Navtej Singh Johar v. Union of India (2018)

Introduction 

At the core of the Supreme Court proceedings was the question of whether Section 377 of the IPC was violating the Constitution through its criminalization of same-sex consenting sexual behavior of adults, and by extension, the rights protected under Articles 14, 15, 19 and 21 of the Constitution of India. While the proceedings revolved around many questions, the combination of issues made it easy to group under three main threads – the issue of decriminalizing same-sex relationships between adults in India, the issue of embedding dignity, autonomy and equality for LGBTQ+ citizens in India for their entire lifespan of existence, and the issue of the Indian Constitution as an evolving and growing framework of justice and rights. It also reaffirmed the judiciary as an institution that functions as a counter-majoritarian force – to create rights for minorities which exceed the social and political majorities, and to work to the end goal of dignity for human beings over time. 

Historical Background of Section 377 

Section 377 of the Indian Penal Code is a vestige of a British colonial Government enacted in 1860 and included in a proposal for a criminal code put forward by Lord Macaulay as part of a lengthy British tradition of codifying sexual offenses. The criminalization of “carnal intercourse against the order of nature,” borrowed from the Buggery Act of England, provided for either life imprisonment or imprisonment for up to ten years for the act. While the terminology was vague, it was invoked controversially against homosexual sexual activity, but as previously mentioned this provision criminalized not only the acts of homosexuals , it deepened stigma, violence, and discrimination against sexual minorities. The challenge to the provision in the present constitution was first initiated by way of a petition by the Naz Foundation before the Delhi High Court in 2001, which went through extended litigation, and subsequently ruled in Naz Foundation v. Govt. of NCT of Delhi 1, which held that the provision had infringed Articles 14, 15 and 21 of the Constitution to the extent that it criminalized sexual acts of consenting adults. The ruling was rightly celebrated as an enlightened reading of the constitutional freedoms, but it was not an enduring victory. The Supreme Court of India overturned the Delhi High Court ruling in Suresh Kumar Koushal v. Naz Foundation 2[(2014) 1 SCC 1] and declared that the LGBTQ+ community was a ‘miniscule minority’ and that Parliament was the appropriate forum to decide the issue. This reversal attracted criticism both nationally and internationally. 

The tide turned yet again with the decision of the Supreme Court in K.S. Puttaswamy v. Union of India3 when a nine-judge Bench found and enshrined a right to privacy as a fundamental right under Article 21 of the Constitution of India, and, importantly, a few of the judges stated that sexual orientation falls under dignity and privacy. The recognition by the Bench gave a constitutional basis for a new challenge to Section 377 which resulted in what later became known as Navtej Singh Johar v. Union of India4. 

Facts of the Case 

In the Navtej Singh Johar case, there existed petitioners and not anonymous litigants. And petitioners were those who were plainly individuals and notoriety petitioners. Each of the petitioners belonged from the most different lived experience and yet each petitioner on behalf of represented the range of the LGBTQ + of India. The Petitioners (in the case of individuals) all had context with the name of the firstly named petitioner, Navtej Singh Johar, who is a choreographer and dancer of Bharatnatyam; Sunil Mehra, a writer; Aman Nath, a historian and formerly hotelier; Ritu Dalmia, formerly tagged as an entrepreneur turned chef; Arif Jafar, an activist and Keshav Suri, a hotelier’s and activist for dignity/commonality for LGBTQ rights. 

The petitioners contended that Section 377 (punishment) that criminalized homosexual acts and relationships between consenting adults, violate their individual (human) rights concerning inequality, non-discrimination, dignity, autonomy, privacy and free speech. The case was then directed as a matter by the Supreme Court of India to the cited five five-judge Constitution Bench (including the Chief Justice, Dipak Misra, Justice A.M. Khanwilkar, Justice R.F. Nariman, Justice D.Y. Chandrachud and Justice Indu Malhotra. The case was so grave and serious, and in consideration of the face-value recognition by the Court of historical and ongoing discrimination against the LGBTQ+, the court gave record time for argument and consideration to petitioners, intervenors, and the Union of India 

Issues Before the Court 

The Supreme Court was basically called to decide whether Section 377 of the IPC effectively violated the fundamental rights outlined in the Constitution, namely Articles, 14, 15, 19 and 21, by criminalising consensual sexual conduct between adults of the same sex. The Court also had to grapple with whether the privacy, dignity and autonomy rights established in Puttaswamy included sexual orientation. Another dimension of the matter was whether constitutional morality should take priority over social morality especially considering violations of rights for minorities, thereby the case was not just about the legality of Section 377, it was about the Constitution’s role in, among other routine daily matters, the protection of human dignity and equality. 

Arguments 

The Petitioners argued that Section 377 was unconstitutional to the extent that it made an irrational distinction between homosexual and heterosexual relationships with no relationship to any legitimate state interest, in violation of Article 14. It was argued that in consideration of the provisions of Article 15 that did not utilize the term sexual orientation, discrimination based on sex also necessarily involved sexual orientation, and therefore Section 377 violated Article 15. They also argued that criminalizing homosexuality impinged on free speech, violating Article 19(1)(a), by forcing the LGBTQ+ community to conceal their identity. 

Significantly, they argued that privacy and decisional autonomy were established in Article 21 as a facet of the right to life and the infringement of adult consenting partners by Section 377 is unconstitutional. Petitioners also accepted that social morality cannot govern constitutional rights, constitutional morality must govern the judges interpretive (including reading-down) process. The Union of India originally supported the provisions of Section 377, it later remained neutral on the basis that it would leave to the Court to reach a conclusion – in its discretion. It stated that it was proper that the matter be resolved by Parliament as the representative body to deal with what is a socially sensitive problem. It also demonstrated that in the process of reading-down Section 377 there may be unintended instabilities for other sexual offences. 

Judgment 

On September 6, 2018, the Supreme Court by unanimous opinion gave a historic decision that decriminalized consenting adult same-sex acts. While the decision was unanimous, the Court issued four separate judgments with reasons, each judgment adding additional ingredients to the reasons. Chief Justice Dipak Misra in the majority judgment for himself and Justice A.M. Khanwilkar held that constitutional morality is to prevail over social morality, and that the rights of the LGBTQ+ community cannot be extinguished based on the stupidity of populist prejudice. They found section 377 was arbitrary, discriminatory and violative of dignity. 

Justice R.F. Nariman stated that sexual orientation is part of the essence of privacy and autonomy. He stated that if it was decided that consensual, sexual acts fall under Article 14’s test of manifest arbitrariness, then part of Section 377 which criminalized: consensual acts, was unconstitutional as there was no justification. 

Justice D.Y. Chandrachud delivered an incredibly strong formulation on the judgment describing the Koushal judgement as mistaken, he stated that Section 377 perpetuates stereotypes and leads to discrimination and in this respect, he stated that constitutional courts exist to protect the minority, however obnoxious that minority could be to the majority, thereby setting out the role of the judiciary as counter-majoritarian. Justice Indu Malhotra, the only woman on the bench, made the point well when she stated that “history owes an apology” to LGBTQ+ persons, and that they cannot be punished for a natural sexual difference. She declared that homosexuality is not a mental health disorder, it is not a crime, stigma is not the basis for criminal law. 

By consenting sexual activity between adults, these views collectively rendered Section 377 unconstitutional. The Court was explicit in stating that the provision would still apply to non-consensual intercourse, bestiality and offences against children.

Legal Principles Laid Down 

In summation, the decision was the first in a higher court to explicitly state four principles that directly address your basic rights. First, it accepted sexual orientation as relevant to identity and dignity that were protected as part of Article 21. Secondly, the decision reaffirmed that any law that violated (i.e., failed the test of manifest arbitrariness) would be void and would have to be struck down or will have to be struck down pursuant to Article 14. Thirdly, it enlarged the object of Article 15’s prohibition against sex discrimination by accepting sexual orientation. Fourthly, it concluded criminalization of same-sex relations under conditions of ambiguity chilled the Constitutionally protected rights to the informed expressly stated clearly articulated form of Article 19(1)(a). It established the doctrine of constitutional morality as the rationale for the interpretation of all fundamental rights over social morality. Impact on Law and Developments moving forward. 

Impact and Subsequent Developments 

Evidently, the decision’s immediacy had the effect of decriminalizing homosexuality and releasing millions of LGBTQ+ people from the grip of criminal law, but it also symbolically recognized LGBTQ+ people as equal citizens deserving of protection under the Constitution. Moreover, it added to the framing of the larger conversation around rights and constitutional morality as it pertains to arguments for same-sex marriage, the right to adopt, equality as a worker, etc. 5 

Judicially, the judgement added to and built on existing judgments such as Puttaswamy (the right to privacy), NALSA v and others (rights of transgender persons), and will frame future, subsequent hearings e.g. the marriage equality cases of 2023 , where the Supreme Court while not entirely going all the way, by recognizing same-sex marriage, confirmed Navtej and ordered states to take steps to remove or mitigate discrimination based on someone’s sexual orientation. 

Critical Analysis 

It supported the ideal of transformative constitutionalism catalytic to an understanding of the Constitution as a living entity that must evolve with the times. The Court established constitutional morality as more appropriate than social morality which it rationalized as the guardian of minority rights, drawing inspiration from the inherently anti-majoritarian character of courts. Simultaneously, this judgement anchored India within global networks of human rights activism by referring to transborder regimes of rights concerning LGBTQ+ rights. There were limits to the judgement. Although it included decriminalization, it did not stipulate general civil rights for LGBTQ+ people in relation to marriage, inheritance, adoption or safeguards against discrimination. Therefore, LGBTQ+ people are not longer criminals – but they are surely unequal concerning many civilly enforceable rights. In this way the judgement starts the conversation. In any event, despite the law being more progressive, societal prejudice still exists which indicates a low probability that the tangible effects of the judgement will be evident in the mechanics of everyday life. 

Conclusion 

In conclusion, Navtej Singh Johar v. Union of India is a significant case which changed Indian constitutional law and advanced human rights. The Supreme Court’s de-criminalization of Section 377 regarding consensual adult gay sex returned dignity, privacy and equality for a group of identified people who had been mistreated for centuries. The decision breathes life into the possibilities of the Indian Constitution towards advancement and acts as a charter of freedom and equity for everyone regardless of what anyone else thinks or believes. There will be continued struggles around same-sex marriage and family rights, the development of anti-discriminatory legislation, but this judgement will always mark an important milestone along the route to greater inklings of equality and inclusion. Justice Malhotra stated that “history has a debt” to the LGBTQ+ community, and Navtej is a vessel to begin to repay some of that debt.6 

Reference(S):

1 Naz Foundation v. Govt. of NCT of Delhi, 160 (2009) DLT 277.

2 Suresh Kumar Koushal v. Naz Foundation, (2014) 1 SCC 1.

3 K.S. Puttaswamy v. Union of India, (2017) 10 SCC 1. 

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

5 Gautam Bhatia, The Transformative Constitution (HarperCollins 2019)

6 Arvind Narrain, Queer: Despised Sexuality, Law and Social Change (Yoda Press 2004).