Navtej Singh Johar v. Union of India (2018)

Case Details

Case Name: Navtej Singh Johar & Ors. v. Union of India & Ors.

Court: Supreme Court of India

Bench: Chief Justice Dipak Misra, Justice Rohinton Fali Nariman, Justice A. M. Khanwilkar, Justice Dr. D. Y. Chandrachud, Justice Indu Malhotra.

Date of Judgment: 6 September 2018

Citation: AIR 2018 SUPREME COURT 4321.

Introduction

The Navtej Singh Johar v. Union of India case is a landmark judgment in the history of India. It stands as a pivotal in the social and cultural representation of same-sex relationships. This case decriminalised consensual same sex relations in India. The Supreme Court struck down Section 377 of the Indian Penal Code. This colonial provision had criminalised carnal intercourse against the order of nature. Authorities had used this law to punish same sex intimacy for decades. A five judge bench delivered four separate opinions in this case. The Court recognised sexual orientation as a natural and protected part of identity. This commentary examines how the Court reached this historic decision.

Facts of the Case

1. Section 377 of the Indian Penal Code criminalised unnatural sexual offences since 1860. The provision punished carnal intercourse against the order of nature. Courts long interpreted this clause to cover consensual homosexual acts between adults.
2. The Naz Foundation challenged Section 377 before the Delhi High Court in 2001. The Delhi High Court read down Section 377 in a 2009 judgment. The High Court held that Section 377 violated Articles 14, 15, and 21. The Supreme Court reversed this ruling in Suresh Kumar Koushal v. Naz Foundation in 2013. That judgment restored criminal liability for consensual same sex conduct.
3. Navtej Singh Johar, a well-known dancer, then filed a fresh writ petition. He and several other petitioners challenged Section 377 again in 2016. The petitioners invoked their fundamental rights under Articles 14, 15, 19, and 21. They relied on the right to privacy recognised in Puttaswamy in 2017. They also relied on gender identity rights recognised in the NALSA case. A three judge bench referred the case to a larger Constitution Bench. The Constitution Bench then heard extensive arguments from both sides.

Issues Before the Court

1. Whether Section 377 violates the right to equality under Article 14?
2. Whether Section 377 discriminates on the ground of sex under Article 15?
3. Whether Section 377 violates the right to life and personal liberty under Article 21?
4. Whether Section 377 infringe the freedom of expression guaranteed under Article 19?
5. Whether the Court should reconsider its earlier ruling in Suresh Kumar Koushal?
6. Whether the right to privacy recognised in Puttaswamy protect sexual orientation?

Arguments from the Petitioner’s Side

1. The petitioners argued that Section 377 criminalised their sexual identity itself. They said the law reduced their entire existence to a single act.
2. Senior counsel Arvind Datar argued that Koushal relied on social morality. He said the Court should instead apply constitutional morality to this issue.
3. Counsel argued that Article 21 protects sexual orientation as part of dignity. They relied on Puttaswamy, which recognised privacy as a fundamental right.
4. They cited NALSA, where the Court protected gender identity and expression. Counsel argued that Section 377 violated the right to equality under Article 14. They said the law created an unreasonable classification against homosexual persons. They argued that Section 377 was vague, since it never defined unnatural acts. They said consensual acts between adults deserved no criminal punishment at all.
5. Petitioners said the law let public authorities harass and blackmail LGBT persons. They urged the Court to recognise sexual autonomy as a basic freedom.

Arguments from the Respondent’s Side

1. The Union of India did not strongly defend Section 377 in Court. It left the question of constitutional validity to the wisdom of the Court.
2. Some private interveners still supported the continuation of Section 377. They argued that the provision protected public morality and traditional values.
3. They said the law helped prevent the spread of certain diseases. It was argued that changing the law was a task for Parliament, not courts. Further, the Respondents said courts should not interfere with matters of social morality.
4. It was argued that Section 377 also punished other unnatural sexual offences. The Respondents contended that striking down the section would harm family values. They urged the Court to uphold Suresh Kumar Koushal as good law.

Judgment

1. The Supreme Court unanimously struck down Section 377 as unconstitutional. It read down the provision to the extent it criminalised consensual acts.
2. The Court held that Section 377 still applies to non-consensual acts. It also continues to apply to sexual acts involving animals.
3. Each of the five judges wrote a separate opinion in the case. All five judges called the Koushal decision wrong on the law.
4. The Court overruled its own earlier decision in Suresh Kumar Koushal. It held that consensual same sex relations between adults are legal.

Reasoning of the Court

1. Misra, C.J., writing for himself and Khanwilkar, J., held that Section 377 denied dignity to LGBT persons. He said the provision rested on outdated notions of social morality. He held that constitutional morality must prevail over social morality. He said the Constitution protects minority rights against majoritarian views. He described the Constitution as a living and transformative document. He held that individual autonomy and self determination deserve full protection.
2. Nariman, J. focused on how society and law must evolve together. He held that a transformative Constitution must reflect changing social values. He said Section 377 stemmed from Victorian notions of morality. He directed the Union to give this judgment wide publicity. He wanted government agencies sensitised to the rights of LGBT persons.
3. Chandrachud, J. linked the case to his earlier judgment in Puttaswamy. He held that sexual orientation forms an essential part of privacy. He said this law had repressed love and intimacy for generations. He held that Section 377 stripped LGBT persons of their dignity. He said the Constitution must protect this vulnerable and marginalised group.
4. Malhotra, J. said history owes an apology to the LGBT community. She held that sexual orientation is an inherent part of identity. She said the right to privacy includes spatial and decisional privacy. She held that Section 377 had caused years of stigma and exclusion.

Significance of the Judgment

This case decriminalised homosexuality after more than a century of colonial law. It affirmed sexual orientation as a protected attribute under the Constitution. The judgment strengthened the doctrine of constitutional morality in Indian jurisprudence. It built directly upon the right to privacy recognised earlier in Puttaswamy case. Also, it reaffirmed the transformative character of the Indian Constitution as a whole. The judgment gave the LGBT community legal recognition and dignity. And, it paved the way for later cases on marriage equality and adoption. It remains a touchstone for constitutional morality and minority rights in India.

Conclusion

Navtej Singh Johar corrected a long standing wrong in Indian law. The judgment restored dignity to millions who had lived in fear. It showed how courts can protect minorities against majoritarian morality. The case remains a landmark in the story of Indian constitutionalism. It continues to guide debates on equality, dignity, and personal liberty.

Reference

1. Navtej Singh Johar & Ors. v. Union of India, Judgment dated 6 September 2018, (2018) 10 SCC 1.
2. https://indiankanoon.org/doc/168671544/
3. Suresh Kumar Koushal v. Naz Foundation, (2014) 1 SCC 1.
4. Naz Foundation v. Government of NCT of Delhi, 160 (2009) DLT 277.
5. Justice K.S. Puttaswamy (Retd.) v. Union of India, (2017) 10 SCC 1.
6. National Legal Services Authority v. Union of India, (2014) 5 SCC 438.