Author-Chirag Batra,Bharati Vidyapeeth College, New Delhi
To the Point
The Supreme Court of India rendered a historic ruling on September 6, 2018, the case of Navtej Singh Johar v. Union of India invalidated Section 377 of the Indian Penal Code (IPC) to the degree that it made consenting sexual actions between adults of the same sex illegal. The Court held that such criminalization violated fundamental rights under Articles 14 (Right to Equality), 15 (Prohibition of Discrimination), 19 (Freedom of Speech and Expression), and 21 (Protection of Life and Personal Liberty) of the Indian Constitution. This ruling, which upheld the values of equality, decency, and constitutional morality, was a major step towards LGBTQ+ rights in India.
Use of Legal Jargon
The Supreme Court’s judgment in Navtej Singh Johar invoked several key legal doctrines and principles:
· Constitutional Morality: The Court emphasized that constitutional morality, which upholds the values enshrined in the Constitution, must prevail over societal morality, which is often influenced by prevailing social prejudices.
· Transformative Constitutionalism: The Court adopted a progressive approach, interpreting the Constitution as a dynamic and evolving document that must adapt to changing societal norms and values.
· Manifest Arbitrariness: The Court found that Section 377 was manifestly arbitrary, as it criminalized consensual sexual acts between adults without any rational basis, thereby violating the right to equality.
· Right to Privacy and Dignity: The Court recognized that sexual orientation is an intrinsic part of an individual’s identity, and the criminalization of consensual same-sex acts infringed upon the right to privacy and dignity.
· De Minimis Principle: The Court rejected the claim that Section 377 ongoing existence was justified by the few prosecutions under the law, ruling that the number of cases does not justify the voilation of fundamental rights..
The Proof
The case was initiated by a writ petition filed on April 27, 2016, by five individuals, including dancer Navtej Singh Johar, journalist Sunil Mehra, chef Ritu Dalmia, hotelier Aman Nath, and businesswoman Ayesha Kapur. Section 377 of the IPC, which made “carnal intercourse against the order of nature” a crime, was contested as unconstitutional.
The petitioners argued that Section 377 violated their fundamental rights under Articles 14, 15, 19, and 21. They contended that the provision was discriminatory, as it criminalized consensual sexual acts between adults of the same sex, while similar acts between heterosexual couples were not criminalized. The petitioners also highlighted the social stigma, discrimination, and mental health issues faced by LGBTQ+ individuals due to the existence of Section 377.
The Ministry of Law and Justice, acting on behalf of the Union of India, adopted a neutral position and left the issue up to the “wisdom of the Court,” as long as the ruling only pertained to private, voluntary activities between adults.
Abstract
The Supreme Court’s judgment in Navtej Singh Johar v. Union of India is a landmark in the evolution of Indian constitutional law. The Court reversed its earlier ruling in Suresh Kumar Koushal v. Naz Foundation (2013), which had maintained Section 377 validity. The Court held that the criminalization of consensual same-sex acts between adults violated the fundamental rights to equality, non-discrimination, freedom of expression, and personal liberty.
The ruling acknowledged that a person’s sexual orientation is an essential component of who they are and that denying someone the ability to express their sexual orientation lowers their sense of dignity. The Court emphasized that constitutional morality must supersede social morality and that legislation must protect marginalized individuals from discrimination.
The ruling was hailed as a significant step towards achieving equality for LGBTQ+ individuals in India. It affirmed the principles of transformative constitutionalism, constitutional morality, and the progressive realization of rights, setting a precedent for future cases involving the rights of sexual and gender minorities.
Case Laws
1. Suresh Kumar v. Naz Foundation (2013)
o In this case, the Supreme Court upheld the constitutionality of Section 377, stating that the provision did not violate the fundamental rights of LGBTQ+ individuals. This decision was overruled in Navtej Singh Johar.
2. Naz Foundation. v. Govt. of NCT of Delhi (2009)
o The Delhi High Court held that Section 377 violated the fundamental rights of LGBTQ+ individuals and read it down to exclude consensual sexual acts between adults. In the Suresh Kumar Koushal case, the Supreme Court reversed this ruling.
3. Justice K.S. Puttaswamy (Retd.) v. Union of India (2017)
o According to Article 21, the Supreme Court recognized the right to privacy as a basic right. This ruling upheld the value of privacy in sexual orientation disputes, laying the foundation for the Navtej Singh Johar case..
4. NALSA v. Union of India (2014)
o The Supreme Court upheld transgender people’s rights, including the freedom to identify as transgender. The understanding of gender identification in relation to constitutional rights was improved by this case.
5. Shafin Jahan v. Asokan (2018)
o The Supreme Court upheld an individual’s right to choose a partner, emphasizing personal liberty and autonomy. This judgment reinforced the principles of individual choice and autonomy in the Navtej Singh Johar case.
Conclusion
The Supreme Court’s judgment in Navtej Singh v. Union of India represents a significant step towards achieving equality and justice for LGBTQ+ individuals in India. By decriminalizing consensual same-sex acts between adults, the Court affirmed the principles of equality, dignity, privacy, and freedom of expression enshrined in the Constitution.
The Court recognized that sexual orientation is an intrinsic part of an individual’s identity and that the criminalization of consensual same-sex acts violated fundamental rights.
While the judgment did not address issues such as same-sex marriage or adoption, it laid the foundation for future legal developments in these areas. The ruling also highlighted the importance of constitutional morality and transformative constitutionalism in interpreting and applying the Constitution to protect the rights of marginalized communities.
In conclusion, the Navtej Singh Johar case is a landmark decision that not only decriminalized homosexuality but also affirmed the commitment of the Indian judiciary to uphold the fundamental rights of all individuals, irrespective of their sexual orientation.
FAQs
Q1: What was Section 377 of the IPC?
A1: During the colonial era, Section 377 made “carnal intercourse against the order of nature,” which included consenting adult-to-adult same-sex actions, illegal. This clause was read down by the Supreme Court to decriminalize such private actions between consenting adults..
Q2: What was the significance of the Navtej Singh Johar judgment?
A2: The judgment marked a significant step towards equality for LGBTQ+ individuals in India by decriminalizing consensual same-sex acts and affirming their fundamental rights under the Constitution.
Q3: Did the Supreme Court legalize same-sex marriage in this case?
A3: No, the matter of same-sex marriage was not addressed by the Supreme Court in this case. The decision only addressed the decriminalization of people engaging in consenting same-sex conduct.
Q4: How did the Court interpret the right to privacy in this case?
A4: The Court recognized that sexual orientation is an intrinsic part of an individual’s identity and that the criminalization of consensual same-sex acts infringed upon the right to privacy and dignity.
Q5: What is constitutional morality, and how was it applied in this case?
A5: The ethical principles entrenched in the Constitution, such as equality, liberty, and dignity, are referred to as constitutional morality. The Court underlined that in order to defend the rights of underprivileged groups, constitutional morality must take precedence over social morality.
Q6: Did the judgment have retrospective effect?
A6: Yes, the judgment had retrospective effect, meaning that individuals who had been prosecuted under Section 377 for consensual same-sex acts were no longer considered to have committed an offense.
Q7: What was the role of the petitioners in this case?
A7: The petitioners, including Navtej Singh Johar, were individuals from the LGBTQ+ community who challenged the constitutionality of Section 377, arguing that it violated their fundamental rights.
Q8: Did the judgment address the mental health impact on LGBTQ+ individuals?
A8: Yes, the Court acknowledged that the criminalization of consensual same-sex acts led to social stigma and discrimination, adversely affecting the mental health of LGBTQ+ individuals.
Q9: What is transformative constitutionalism?
A9: Transformative constitutionalism is the idea that the Constitution should be interpreted as a living document that evolves to address contemporary issues and promote social justice.
Q10: What are the future implications of this judgment?
A10: The judgment paves the way for further legal developments concerning the rights of LGBTQ+ individuals, including issues related to marriage, adoption, and anti-discrimination laws.
