Navtej Singh Johar v Union of India

Case Name: Navtej Singh Johar v Union of India 

Citation: 2018 10 SCC 1 (SC)

Court: Supreme Court of India

Date of Decision: 6 September 2018

Bench Composition: 5‑Judge Constitution Bench

Introduction:

Navtej Singh Johar case stands as the landmark case in the Indian criminal jurisprudence, marking the radical change by decriminalizing the same-sex or homosexual acts between adults. Representing the twenty four years of judicial struggle originating from the AIDS Bhedbhav Virodhi Andolan(ABVA)[1] in 1994, stood out to be the first case in exposing how Section 377 of the Indian Penal Code, 1860[2], affecting public health and fundamental liberties. While the subsequent decisions like the Naz Foundation(2009) [3]showed progressive decriminalization and Suresh Kumar Koushal(2013) [4]reflecting the regression, Navtej Singh Johar corrected these historical errors that got implemented during the colonial era, thus upholding the constitutional morality through its fundamental rights guaranteed under Article 14, 15, 19 and 21 of the Constitution of India. [5]

Facts:

The dispute in Navtej Singh Johar v Union of India, revolved around the constitutional validity of the Section 377 of the Indian Penal Code, 1860 enacted during the time of Thomas Babington Macaulay, criminalized the intercourse actions against the order of nature. Voluntary consensual acts of sodomy, fellatio and other kinds of immoral acts of similar kind were punishable under this section, where punishments were extending till Life imprisonment.

The litigation towards this issue primarily originated in 1994 following the petition by the AIDS Bhedbhav Virodhi Andolan(ABVA), the Naz Foundation filed a Public Interest Litigation (PIL) in 2001[6]. This ended up in a landmark Delhi High Court Ruling in 2009, which decriminalized the act of same sex intercourse, holding the Section 377 arbitrary. Whereas in the year 2013, a two judge bench of Supreme Court in Suresh Kumar Koushal v Naz Foundation reversed the effect by reinstating that LGBTQ+ community were of a minority whose claims were insignificant.

The focus shifted in the year 2016, when high profiles like the classical dancer Navtej Singh Johar, journalist Sunil Mehra and three others filed a writ petition under Article 32 directly pointing out that Section 377 is fundamentally questionable, as it violated the key fundamental rights such as Article 14 which guaranteed Equality, Article 15 prohibiting discrimination solely based on  certain grounds such as sex, Article 19 providing for freedom to undertake activities of their own choice subjected to regulations and Article 21 providing for life and personal liberty, effectively affecting the golden triangle as established under Maneka Gandhi v Union of India.

Issues:

Issue 1: Whether Section 377 of the Indian Penal Code, 1860, by criminalizing homosexuality, violates the right to equality and equal protection of laws guaranteed under Article 14 of the Constitution of India?

Issue 2: Whether Section 377 affects the freedom of speech, expression, and choice, thereby violating the fundamental rights guaranteed under Article 19(1)(a) of the Constitution?

Issue 3: Whether the expression “sex” under Article 15(1) of the Constitution includes “sexual orientation”? Also, whether Section 377 constitutes arbitrary discrimination solely on the  ground of sexual orientation?

Issue 4: Whether the right to life, personal liberty, dignity and autonomy under Article 21 encompasses the right to choose a sexual partner, and whether the criminalization of consensual adult sexuality under Section 377 fails the constitutional test of proportionality?

Issue 5: Whether the decision of the Supreme Court in Suresh Kumar Koushal v. Naz Foundation (2013) was anchored in sound constitutional principles or required reversal effect under the doctrine of transformative constitutionalism?

Arguments:

Contentions of the Petitioners

The petitioners set forth their points stating that Section 377 of IPC is unconstitutional in the modern criminal jurisprudence that directly violated the fundamental rights. They further contented that Section 377 created an arbitrary classification that lacked two major components intelligible differentia and rational nexus, deliberately failing the test established under Article 14 through its judicial precedents on the same. Also, they added that Article 15 is violated through stereotypes based on gender, which is direct violation of discrimination based on sex protected under Article 15.

The petitioners also pointed out that the Suresh Koushal 2013 judgement has made a constitutional error by conditioning fundamental rights on minority group.

Contentions of the Defendant

The Union of India didn’t strongly oppose the challenge, but instead, it insisted the Court to decide the Constitutional validity of the Section 377 regarding the consensual acts in private. It further argues that Section 377 still covers non-consensual acts such as rape, bestiality and sexual offences against minors, which are essential for protecting public interest and prevention of legal gap. The respondent further added that decriminalizing 377 completely will lead to vulnerable state for the people and thus not to remove that specific part, which needs to be safeguarded. The state has also asked the court to expand the ruling into civil matters as they shall be decided by the Parliament and not by the judiciary.

Court’s Reasoning and Analysis

The five-judge constitutional bench awarded a unanimous decision on this matter, running through multiple analytical concurring opinions. The Court’s answering totally depended on Transformative Constitutionalism. This principle is the one which keeps the Constitution living and helps it progress in accordance with the current stance. Chief Justice Dipak Mishra and Justice Khanwilkar provided for distinction between social and constitutional morality. The Court ruled that constitutional morality must invariably supersede majoritarian social biases. A law cannot be sustained simply because it satisfies the moral disapproval of the majority, instead it must also conform to the constitutional values of liberty and equality. The Bench heavily rebuked the reasoning in Suresh Koushal, stating that the “minuscule minority” rationale is completely foreign to constitutional jurisprudence. The court further provided that the state has a binding obligation to protect every single person’s right, irrespective of the numerical composition.

Judgement and Ratio Decidendi

The Supreme Court of India read down the Section 377 of the Indian Penal Code 1860. The court declared that the Section 377 is unconstitutional to the extent where it criminalized the sexual acts between the adults in private through proper mutual consent. The previous decision Suresh Kumar Koushal was overruled in an explicit manner. The Court maintained that the provisions of Section 377 which penalizes non-consensual sexual acts, sexual conduct involving minors and bestiality are valid and are fully punishable under law as prescribed.

Ratio Decidendi:

The consensual sexual intimacy is something in private and is immutable in nature guaranteed under Article 21 of the Constitution.

Supremacy of Constitutional Morality over social morality and legislation.

Non discrimination as per Article 15(1) of Constitution of India.

Critical Analysis

This case laid down a judgement reflecting a paradigm shift in the constitutional law. The best contribution of this verdict is the leap on nature of privacy from being a negative right to a positive right. The Court also established that protection extends beyond just private secrecy in own property. It also guarantees the right to express, right to have specific choices and helps in going through public spaces without any state provided hostility.

While the Court has successfully decriminalized homosexuality, it didn’t grant complete civil rights, leaving them stuck under a vacuum. It only removed the threats faced by them from state, but failed to grant a direct civil right such as right to adopt, right to marry, inherit property, etc. But during the recent times, cases have been raised regarding these issues and Navtej Singh Johar case has become a landmark decision in support of the arguments.

Conclusion

Navtej Singh Johar v Union of India is not just an eclipse of a specific provision, but also a clear example of progressive criminal jurisprudence and transformative constitutionalism in India. The key takeaway from this landmark case is that fundamental rights can never be in vain regardless of what comes in the way, such as a social morality or legislative barrier or whatsoever. This case has laid an undeiable foundation that gives scope for future generations to further challenge any discrimination and hurdles in progression.

Bibliography:

Legislation

• Indian Penal Code, 1860, s 377.
• Constitution of India, arts 14, 15, 19 and 21.

Cases

• AIDS Bhedbhav Virodhi Andolan v Union of India, Writ Petition (Civil) No 1784 of 1994 (Delhi High Court).
• Naz Foundation v Government of NCT of Delhi, WP(C) No 7455 of 2001, Delhi High Court, judgment dated 2 July 2009.
• Suresh Kumar Koushal v Naz Foundation (2014) 1 SCC 1 (Supreme Court of India).
• Navtej Singh Johar v Union of India (2018) 10 SCC 1 (Supreme Court of India).

Secondary Sources

• AIDS Bhedbhav Virodhi Andolan, Less than Gay: A Citizens’ Report on the Status of Homosexuality in India (New Delhi, 1991).

[1] AIDS Bhedbhav Virodhi Andolan, Less than Gay: A Citizens’ Report on the Status of Homosexuality in India (New Delhi, 1991)

[2] Indian Penal Code, 1860, s 377

[3] Naz Foundation v Government of NCT of Delhi, WP(C) No 7455 of 2001, Delhi High Court, judgment dated 2 July 2009

[4] Suresh Kumar Koushal v Naz Foundation (2014) 1 SCC 1 (Supreme Court of India)

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