Author: Harsh Yadav, Banaras Hindu University
INTRODUCTION
The Navtej Singh Johar v. Union of India (2018) judgment is one of the most significant milestones in India’s constitutional and human rights jurisprudence. Delivered by a five-judge Constitution Bench of the Supreme Court of India, the decision decriminalized consensual same-sex relations by reading down Section 377 of the Indian Penal Code (IPC). This historic ruling affirmed the principles of equality, dignity, and privacy for the LGBTQ+ community, marking a shift in Indian society’s approach to sexuality and individual freedom.
The judgment came after decades of legal struggle and social activism aimed at overturning a colonial-era law that had criminalized “carnal intercourse against the order of nature.” The judgment declared that consensual sexual conduct between adults in private is a matter of personal liberty, protected under Articles 14, 15, 19, and 21 of the Indian Constitution. The decision overturns the 2013 ruling in Suresh kumar v. Naz foundation in which the court uplifted the law. However, other portions of section 377 related to the sex with minors, non-consensual sexual acts, and bestiality remains in force. This article examines the facts, legal issues, arguments, and impact of the Navtej Singh Johar case on India’s legal landscape.
HISTORICAL BACKGROUND:
A. The Origin of Section 377 IPC
Section 377 was introduced by the British colonial government in 1860 It outlaw “sexual intercourse against the order of nature” with as part of the Indian Penal Code, which was drafted by Lord Macaulay. imprisonment up to life. The vague wording of the provision was used to criminalize consensual homosexual acts, as well as certain heterosexual acts.
B. Legal Journey Leading to Navtej Singh Johar Case
1. Naz Foundation v. Govt. of NCT of Delhi (2009)
The Delhi High Court read down Section 377, holding that criminalizing consensual homosexual activity violated Articles 14, 15, 19, and 21.The judgment was hailed as progressive, but it faced backlash from conservative groups, religious organizations, and certain political actors.
2. Suresh Kumar Koushal v. Naz Foundation (2013)
The Supreme Court overturned the Delhi High Court’s ruling, stating that LGBTQ+ individuals constituted a “minuscule minority” and did not require constitutional protection.The judgment was criticized globally for being regressive and unjust.
3. Curative Petition and Rise of Activism
The LGBTQ+ community, activists, and legal professionals filed curative petitions challenging the Koushal judgment.
Influential public figures, including mental health professionals, academics, and human rights activists, supported the demand to revisit Section 377.
FACTS:
The petitioners in Navtej Singh Johar v. Union of India included prominent figures like dancer Navtej Singh Johar, journalist Sunil Mehra, chef Ritu Dalmia, businesswoman Aman Nath, and others from the LGBTQ+ community. They argued that Section 377 violated their constitutional rights to equality, dignity, privacy, and non-discrimination.
The key issues raised before the court included:
Whether Section 377 violated Articles 14 (equality before the law), 15 (prohibition of discrimination), 19 (freedom of speech and expression), and 21 (right to life and personal liberty) of the Constitution?
Whether the decision in Suresh Kumar Koushal required reconsideration?
The Union of India (the respondent) did not oppose the reading down of Section 377 but asked the court to confine its decision to consensual acts in private and avoid issues concerning marriage, inheritance, and adoption rights.
LEGAL ISSUES INVOLVED:
The Supreme Court was tasked with answering the following legal questions:
1. Whether Section 377 IPC is unconstitutional for criminalizing consensual homosexual conduct.
Violation of Article 14 (Equality before the Law): The court observed that Section 377 discriminated against LGBTQ+ individuals by criminalizing their private consensual acts while allowing heterosexual acts.
Violation of Article 15 (Non-Discrimination): The provision was seen as discriminatory based on “sexual orientation,” a ground that was read into Article 15.
Violation of Article 21 (Right to Life, Dignity, and Privacy): The court affirmed that sexual orientation is an essential attribute of privacy and personal liberty, protected under Article 21.
2. Whether Suresh Kumar Koushal was correctly decided.
The court held that Koushal was incorrect in its reasoning that LGBTQ+ individuals constituted a “minuscule minority.” The court emphasized that constitutional rights are not contingent on the number of people affected but are fundamental and universal.
3. Balancing Fundamental Rights with Societal Morality.
The court rejected the notion that “societal morality” could override fundamental rights. The bench noted that public morality should give way to constitutional morality, which upholds the dignity, equality, and liberty of every individual.
JUDGEMENTS:
The Supreme Court’s judgment was delivered by a five-judge Constitution Bench comprising Chief Justice Dipak Misra, Justices D. Y. Chandrachud, R. F. Nariman, Indu Malhotra, and A. M. Khanwilkar. Each judge delivered a separate but concurring opinion.
1. Justice Dipak Misra and Justice A. M. Khanwilkar
They emphasized the concepts of constitutional morality and the protection of minority rights.
Justice Misra stated that societal morality cannot supersede constitutional morality.
He observed that homosexuality is a natural variant of human sexuality and thus must be respected.
2. Justice Rohinton Nariman’s Opinion
Justice Nariman highlighted the global shift in LGBTQ+ rights.
He stated that Section 377’s criminalization of consensual homosexual conduct was irrational and arbitrary, thus violating Article 14.
3. Justice D. Y. Chandrachud’s Opinion
Justice Chandrachud invoked the right to privacy established in Justice K. S. Puttaswamy v. Union of India (2017).
He emphasized that privacy protects the intimate choices of individuals, which are linked to dignity and autonomy.
4. Justice Indu Malhotra’s Opinion
Justice Malhotra observed that history owes an apology to the LGBTQ+ community for their unjust treatment.
She emphasized the concept of psychological harm caused by the criminalization of homosexuality, which leads to mental health issues.
IMPACT OF THE JUDGMENT:
The impact of the Navtej Singh Johar judgment was profound on multiple fronts:
1. Legal Impact
Reading Down of Section 377: The provision was no longer applicable to consensual sexual acts between adults in private.
Recognition of LGBTQ+ Rights: The judgment paved the way for the recognition of rights related to marriage, inheritance, and adoption.
2. Social Impact
Destigmatization of LGBTQ+ Identities: The judgment sent a strong message to society to embrace diversity and respect the dignity of LGBTQ+ individuals.
Shift in Media Representation: Popular media began portraying LGBTQ+ characters in a more positive light.
3. Global Impact
The judgment aligned India with other progressive democracies, reinforcing human rights commitments under international conventions like the ICCPR.
CONCLUSION
The Navtej Singh Johar v. Union of India judgment is a monumental step in India’s journey toward inclusivity, equality, and human rights. By decriminalizing consensual homosexual conduct, the Supreme Court upheld the dignity, privacy, and autonomy of LGBTQ+ individuals.
The ruling reflects a shift from societal morality to constitutional morality, a principle essential for a modern democracy. While the judgment marked a turning point, the fight for equal civil rights, including marriage and inheritance, is still ongoing. The judgment is not just a victory for the LGBTQ+ community but a reaffirmation of human rights and the spirit of the Indian Constitution.
If you’d like, I can expand on any specific sections or provide references for the case law.
FAQS
1. What was Section 377 of the IPC?
Section 377, introduced during the British colonial period, criminalized “unnatural offenses,” including consensual same-sex relationships. It prescribed punishments ranging from imprisonment for ten years to life.
2. Did this judgment legalize same-sex marriage in India?
No, the judgment only decriminalized consensual same-sex relationships. It did not address issues such as same-sex marriage, adoption rights, or inheritance laws for LGBTQ+ individuals.
