Written by- Havish Dhanwantri, studying B.Com.L.L.B
at Panjab University, Chandigarh
Abstract
The landmark judgment in Navtej Singh Johar v. Union of India (2018) represents a significant moment in Indian legal and social history, as it marks a crucial shift in the interpretation of constitutional rights concerning LGBTQ+ individuals. This article explores the profound implications of the Supreme Court’s decision to decriminalize consensual homosexual relations by striking down Section 377 of the Indian Penal Code. By examining the various facets associated with the case, the article elucidates the different viewpoints that formed the basis of the arguments of the parties, while also discussing how the judgement upheld the rights related to equality, privacy and individual autonomy, thereby affirming the principles enshrined in the Indian Constitution and the idea of constitutional morality as opposed to public morality. The analysis also reflects on the broader social and legal impacts of the decision, including its role in advancing LGBTQ+ rights and challenging entrenched societal norms. The article also discusses the significance of the case in regards to the furtherance of queer rights and the development of a framework of constitutional morality that helps in the upliftment of the queer community along with increasing social acceptance to end the discrimination faced by queer people while fostering a more inclusive environment.
Introduction (background)
The litigation surrounding the de-criminalization of Section 377 goes way back to 2001 when Naz Foundation filed a suit to decriminalize sexual acts between consenting adults of the same sexual orientation in the Delhi High Court in Naz Foundation v Govt. NCT Delhi. The court after hearing the parties gave a decision in favour of Naz Foundation and de-criminalized the relevant section. However when the judgement was challenged in the Hon’able Supreme Court in Suresh Kumar Koushal v Union of India, the Supreme Court overturned the ruling by the Delhi High Court. In a way, the present case was also an attempt to overturn the previous ruling by the court. To challenge the decision, six main petitioners, namely, Ayesha Kapur, Navtej Singh Johar, Aman Nath, Sunil Mehra, Ritu Dalmia and Keshav Suri. All of the petitioners themselves belonged to the LGBTQIA+ community, so this time around it was not a Non-Governmental Organization (NGO) that was at the forefront of the case but the affected individuals themselves, seeking relief from the Court. This provided the perspective that the demand for striking down section 377 was not from some spirited organization but it was an actual issue affecting individuals at large.
Petitioner’s perspective
The petitioners presented their perspective on how the queer community was being denied the right to freedom of speech and expression by the regressive colonial era provision of Section 377, that had affected not only how authorities but also society at large behaved towards the people of the queer community as if they are some kind of second class citizens who do not have the right to live with dignity. The petitioners relied on some basic ideas or arguments that formed the basis of their arguments in the court. They argued around various points surrounding individual autonomy, constitutional morality, the persecution of the queer community and the cases already strengthening the points they aim to make. The different lines of thought were-
- Individual Autonomy- The philosophy of individualism relies on the premise that individual freedom is at the epicentre of self-actualization. This philosophy quite obviously finds itself at odds with collectivism and social fabric. The petitioners relied on individualism as the basis of their arguments and argued that if an individual is labelled as a criminal just because they have a different definition of love and intimacy as opposed to heteronormative norms then the facilitation of individuality, which is at the heart of democratic values will be nullified. Therefore it would be wise for some part of section 377 to be declared unconstitutional as it is not in line with liberal values.
- Constitutional Morality- Constitutional morality refers to compliance of the principles and values enshrined in our constitution, as opposed to public morality and aims to create a just society based on constitutional values. It involves giving precedence to the Constitution in comparison to social norms, practices and prevalent attitudes, especially if they are not in line with constitutional values.. This concept emphasizes that constitutional provisions should not be treated as mere formalities but as fundamental principles that shape and guide the ethical and legal conduct of society. Upholding constitutional morality is crucial for maintaining the character of public governance and for establishing a society as envisioned by our constitution makers, the Constitution itself being the guiding marker, instead of arbitrary practices or social norms. The petitioners argued that section 377 of IPC went against the idea of Constitutional Morality.
- Prolonged ostracization of the queer community- The queer community in India faces huge challenges on various fronts, including social acceptance (often acceptance by their own families), discrimination in social life, employment, limited access to resources and harassment at workplaces and public spaces. Moreover as the majority of queer people are not granted their basic rights even regarding education, (considering that they are more often than not abandoned by their parents upon confession of their feelings) they are forced to do jobs that are inhumane and are even forced to beg. This goes against both democratic as well as human values and though the issue at hand may not be directly related to the aforementioned things, it does represent the quest of the queer community for more inclusive society.
- Section 377 being violative of Article 14,15 and 21 of the Indian Constitution- Section 377 of the Indian Penal Code, criminalizes consensual same-sex relations, which in a way, criminalizes consent thus the section discriminates against individuals based on their sexual orientation, creating a legal environment where same-sex relationships are unjustly penalized. Such discrimination undermines the idea behind Article 14 which includes the Right to Equality while under Article 21, the petitioners argued that the Right to life, includes within itself the right to live with dignity and make choices, which certain parts of section 377, denied queer people, treating them as second class citizens.
Respondents’ perspective
The Union left the matter to the wisdom of the court, while stating that any other matter apart from the constitutional validity of section 377, if adjudicated without giving a chance to the Union to respond would be a grave violation of the principles of natural justice. Apart from the Union, the respondents were, Trust God ministries, represented by senior counsel, Shri K. Radhakrishnan while Advocate Manoj George represented the Apostolic Alliance of Churches and Utkal Christian Council. The respondents too relied on some core arguments-
- Collective Norms – The respondents arguing for retaining Section 377 put forth the point that the law reflected prevailing moral and social norms that were important for preserving traditional values and societal norms. They contended that homosexual acts were contrary to Indian cultural and moral values and that it was important to uphold these values in the legal framework. Heteronormative norms are the reflection of the attitude of society towards the subject as well and proper due should be given to social norms as well. Thus according to them section 377 must be retained.
- Legislative Authority- They asserted that any change to Section 377 should be a matter for the legislature rather than the judiciary. This argument emphasized that legal reforms should come through a legislative process involving elected representatives rather than through judicial intervention, as this would be a more correct assessment of what the public wants. They argued that Parliament, being the representative body, should decide on such significant changes and judicial restraint should be exercised.
- Public Opinion and Societal Impact- Another argument made was that there was significant opposition from various sections of society to the decriminalization of homosexuality, and retaining Section 377 was viewed as a way to maintain societal harmony and respect for diverse opinions. They claimed that rapid changes in law could disrupt societal stability and moral fabric. This point , in a way, further elaborated the points made regarding public morality and social norms, but took the argument a bit further signalling a not so constructive response from the public.
- Protection of Public Morality- Retaining Section 377 was argued to be necessary for protecting public morality and decency as opposed to the argument of the petitioners regarding Constitutional Morality. The respondents believed that the law helped in maintaining social order by regulating what they viewed as non-conforming behaviour, which they considered essential for upholding societal standards.
Judgement of the Hon’ble Supreme Court
The judgement of the court was thus-
- Decriminalization of Homosexuality- To start things of, The Court invalidated Section 377 of the IPC in part so far as it penalized same-sex relationships between consenting adults. This striking down of section 377, decriminalized homosexuality and paved the path for future litigation aimed at the further development of queer rights in India. The verdict of the Court was unanimous and delivered on the 6th of September, 2018.
- Violation of Fundamental Rights- The Court, in its judgement held that section 377 was violative of the principles enshrined under various articles, under part 3 of the Indian Constitution. Specifically, Articles 14 (Right to equality), 15 (Prohibition of discrimination), and 21 (Right to life and personal liberty). The Court ruled that criminalizing consensual same-sex relations infringed upon the right to privacy and equality. Moreover the court also mentioned that the section violated a person’s Right to Privacy as evolved in the Puttaswamy case.
- Overruling of Previous Judgments-The Court overruled the previous judgements in S. R. Bommai v. Union of India (2013) and the decision in Suresh Kumar Koushal V Naz Foundation. The Court held that the importance of individual identity cannot be neglected in the name of socially acceptable norms while also saying that the dignity of the individual should be respected. Thus recognizing gender identity to be a strong factor in a person’s development.
- Recognition of LGBTQ+ Rights- The judgment recognized the rights and dignity of LGBTQ+ individuals, affirming that they are entitled to live their lives with respect and without fear of discrimination or criminalization. This was a big step towards the furtherance of better rights for the queer community, making it a big decision especially considering the opposition to the idea by the public.
- Upholding Constitutional Morality- The Court emphasized that constitutional morality must prevail over societal morality. It highlighted that laws should reflect constitutional values and not merely the prevailing moral sentiments of society as put forth by the respondents in the case. The Court held that it cannot act under social pressure and must ensure justice under all circumstances while reflecting the ideas of the constitution rather than the subjective opinions of the public.
- Role of Judicial Activism- The judgement provided an example of how the judiciary can step in to deliver justice when the legislative framework or even prevalent norms are silent or apathetic towards a subject. As opposed to the idea of judicial restraint, the Court exercised Judicial Activism and delivered the judgement that it saw fit according to the ideals set out in the Indian Constitution.
Significance of the decision.
The ruling in Navtej Singh Johar v. Union of India (2018) is noteworthy because it signalled a turning point in the social and legal history of India. The Indian Supreme Court struck down Section 377 of the Indian Penal Code, which prohibited “carnal intercourse against the order of nature,” decriminalizing consensual same-sex relationships. The ruling was celebrated as a success for LGBTQ+ rights, confirming that a person’s sexual orientation is a basic component of their identity and should be protected under the Constitution as the expression of the self is essential to the pursuit of humanity towards self-actualization. The Court found that Section 377 infringed upon the constitutional rights of LGBTQ+ people, and its decision was based on the values of equality, privacy, and human dignity. The ruling, which reflected a progressive movement towards inclusion, emphasized the value of the right to personal liberty and the absence of discrimination. By invalidating a colonial-era law, the judgment not only advanced legal reform but also represented a crucial step in challenging social prejudices and fostering a more inclusive society. It affirmed that personal freedoms and rights extend to all individuals, regardless of their sexual orientation, thereby reinforcing the Constitution’s promise of equality and justice.
Conclusion
To conclude the matter, the decision is a huge step forward for the facilitation of better living standards for queer people and against the backdrop of continued social apathy is a significant step to introduce further legislation or litigation aimed at the development of this community that has for so long been discriminated against and forced to live their lives, filled with destitution and social stigma. Hopefully the attitude towards this community will be constructive in the future.
FAQs on Navtej Singh Johar v. Union of India Judgment
1. What was the Navtej Singh Johar v. Union of India case about?
The case challenged the constitutionality of Section 377 of the Indian Penal Code, which criminalized consensual same-sex relations. Petitioners argued that this provision violated their fundamental rights to privacy, equality, and dignity.
2. What was the Supreme Court’s ruling in this case?
On September 6, 2018, the Supreme Court decriminalized consensual same-sex relations by striking down Section 377. The Court ruled that the provision was unconstitutional as it infringed upon the fundamental rights of LGBTQ+ individuals.
3. Why was Section 377 challenged in this case?
Section 377 was challenged because it was deemed discriminatory and an infringement on the rights of individuals based on their sexual orientation. The petitioners argued that it violated the constitutional guarantees of equality, privacy, and personal liberty.
4. What are the key principles upheld by the Court in this judgment?
The Court upheld principles of equality, privacy, and human dignity. It recognized that sexual orientation is an intrinsic aspect of individual identity and that discrimination based on it is unconstitutional.
- How does this judgment impact LGBTQIA+ rights in India?
The judgment represents a significant advancement for LGBTQ+ rights in India. It legalizes consensual same-sex relationships, promotes equality before the law, and challenges social stigma and discrimination
