Author: P.Meenatchi, Government law college,Trichy.
To the Point
The LGBTQ+ community in India continues to face both legal and social discrimination, with many of their fundamental rights still unrecognized particularly the right to marry and form families. The judgement in Navtej Singh Johar v.Union of India acknowledged the rights of the LGBTQ+ community.By strucking down the parts of section 377 of the Indian Penal code ,the supreme court decriminalized consensual same-sex relationships among adults. This decision challenged a law enacted during the British colonial era and affirmed the dignity, privacy, and equality of LGBTQ+ individuals. This article discuses the key reasoning behind the judgement, constitutional context of the case, and its impact in Indian society.
Abstract
The Navtej Singh Johar v. Union of India case (2018) marked a historic turning point for the LGBTQ+ community in India. In this landmark judgment, the Supreme Court struck down portions of Section 377 of the Indian Penal Code, effectively decriminalizing consensual same-sex relationships between adults. The Court held that criminalizing such relationships violated fundamental rights under the Constitution, including dignity, equality, and privacy. This decision not only provided legal relief but also offered hope and validation to a community long marginalized. This article explores the background of the case, its constitutional significance, and its broader social and legal impact.
Use of Legal Jargon
The Supreme Court’s judgment in Navtej Singh Johar v. Union of India used several important constitutional and legal expressions to build its reasoning. One of the key terms was “constitutional morality”, which the Court used to emphasize that individual rights and freedoms must be protected even when society holds traditional or conservative views. This concept helped the Court argue that the Constitution stands for justice, liberty, and equality above social prejudices.
Another crucial phrase was “right to privacy”, which was linked to Article 21 of the Constitution. The Court stated that a person’s sexual orientation falls within the realm of personal privacy, and interfering with it through criminal law is a violation of one’s fundamental rights. The judgment also emphasized “individual dignity”, highlighting that treating consensual same-sex acts as a crime denies LGBTQ+ persons their basic human worth.
Articles 14, 15, 19, and 21 were repeatedly cited throughout the judgment to show that criminalizing same-sex relationships violated the constitutional guarantees of equality before law, protection against discrimination, freedom of expression, and the right to life and personal liberty. The Court concluded that such criminalization was not only outdated but also “manifestly arbitrary”, lacking any rational or constitutional justification in a modern, democratic society.
Background of the Case:
Section 377 of the Indian Penal Code was brought into effect in 1861 by Lord Macaulay as a part of the legal framework introduced during British colonial rule. It criminalized carnal intercourse “against the order of nature,” which for a long time was interpreted to include consensual same-sex relations between adults. Although this provision was shaped by colonial-era moral standards, it remained in force in India even after independence.
In 2001, the Naz Foundation, an NGO focused on HIV/AIDS issues, approached the Delhi high court by filing a petition. In a landmark judgment in 2009, the High Court ruled that criminalizing consensual same-sex acts between adults violated fundamental rights guaranteed under the Constitution of India, including the right to equality, privacy, and freedom of expression.
However, in 2013, this decision was overturned by the Supreme Court in Suresh Kumar Koushal v. Naz Foundation. The Court brought back Section 377, reasoning that the LGBTQ+ community constituted a minority of people and held that the matter should be deceided by the parliament. This judgment was met with widespread criticism and disappointment, especially from human rights activists, legal scholars, and members of the LGBTQ+ community. The reinstatement of Section 377 increased the vulnerability and marginalization of LGBTQ+ individuals.
In 2016, a group of five individuals, including Navtej Singh Johar—a renowned dancer and choreographer—filed a petition in the Supreme Court of India under Article 32 of the Constitution. They challenged the constitutional validity of Section 377 once again, arguing that it violated the fundamental rights of LGBTQ+ persons, including the right to equality, dignity, privacy, and personal liberty.
A pivotal development came in the 2017 Puttaswamy v. Union of India case, where the Supreme Court affirmed that the right to privacy is a fundamental right under Article 21. The Court explicitly stated that sexual orientation is an inherent part of an individual’s identity and is protected under the right to privacy. This judgment laid a strong foundation for reconsidering the constitutionality of Section 377.
The Proof:
In this case, the petitioners argued that Section 377 of the Indian Penal Code violated their fundamental rights guaranteed by the constitution. They argued that criminalizing consensual same-sex relationships between adults was unconstitutional and went against the basic values of equality, dignity, freedom, and privacy. The Supreme Court carefully examined these claims in light of various constitutional provisions, especially Articles 14, 15, 19, and 21.
The court noted that section 377 violated Article 14 of the constitution , as it treated LGBTQ+ individuals unequally under the law. It punished people solely based on their sexual orientation, even when the act was consensual and in private. This was considered discriminatory and unreasonable.
With respect to Article 15, which prohibits discrimination on the grounds of sex, the Court clarified that the term “sex” also includes sexual orientation. Therefore, laws that discriminate against people based on who they are attracted to are unconstitutional under this provision.
The court also discussed Article 19, which ensures freedom of expression and stated that this right covers expressing one’s sexual orientation and identity. If people are afraid to live openly or express their love because of legal punishment, it becomes a direct violation of this freedom.
Most importantly, Article 21, which ensures the right to life and personal liberty, played a key role. It emphasized that sexual orientation is an essential part of a person’s identity and is protected under the right to privacy. Hence, criminalizing consensual same-sex relationships infringed on this fundamental right.
The Court also emphasized that Just because certain sections of society may not accept LGBTQ+ individuals does not mean the law should also discriminate against them. The role of the Constitution is to protect everyone equally, especially marginalized communities.
Based on these arguments and constitutional interpretations, the Court concluded that Section 377, to the extent it criminalized consensual acts between adults, was unconstitutional. This decision was based on strong legal reasoning and the need to uphold fundamental rights for all individuals, regardless of their sexual orientation.
Case Laws:
The Supreme Court, while delivering its verdict in Navtej Singh Johar v. Union of India, referred to several important judgments that played a crucial role in shaping its reasoning. These landmark cases provided a strong foundation for recognizing the rights of the LGBTQ+ community and upholding the values of dignity, equality, and privacy.
1. ‘Justice K.S. Puttaswamy (Retd.) v. Union of India (2017)’
In this case, the Court clearly stated that sexual orientation is an essential attribute of privacy and personal liberty. This judgment strongly supported the argument that criminalizing consensual same-sex relationships violates the right to privacy and human dignity.
2. ‘National Legal Services Authority (NALSA) v. Union of India (2014)’
This case recognized the rights of transgender persons and declared that gender identity is part of the fundamental right to dignity, freedom, and equality. The Court held that the “third gender” must be treated equally under the Constitution. This case laid the groundwork for the broader recognition of rights for all members of the LGBTQ+ community.
3. ‘Naz Foundation v. Government of NCT of Delhi (2009)’
In this case, the Delhi High Court ruled that Section 377, as applied to consensual sex between adults in private, was unconstitutional. The Court emphasized that moral disapproval cannot be a valid justification for a law that violates fundamental rights. Although this judgment was later overturned in the Suresh Kumar Koushal case, it had a strong influence on the reasoning in Navtej Singh Johar.
4. ‘Suresh Kumar Koushal v. Naz Foundation (2013)’
This Supreme Court had held that the LGBTQ+ community constituted a “minuscule minority” and left the matter to the legislature. This ruling was criticized widely and was finally overruled in the Navtej Singh Johar case, where the Court acknowledged the mistake and reaffirmed the fundamental rights of LGBTQ+ individuals.
5. ‘Shafin Jahan v. Asokan K.M. (2018)’
This case dealt with the right of an adult to make their own choices in matters of marriage and relationships. The Supreme Court emphasized that the right to choose a partner is a part of the right to life and personal liberty under Article 21. Though not directly related to LGBTQ+ rights, this case supported the idea of autonomy in personal decisions, which was relevant in Navtej Singh Johar.
Ratio Decidendi and Judgment:
In the case of Navtej Singh Johar v. Union of India (2018), the Supreme Court of India ruled that Section 377 of the Indian Penal Code, was unconstitutional as it penalized consensual sexual activities between adults. The main reasoning behind the judgment was that it violated the fundamental rights guaranteed under the Constitution of India.
The Court said that Section 377 was being used to target, harass, and discriminate against LGBTQ+ individuals. It observed that sexual orientation is a natural and essential part of a person’s identity and criminalizing it would violate their dignity, privacy, and equality.
The Court strongly relied on Articles 14, 15, 19, and 21 of the Constitution. It stated that:
Article 14 was violated because the law was arbitrary and treated people unequally.
Article 15 was violated as it prohibited discrimination, and sexual orientation fell within the scope of “sex.”
Article 19 was violated as the law restricted freedom of expression and identity.
Article 21 was found to be infringed as the provision interfered with an individual’s right to life and liberty , which includes the right to privacy and dignity.
In the case of Justice K.S. Puttaswamy v. Union of India (2017), the supreme court recognized the right to privacy as a fundamental right. It clearly stated that a person’s sexual orientation is protected under this right.
Justice Indu Malhotra, one of the judges in the case, made a strong remark saying, “History owes an apology to the members of the LGBTQ+ community and their families for the delay in addressing the humiliation that they have suffered.”
Finally, the Supreme Court struck down the parts of Section 377 that criminalized consensual same-sex relations between adults, but retained it for non-consensual acts, bestiality, and acts involving minors.
This judgment was widely celebrated as a major step forwad for the rights of the LGBTQ+ community in India. It gave legal recognition to their identity and paved the way for a more inclusive society.
Conclusion:
The Judgement in Navtej Singh Johar v. Union of India became a milestone in India’s legal journey toward equality. By striking down parts of section 377 ,the supreme court upheld the values of dignity, privacy and personal liberty.This case remains a powerful example of how law can challenge social norms and protect individual freedoms.
FAQS
1. What was Section 377 of the Indian Penal Code about?
Section 377 was a colonial-era law introduced in 1861, which criminalized “carnal intercourse against the order of nature.” It was often used to target and harass LGBTQ+ individuals, particularly those in consensual same-sex relationships.
2. What did the Supreme Court decide in Navtej Singh Johar v. Union of India?
The Supreme Court decriminalized consensual same-sex relationships between adults by reading down parts of Section 377. The Court held that criminalizing such acts violated Articles 14, 15, 19, and 21 of the Constitution, which guarantee equality, non-discrimination, freedom of expression, and the right to life and personal liberty.
3. How did this judgment affect LGBTQ+ rights in India?
The judgment was a major step forward in recognizing the dignity and rights of LGBTQ+ individuals. It affirmed their right to live with freedom, privacy, and respect. However, it did not legalize same-sex marriage or provide protection against discrimination in all areas of life.
4. Was this the first case to challenge Section 377?
No, the Naz Foundation case filed in 2001 was the earliest important case that questioned section 377 . The Delhi High Court initially decriminalized Section 377 in 2009, but the Supreme Court reversed this in Suresh Kumar Koushal v. Naz Foundation (2013). The Navtej Singh Johar case finally settled the matter by striking down the law’s application to consensual adult relationships.
5. What role did the Puttaswamy judgment play in this case?
In 2017,the supreme court confirmed in the Justice K.S. Puttaswamy v. Union of India case that the right to privacy is a part of fundamental rights. It also recognized sexual orientation as part of personal identity, which gave strong support to the arguments made in Navtej Singh Johar.
6. Has same-sex marriage been legalized in India after this judgment?
No, same-sex marriage is still not legally recognized in India. The judgment only decriminalized consensual same-sex acts. Issues like marriage, adoption, and inheritance rights for LGBTQ+ people remain unresolved and are the subject of ongoing debates and court cases.
References
1. Navtej Singh Johar & Ors. v. Union of India, (2018) 10 SCC 1.
2. Suresh Kumar Koushal v. Naz Foundation, (2014) 1 SCC 1.
3. Naz Foundation v. Government of NCT of Delhi, 160 Delhi Law Times 277 (2009).
4. Justice K.S. Puttaswamy (Retd.) v. Union of India, (2017) 10 SCC 1.
5. Constitution of India – Articles 14, 15, 19, and 21