Author: Shantanu Gupta, NMIMS Navi Mumbai
Case Citation
Title: Navtej Singh Johar v. Union of India
Court: Supreme Court of India
Year: 2018
Citation: (2018) 10 SCC 1
Introduction
Brief Overview
The Navtej Singh Johar case marks a notable achievement in the Indian legal and social history as it is an outcome of many decades of struggles to frameworks of LGBTQ+ rights. The fight was centred on the constitutionality of Section 377 of the Indian Penal Code (IPC) that forbade ‘carnal intercourse against the order of nature’ which was understood to include sexual relations between consenting adults of the same gender. The petitioners argued that such an arbitrarily restrictive norms, rather, denial of a statutory provision, which is an integral part of the Republic's Constitution, is a denial to equality or liberty or dignity or privacy as granted to citizens under Articles 14, 15, 19 and 21 of the Constitution of India.
This judgement has been termed as social legal because of the reason it not only decriminalised homosexuality but also recognised the right to human dignity, autonomy and self-identity. In this way, the judgement sought to rectify the wrongs done to the LGBTQ+ population of India, which has now allowed for greater inclusivity and equality recognition in the nation.
Legal Issues
The Supreme Court was tasked with addressing the following key legal questions:
Does Section 377 violate Articles 14, 15, 19, and 21 of the Constitution by criminalizing consensual same-sex relations?
In the case of Justice K.S. Puttaswamy v. Union of India (2017), has the right to privacy previously acknowledged, sub-sectioned to sexual orientation and consensual relationships?
Which should prevail in law construction especially on matters concerning minority groups, constitutional morality or societal morality?
These issues were not purely legal, but ethical and philosophical in nature, challenging deep seated biases and the protection of constitutional rights of the underprivileged by the judiciary.
Facts of the Case
Parties Involved
Petitioners: Navtej Singh Johar is an acclaimed Bharatnatyam dancer assisted by four others from various professions and the LGBTQ+ community, all of whom claimed that Section-377 violated their right to dignity and freedom.
Respondent: Initially, the government, through the Union of India, undertook the defence of the constitutionality of section-377 but later withdrew and assumed a neutral position, entrusting the matter to the discretion of the Court.
Relevant Facts
“Carnal intercourse against the order of nature” was criminalized by Section 377 in 1861 during the British colonization of India. While it was aimed at controlling sexual practices, it also victimized the LGBTQ+ populace in such a way that it made consensual sexual relations between adults of the same gender illegal.
The existence of this law over the years marginalized, victimized, and bullied the LGBTQ+ community and provided a legal tip to societal intolerance, which otherwise catalysed police victimization.
3. The petitioners pointed out that not only did Section 377 outlaw their identities, but it also infringed their basic rights to privacy, equality, and dignity.
The case is a follow-up to the decades of social and legal activism, including the Naz Foundation case (2009), and Suresh Kumar Koushal case (2013) which followed that and re-invoked prohibition of homosexual acts
Procedural History
The Suresh Kumar Koushal v Naz Foundation case is well-known for bringing up homosexuality in the Indian legal arena. The case was filed by Naz Foundation, an NGO, in the Delhi High Court which resulted in a landmark delivering judgment in 2009 allowing consensual homosexual sex which decriminalized the controversial Section 377.
However, in 2013, the Supreme Court stated that Parliament is the only authority to nullify or revise Section 377 and ruled in favour of Suresh Kumar Koushal in the case.
After the Supreme Court’s 2017 ruling in the Puttaswamy case, which upheld the right to privacy as a fundamental right, the petitioners in Navtej Singh Johar sought a constitutional bench review of Section 377.
The present case was heard in 2018 by a five-judge constitution bench.
Legal Issues
Issue Statements
Fundamental Rights Violation: Does criminalizing consensual same-sex relationships violate Articles 14 (equality), 15 (non-discrimination), 19 (freedom of expression), and 21 (personal liberty)?
Right to Privacy: In the context of the Puttaswamy judgment, does the right to privacy extend to the making of personal choices, such as one’s sexuality?
Constitutional Morality: Constitutive morality is said to protect individual freedoms. Can it be said that such morality should blunt societal bias and protect immoral standards in law interpretation?
Importance
This case was important because it addressed discriminatory social stereotypes and blatant discrimination towards LGBTQ+ persons. Its importance was not merely legal but also sociological in terms of what or how more social acceptance and tolerance can or should be achieved.
Court’s Decision
Holding
The Supreme Court held for the first time and unanimously declared that Section 377 was unconstitutional in so far as it criminalized consensual sexual relations among adults. The Court held that such criminalization was violative of the rights to equality, dignity, and privacy which are fundamental to the Indian Constitution.
Rationale
The Court noted that Section 377, under consensually exercised same-sex marriage, is contemptuous and exclusionary Similarly, it breaches Articles 14, 15, 19 and 21.
The Court’s emphasized that the right to privacy as affirmative in Puttaswamy judgement also embodies right-to-domicile-intimate-choice without the dread of state machination.
The judgment underscored the principle of constitutional morality, which requires laws to be interpreted in a manner that protects minority rights and upholds individual dignity.
Legal Reasoning
Majority Opinion
Each judge delivered a concurring opinion, emphasizing different aspects of the case:
Chief Justice Dipak Misra and Justice A.M. Khanwilkar: They said that in a democracy that prides itself on social morality, protecting the rights of a minority remains to be one of the most important aspects.
Justice R.F. Nariman: Transformation of a society and its constitution and the law which ought to keep pace with the changing values of the society was the central theme of his arguments.
Justice D.Y. Chandrachud: Constituently recognizes sexual activity that complements one's inherent individuality and honour.
Justice Indu Malhotra: Suggested that the debate should shift from what lawmakers must do for the LGBTQ+ community and move toward the question of what do we owe them after centuries of neglect and violent impacts of discrimination.
Dissenting/Concurring Opinions
Alongside the provided explanations, there was agreement on the outcome of the case, although no explanation was provided to differing outcomes. The additional statements further clarified the rationale of the opinion provided.
Statutes and Precedents
Statutes: Section 377 of the IPC.
Precedents:
Naz Foundation v. Government of NCT of Delhi (2009)
Suresh Kumar Koushal v. Naz Foundation (2013)
Justice K.S. Puttaswamy v. Union of India (2017)
Impact of the Case
Legal Precedent
The ruling created a specific reference point for the recognition and integration of LGBTQ+ community people in India. Defended the action of the court in the matter of essential freedoms and the promotive defence in case of a wider debate about legalization of same sex marriage and outlawing discrimination.
Social and Political Impact
This decision was applauded as a triumph for human rights and inclusion, improving the acceptance and visibility for the LGBTQ+ community.
It sparked debate on issues such as same-sex marriage, adoption, and workplace discrimination.
It also contemporarily recognized the political function of the judiciary as an enforcer of constitutional principles against popular backlash.
Personal Analysis
Critical Analysis
. The evaluation serves as an example of the advanced equality and inclusivity measures already taken. As this and other judicatory activities, it applied the principle of individual self-governance, dignity, and discrimination, which vividly shows the power of legal constitutionalism.
Strengths and Weaknesses
Strengths:
Constitutional morality was an important pillar that guaranteed an accommodating and more progressive interpretation of the law.
In cases before the courts as well as in other cases, it demonstrated a clear resolve of honouring and fulfilling fundamental rights.
Weaknesses:
Focusing on decriminalization means that other fundamental parts of LGBTQ+ like marriage and adoption were not paid attention to.
Alternative Outcomes
A judgment less progressive would have been to modify the decriminalization of Section 377 by leaving some parts that limit freedom of actions that do violence to justice systems’ provision.
Conclusion
Summary
The Johar judgment opened the doors to decriminalization of consensual same-sex relations as an exercise of the rights to equality, dignity, and privacy. It was a revolutionary change to Indian society and law.
Final Thoughts
This case exemplifies the ability of constitutional morality to trump fair social prejudice. It calls for further action towards full equality and establishment of recognized rights of the LGBTQ+ community.
