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

Case Name: Navtej Singh Johar v. Union of India (2018):10 SCC 1 

Court Name & Bench: 

• Name of the Court: Supreme Court of India 
• Name of the Judges: Chief Justice Dipak Misra, and Justices R.F. Nariman, A.M.  Khanwilkar, D.Y. Chandrachud, and Indu Malhotra 
• Bench Type: Constitutional Bench (5-judge bench) 

Date of Judgment: 

• Exact Date: September 6, 2018 

Parties Involved: 

• Petitioner: Navtej Singh Johar, a dancer, and others from the LGBTQ+ community
• Respondent: Union of India 

Introduction 

In the annals of Indian constitutional law, few judgments have resonated as deeply and  personally as the Supreme Court’s decision in Navtej Singh Johar v. Union of India (2018).  This case didn’t just interpret the law, it redefined the meaning of dignity, equality, and  freedom for millions of LGBTQ+ individuals across the country. By decriminalizing  consensual same-sex relationships, the Court not only struck down a colonial-era law but  also sent a powerful message: that the Indian Constitution stands as a guardian of individual  liberty, regardless of whom one loves. 

Background and Facts of the Case 

The roots of this case lie in Section 377 of the Indian Penal Code (IPC), a law introduced in  1861 during British colonial rule. The section criminalized “carnal intercourse against the order of nature,” a vague phrase that had long been interpreted to include consensual  homosexual acts. For decades, this law cast a shadow over the lives of LGBTQ+ individuals  in India, subjecting them to harassment, blackmail, and social ostracization. 

In 2016, Navtej Singh Johar, a renowned Bharatanatyam dancer and a member of the  LGBTQ+ community, along with five other petitioners, approached the Supreme Court. They  challenged the constitutional validity of Section 377, arguing that it infringed upon their  fundamental rights. These petitioners came from diverse walks of life: artists,  businesspeople, and activists, all united by a common cause, to live and love freely without  fear of criminal prosecution. 

Their petition followed a long and winding legal journey. In 2009, the Delhi High Court had  read down Section 377 in the Naz Foundation case, decriminalizing consensual homosexual  acts. However, in 2013, the Supreme Court reversed this decision in Suresh Kumar Koushal  v. Naz Foundation, reinstating the criminality of such acts. The Navtej Johar case was, in many  ways, a response to that reversal, a plea for justice and recognition. 

Key Legal Issues 

The case raised profound constitutional questions that went to the heart of India’s  democratic ethos: 

1. Does Section 377 violate the fundamental rights guaranteed under the Constitution,  particularly Articles 14 (equality), 15 (non-discrimination), 19 (freedom of  expression), and 21 (right to life and personal liberty)? 
2. Do LGBTQ+ individuals have the right to dignity, privacy, and autonomy over their  bodies and relationships? 
3. Can a law rooted in colonial morality override the principles of constitutional  morality in a modern democracy? 

Arguments Presented 

Petitioners’ Stand

The petitioners argued passionately that Section 377 was not just a legal relic, it was a tool  of oppression. They contended that the law violated their right to live with dignity and  autonomy. It criminalized their very identity and subjected them to constant fear and  discrimination. 

They emphasized that the law was being misused by police and society alike to harass  LGBTQ+ individuals. More importantly, they argued that consensual sexual acts between  adults in private should not be the concern of the state. The law, they said, had no place in  the bedrooms of consenting adults. 

The petitioners also drew upon international human rights principles and jurisprudence  from other countries that had decriminalized homosexuality, urging the Court to align Indian  law with global standards of equality and justice. 

Respondents’ Position 

The Union of India, in a somewhat neutral stance, left the matter to the “wisdom of the Court.”  However, some intervenors argued in favor of retaining Section 377, citing concerns about  public morality, health, and the supposed threat to traditional Indian values. They claimed  that decriminalizing homosexuality could lead to moral decay and social instability. 

The Verdict: A Resounding Affirmation of Rights 

On September 6, 2018, a five-judge Constitution Bench of the Supreme Court delivered a  unanimous and historic verdict. The Court held that Section 377, insofar as it criminalized  consensual sexual conduct between adults, was unconstitutional. 

Each judge wrote a separate but concurring opinion, weaving together a rich tapestry of legal  reasoning, empathy, and moral clarity. The judgment was not just a legal document, it was a  manifesto for human dignity. 

Key Highlights of the Judgment

• Justice Dipak Misra, writing for himself and Justice A.M. Khanwilkar, emphasized  that “constitutional morality” must prevail over “social morality.” He declared that  the Constitution protects the right of every individual to express their identity and  love without fear. 
• Justice Rohinton Nariman focused on the arbitrary nature of Section 377 and its  incompatibility with the right to equality under Article 14. 
• Justice D.Y. Chandrachud delivered a powerful opinion on the right to privacy,  building on the Court’s earlier judgment in Justice K.S. Puttaswamy v. Union of India.  He stated that sexual orientation is an essential attribute of privacy and identity. 
• Justice Indu Malhotra, the sole woman on the bench, made a poignant observation:  “History owes an apology to members of the LGBTQ community and their families.” 

Legal Reasoning: The Heart of the Decision 

The Court’s reasoning rested on several foundational principles: 

1. Constitutional Morality vs. Social Morality: The judges made it clear that the  Constitution is not a mirror of societal prejudices. Instead, it is a transformative  document that must protect the rights of minorities, even when the majority  disagrees. 
2. Right to Privacy and Autonomy: Building on the Puttaswamy judgment, the Court  held that the right to privacy includes the right to make intimate personal choices,  including one’s sexual orientation. 
3. Equality and Non-Discrimination: Section 377 was found to be discriminatory and  violative of Article 14. It treated LGBTQ+ individuals as second-class citizens and  denied them equal protection under the law. 
4. Freedom of Expression: The law was seen as a barrier to the free expression of  identity and love, thus infringing upon Article 19. 
5. Right to Life and Dignity: The Court reaffirmed that the right to life under Article 21  includes the right to live with dignity, and that criminalizing consensual same-sex  relationships was a direct assault on this right.

Impact and Aftermath 

The Navtej Singh Johar judgment was a watershed moment in India’s human rights journey.  It didn’t just decriminalize homosexuality, it validated the existence, love, and dignity of  millions. 

Social and Cultural Impact 

• The judgment sparked celebrations across the country, with pride marches, public  gatherings, and emotional outpourings of relief and joy. 
• It inspired a new wave of activism, art, and storytelling centered on LGBTQ+ lives and  experiences. 
• Educational institutions, workplaces, and media began engaging more openly with  issues of gender and sexuality. 

Legal and Policy Implications 

• The judgment laid the groundwork for future legal battles, including the ongoing fight  for same-sex marriage recognition. 
• It prompted discussions about anti-discrimination laws, transgender rights, and  inclusive policies in schools and workplaces. 
• However, the Court stopped short of granting affirmative rights such as marriage,  adoption, or inheritance, leaving those battles for another day. 

Critical Reflections 

While the judgment was widely celebrated, it also drew some criticism for its limited scope.  Critics pointed out that: 

• The Court did not address the broader structural inequalities faced by LGBTQ+  individuals, such as homelessness, unemployment, and lack of access to healthcare.
• There was no directive for affirmative action or sensitization programs to combat  societal stigma.
• The ruling, while powerful, did not automatically translate into social acceptance,  especially in rural and conservative parts of India. 

Nonetheless, the judgment remains a monumental step forward. It affirmed that the  Constitution belongs to every Indian, regardless of whom they love. 

Conclusion 

The Navtej Singh Johar case is more than a legal milestone, it is a story of courage, resilience,  and hope. It reminds us that the arc of the moral universe, while long, does indeed bend  toward justice. In striking down Section 377, the Supreme Court didn’t just change the law,  it changed lives. 

The judgment is a beacon for other nations grappling with similar issues and a testament to  the power of constitutional courts to uphold human dignity. As India continues its journey  toward equality, this case will remain a cornerstone of its democratic and inclusive spirit.