Author : Utsab Sengupta, Siksha O Anusandhan National Institute of Law
ABSTRACT
An important turning point in the constitutional development of India’s democracy was the Supreme Court’s decision in Navtej Singh Johar v. Union of India (2018). By reading down Section 377 of the Indian Penal Code (IPC), 1860, which up until that point made “carnal intercourse against the order of nature” illegal, the five-judge Constitution Bench unanimously decriminalised consensual homosexual acts between adults. In order to safeguard the rights of the LGBTQ+ community, this ruling expanded the application of Articles 14, 15, 19, and 21 of the Constitution. The decision signalled a move away from majoritarian morality and towards individual rights by emphasising the concepts of autonomy, privacy, dignity, and constitutional morality. It reaffirmed the notion that basic rights are independent of social acceptance.
The ruling is historic because it states that sexual minorities’ rights are just as protected by the Indian Constitution as those of any other citizen. This article examines the case’s constitutional doctrines, historical development, societal impact, and legal reasoning. This essay seeks to demonstrate how the Navtej Singh Johar case redefined liberty and equality in a pluralistic society such as India by examining the judgment’s ramifications and citing relevant seminal cases.
INTRODUCTION
Section 377 of the Indian Penal Code, 1860, which made “carnal intercourse against the order of nature” a crime during the colonial era, weighed heavily on the Indian legal system for many years. The LGBTQ+ community in India experienced discrimination and fear as a result of this law, which was first implemented by the British in the 19th century. The stigma permeated institutional, familial, and societal spheres in addition to the legal one. For many years, this section was employed as a tool of social and moral repression in addition to being a punitive legal provision. Through demonstrations, petitions, and advocacy, the LGBTQ+ rights movement in India gained traction in the early 2000s. The Delhi High Court’s ruling in Naz Foundation v. NCT of Delhi (2009) marked the first legal triumph, which decriminalised homosexuality
But in Suresh Kumar Koushal v. Naz Foundation (2013), the Supreme Court reversed this, sparking a great deal of dissatisfaction and backlash. In light of this, the legal and constitutional discussion was rekindled by the petition that dancer Navtej Singh Johar and others filed. In a landmark ruling in 2018, the Supreme Court invalidated portions of Section 377, which made consenting sexual relations between adults illegal. In addition to guaranteeing legal equality, the ruling made clear that privacy, identity, and love are fundamental constitutional principles. It was more than just a court decision; it was a social revolution that gave millions of Indians their respect and dignity back.
TO THE POINT
The main argument in Navtej Singh Johar is that criminalising adults’ consenting same-sex relationships is unconstitutional. Four fundamental Articles of the Constitution served as the foundation for the Supreme Court’s reasoning:
1. Section 377 was determined to be arbitrary and a violation of Article 14 (Right to Equality) because it made an irrational distinction between homosexual and consensual heterosexual behaviour. The Court ruled that if a law does not have a reasonable purpose, it must be overturned for violating equality.
2. Sexual orientation is not specifically mentioned in Article 15 (Prohibition of Discrimination), but the Court interpreted the term “sex” to include it. Therefore, it was decided that discrimination based on sexual orientation was unconstitutional.
3.Article 19 (Freedom of Expression): This clause protects the right to express one’s identity, including one’s sexual orientation. Making same-sex relationships illegal discourages people from being open about their sexual orientation.
4. Article 21 (Right to Life and Personal Liberty): The Court reiterated that privacy and dignity are essential elements of Article 21. Sexual orientation is a crucial aspect of personal autonomy and privacy, as highlighted by the seminal Puttaswamy ruling on privacy. Additionally, the Court established the idea that “constitutional morality” must take precedence over social or religious morality. The ruling underlined that individual liberties and rights cannot be superseded by social disapproval.
In the end, the Navtej Singh Johar ruling did more than just overturn a law; it improved the conversation about civil liberties by emphasising the importance of individual identity and dignity in ensuring constitutional protection.
PROOF
The Supreme Court’s decision was supported by a great deal of moral and legal reasoning. The Bench came to the conclusion that Section 377 infringed upon the most fundamental human rights by drawing on prior case law and constitutional precepts. “The people of this community and their families deserve an apology from history,” said Justice Indu Malhotra. The theory of progressive realisation of rights was a central component of legal proof. The Court ruled that as societal values change, so too must constitutional interpretation. Section 377’s antiquated and colonial underpinnings, which were derived from Victorian morality, were out of place in a contemporary constitutional democracy. International jurisprudence was also cited in the ruling.
It referenced decisions from the UK (Dudgeon v. United Kingdom), South Africa (National Coalition for Gay and Lesbian Equality), and the US (Lawrence v. Texas), illustrating a global shift towards equality and inclusion. The decision’s reliance on the right to privacy, as established in Justice K.S. Puttaswamy v. Union of India, was another essential component. The Court ruled that the right to sexual orientation is part of privacy and that any interference with this right must be legitimate and reasonable. The ruling was significant from a legal and symbolic standpoint. It made same-sex intimacy legal. In a symbolic sense, it was the first time that LGBTQ+ rights were recognised as fundamental to equality and human dignity in the Indian legal system.
OTHER RELEVANT CASE LAWS
1.Government of the NCT of Delhi v. Naz Foundation (2009) The Delhi High Court’s historic ruling was the first to question Section 377 IPC’s constitutionality in India. The Court determined that making it illegal for adults of the same sex to engage in consensual sexual activity was a violation of Articles 14, 15, and 21 of the Constitution because it discriminated against people on the basis of their sexual orientation. It highlighted the rights to equality, privacy, and dignity. In doing so, the Court invalidated Section 377, adopting an inclusive interpretation of the Constitution. Although it was later overturned in Suresh Kumar Koushal (2013), this ruling was a significant win for LGBTQ+ rights.
2.Naz Foundation v. Suresh Kumar Koushal (2013) The Supreme Court declared that there was no constitutional flaw in Section 377 IPC, overturning the progressive Naz Foundation decision. According to the Court, legislative reform was more appropriate than judicial intervention because the LGBTQ+ community only made up a “minuscule fraction” of the population. This ruling drew harsh criticism for its regressive outlook and disregard for fundamental rights. It essentially made homosexuality illegal again, sparking a wave of demonstrations and petitions. In the end, it served as impetus for the Navtej Singh Johar petition, which upheld LGBTQ+ equality and rectified the constitutional error in this case.
3.Union of India v. Justice K.S. Puttaswamy (Retd.) (2017) A nine-judge Supreme Court panel unanimously ruled in this historic decision that the right to privacy is guaranteed by Article 21 of the Constitution as a fundamental right. The ruling underlined that the right to privacy encompasses both bodily autonomy and the freedom to make one’s own decisions, including those pertaining to sexual orientation. The Court affirmed that discrimination based on sexual orientation is unconstitutional, specifically ruling that the reasoning in Suresh Kumar Koushal was flawed. Puttaswamy established the Navtej Singh Johar doctrinal foundation by reaffirming the significance of autonomy, identity, and dignity in constitutional interpretation.
4. Texas v. Lawrence (2003) [The Supreme Court of the United States] A Texas law that made consenting sexual acts between two adults of the same sex illegal was overturned by the U.S. Supreme Court in this case. According to the majority, the law infringed upon the Fourteenth Amendment’s Due Process Clause. The Court acknowledged that adults are free to act in private and voluntarily without interference from the government. The cause of LGBTQ+ rights in the US was greatly advanced by this decision, which overturned Bowers v. Hardwick (1986). It was cited in Navtej Singh Johar as part of a growing global understanding of privacy and dignity, and it had persuasive value for Indian courts.
5.Union of India v. National Legal Services Authority (NALSA) (2014) The Supreme Court acknowledged transgender people’s rights as a third gender under Indian law in this historic ruling. The Court upheld that gender identity, which is safeguarded by Articles 14, 15, 19, and 21, is an essential component of individual autonomy and dignity. It required the government to grant transgender people equal rights and legal recognition. Despite focussing mostly on gender identity, NALSA was crucial in forming the constitutional conception of gender, identity, and expression. It established the foundation for more comprehensive LGBTQ+ rights, and Navtej Singh Johar heavily cited its logic.
CONCLUSION
The ruling in the Navtej Singh Johar case, which went beyond decriminalisation and humanised the law, will be indelibly marked in Indian constitutional history. It changed India’s culture from one that accepted diversity to one that formally welcomed it. The Supreme Court prioritised liberty, autonomy, and dignity over outmoded social norms by reaffirming the rights of sexual minorities. This ruling exemplifies how the Constitution can change, adapt, and safeguard even the most vulnerable. A progressive change in judicial thinking is highlighted by the Court’s preference for the theory of constitutional morality over social morality. It made it very evident that constitutional rights are unaffected by popular consent.
Furthermore, the decision had far-reaching effects on society. It sparked discussions about gender, sexuality, and identity in families, workplaces, and educational institutions. It cleared the path for additional reforms in areas that still lack full legal recognition, such as same-sex marriage, adoption rights, and anti-discrimination laws. Decriminalisation is an important first step, but full legal and social inclusion is necessary for true equality. Violence, stigma, and discrimination against LGBTQ+ people persist, frequently unchecked. Therefore, in addition to being honoured, Navtej Singh Johar’s legacy needs to be the cornerstone of upcoming legislative and policy changes.
In summary, the ruling not only overturned an unfair law but also showed the way to a more equitable, inclusive, and just India. It reaffirmed that every citizen, regardless of who they love, is entitled to the Constitution
FAQS
1. What was decided by the Navtej Singh Johar ruling?
– By reading down portions of Section 377 IPC, it decriminalised adult consenting to same-sex relationships.
2. In the case, which constitutional rights were highlighted?
– Articles 14, 15, 19, and 21—which address freedom, equality, nondiscrimination, privacy, and individual freedom.
3. Is it now acceptable to be gay in India?
– Yes, following the Supreme Court’s 2018 ruling, homosexuality is no longer illegal.
4. Is same-sex marriage permitted by the ruling?
– No, same-sex marriage is currently illegal in India.
5. What makes the case historic?
– It preserved the rights and dignity of the LGBTQ+ community under the Indian Constitution while redefining individual liberty.
