Navtej Singh Johar v. Union of India (2018): A Judgment for LGBTQ+ Rights in India


Author: Vardha Verma, Student at Jindal Global University Sonipat

Navtej Singh Johar v. Union of India 2018 may be remembered for a long time in Indian judicial history for this very fact of decriminalization of consensual same-sex relations, making all LGBTQ+ persons to have a proper constitutional status which was marked by yet another stride to equality and social inclusion within Indian society. A judgment based upon dignity, privacy, and the principle of equality, with one more powerful voice from the bench to strike entrenched societal prejudices by the judiciary, which, ultimately, holds equal importance as societal institutions do.

This case has its roots in Section 377 of the Indian Penal Code, enacted during the colonial period in 1861. The provision criminalized “carnal intercourse against the order of nature,” effectively marginalizing the LGBTQ+ community. Even though Section 377 was on its face neutral, its application disproportionately targeted the LGBTQ+ community, creating a culture of harassment and institutionalized discrimination.

The long legal journey of the repealing of Section 377 began with Naz Foundation in 2001. Decades later, in 2009, the Delhi High Court declared that Section 377 was unconstitutional and struck it down. However, this progressive step forward was reversed in 2013, with the Supreme Court reinstating Section 377 in Suresh Kumar Koushal v. Naz Foundation, in a verdict heavily criticized for not maintaining constitutional morality.

This petition was filed before the Supreme Court in 2016 by several petitioners that included dancer Navtej Singh Johar, journalist Sunil Mehra, and chef Ritu Dalmia. These people boldly challenged Section 377 before the court arguing that it deprived them of all their fundamental rights as provided by Articles 14 and 15 dealing with equality, Article 19 concerning freedom of speech and expression and Article 21 regarding protection to life and liberty guaranteed by the Indian Constitution. The petitioners argued that Section 377 violated the right to equality by criminalizing the consensual relations between adults, violated the right to privacy by intruding into the intimate sphere of individuals and continued to institutionalize systemic discrimination against LGBTQ+ persons.

On 6 September 2018, a five-judge Constitution Bench of the Supreme Court pronounced an unanimous judgment in decriminalizing consensual same-sex relationships among adults. Chief Justice Dipak Misra and the other Justices Rohinton Nariman, D.Y. Chandrachud, A.M. Khanwilkar, and Indu Malhotra separately but concurring opinions expressed a unique and deep insight into the subject.

Chief Justice Dipak Misra and Justice A.M. Khanwilkar underscored the transformative nature of the Constitution, making it clear that constitutional morality should override societal morality. They declared Section 377 unconstitutional in so far as it criminalized consensual same-sex conduct, terming it manifestly arbitrary and violative of Articles 14, 15, and 21. Justice Nariman underlined the duty of the judiciary to protect minority rights by asserting that sexual orientation is an immutable characteristic intrinsic to individual identity. Justice Chandrachud connected the right to privacy, which was established in the Puttaswamy judgment, with dignity and autonomy, contending that Section 377 deprived LGBTQ+ individuals of their fundamental right to love and form relationships. Justice Indu Malhotra offered a poignant reflection: “History owed an apology to the LGBTQ+ community for the centuries of indignities and injustices they had endured.”.

The judgment consistently resonated the dichotomy of constitutional morality vis-à-vis societal morality. It held that in matters of liberty, equality, and dignity, it is constitutional morality that has to supersede societal and majoritarian voices. By holding high constitutional morality, the judiciary confirmed that the Constitution is a document that is always meant to save all individuals but most of all the vulnerable from being trampled by majorities.

The Navtej Singh Johar ruling had huge implications. Through reading down Section 377, the judgment legitimized and legalized same-sex relationships. It recognized their rights to self-expression, love, and life through the exercise of their autonomy, dignity, and freedom. Further, the judgment sparked massive debate on LGBTQ+ rights in India, bringing a lot of awareness and acceptance within the family, work environment, and educational institutions. The judgment was celebrated around the world as a progressive step forward, raising India’s reputation regarding commitments to human rights.

Despite this, the journey for the LGBTQ+ community in India toward full equality remains incomplete. It is still lacking comprehensive anti-discrimination laws designed to protect LGBTQ+ individuals from bias at work, in education, and in healthcare and housing. Same-sex marriage is not yet legally recognized, and the rights and benefits of heterosexual couples are being denied to LGBTQ+ couples. Societal prejudices run deep, and a lack of awareness prevents the full acceptance of LGBTQ+ persons. Systemic discrimination and the lack of robust support systems also present mental health challenges to the community.

The Navtej Singh Johar judgment was certainly a watershed moment in India’s legal and social history. This meant that it moved toward inclusiveness and equality as the Constitution served as a symbol of hope to each individual, be he straight or gay. But this is just the starting point. The court, the legislative arm, civil society, and each citizen must collaborate to ensure equal rights for members of the LGBTQ+ community. By encouraging the culture of acceptance and empathy, India can reach closer to its ideal of liberty, equality, and dignity under the Constitution.

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