Navtej Singh Johar & Ors. v. Union of India & Ors.

Case Citation and Basic Information

• Full Case Name: Navtej Singh Johar & Ors. v. Union of India & Ors.
• Citation: AIR 2018 SC 4321; (2018) 10 SCC 1
• Court: Supreme Court of India (Constitution Bench)
• Date of Decision: 6 September 2018
• Bench Composition: Chief Justice Dipak Misra, Justice A.M. Khanwilkar, Justice Rohinton F. Nariman, Justice D.Y. Chandrachud, and Justice Indu Malhotra.
• Petitioners: Navtej Singh Johar, Ritu Dalmia, Ayesha Kapur, Aman Nath, Sunil Mehra and other petitioners.
• Respondents: Union of India & Others.

1. Introduction

For decades, Section 377 of Indian Penal Code criminalized same sex relations reinforcing discrimination and social stigma.[1] In an ever-changing world where equality, dignity and individuality are recognized as fundamental human rights, it became high time for India to look back at this colonial-era legislation. The landmark judgment passed by the Supreme Court in Navtej Singh Johar v. Union of India proved to be a historically turning point by partially striking down Section 377 and declared that consensual same-sex relationships between adults cannot be criminalized.[2] It dealt with issues concerning fundamental rights, dignity, privacy, and equality under the Constitution.[3] It is a landmark judgement not only for decriminalizing same sex relations but also because the Supreme Court acknowledged that, in an increasingly progressive world where notions of dignity, equality and personal liberty continue to develop, Indian constitutional values cannot remain confined to outdated colonial ideas.[4]

2. Facts of the Case

The landmark case of Navtej Singh Johar v. Union of India dealt with the constitutional validity of Section 377 of Indian Penal Code 1860, a colonial-era provision that criminalized “carnal intercourse against the order of nature”. Although this section also covers carnal acts involving minors and animals, its major purpose was to criminalize consensual same-sex relationship between adults. This meant that individuals of the LGBTQ+ community lived in constant fear of criminal prosecution, discrimination, and social stigma, even though their activities were private and consensual in nature.[5]

The present case was initiated in 2016. Petitioner Navtej Singh Johar, along with other petitioners filed a Writ Petition in the Supreme Court. They approached the Supreme Court under Article 32 of the Constitution seeking recognition of the rights of individual to sexuality, sexual autonomy, and the freedom to choose one’s partner as essentials of right to life and personal liberty guaranteed under Article 21.[6]

The petitioners contented that Section 377 to the extent that it criminalized consensual relationship between adults of the same sex, violated several fundamental rights guaranteed in the Constitution. This provision was argued to be arbitrary and discriminatory, and therefore contravened Article 14, discriminated based on sex and sexual orientation in violation of Article 15, curtailed the freedom to express one’s identity under Article 19, and interfered with the right to privacy, dignity, and personal liberty provided under Article 21.[7]

This challenge has a procedural history behind it. Earlier, in the case of Naz Foundation v. Government of NCT of Delhi, the Delhi High Court held Section 377 to be unconstitutional to the extent of consensual same-sex relationship between adults and decriminalized it. However, this relief proved to be temporary as the Supreme Court in Suresh Kumar Koushal v. Naz Foundation restored the provision by overturning the Delhi High Court’s decision. In the present case, the petitioners contended that the previous verdict wrongly relied on social morality instead of constitutional principles. The challenge was limited to consensual acts between adults and did not seek to invalidate Section 377 concerning minors, non-consensual acts, or bestiality.[8]

3. Legal Issues

1. Whether the reasoning adopted by the Supreme Court in Suresh Kumar Koushal v. Naz Foundation correctly reflected the constitutional principles, while upholding the validity of Section 377.
2. Whether Section 377, to the extent that it criminalized consensual sexual acts between adults of the same sex, violate Article 14 and 15 of the Constitution by allowing discrimination on the basis of “sexual orientation” and “gender identity”.
3. Whether Section 377 infringed the fundamental right of freedom of expression guaranteed under Article 19 (1)(a) by restricting the expression of one’s gender identity.
4. Whether the criminalization of consensual same sex relationship between adults violated the rights to privacy, dignity, autonomy and personal liberty provided under Article 21.[9]

4. Arguments Presented

4.1. Petitioner’s Argument

• Section 377, insofar as it criminalized sexual relation between consenting adults of the same sex, infringed the fundamental rights guaranteed under Article 14, 15, 19(1)(a), 21 of the Constitution.
• Sexual orientation is an innate and natural aspect of human identity and thus cannot be regarded as an illness or criminal conduct. Criminalizing it affected the rights of privacy, autonomy, dignity and personal liberty of the LGTBQ+ community.
• The expression “carnal intercourse against the order of nature” was vague, which rendered Section 377 as arbitrary and discriminatory, in violation of Article 14.
• The provision had a chilling effect on freedom of speech and expression by preventing LGBTQ+ individuals from openly expressing their identity and choosing partners.
• The petitioners, relying on K.S. Puttaswamy v Union of India and NALSA v. Union of India, argued that privacy, dignity, sexual orientation and gender identity are constitutionally protected aspects of personal liberty under Article 21.
• The petitioners clarified that they sought only the decriminalization of same-sex relations among consenting adults, without affecting the validity of Section 377 in case of non-consensual acts, acts committed against minors and bestiality.[10]

4.2. Respondent’s Argument

• The Union of India adopted a neutral stance and submitted that the constitutional validity of Section 377, to the extent of consensual same sex relation between adults, should be left to the wisdom of the Supreme Court.
• Some interveners argued that homosexuality goes against the order of nature and that Section 377 was necessary to uphold public morality and constitutional values.
• It was contended that privacy is not an absolute right and thus could not be used to justify immoral conduct or any conduct contrary to public interest.
• Some interveners held the view that, since Section 377 was applicable to everyone irrespective of gender and sexual orientation, it did not violate Article 14 or 15.
• Further, it was also submitted that striking down Section 377 could weaken the constitutional protection against certain non-consensual unnatural sexual offences and adversely affect social institutions.[11]

5. Court’s Reasoning and Analysis

The Constitution Bench examined the constitutional validity of Section 377 of the Indian Penal Code, insofar as it criminalized consensual same-sex relation among adults. Instead of approaching the issue from the standpoint of public morality, the Court shifted its perspective towards constitutional morality, holding that the Constitution exists to protect the rights of every individual, including the minority, irrespective of prevailing social attitudes.[12]

With respect to Articles 14, 15, 19, and 21, the Court held that these rights are interconnected, and thus should be interpreted together to achieve the full protection of individual liberty. It found that Section 377 was arbitrary because the expression, “carnal intercourse against the order of nature” was vague, allowing for discriminatory and inconsistent application. The Court further recognized that discrimination with respect to sexual orientation contradicts the guarantee of equality under Articles 14 and 15.[13]

The Court relied heavily on principles laid down in K.S. Puttaswamy v. Union of India, wherein privacy was recognized as a fundamental right. Building upon this foundation, it observed that sexual orientation is an integral part of an individual’s identity and that consensual sexual relationship falls into the category of privacy and personal autonomy. Similarly, the principles laid down in NALSA v. Union of India were applied to stress dignity, self-identification and freedom to express one’s identity as indispensable components of Article 21. The Court therefore accepted the petitioner’s contentions that criminalizing consensual homosexual relations violated the rights to dignity, privacy, and autonomy.[14]

The Bench found the reasoning adopted in Suresh Kumar Koushal v. Naz Foundation to be flawed. It held that the earlier judgement wrongly relied upon the majoritarian social morality and the fact that the LGBTQ+ community constituted a “minuscule fraction” of the population. The Court was of the opinion that constitutional rights are not determined by the number of people claiming it but belong equally to every citizen. Thus, Suresh Kumar Koushal was overruled.[15]

The Court clarified that its decision did not invalidate Section 377 in its entirety, the provision is still valid for non-consensual sexual acts, offences against minors and acts of bestiality. Only consensual sexual acts between adults in private was decriminalized. Though the five judges delivered separate concurring opinions, they unanimously agreed that constitutional morality must prevail over social morality and that the Constitution gives everyone the right to dignity, morality, privacy and freedom, regardless of their sexual orientation.[16]

6. Judgement and Ratio Decidendi

6.1. The Decision

The Supreme Court, by a unanimous 5-0 decision, held that Section 377 is unconstitutional insofar as it criminalizes consensual sexual acts between adults in private. The Court ruled that this provision violated Articles 14, 15, 19(1)(a), and 21of the Constitution, as it was arbitrary, discriminatory and infringed the rights to equality, freedom of expression, privacy, dignity, and personal liberty. Consequently, Suresh Kumar Koushal v. Naz Foundation was overruled to extent that it criminalized consensual same-sex relations.

Further, the Court clarified that the application of Section 377 would continue in cases of non-consensual sexual acts, offences against minors, and acts of bestiality. Justice Nariman directed the Union Government to publicise the judgment and sensitise government and police authorities to reduce the stigma faced by the LGBTQ+ community.[17]

6.2. Ratio Decidendi

Consensual sexual acts between homosexual adults are protected by the fundamental rights to equality, non-discrimination, freedom of expression, privacy, dignity, and personal liberty under Article 14, 15, 19, and 21of the Constitution. The State cannot criminalize such private consensual conduct merely on the basis of social or majoritarian morality, and constitutional morality must prevail over social prejudice.[18]

7. Critical Analysis

7.1. Significance of Decision   

Judgement of Navtej Singh Johar v. Union of India is one of the most significant judgements given by the Supreme Court in recent times. The Supreme Court read down Section 377, and overruled Suresh Kumar Koushal v. Naz Foundation by saying that fundamental rights should not be dependent on acceptance by majority. This decision established that constitutional morality must prevail over social morality whenever individual rights are at stake.

This judgement aligned Indian constitutional jurisprudence with international human rights standard, where consensual same-sex relations have been increasingly recognized as matters of privacy, dignity and personal autonomy. The Court’s recognition of sexual orientation as an intrinsic part of one’s identity further reinforced the constitutional guarantees of equality and personal liberty for all citizens.[19]

7.2. Implications and Impact

The immediate impact of the verdict was decriminalization of consensual sexual relations amongst homosexual adults, thereby removing the fear of criminal prosecution under Section 377. What is more significant is that the dignity and constitutional status of individuals of the LGBTQ+ community was upheld in this case.

Although it marked a major constitutional milestone, questions relating to marriage equality, adoption, inheritance, anti-discriminatory protection and other civil rights still require legislative intervention. This meant that although the judgement laid strong constitutional foundation, it did not achieve complete legal equality.[20]

 7.3. Critical Evaluation

In my view, the Supreme Court took the correct constitutional route by prioritizing constitutional morality over majoritarian social belief. If the Court had taken into consideration the public opinion in determining the scope of fundamental rights, the very purpose of such rights would have been defeated.

On the other hand, the judgement has its limitations. While it removed the criminal stigma associated with consensual homosexual relations, it failed to address many legal disparities faced by the LGBTQ+ community. Decriminalization alone does not guarantee equal citizenship or social acceptance. Further legislative reforms are required to provide adequate protection from discrimination and to recognize other rights that remain unavailable.

8. Conclusion

The judgement in Navtej Singh Johar v. Union of India marked a transformative step in Indian constitutional jurisprudence by partially striking down Section 377 of the Indian Penal Code and decriminalizing consensual same-sex relation among adults. Through this decision, the Supreme Court reiterated that the guarantees of equality, dignity, privacy, personal liberty, and freedom of expression under Articles 14, 15, 19, and 21 apply to every citizen without distinction, irrespective of one’s sexual orientation or numeric minority.

The most significant takeaway from this decision is that constitutional morality must take precedence over social or majoritarian morality when fundamental rights are at stake. This judgement will be cited for restoring constitutional rights and dignity of the LGBTQ+ community while overruling the previous judgement of Suresh Kumar Koushal v. Naz Foundation. Although it laid down a robust constitutional foundation for equality, issues concerning marriage, adoption, inheritance, and anti-discriminatory protections continue to require legislative and judicial attention.[21]

Reference(S):

Cases

• Navtej Singh Johar v. Union of India, (2018) 10 S.C.C. 1; A.I.R. 2018 S.C. 4321.
• Naz Found. v. Gov’t of NCT of Delhi, 160 (2009) D.L.T. 277 (Del. H.C.).
• Suresh Kumar Koushal v. Naz Found., (2014) 1 S.C.C. 1.
• Justice K.S. Puttaswamy (Retd.) v. Union of India, (2017) 10 S.C.C. 1.
• Nat’l Legal Servs. Auth. v. Union of India, (2014) 5 S.C.C. 438.

Legislation

• INDIA CONST. arts. 14, 15, 19(1)(a), 21, 32.
• Indian Penal Code, No. 45 of 1860, § 377.

Secondary Sources

• Navtej Singh Johar v. Union of India: Case Analysis, SCC Online Blog.
• Navtej Singh Johar v. Union of India, Indian Kanoon.
• Navtej Singh Johar v. Union of India, Writ Petition (Criminal) No. 76 of 2016 (Sup. Ct. Sept. 6, 2018).
• Chhayanshi Goyal, Navtej Singh Johar v. Union of India – Case Commentary, Lawctopus.

[1] Indian Penal Code, No. 45 of 1860, § 377.

[2] Navtej Singh Johar v. Union of India, (2018) 10 S.C.C. 1; A.I.R. 2018 S.C. 4321.

[3] INDIA CONST. arts. 14, 15, 19(1)(a), 21.

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

[5] Indian Penal Code, No. 45 of 1860, § 377; Navtej Singh Johar, (2018) 10 S.C.C. 1.

[6] INDIA CONST. arts. 21, 32; Navtej Singh Johar, (2018) 10 S.C.C. 1.

[7] INDIA CONST. arts. 14, 15, 19(1)(a), 21; Navtej Singh Johar, (2018) 10 S.C.C. 1.

[8] Naz Found. v. Gov’t of NCT of Delhi, 160 (2009) D.L.T. 277 (Del. H.C.); Suresh Kumar Koushal v. Naz Found., (2014) 1 S.C.C. 1; Navtej Singh Johar, (2018) 10 S.C.C. 1.

[9] Navtej Singh Johar, (2018) 10 S.C.C. 1.

[10] Navtej Singh Johar, (2018) 10 S.C.C. 1; Justice K.S. Puttaswamy (Retd.) v. Union of India, (2017) 10 S.C.C. 1; Nat’l Legal Servs. Auth. v. Union of India, (2014) 5 S.C.C. 438.

[11] Navtej Singh Johar, (2018) 10 S.C.C. 1.

[12] Id.

[13] INDIA CONST. arts. 14, 15, 19(1)(a), 21; Navtej Singh Johar, (2018) 10 S.C.C. 1.

[14] Justice K.S. Puttaswamy (Retd.) v. Union of India, (2017) 10 S.C.C. 1; Nat’l Legal Servs. Auth. v. Union of India, (2014) 5 S.C.C. 438; Navtej Singh Johar, (2018) 10 S.C.C. 1.

[15] Suresh Kumar Koushal v. Naz Found., (2014) 1 S.C.C. 1; Navtej Singh Johar, (2018) 10 S.C.C. 1.

[16] Navtej Singh Johar, (2018) 10 S.C.C. 1.

[17] Id.

[18] Navtej Singh Johar, (2018) 10 S.C.C. 1.

[19] Id.

[20] Id.

[21] Navtej Singh Johar, (2018) 10 S.C.C. 1.