Author: Aishani Bhattacharjee, Bishop Cotton Women’s Christian Law College, Bengaluru
To the Point
The 2018 case of Navtej Singh Johar & Ors v. Union of India is a mark judgement passed by Hon’ble Dipak Misra, R.F Nariman, D.Y Chandrachud and Indu Malhotra. The case proved to be breakthrough as it challenged the constitutional validity of Section 377 of IPC which criminalized “unnatural” sexual acts, including homosexual couples. The ruling overturned the former verdict of Suresh Kumar Koushal & Anr v. Naz Foundation & Ors (2013) that criminalized ‘carnal intercourse against the order of nature’ and helped to decriminalize same-sex acts between consenting adults and acknowledged that homosexuality is not an offence. The case brought significant emphasis on LQBTQ + Community rights, rights relating to privacy and equality. This article would shed light on how this landmark case brought change on an age-old colonial statute’s provision which did not fit in present dynamics of societal needs.
Use of Legal Jargon
The verdict of the Supreme Court in Navtej Singh Johar’s case mainly revolved around Section 377 of Indian Penal Code, 1860 that made any act involving carnal intercourse as going against the natural law and this notion of Section 377 of IPC centered around same-sex relationships as such relations were considered unnatural and criminal. The then Chief Justice of India Dipak Misra while delivering the judgment in this case had delved whether fundamental rights under Indian constitution are violated by Section 377 of IPC. The case involved the interpretation of right to equality under Article 14 so that even same-sex people can get equal protection of laws like everybody else, right to freedom of expression Article 19(1)(a) so that same-sex individuals can have freedom to indulge in same-sex relationships, Article 15 of the constitution where there is prohibition against all forms of discrimination as this case questioned the constant discrimination against LGBTQ individuals as this community has been always been in the receiving end of constant shame and threat, Article 21 of the constitution was considered to justify that homosexual relation need not be criminalized as it would go against right to life and personal liberty under Article 21 .The case also included overbreadth doctrine where Section 377 of IPC was over boarded to criminalize private consensual acts that did not harm anyone. The citing of precedence of K.S. Puttaswamy v. UOI (2017) where right to privacy was considered included consensual sexual acts and thus the LGBTQ + community too has right over their sexual orientation.
The Proof
The Navtej Singh Johar’s case involved several petitioners, with Navtej Singh Johar, a well-known dancer, being the key petitioner. The decision of the case mainly relied on arguments, affidavits, and expert testimonies. Key evidences which led to the decision includes psychiatrists and psychologists’ testimonies stating that homosexuality is not a mental disorder and this stance was backed by evidences from American Psychiatric Association and WHO, the perspective for international human rights principles followed by countries like US, Canada and the UK to decriminalize same -sex relations was taken into account. The petitioner’s citing of international human rights treaties including Universal Declaration of Human Rights which guarantee the right to privacy, dignity and non-discrimination was considered as criminalization of same-sex relations would lead to violations of these treaties. Legal precedents from Lawrence v. Texas (2003) by US Supreme court, was cited to show that consensual same-sex conduct between adults should not be criminalized. Human rights groups like Lawyers Collective and the Naz Foundation, provided affidavits which emphasized that law violated the LGBTQ rights and perpetuated inequality. The state’s contentions however mainly revolved around the legislative intent to keep intact public order and morality in the society and changes to laws should be made by legislature particularly, not the judiciary. The final judicial response towards this case after considering both the sides held that Section 377 of IPC as unconstitutional and through this judgment the court reinforced the principles of equality, non-discrimination, privacy, dignity and autonomy in changing dynamics of present-day India.
Abstract
The case Navtej Singh Johar & Ors v. UOI (2018), was the outcome of ongoing humiliation the LGBTQ community was facing which affected their mental and physical health and also social standing. The judgement bought relief to the fear of getting prosecuted by the outdated provision. The case also highlighted that the criminalization of same-sex would lead to public health challenges, mainly in relation to HIV/AIDS awareness and prevention. The court while giving the final judgement acknowledged that sexual orientation is very much a personal aspect of an individual’s identity and it deserves protection under the constitution. In this case it was recognized that the constitution guarantees rights to all citizens, irrespective of sexual orientation and hence laws must reflect constitutional morality. This article examines the legal implications for the overruling of the previous verdict in the case of Suresh Kumar Koushal & Anr v. Naz Foundation & Ors (2013) and the impact of the ruling on the present social standing of LGBTQ community in Indian society.
Case Laws
Suresh Kumar Koushal & Anr v. Naz Foundation & Ors (2013) – In this case Naz foundation, an NGO, challenged the constitutionality of section 377 in Delhi High Court. The Delhi High Court in 2009 ruled in favor of the petitioners and decriminalized consensual same-sex relations between adults in private and section 377 as unconstitutional. However, in 2013 the apex court reversed this ruling and held that decriminalization of same -sex relations would benefit only a minuscule part of the population and thereby there was no great societal need for that. This led to widespread protest among the LGBTQ community in India and many legal and human rights activists.
K.S. Puttaswamy v. UOI (2017) – The 9-0 unanimous judgement by the Supreme Court held that right to privacy is an inherent right under the right to life and personal liberty under Article 21 of the Indian constitution. Therefore, the right to privacy was held as a fundamental right.
Deepika Singh v. Central Administrative Tribunal (2022) – The case in its ambit considered family under Indian legal system would include for the first time same-sex couple and thereby reinforced the equal protection under Article 14 and social welfare laws benefits to homosexual people.
Supriyo v. Union of India (2023)- This case buffered any ruling in relation to marriage, civil union or adoption in relation to homosexual partners and placed the duty to pass successive laws in relation to LGBTQ community rights on parliament and the cabinet.
Conclusion
The case which was filed by the petitioner who was a dancer and choreographer including social activists and members of the LGBTQ + community challenged the constitutionality of section 377 of IPC,1860 on the grounds that it was violative of Articles 14, 15 and 21 of the Indian constitution. This ultimately resulted in the historic judgement which curtailed those aspects of section 377 that criminalized consensual same-sex while keeping intact non-consensual sex such as rape and bestiality. The ruling brought significant change in ways society would regard homosexuality and same-sex couples but inducing social acceptance, dignity and equality for same-sex couples this case also removed many biased stigmas towards homosexual people and also focused on rights of transgender people as well whose rights were mostly sidelined due to societal discrimination towards them. The judgment led to positive affect on mental health of the LGBTQ
+ community people as legal decriminalization removed their constant fear of prosecution.
FAQS
1) What was the significant legal impact of the judgement?
The ruling was historic as it marked the ending of decades long discrimination against the LGBTQ + community in India. The judgement also vouched equality, individual freedom and human rights to this particular community.
While delivering the judgement in this case the esteemed bench consisting of Justice D.Y. Chandrachud emphasized discrimination based on sexual orientation and gender identity is unconstitutional and were considered for the first time in India. Justice Indu Malhotra mentioned that while giving the ruling that history would owe an apology to the LGBTQ + community for the oppression they faced under section 377 of IPC. Justice R.F. Nariman, A.M. Khanwilkar, and U.U. Lalit also expressed their consent in making section 377 unconstitutional. Thereby in this case the LGBTQ rights were given due importance for the first time in India.
2) How did the court justify its decision?
The court emphasized that the right to individual dignity and personal autonomy is very much a right of the LGBTQ + community as guaranteed under wider interpretation of Article 21 of the constitution and that expressing their sexual orientation in private should not be criminalized. The ruling affirmed that legislation should protect all the citizens including sexual minorities.
3) What was the core issue affecting the question of law in this case?
The issue of contention in this case was whether section 377 of IPC, 1860, which criminalized “unnatural sexual offenses”, violated the fundamental rights guaranteed under right to equality (Article 14), the right to privacy (Article 21), and the right to freedom of expression (Article 19).
4) What did the Supreme Court rule in this case?
The judgement was delivered under 4-1 ratio ruled to decriminalized consensual same-sex relationships between adults in private. The court also struck down the archaic colonial-era law, as it was considered violative of the fundamental rights to equality, dignity and privacy.
5) What was the dissenting opinion in the ruling of this case?
Justice Indu Malhotra was the only dissenting judge. She contended that the matter regarding decriminalization of section 377 should be left to the legislature to handle than the work of judiciary as it involves aspects of social policy which would be better handled by the legislature than the judiciary according to Justice Indu Malhotra.
