NAVTEJ SINGH JOHAR v. UNION OF INDIA
Navtej Singh Johar v. Union of India, (2018) 10 S.C.C. 1 (India)
Landmark case on Decriminalization of Homosexuality and Protection of LQBTQ+ Rights in India.
Author- Supriya Chandra, First year B.A.LLB(Hons), S.S. Khanna Girls Degree College, University of Allahabad, Prayagraj
ABSTRACT
The case of Navtej Singh
Johar v. Union of India,( 2018) 10 SCC 1, marked a watershed moment in the
history of Indian constitutional jurisprudence. It represented the triumph of individual
dignity, privacy, and sexual autonomy against the oppressive remnants of
colonial- period legislation. The
Supreme Court, in a landmark judgment, read down Section 377 of the Indian
Penal Code, decriminalizing consensual homosexual acts between adults. This
analysis explores the factual background, legal
complications, constitutional arguments, judicial reasoning, and the
broader socio-legal impact of the judgment.
PRIMARY DETAILS
OF THE CASE
|
Case title |
Navtej Singh Johar & Ors v. Union of India |
|
Case Number |
Writ Petition (Criminal) No. of 2016 |
|
Jurisdiction |
Supreme Court of India |
|
Petitioner |
Navtej Singh Johar and others |
|
Respondent |
Union of India |
|
Case filed On |
27 June 2016 |
|
Date of Judgement |
6 September 2018 |
|
Bench |
Dipak Misra (CJI), A.M. Khanwilkar, R.F. Nariman, D.Y.
Chandrachud, Indu Malhotra |
|
Majority |
Unanimous- All five judges concurred in
decriminalizing consensual homosexuality |
|
Dissent |
None |
|
Legal Provisions Involved |
Article 14, 15, 19, 21 of Constitution of India;
Section 377 IPC |
|
Case Summary Prepared by |
Supriya Chandra |
BRIEF FACTS OF
THE CASE
Navtej Singh Johar, a
renowned Bharatanatyam dancer, along with five other individuals identifying as
LGBTQIA+, approached the Supreme Court by filing a writ petition under Article
32 of the Constitution. The petition challenged the constitutional validity of
Section 377 of the Indian Penal Code, 1860, to the extent that it criminalized
consensual sexual relations between adults of the same sex. The petition was
filed in the aftermath of Suresh Kumar Koushal v. Naz Foundation, (2014) 1 SCC
1, where the Supreme Court had upheld the constitutionality of Section 377,
effectively reversing the progressive decision of the Delhi High Court in Naz
Foundation v. Govt. of NCT of Delhi, 160 DLT 277 (Del HC 2009).
The petitioners in Navtej
Johar contended that their fundamental rights were infringed upon by the
continuing criminalization of their consensual sexual conduct. They sought
recognition of their identity, dignity, and liberty under the constitutional
framework, particularly in light of the Supreme Court’s subsequent ruling in
Justice K.S. Puttaswamy v. Union of India, (2017) 10 SCC 1, which had
emphatically upheld the right to privacy as a fundamental right.
ISSUES INVOLVED
IN THE CASE
1. Whether Section 377 of
the Indian Penal Code violates Articles 14, 15, 19, and 21 of the Constitution
by criminalizing consensual sexual relations between adults of the same sex.
2. Whether the ruling in
Suresh Kumar Koushal v. Naz Foundation should be reconsidered in light of the
evolving constitutional understanding, particularly the jurisprudence
established in Puttaswamy.
3. Whether constitutional
morality ought to override prevailing social morality, especially in
safeguarding the rights of marginalized communities such as the LGBTQIA+
population.
ARGUMENTS OF THE
PARTIES
ARGUMENTS RAISED BY PETITIONERS
The petitioners asserted
that Section 377 IPC was violative of multiple fundamental rights and rested on
outdated moral prejudices rather than legitimate constitutional aims. Their
submissions were as follows:
1.
Violation
of Article 14 (Right to Equality):
The petitioners argued that Section 377 lacked a rational basis and
discriminated solely on the basis of sexual orientation. It arbitrarily
criminalized a class of citizens without any intelligible differentia or
reasonable nexus with a legitimate state purpose, thereby failing the twin
tests of permissible classification.
2.
Violation
of Article 15 (Prohibition of Discrimination): It was contended that discrimination based on sexual
orientation was inherently a form of sex-based discrimination. The term
"sex" under Article 15 must be interpreted to include sexual
orientation, and hence Section 377, by penalizing individuals for their
orientation, was constitutionally impermissible.
3.
Violation
of Article 19 (Freedom of Expression): The petitioners maintained that the provision curtailed their ability
to express their identity, affection, and love. The constant fear of criminal
liability suppressed freedom of speech and association, especially for
individuals trying to live openly as LGBTQIA+ persons.
4.
Violation
of Article 21 (Right to Life and Personal Liberty): Central to the argument was that Section 377
infringed upon the right to privacy, dignity, and personal autonomy. The
judgment in Justice K.S. Puttaswamy had made it abundantly clear that intimate
personal choices, including sexual orientation, fall within the domain of
privacy and personal liberty.
Historical and Social Context:
The petitioners also submitted that Section 377, a colonial-era law, had been
weaponized to harass, intimidate, and blackmail LGBTQIA+ individuals. Its
existence was antithetical to a modern constitutional democracy and perpetuated
societal stigma.
ARGUMENTS BY THE RESPONDENT
(UNION OF INDIA)
The Union of India adopted a
cautious and neutral stance during the proceedings. The key points made on
behalf of the respondent were:
1.
No
Objection to Decriminalization of Consensual Acts: The Union submitted that it would not contest the
constitutionality of Section 377 to the extent that it applied to consensual
sexual acts between adults conducted in private. It left the matter to the
“wisdom of the Court.”
2.
Preservation
of the Provision for Non-Consensual Acts: The respondent emphasized that Section 377 should not be struck down
in entirety. It argued that the provision must continue to operate in cases
involving non-consensual acts, sexual abuse of children, and bestiality. These
were considered legitimate public concerns that Section 377 was equipped to
address.
3.
Legislative
Domain: The government
underscored that any decision on issues such as same-sex marriage, adoption,
and civil unions fell within the exclusive domain of the legislature. The
respondent urged the Court to confine its ruling strictly to the constitutional
validity of Section 377 vis-à-vis consensual adult acts.
4.
Potential
Social Implications: Though
not forcefully argued, concerns were briefly raised regarding potential social
consequences of judicial intervention. However, the government refrained from
making any explicit argument against LGBTQIA+ rights.
This clear demarcation of
arguments presented by both sides reflects the evolving legal and political
landscape in India. While the petitioners relied on robust constitutional and
moral reasoning, the Union of India chose to defer to judicial discretion while
seeking to retain the utility of Section 377 for non-consensual and
exploitative acts.
LEGAL ASPECTS
INVOLVED
The constitutional scrutiny
of Section 377 revolved around the principle of substantive equality, dignity,
and autonomy. The legal doctrine of constitutional morality served as a compass
to navigate the conflict between entrenched societal norms and the rights of
marginalized communities.
1.
Article 14: The Court emphasized that any classification must be
based on intelligible differentia and serve a legitimate objective. Section 377
criminalized consensual relations based solely on the sexual orientation of the
individuals, thereby failing the twin tests of classification under Article 14.
2.
Article 15: Though sexual orientation is not explicitly
mentioned, the Court adopted a purposive interpretation of “sex” to include
sexual orientation, thereby bringing it within the protective umbrella of
non-discrimination.
3.
Article 19: The ability to express oneself, including aspects of
identity such as sexual orientation, falls within the ambit of freedom of
speech and expression. The fear of prosecution under Section 377 had a
suppressive effect on such freedoms.
4.
Article 21: The heart of the judgment lay in its interpretation
of Article 21. The Court reiterated that the right to life includes the right
to dignity, autonomy, and privacy. Section 377 intruded into the intimate
sphere of life, negating individual choice and violating the right to live with
dignity.
The Court also leaned
heavily on the doctrine of constitutional morality as developed in
previous jurisprudence. This concept suggests that the interpretation of
constitutional provisions must be guided by the values enshrined in the
Constitution, and not by popular or majoritarian notions of morality.
JUDGEMENT
In a landmark unanimous
decision, the Constitution Bench of the Supreme Court held that Section 377 was
unconstitutional insofar as it criminalized consensual sexual conduct between
adults. Each of the five judges wrote separate, concurring opinions, reflecting
a rich and multidimensional constitutional discourse.
Chief Justice Dipak Misra,
writing for himself and Justice Khanwilkar, stressed that discrimination on the
basis of sexual orientation is deeply offensive to the dignity and self-worth
of an individual. The judgment described Section 377 as “irrational, arbitrary
and incomprehensible.”
Justice R.F. Nariman
emphasized the evolution of privacy jurisprudence and held that the
criminalization of identity amounted to an egregious violation of Article 21.
He also noted that Section 377 lacked a rational classification and failed the
test of manifest arbitrariness under Article 14.
Justice D.Y. Chandrachud
elaborated on the historical injustices faced by the LGBTQIA+ community and
argued for a transformative reading of the Constitution. He underlined that
constitutional morality must trump social morality and that the judiciary must
play the role of a counter-majoritarian institution.
Justice Indu Malhotra
poignantly observed that “history owes an apology” to the community for the
indignities suffered and the denial of rights over the years. Her opinion was
remarkable for its empathy and acknowledgment of systemic injustice.
The Court clarified that
Section 377 would remain operative in cases involving non-consensual acts, acts
against animals, and acts involving minors. Thus, the judgment achieved a
partial reading down rather than a wholesale striking down of the provision.
IMPACT AND
SIGNIFICANCE
The decision in Navtej Singh
Johar has been heralded as a milestone in India’s human rights and
constitutional history. It was not merely a decriminalization of homosexual
acts but an affirmation of identity, love, and equal citizenship.The ruling
overruled Suresh Kumar Koushal and restored the progressive jurisprudence of Naz
Foundation, thereby providing much-needed legal clarity. More importantly, it
built on the principles laid down in Puttaswamy, extending the right to privacy
to encompass sexual orientation.The Court’semphasis on dignity and autonomy
underscored a substantive, rather than formal, understanding of equality. It
paved the way for future legal reforms related to same-sex marriage, adoption
rights, anti-discrimination laws, and recognition of queer relationships under
civil law.
From a jurisprudential
standpoint, Navtej Johar reiterated the relevance of transformative
constitutionalism, the idea that the Constitution must serve as a vehicle for
social change and inclusion. The judgment marked a progressive expansion of
rights and laid the foundation for a more inclusive and empathetic legal
order.While the social acceptance of LGBTQIA+ individuals remains a work in
progress, the judgment has undoubtedly empowered the community to assert their
rights and challenge discriminatory practices in various spheres, including
employment, healthcare, and education.
CONCLUSION
Navtej Singh Johar v. Union
of India is a defining moment in India’s constitutional journey. The case
exemplifies the judiciary’s role in upholding the rights of minorities and
marginalized groups, even when such decisions may not align with prevalent
social views. The decision to decriminalize consensual same-sex relationships
reaffirms the core constitutional values of liberty, dignity, and equality. It
is a celebration of individual autonomy and a step toward fulfilling the
Constitution’s promise of justice, social, economic, and politicalto all
citizens.
By recognizing the LGBTQIA+ community’s rights as inherent and inalienable, the Supreme Court has reinforced the transformative nature of the Indian Constitution. The judgment in Navtej Johar will continue to serve as a beacon of hope and a symbol of justice in the face of prejudice, ensuring that the law remains a tool for liberation and not oppression.
- Navtej Singh Johar case
- Section 377 IPC
- Decriminalization of homosexuality in India
- LGBTQIA+ rights in India
- Supreme Court LGBTQ judgement
- Landmark LGBTQ case India
- Article 14 15 19 21 LGBT
- Homosexuality legal India
- Constitutional morality India
- LGBTQ rights judgment
- Navtej Singh Johar vs Union of India case summary
- Section 377 Supreme Court judgment 2018
- Indian Penal Code Section 377 history
- LGBTQIA+ community legal rights India
- Indian Supreme Court LGBT case
- Naz Foundation case overruled
- Puttaswamy privacy judgment link to LGBTQ
- Dipak Misra LGBTQ judgment
- Right to privacy and sexual orientation India
- Transformative constitutionalism India
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