Navtej Singh Johar & Ors. v. Union of India (UOI)

1. CASE TITLE AND CITATION[1]

Title: Navtej Singh Johar & Ors. v. Union of India (UOI)
Citation: (2018) 10 SCC 1; AIR 2018 SC 4321

2. Court name and bench

Court: Supreme Court of India (Constitution Bench)
Bench:

• Chief Justice Dipak Misra
• Justice A.M. Khanwilkar
• Justice R.F. Nariman
• Justice D.Y. Chandrachud
• Justice Indu Malhotra

3. Date of judgement

Date: 6 September 2018

4. PARTIES INVOLVED

Petitioners were prominent citizens of India, a number of them are members of LGBTQ+ community, who agonized over the constitutional validity of Section 377 IPC, which criminalizes consensual same-sex relationships and violates their fundamental rights.

Petitioners:

• Navtej Singh Johar – He was a Eminent classical dancer and he was a gay
• He Argued that the Section 377 under the constitution denied him dignity and personal freedom.
• Sunil Mehra – His profession was Journalist and he was a writer,

Plus he was the partner of navtej singh and expressed his grief as Raised issues of freedom of expression and personal liberty.

• Aman Nath – simply he was a Historian and hotelier, author too.

He was  Co-founder of Neemrana Hotels, openly gay and Argued that the law subjected him to stigma and harassment.

• Ritu Dalmia – Celebrity chef and restaurateur

She was Lesbian woman and public figure and Emphasized the violation of equality and privacy.

• Ayesha Kapur – Business executive and LGBTQ+ ally

She Supported the cause from a broader perspective of equality and human rights. For the LGBTQ+  community.

Keshav Suri – He was a Executive at The Lalit Suri Hospitality Group and Openly gay hotelier and activist

He was Focused on the economic, emotional, and social harm caused by Section 377.

Respondent (Defendant).

Union of India (Ministry of Home Affairs)

• The only respondent in this case was the Government of India, as it is responsible for enforcing the Indian Penal Code, including Section 377.
• The government remained neutral on some issues during the proceedings and left the Court to decide the issue of the de-criminalization of consensual acts of homosexuality between consenting adults, very much “in the wisdom of the Court”.
• In arguing neutrality, the government maintained that the Court should not decriminalize either non-consensual acts, acts with minors, or bestiality all of which are criminal offences under Section 377.

5. FACTS OF THE CASE.

1860:

The Britisher enacted Section 377 of the Indian Penal Code (IPC).

The section criminalized “carnal intercourse against the order of nature,” which was understood over the years to include consensual sexual acts between adult members of the same sex.

2001 – 2009:

The Naz Foundation, a non-governmental organization focused on sexual health and rights, challenged Section 377 in the Delhi High Court, with a request to “read down” all punishable offenses as they applied to adults engaged in consensual sexual rubber masturbation acts-. [2]

On 2009, High court of delhi, Naz Foundation v. Govt. of NCT of Delhi, review Section 377 of the IPC and decriminalized all consensual same-sex acts between adults.

2013:

The Supreme Court of India reinstated Section 377 in Suresh Kumar Koushal v. Naz Foundation, setting aside the 2009 decision, holding Section 377 was constitutional, and the LGBTQ+ community was a “minuscule minority.” [3]

Effectively, with the reinstatement of Section 377, criminalizing same-sex relationships led to serious uncertainty in law and further entrenchment of social stigma.

2016 – 2018:

In 2016, a group of citizens, including Navtej Singh Johar, filed a writ petition under Article 32 directly seeking the Supreme Court to declare Section 377 unconstitutional and invalid as applied to consensual acts between adults in private.

The petition made claim reference to violated fundamental rights under Articles 14 (equality), 15 (non- discrimination), 19 (freedom of expression), and 21 (life, and liberty).

August 2017: The Supreme Court, in a nine-judge bench decision came to the conclusion in the case Justice K.S. Puttaswamy v. Union of India that the right to privacy is a fundamental right protecting many aspects of human integrity including sexual orientation as part of personal autonomy and dignity. [4]

July 2018: The five-judge Benchmate began with the final hearings of Navtej Singh Johar petition.

6 September 2018: The Supreme Court reached a unanimous decision partially striking down Section 377 as unconstitutional to the extent it criminalized consensual sexual acts between adults.

The Court sustained the section only for non-consensual acts, bestiality and acts involving minors.

ISSUES RAISED

Whether section 377 of the Indian Penal Code of 1860 amounts to a violation of the fundamental rights under Part III of the Constitution by criminalising consensual sexual conduct between adults of the same sex.

To what extent a person’s right to choose a sexual partner and express one’s sexual identity falls within the ambit of the right to life, dignity and personal liberty protected in Article 21.

Whether section 377 of the IPC violates the right to equality under article 14 of the Constitution by creating an arbitrary, unreasonable classification based on sexual orientation.

Whether section 377 is discriminatory on the grounds of “sex” on the basis of article 15 of the Constitution and whether “sexual orientation” is included in the meaning of “sex” for the purposes of constitutional protection.

Whether the criminalisation of consensual acts of homosexuality amounts to a violation of the freedom of speech and expression protected under article 19(1)(a).

Whether the Supreme Court’s decision in Suresh Kumar Koushal v. Naz Foundation (2013) was correctly decided and ought to be overruled.

6. ARUGUMENTS OF THE PARTIES

Petitioners’ Key Contentions:

The petitioners impeached Section 377 IPC as infrigement of constitutional rights, depending on domestic and international precedents.

1. Impeachment of Article 14 – that says Equality before Law[5]

• Argument: Section 377 created an unjustified and irrational by forbidding consensual sexual acts between adults based  merly on their sexual orientation.
• Cited Case Law
• P. Royappa v. State of Tamil Nadu, (1974) 4 SCC 3 — equality includes protection from arbitrary state action.
• Shayara Bano v. Union of India, (2017) 9 SCC 1 — introduced the doctrine of manifest arbitrariness. [6]

2. Violation of Article 15 – Non-Discrimination[7]

• Argument: Though Article 15 does not explicitly mention sexual orientation, discrimination on the basis of “sex” includes sexual orientation.
• Cited Case Law:
• National Legal Services Authority (NALSA) v. Union of India, (2014) 5 SCC 438 — recognized gender identity as part of Article 15.

3. Violation of Article 19(1)(a) – Freedom of Expression[8]

• Argument: Section 377 restricted the expression of one’s identity, especially emotional and sexual relationships.
• Support: Expressing love and intimacy forms part of protected speech and personal expression.

4. Violation of Article 21 – Right to Life and Personal Liberty[9]

• Argument: Section 377 infringed upon dignity, privacy, and personal autonomy, which are essential elements of Article 21.
• Cited Case Laws:
• Justice K.S. Puttaswamy v. Union of India, (2017) 10 SCC 1 — recognized right to privacy as a fundamental right, including sexual orientation.
• Francis Coralie Mullin v. Administrator, Union Territory of Delhi, (1981) 1 SCC 608 — dignity of life are part of Article 21.

5. International Human Rights Norms

• Petitioners invoked international legal standards:
• Toonen v. Australia (UN Human Rights Committee, 1994) — held that criminalizing homosexuality violated the right to privacy under Article 17 of ICCPR. [10]
• Yogyakarta Principles — affirming that sexual orientation and gender identity are human rights issues.

RESPONDENT KEY CONTENTIONS (UNION OF INDIA):

1. Restrictive reading of Section 377

The Government argued that the court should read down Section 377 to apply only to:

(i) non-consensual acts,

(ii) minors,

(iii) bestiality.

This would mean that an individual’s rights to engage in sexual conduct are protected, but public morality is protected too.

2. Public Morality v. Constitutional Morality

Although not promoted as an argument, the earlier Suresh Kumar Koushal v. Naz Foundation, (2013) 1 SCC 791 — was discussed as precedent for public morality and legislative space.

The petitioners contended that constitutional morality supersedes public morality.

3. Legislative space

The Government did not contend that it has made any changes to Section 377 recently, nor does the Government consider both the legislations’ intent and Section 377 unconstitutionally invalid.

7. JUDGEMENT

• The petition was allowed.
• The Court overruled the previous judgment in Suresh Kumar Koushal v. Naz Foundation, (2013), restoring the progressive interpretation adopted by the Delhi High Court in Naz Foundation v. Govt. of NCT of Delhi (2009).

SIGNIFICANT RULINGS AND DIRECTIONS ISSUED BY THE COURT:

Consensual same-sex acts between adults are no longer criminal under law in India.

The fundamental rights of LGBTQ+ persons protected under articles 14, 15, 19, and 21 are fully protected.

The constitutional morality of the constitution must prevail over public morality. The State must preserve the dignity and autonomy of the individuals.

The Court recognized LGBTQ+ persons are entitled to equal citizenship and equal protection under law along with the community as a whole.

The law enforcement authorities were directed to avoid telling people to leave or not discriminate or harass them based on their sexual orientation.

8. FINAL IMPACT

Section 377 IPC is no more applicable to consensual homosexual acts between adults.

The Court’s decision represented a landmark change in Indian constitutional law, enforcing privacy with dignity, and equality for all LGBTQ+ citizens.

The decision has been interpreted vastly as a victory for human rights and constitutional morality.

The ruling was more than just a legal win, it was a civilizational shift which recognized that both diversity and dignity are foundational to the Indian Constitution. That it stated that future conversations will remain open around same-sex marriage, adoption, inheritance rights, and civil unions.

The Court ruled that Section 377 IPC, to extent that it criminalizes consensual sexual acts between adults of the same sex, was unconstitutional in that it violates the fundamental rights guaranteed under Articles 14, 15, 19, and 21 of the Constitution.

WORDINGS OF CJI

“Autonomy of an individual is the ability to make decisions on vital matters of concern to life. The sexual autonomy of an individual is an essential aspect of the right to privacy… and cannot be trampled upon by society or the State.”
— Justice D.Y. Chandrachud

“What is natural to one may not be natural to another. But the said natural orientation is part of the identity of an individual and is protected under the fundamental rights.”
— CJI Dipak Misra and Justice Khanwilkar.

9. OBSERVATIONS

CJI Dipak Misra: “Individual liberty and individual autonomy represent the values at the heart of a constitutional democracy.”

Justice Chandrachud: “The history needs to apologize to the members of the LGBTQ+ community …for the ignominy and the ostracism.”

Justice Indu Malhotra: “What is natural for one may not be natural for another – Homosexuality cannot be described as a mental disorder or an aberration.”

10. KEY TAKEAWAYS:

Reinstated constitutional morality over societal morality.

Constitutional rights are not determined by a majority.

Gave dignity, equality and freedom to the LGBTQ+ individuals.

REFERENCE(S):

• Supreme Court of India:
  Navtej Singh Johar v. Union of India, (2018) 10 SCC 1.
• High Court of Delhi:
  Naz Foundation v. Govt. of NCT of Delhi, 160 DLT 277 (Delhi HC 2009).
• Supreme Court of India:
  Suresh Kumar Koushal v. Naz Foundation, (2014) 1 SCC 1.
• Supreme Court of India:
  Justice K.S. Puttaswamy (Retd.) v. Union of India, (2017) 10 SCC 1.
• Supreme Court of India:
  Shayara Bano v. Union of India, (2017) 9 SCC 1.
• United Nations Human Rights Committee:
  Toonen v. Australia, Communication No. 488/1992, U.N. Doc. CCPR/C/50/D/488/1992 (1994).
• The Constitution of India:
• Article 14 – Right to Equality
• Article 15 – Prohibition of Discrimination
• Article 19(1)(a) – Freedom of Speech and Expression
• Article 21 – Protection of Life and Personal Liberty

[1] Navtej Singh Johar v. Union of India, (2018) 10 SCC 1.

[2]  Naz Foundation v. Government of NCT of Delhi, 160 DLT 277 (Del. HC 2009).

[3] Suresh Kumar Koushal v. Naz Foundation, (2014) 1 SCC 1.

[4] Justice K.S. Puttaswamy (Retd.) v. Union of India, (2017) 10 SCC 1.

[5] INDIA CONST. art. 14.

[6] Shayara Bano v. Union of India, (2017) 9 SCC 1.

[7] INDIA CONST. art. 15.

[8]INDIA CONST. art. 19(1)(a).

[9] INDIA CONST. art. 21.

[10]  Toonen v. Australia, Communication No. 488/1992, U.N. Doc. CCPR/C/50/D/488/1992 (Mar. 31, 1994).