Navtej Singh Johar v. Union of India (2018)

Navtej Singh Johar v Union of India (2018) 10 SCC 1 (SC).

Introduction

The landmark judgment of Navtej Singh Johar v. Union of India (2018) stands as a monumental victory in the realm of human rights and constitutional law in India. Decided by a Constitution Bench of the Supreme Court, the case led to the partial striking down of Section 377 of the Indian Penal Code[1] which had criminalized consensual same-sex relationships for over 150 years. This decision was more than just a legal ruling; it was a profound reaffirmation of the constitutional values of liberty, dignity, equality, and privacy. The judgment laid the foundation for recognizing the rights of the LGBTQ+ community, making it one of the most progressive decisions in the history of Indian jurisprudence.

Background of the Case

Section 377 of the Indian Penal Code, enacted during British colonial rule in 1860, stated: “Whoever voluntarily has carnal intercourse against the order of nature with any man, woman or animal, shall be punished with imprisonment for life, or with imprisonment of either description for a term which may extend to ten years, and shall also be liable to fine.”

Though the provision was drafted to penalize non-procreative sexual acts, over the decades, it was primarily used to criminalize same-sex relations and harass members of the LGBTQ+ community.

The legal battle against Section 377 began in earnest with the Naz Foundation v. Government of NCT of Delhi case in 2009, where the Delhi High Court read down the section, ruling that it violated Articles 14, 15, and 21 of the Constitution. However, in Suresh Kumar Koushal v. Naz Foundation (2013)[2], the Supreme Court overturned this ruling, stating that the LGBTQ+ community constituted a “minuscule minority” and that there was insufficient justification to declare the law unconstitutional. This regression sparked widespread outrage among human rights advocates and led to the filing of new writ petitions, eventually culminating in the Navtej Singh Johar case.

Facts of the Case

In this case, five eminent individuals from different walks of life—dancer Navtej Singh Johar, journalist Sunil Mehra, chef Ritu Dalmia, hotelier Aman Nath, and businesswoman Ayesha Kapur—filed a writ petition under Article 32 of the Constitution. They challenged the constitutional validity of Section 377 IPC, arguing that it infringed upon their fundamental rights.

The petitioners contended that their sexual orientation was an intrinsic part of their identity and that Section 377 denied them the right to live with dignity and freedom, subjecting them to stigma, discrimination, and criminalization.

The court also took note of the 2017 landmark ruling in Justice K.S. Puttaswamy v. Union of India, which held that the right to privacy is a fundamental right under Article 21 and specifically recognized sexual orientation as an essential attribute of privacy.

Legal Issues

The case raised the following constitutional questions:

1. Whether Section 377 IPC, to the extent that it criminalizes consensual sexual acts between adults of the same sex, violates the fundamental rights guaranteed under Articles 14, 15, 19, and 21 of the Constitution [3]
2. Whether the Suresh Kumar Koushal judgment was legally sustainable in light of evolving constitutional morality and judicial precedents.
3. Whether the concept of constitutional morality should override prevailing public or social morality in deciding the validity of Section 377.

Arguments

Petitioners’ Arguments:

– Violation of Right to Equality (Article 14): Section 377 was argued to be arbitrary and discriminatory as it criminalized a class of people based solely on their sexual orientation. It did not distinguish between consensual and non-consensual acts or acts between adults and minors.
– Violation of Right Against Discrimination (Article 15): Though Article 15 does not explicitly mention “sexual orientation,” the petitioners argued that the term “sex” should be interpreted broadly to include gender identity and sexual orientation.
– Violation of Freedom of Expression (Article 19): The provision curtailed the LGBTQ+ community’s ability to express their identity freely and without fear, infringing upon the right to personal expression and association.
– Violation of Right to Life and Dignity (Article 21): The criminalization of consensual homosexual acts violated the right to live with dignity, privacy, and personal autonomy. The petitioners argued that being LGBTQ+ was not a “choice” but an inherent identity deserving constitutional protection.
– Chilling Effect and Stigma: The existence of Section 377 fostered fear, harassment, and extortion by law enforcement, thereby infringing upon the petitioners’ right to live free from discrimination and violence.

Respondent’s (Union of India) Arguments:

– The Union of India did not contest the petitioners’ prayer but left the decision to the “wisdom of the court.” This marked a significant departure from previous stances, possibly in light of societal evolution and judicial pronouncements such as Puttaswamy.
– However, the court also heard opposing views from religious and conservative groups who argued for the preservation of “social morality.”

Judgment

Delivered on 6 September 2018, the Supreme Court’s decision was unanimous. The Constitution Bench comprised Chief Justice Dipak Misra, and Justices A.M. Khanwilkar, R.F. Nariman, D.Y. Chandrachud, and Indu Malhotra.

Each judge authored a separate but concurring opinion, together forming a powerful and deeply philosophical judgment.

Key Findings:

1. Partial Striking Down of Section 377: The court held that Section 377 is unconstitutional in so far as it criminalizes consensual sexual conduct between adults. However, it would still apply to non-consensual acts, acts involving minors, and bestiality.
2. Overruling Suresh Koushal: The court explicitly overruled the Suresh Koushal judgment, terming its reasoning flawed and lacking compassion.
3.  Recognition of LGBTQ+ Rights: The court affirmed that sexual orientation is an essential component of identity and that denying its expression violates human dignity.
4. Constitutional Morality over Social Morality: Justice Chandrachud emphasized that constitutional morality must prevail over social or public morality, especially in protecting minority rights.
5. Privacy and Autonomy: Relying on Puttaswamy, the court reiterated that the right to privacy includes sexual autonomy and that the state has no business interfering in the consensual activities of individuals in their private space.
6. Apology to the LGBTQ+ Community: Justice Indu Malhotra famously noted, “History owes an apology to members of the LGBT community and their families, for the delay in providing redressal for the ignominy and ostracism they have suffered.”

Outcome

The judgment in Navtej Singh Johar v. Union of India marked a seismic shift in Indian constitutional jurisprudence. By decriminalizing consensual same-sex relationships, the Supreme Court opened the door for greater acceptance and equality for the LGBTQ+ community. The ruling was met with widespread celebration from activists, civil society, and global human rights organizations.

The judgment had profound implications for the Indian legal system, society, and global human rights discourse:

Legal Impact:

Decriminalization of Homosexuality: LGBTQ+ individuals could now live without fear of arrest or harassment for consensual acts.

Precedent for Future LGBTQ+ Rights: The ruling laid the foundation for the LGBTQ+ community to seek further legal recognition, including marriage equality, adoption, and inheritance rights.

Expansion of Article 15: Though not formally expanded, the interpretation of “sex” to include sexual orientation opened the door for future litigation on discrimination in employment, housing, and education.

Social Impact:

Normalization and Acceptance: The judgment triggered greater social discourse and awareness regarding LGBTQ+ rights and dignity.

Empowerment: It empowered queer individuals to express their identity freely and demand institutional reforms.

Policy Reforms: Several government and corporate policies began evolving post-judgment to include non-discriminatory provisions and diversity initiatives.

However, the court stopped short of legalizing same-sex marriage or civil unions, noting that such issues would require legislative action. Nonetheless, the decision significantly reduced the legal and social stigma associated with homosexuality, serving as a foundation for future advocacy and legal reforms.

Conclusion

The Navtej Singh Johar judgment is a beacon of hope in the ongoing struggle for equality and dignity for all individuals, regardless of sexual orientation. It reaffirmed the role of the Constitution as a living document that evolves with changing societal values. By prioritizing constitutional morality over outdated societal norms, the Supreme Court strengthened the ideals of justice, liberty, and equality.

This case not only redefined LGBTQ+ rights in India but also set a precedent for judicial empathy, inclusion, and progressive interpretation of fundamental rights. It paved the way for future debates and decisions concerning civil rights for marginalized communities and has become a guiding light for constitutional courts around the world.

Reference(S):

1. Indian Penal Code 1860, s 377.
2. Naz Foundation v Government of NCT of Delhi [2009] 160 DLT 277 (Delhi HC).
3. Suresh Kumar Koushal v Naz Foundation (2013) 1 SCC 1.
4. Justice K.S. Puttaswamy v Union of India (2017) 10 SCC 1.
5. Navtej Singh Johar v Union of India (2018) 10 SCC 1 (SC).
6. Constitution of India, arts 14, 15, 19, and 21.

[1] Indian Penal Code 1860, s 377.

[2] Suresh Kumar Koushal v Naz Foundation (2013) 1 SCC 1.

[3] Constitution of India, arts 14, 15, 19, and 21