is something that should be protected. This is covered under Article 15. He believes that treating people unfairly because of their sexual orientation is not right and goes against what the Constitution saying. It is discrimination and it is not allowed in constitution of india. The government shouldn’t discriminate the people on behalf of their sexual orientation, treating people unequally based on their sexual orientation is against the Constitution of India.
Justice D.Y. Chandrachud
His main concern is regarding transformative. Constitutionalism, he delivered the most expansive opinion of all four judges. He believes that judgement in Suresh Kumar Kaushal v. Naz foundation was wrong. He said that calling the LGBT community, a small fraction or minority community, was violating the right under the constitution. All rights like privacy, dignity, identity and autonomy are all connected with each other. And we can’t criminalise someone for who they are.That is considered as a constitutional wrong.
Justice Indu Malhotra
Her concern is related to apology and dignity. She was the only woman judge on the bench. She states that we owe an apology to the community for the past many years. She also added that we can’t take the right to live and dignity under article 21 of Indian Constitution. She said that majority can’t override the right which is given by the constitution and her opinion was the most emotionally powerful among all of them
7.Judgement and Ratio decidendi
The Constitution bench of five-judges declared that section 377 of IPC,1860 which criminalised the sexual acts between the same gender is unconstitutional, because it also violates the article 14, 15, 19 and 21 of Constitution of India, which is known as fundamental right also. The court specifically overruled the 2013 judgment in case of Suresh kumar kaushal v. Naz foundation
The main point of that section 377 of IPC,1860 criminalises intimate acts between adults based solely on their sexual orientation, which is not allowed under the Constitution. The state can’t use law to impose its morality on a small fraction or minority community However, the court also clarified that section 377 would still apply to non-consensual acts and acts involving minors. The court made it clear that a person’s sexual orientation is part of who they are, and it is connected to their dignity. The Constitution of India says sexual orientation is something that is a natural part of a person’s identity. This judgement is a significant because it talks about sexual orientation and dignity in the Constitution of India.
- Critical Analysis
8.1 Significance
The judgement of Navtej Singh Johar is very important for a reason. Firstly it says that the Constitution prioritises its right over what the majority of people think is right. And a country like India where we have many different groups of people and in which some group of people are treated differently and unfairly, this judgement says that person sexual orientation is protected under the Constitution, which is something that many other country with democratic government also believes.
8.2 Implications and Impact
The Navtej Singh Johar judgement has a massive impact on the rights of LGBTQ+ community in India. It has given people the courage to challenge laws that are unfair to them and treat them unfairly and laws like same-sex, marriage and civil union. The judgement has also influenced what law makers talk about. There are still no laws that formally recognise the same-sex relationships in areas like marriage and adoption in term. The judgement has made it less likely that LGBTQ+ community will be Harassed or exploited but they still have to face a lot of prejudice and discrimination.
8.3 Critical Evaluation
The judgement of Navtej Singh Johar has made same-gender relationship is legal, but it did not solve issues like marriage, adoption, inheritance and employment for LGBTQ+ community, these problems are still not addressed. The real action needs to come from the Parliament not from the Judiciary because India doesn’t have a law that stops a group of people from being treated unfairly because of whom they attract or their sexual orientation. Without this law, people are still treated unfairly at their work, in their home and by their family. This is a question about whether big changes in society like this should come from court or Parliament? The court made a decision because Parliament didn’t do anything. But the court can decide only that much. The real and lasting changes need to come from the Parliament.
- Conclusion
The case of Navtej Singh versus Union of India is historic Indian’s Constitutional history. It shows that the constitution is a living document and upholds the people to be free and have their dignity without being treated unfairly. The Supreme Court made a decision when it said that section 377 does not apply to adults who love each other and are of the same gender. This decision fixed a thing that was done a long time ago when India was a Colony. The court also said that it is important to think about the lives of people who are not treated fairly when we are talking about human rights under the constitution. The good thing about this decision is that it says everyone has a right to love whoever they want to be, who they are without being treated differently. The Indian Constitution says that everyone is equal and should be treated with dignity. Navtej Singh Johar v. Union of India is a very first step towards the LGBTQ+ rights in India, there is still a lot of work to be done. Ensuring that everyone is treated fairly. This decision has changed things for better Navtej Singh Johar v. Union of India will always be a remembered as a historic case.
- Reference(S):
Cases:
¹Navtej Singh Johar & Ors. v. Union of India, (2018) 10 SCC 1.
²Suresh Kumar Koushal v. Naz Foundation, (2014) 1 SCC 1.
³Naz Foundation v. Govt. of NCT of Delhi, (2009) 160 DLT 277.
⁴National Legal Services Authority v. Union of India, (2014) 5 SCC 438.
⁵Justice K.S. Puttaswamy v. Union of India, (2017) 10 SCC 1.
Legislature:
⁶Indian Penal Code, 1860, § 377
⁷Constitution of India, 1950, Articles 14, 15, 19, and 21.
Secondary Sources:
Siddharth Narrain, ‘Queer Politics and the Law’ (2018) 53(4) Economic and Political Weekly 12
