Author-Vaishali Tomar, a 4th year student at Faculty of Law, AMU, Aligarh
Abstract:
The landmark judgment of Navtej Singh Johar v. Union of India (2018) marked a significant milestone in India’s journey towards recognizing and protecting the rights of the LGBTQ+ community. This article provides an analysis of the Supreme Court’s decision to decriminalize consensual homosexual acts between adults in private, striking down Section 377 of the Indian Penal Code as unconstitutional. It examine the legal and social implications of this judgment, highlighting its impact on the rights to equality, privacy, and dignity. The article also explores the broader significance of the judgment, including its potential to challenge entrenched social norms and promote inclusivity. Ultimately, this article demonstrates how Navtej Singh Johar v. Union of India represents a crucial step towards recognizing and protecting the fundamental rights of LGBTQ+ individuals in India.
Introduction
The landmark judgment in Navtej Singh Johar v. Union of India marked a transformative moment in India’s legal and social landscape by redefining the boundaries of love, and personal freedom.
The Navtej Singh Johar case was a battle not just against legal oppression but also against the stigmatization of love that transcends gender norms. At its heart, this case questioned the state’s role in regulating the private lives of individuals and determining the boundaries of what is deemed “natural” or “unnatural.” The Supreme Court’s eventual ruling, which decriminalized consensual homosexual acts between adults, was a resounding affirmation that love cannot be confined by legal or societal boundaries and that every individual, regardless of sexual orientation, has the right to live with dignity, freedom, and equality.
Citation: AIR 2018 SUPREME COURT 4321
Court: Supreme Court of India
Bench: CJI Deepak Misra, Rohinton Fali Nariman, A.M. Khanwilkar, D.Y. Chandrachud, Indu Malhotra.
Parties concerned:
Petitioners: Five individuals from the LGBTQ communities (Navtej Singh Johar, Ritu Dalmia, Ayesha Kapur, Aman Nath and Sunil Mehra) filed a new writ petition challenging the constitutionality of Section 377.
Respondents: Union of India (represented by the Attorney General of India), Ministry of Law and Justice, National AIDS Control Organization (NACO) etc.
Issues
The central issue in the Navtej Singh Johar case was whether Section 377 of the IPC, as it applied to consensual sexual conduct between adults, was unconstitutional, and whether the Supreme Court’s decision in Suresh Kumar Kaushal should be upheld or overturned. This colonial-era law criminalized “carnal intercourse against the order of nature,” which was widely interpreted to include same-sex sexual acts. The petitioners argued that this law violated their fundamental rights to equality, dignity, and privacy, as guaranteed by the Indian Constitution.
Facts
The petitioners were a group of individuals, including activists, lawyers, and members of the LGBTQ+ community, who challenged the validity of Section 377.
The central issue in this case was the constitutional validity of Section 377 of the Indian Penal Code (IPC), which criminalized “carnal intercourse against the order of nature” and impacted consensual same-sex relationships. In 2009, the Delhi High Court declared Section 377 unconstitutional in the Naz Foundation case. However, this ruling was overturned by the Supreme Court in the Suresh Kumar Kaushal case. In 2016, Navtej Singh Johar filed a writ petition before a three-judge bench of the Supreme Court, challenging both the Kaushal decision and the constitutionality of Section 377. Given the significance of the issue, the matter was referred to a five-judge bench.
Historical background :
Colonial Legacy of Section 377
Section 377 was part of a broader strategy by the British colonial government to regulate moral behaviour in India, criminalizing acts considered immoral or unnatural. The law made no distinction between consensual and non-consensual acts, thereby criminalizing any sexual acts not aimed at procreation, including consensual same-sex relations. This legal framework not only stigmatized homosexuality but also fostered a culture of discrimination and marginalization for the LGBTQ+ community in India.
After India gained independence in 1947, Section 377 remained in force, despite calls for its repeal. Over the decades, the law became a tool for harassment and exploitation of LGBTQ+ individuals by the police and the legal system. It reinforced societal prejudices, resulting in the alienation and criminalization of the community.
Early Challenges and the Naz Foundation Case (2009)
The first major legal challenge to Section 377 came in 2001 when the Naz Foundation, an NGO focused on HIV/AIDS prevention, filed a petition in the Delhi High Court, arguing that Section 377 violated the fundamental rights of LGBTQ+ individuals. The case emphasized that the law hindered HIV prevention efforts, as it discouraged individuals from seeking medical care due to fear of prosecution.
In case of Naz Foundation v. Govt. Of NCT of Delhi, the Delhi High Court ruled that Section 377 violated the right to equality (Article 14), the right to privacy (Article 21), and the right to freedom of expression (Article 19), thereby decriminalizing consensual homosexual acts between adults. This decision was celebrated as a victory for LGBTQ+ rights and a progressive step toward equality.
Suresh Kumar Koushal v. Naz Foundation (2013)
However, this progress was short-lived. In 2013, the Supreme Court of India, in Suresh Kumar Koushal v. Naz Foundation, overturned the Delhi High Court’s decision, reinstating Section 377. The Supreme Court held that only Parliament had the authority to amend or repeal laws and that the LGBTQ+ population in India constituted a “minuscule minority.” This judgment was widely criticized for its narrow interpretation of constitutional rights and its failure to recognize the dignity and autonomy of LGBTQ+ individuals.
The Koushal judgment reignited the debate around Section 377, galvanizing LGBTQ+ activists, legal professionals, and allies to continue their fight for equality. Public support for LGBTQ+ rights grew, with increasing calls to decriminalize same-sex relationships and protect the rights of sexual minorities.
Navtej Singh Johar and the Constitutional Challenge
In 2016, a fresh petition was filed by renowned dancer Navtej Singh Johar, along with five other prominent LGBTQ+ individuals, challenging the constitutionality of Section 377 once again. The petitioners argued that the law violated their fundamental rights under the Indian Constitution, including the right to life and personal liberty (Article 21), right to equality (Article 14), and right to non-discrimination (Article 15).
The case also drew strength from the Supreme Court’s 2017 ruling in the Puttaswamy v. Union of India case which recognised the right to privacy as a fundamental right under Article 21. The Puttaswamy judgment emphasized that privacy included the right to make personal decisions regarding sexual orientation, thereby providing a constitutional foundation for challenging Section 377.
Arguments against Section 377:
The petitioners argued that:
- Section 377 was discriminatory and violated the principle of equality before the law.
- It infringed upon the fundamental right to privacy, which is implied in the right to life and liberty under the Indian Constitution.
- The law was based on outdated and morally incorrect notions of sexuality.
- It had a chilling effect on the lives of LGBTQ+ individuals, leading to discrimination, harassment, and violence.
Arguments in Defense of Section 377
- Government’s Position: The government defended Section 377, arguing that it was a valid law that reflected the cultural and religious values of the majority of Indians.
- Moral and Religious Concerns: Some argued that same-sex sexual activity was morally wrong and went against the teachings of major religions in India.
- Societal Norms: Others contended that decriminalizing same-sex sexual acts would go against traditional societal norms and values.
The Supreme Court’s Decision
The Supreme Court of India unanimously struck down Section 377 as unconstitutional insofar as it criminalized consensual sexual conduct between adults of the same sex. The court held that the law violated the fundamental rights to equality, dignity, and privacy.
The decision was a landmark victory for LGBTQ+ rights in India, marking a significant departure from the country’s conservative stance on sexuality. It has had far-reaching implications for the lives of LGBTQ+ individuals in India, who now enjoy greater legal protection and social acceptance.
Impact of judgement in terms of equality:
Section 377 impacted a marginalized group by restricting their personal autonomy. The judgment represented a major shift in interpreting Article 14 and aimed to promote equality as guaranteed under that Article. Moving beyond the narrow definition of equality based on race, religion, place of birth, sex, etc., as outlined in Article 15, the ruling broadened the scope of equality.
The judgment also expanded the interpretation of “sex” under Articles 15 and 16, recognizing that discrimination based on sex includes discrimination based on gender identity. This important decision emphasized the need to focus on gender identity, linking it to human rights and the constitutionally guaranteed right to life and liberty with dignity under Article 21. It condemned discrimination as a violation of Article 14 of the Constitution.
By connecting the Constitution’s equal protection and non-discrimination provisions, the judgment advanced an inclusive jurisprudence grounded in dignity, autonomy, and remedying structural disadvantages. It set the stage for rectifying past wrongs and progressing toward a more inclusive realization of social and economic rights for all individuals.
The ruling helps ensure equal rights and opportunities for marginalized sections of society, addressing deeply ingrained stereotypes and prejudices. It promotes inclusivity and empowers all citizens, eliminating any form of alienation or discrimination. Sexual minorities in India have moved closer to living with dignity, as the discrimination they face in accessing healthcare and their harassment by the police will diminish.
Additionally, this judgment encourages the LGBTQ+ community to push for more progressive laws, such as those concerning same-sex marriage, the right to form partnerships, inheritance, employment equality, and protection from gender identity-based discrimination.
The Preamble of the Indian Constitution promises justice—social, economic, and political—as well as equality of status, opportunity, and protection under the law. By striking down Section 377 of the Indian Penal Code as a violation of the fundamental rights of the LGBTQ+ community, the judgment has ushered in a new era, expanding the possibilities for equality and reinforcing the ideals of the Constitution, ensuring equal rights for all sections of society.
India’s Stance on Homosexuality Compared to Other Countries
India’s decriminalization of homosexuality in 2018 through the Navtej Singh Johar case marked a significant shift in its stance on LGBTQ+ rights. This decision placed India among the countries with more progressive laws protecting LGBTQ+ individuals. However, the legal landscape varies widely across different nations.
India’s current position on same-sex marriage is complex and evolving. While there have been significant advancements in recognizing LGBTQ+ rights, same-sex marriage remains not yet legal.
Countries with Similar or More Progressive Laws
Most countries in Europe: Many European nations have long had laws protecting same-sex relationships, including marriage equality and adoption rights.
Australia, New Zealand, Canada: These countries have also legalized same-sex marriage and other LGBTQ+ rights.
South Africa: South Africa was one of the first countries in the world to legalize same-sex marriage.
United States: While same-sex marriage was legalized nationwide in 2015, LGBTQ+ rights continue to evolve in the U.S.
Thailand: Thailand’s Senate has passed the marriage equality bill, paving the way for the country to become the first in Southeast Asia to recognise same-sex marriage. Thailand is generally considered to have a more progressive and accepting attitude towards LGBTQ+ individuals compared to many other countries in the region.
Countries with More Restrictive Laws
Many African and Middle Eastern countries: Many nations in these regions have laws criminalizing same-sex sexual activity, often with severe penalties.
Some Asian countries: Some Asian countries, such as Pakistan, Bangladesh, Malaysia etc. have restricted laws and societal acceptance towards homosexuality.
Conclusion
The historical trajectory of Section 377, from its colonial origins to the 2009 decriminalization by the Delhi High Court, followed by the Supreme Court’s 2013 reversal, set the stage for the Navtej Singh Johar v. Union of India case. By the time this case reached the Supreme Court, the legal landscape had evolved, with increasing recognition of individual autonomy, privacy, and equality. The 2018 judgment not only decriminalized homosexuality but also reflected a significant shift toward a more inclusive and rights-based jurisprudence in India. In this context, the judgment not only liberated the LGBTQ+ community from the shackles of an oppressive law but also redefined the understanding of constitutional morality, pushing the boundaries of love and personal liberty to encompass every form of human relationship. It marked the culmination of decades of struggle by the LGBTQ+ community for their fundamental right to love and live with dignity.
FAQS
Q: What was the Navtej Singh Johar v Union of India case about?
A: The case challenged the constitutionality of Section 377 of the Indian Penal Code, which criminalized consensual homosexual acts between adults.
Q: What were the grounds for the judgment?
A: The court held that Section 377 violated Articles 14 (equality), 15 (non-discrimination), 19 (freedom of expression), and 21 (right to life and liberty) of the Indian Constitution.
Q: Did the judgment legalize same-sex marriage?
A: No, the judgment only decriminalized consensual homosexual acts between adults in private, but did not legalize same-sex marriage.
Q: Was the judgment unanimous?
A: Yes, the five-judge bench delivered a unanimous verdict.
Q: When was the judgment delivered?
A: The judgment was delivered on September 6, 2018.
Sources:
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