Authored By: Rudraksh Sharma
Amity University, Noida
Case Title & Citation
Navtej Singh Johar & Others v. Union of India (2018)1
Court Name & Bench
Supreme Court of India
Bench: Constitution Bench (5 judges)
Chief Justice Dipak Misra, Justices Rohinton Nariman, A.M. Khanwilkar, D.Y. Chandrachud, and Indu Malhotra
Date of Judgment; 6 September 2018
Parties Involved
Petitioners:
Navtej Singh Johar, Sunil Mehra, Ritu Dalmia, Aman Nath, Ayesha Kapur, and others—artists and activists who challenged Section 377 of the Indian Penal Code (IPC), 1860.
Respondent:
Union of India
Facts of the Case
Section 377 of the IPC, an 1860 colonial law, made “carnal intercourse against the order of nature” criminal, amounting to prohibition on homosexual acts between consenting adults. A few LGBTQ activists and public citizens moved to the Supreme Court and contended that
Section 377 infringed on fundamental rights, particularly after the Delhi High Court’s historic 2009 ruling (Naz Foundation v NCT Delhi) was reversed by the Supreme Court in Suresh Kumar Koushal v. Naz Foundation (2013).
The petitioners presented the argument that consensual sexual relations between adults, irrespective of gender, cannot be constitutionally criminalized. The petitioners alleged the law promoted discrimination, fear, harassment, and denied dignity and privacy to LGBTQ individuals.
Issues Raised
– Does Section 377 IPC contravene Articles 14 (equality before law), 15 (prohibition of discrimination), 19 (protection of certain freedoms), and 21 (right to life and personal liberty) of the Constitution?
– Does criminalization of consensual homosexual acts infringe the right to dignity, privacy, and autonomy?
Arguments of the Parties
Petitioners’ Arguments:
– Section 377 is ambiguous, arbitrary, and encourages discrimination against sexual minorities. – Adult-to-adult consensual sex is a privacy and autonomy issue.
– Criminalization encourages stigma, violence, and human rights violations.
– Reflected the right to privacy as a fundamental right (Justice K.S. Puttaswamy v. Union of India, 20172).
2Justice K.S. Puttaswamy v. Union of India, (2017) 10 SCC 1
Union of India:
– Filed affidavit in opposition to criminalizing consensual sex between adults, but left constitutionality in the hands of the Court.
– Supported the argument that the law was never intended to govern private consensual conduct.
Judgment / Final Decision
The Supreme Court by a unanimous decision overruled that part of Section 377 which criminalized homosexual acts between consenting adults. The law was declared unconstitutional to the extent it criminalized private, consensual sexual acts between adults. Section 377 continues to be valid only in instances of non-consensual acts and bestiality.
Legal Reasoning / Ratio Decidendi
– Article 14 (Equality): The Court held that Section 377 was arbitrary, irrational, and not based on any intelligible differentia. It contravened the equal protection guarantee.
– Article 15 (Non-Discrimination): The law made an unconstitutional discrimination, focusing on sexual minorities and cultivating discrimination.
– Article 21 (Right to Dignity and Life): “Dignity of the individual” is a fundamental constitutional value, and criminalizing sexual identity infringes on the right to privacy and dignity, as established in the privacy judgment (K.S. Puttaswamy).
– Article 19 (Freedom of expression): The freedom to express identity and love constitutes a fundamental part of freedom.
The Court identified “sexual orientation” as an inherent and immutable trait. It denigrated social prejudice and urged constitutional morality to prevail over social morality if the latter conflicts with fundamental rights.
Justice Indu Malhotra has also commented: “History owes an apology to members of this community and their families, for the delay in providing redressal for the ignominy and ostracism they have suffered through the centuries.”
Conclusion / Observations
The Court’s verdict had a few long-term effects:
– It was a milestone win for LGBTQ rights in India, bringing to an end judicial discrimination and criminal prosecution for millions.
– The verdict established significant precedents on matters of dignity, privacy, and constitutional morality.
– It reminded us that the Constitution safeguards not only majorities, but also minorities and those who reside at the margins of society.
– The Court instructed the government and society to promote tolerance, dignity, and equality for everyone, no matter what their sexual orientation may be.
Significance
Navtej Singh Johar is considered to be one of the most progressive human rights rulings in Indian history. It brought India’s constitutional values into line with international human rights norms and paved the way for greater acceptance, possible marriage equality, and reform of connected legislation.
Reference(S):
1 Navtej Singh Johar & Others v. Union of India, (2018) 10 SCC 1
