Title and Citation:

Navtej Singh Johar v. Union of India, (2018) 10 SCC 1

Abstract:

Society is not stable; it undergoes lots of changes with every generation. What was once considered taboo is now considered to be normal. We have moved a lot from the old age practices which were once practiced by our ancestors. One of the recent societal changes is the recognition of the LGBTQ+ community. Homosexuality has faced a lot of restrictions from society in the olden days. But, now the mindset of society that homosexuality is evil is slowly changing and so are the laws regarding this subject. Navtej Singh case is a landmark judgement regarding same-sex relationships in India. This article tries to analyse Navtej Singh Johar v. Union of India in detail including the Court’s decision and the reasons for the Court’s decision.

Keywords:

Section 377, Indian Penal Code, Article 21, Navtej Singh, Same-sex relationships.

Introduction and Background:

The case of Navtej Singh Johar v. Union of India (2018) is a landmark judgment by the Supreme Court of India that decriminalised consensual homosexual acts between adults. This judgment marked a significant step towards ensuring the rights and dignity of the LGBTQ+ community in India. The case primarily revolved around the constitutional validity of Section 377 of the Indian Penal Code (IPC), which criminalised “carnal intercourse against the order of nature.”[1]

In 2009 a case was filed before the Delhi High Court by the Naz Foundational India Trust challenging the constitutionality of Section 377 of IPC 1860because it violated Articles 14,15,19 and 21. Naz Foundation is an NGO which works in the field of HIV/AIDs intervention and prevention focusing on“men who have sex with men.”Naz argued that they were not able to perform their services have been hindered due to the discriminating attitude of State authorities towards sexual minorities, MSM, lesbians and transgender individuals.[2]The Court held that punishing the sexual activity taking place between two consenting adult individuals under Section 377 is violative of their right to privacy, equality and personal liberty. It thereby declared Section 377 of IPC 1860 unconstitutional. This decision of the High Court was challenged in the Supreme Court through appeal. The Supreme Court revised the decision of the High Court stating that Section 377 is valid and constitutional and that it can be declared unconstitutional only by the Parliament.

Facts of the case:

Five individuals belonging to the LGBTQ+ society filed a new writ application challenging the decision of the Supreme Court. The petitioners were Navtej Singh Johar, Sunil Mehra, Ritu Dalmia, Ayesha Kapur, Aman Nath and Keshav Suri. They challenged the court’s decisionbecause the previous cases about the validity of Section 377 were not filed by the people directly aggrieved by it but rather by the victims of such offences. They claimed that they were the ones who were directly aggrieved due to this section’s presence in the constitution.

Legal Issues:

The main issue raised by the petitioners was the constitutionality of Section 377 of IPC 1860. They claimed that they were directly aggrieved by this section as they faced many discriminations based on this section. They challenged the constitutionality of this section under Articles 14, 15, 19 and 21. Article 14 states that the State shall not deny any person equality before the law or the equal protection of the laws within the territory of India.[3] Article 15 prohibits discrimination on grounds of religion, race, caste, sex or place of birth.[4]Article 19 protects certain rights regarding freedom of speech, etc.According to Article 19(1)(a),All citizens shall have the right to freedom of speech and expression.[5] Article 21 states that no person shall be deprived of his life or personal liberty except according to procedure established by law.[6]The petitioners argued that Section 377 prevents individuals belonging to the LGBTQ+ community from expressing their sexuality and talking about it, which violates their right to free speech and expression which is provided under Article 19 of the Constitution. The people belonging to this community are also deprived of their right to privacy which is guaranteed by Article 21. Based on Section 377 the relationship between two consenting individuals is discriminated against on the grounds of its non-acceptance in society due to the perception that it’sagainst the order of nature and the draconian laws created during the British era mark it as a criminal offence which is against the rights provided under Article 15 of the constitution.The individuals belonging to this community are also treated unequally by the law because of this Section, which violates the rights provided under Article 14.

Arguments Presented:

The petitioners argued that homosexuality, bisexuality and other sexual orientations are all natural and reflective of choice and reflective of expression of choice and inclination founded on consent of two persons who are eligible in law to express such consent and it is neither a physical nor a mental illness.[7] They presented the discrimination they face in the society due to their sexual orientation.They argued that sexual orientation should not be criminalised as it is against their fundamental right to dignity, privacy and freedom of expression. They argued on how Section 377 affects their right to privacy, guaranteed to them through Article 21 and established through the K S Puttaswamy case. They also argued that Section 377 is invalid on the basis that it criminalises sexual activity between two consenting adults where no force is involved. They further contended that Section 377 is violative of Article 14 of the constitution as the said Section is unclear about what carnal intercourse against the order of nature is. Neither this Section nor the other Sections of the IPC specify the natural or unnatural acts.It was further said by the petitioners that, as per them, “no intelligible differentia or reasonable classification between natural and unnatural sex as long as it is consensual given the decision of this Court in Anuj Garg and others v. Hotel Association of India and others, which lays down the principle that classification which may have been treated as valid at the time of its adoption may cease to be so on account of changing social norms.”[8] They also took the attention of the court to W. Friedmann from ‘Law in a Changing Society’ wherein he observed that to prohibit a type of conduct which a particular society considers worthy of condemnation by criminal sanctions is deeply influenced by the values governing that society and it, therefore, varies from one country to another and one period of history to another.[9]

The respondents in the case presented arguments against decriminalising homosexuality under Section 377 of the Indian Penal Code. They contended that political, economic, and cultural differences between India and countries where consensual acts are decriminalised make it unsuitable for India to follow suit. They highlighted that societal values and traditions in India differ, and decriminalisation might not align with the multicultural nature of the country. The respondents also argued that Section 377 serves as a tool to maintain social order and prevent acts that go against what is perceived as the natural order of procreation, thereby justifying the criminalisation of certain sexual activities. Additionally, they pointed out the lack of evidence linking the criminalisation of homosexual acts to the control of the spread of HIV/AIDS. The respondents emphasised the importance of preserving societal norms and values in India and argued against decriminalising consensual adult sexual activities that deviate from traditional perceptions of natural sexual behaviour.

Decision and Rationale:

The Supreme Court, in a unanimous decision delivered by a five-judge bench comprising Chief Justice Dipak Misra, Justices R.F. Nariman, A.M. Khanwilkar, D.Y. Chandrachud, and Indu Malhotra, held that Section 377, to the extent it criminalised consensual sexual acts between adults, was unconstitutional.The Court held that Section 377 created an unreasonable classification by criminalising consensual sexual acts between adults. It failed the test of reasonable classification under Article 14, as it did not have a rational connection with the objective sought to be achieved. The law was arbitrary and discriminatory, targeting a specific section of society based on their sexual orientation.The Court observed that sexual orientation is an intrinsic aspect of an individual’s identity and is protected under Article 15. Discrimination based on sexual orientation is prohibited, and Section 377, by criminalising consensual homosexual acts, discriminates against individuals based on their sexual orientation.The Court held that the right to express one’s sexual orientation is essential to the right to freedom of expression under Article 19(1)(a). Section 377, by criminalising consensual homosexual acts, curtailed the freedom of expression of LGBTQ+ individuals.The Court emphasised that the right to privacy, as recognised in the Puttaswamy judgment, includes the right to make intimate decisions and engage in consensual sexual acts. Section 377 violated the right to privacy and dignity of LGBTQ+ individuals, as it criminalised their consensual sexual relationships. The court took notice of its previous decisionsestablished in the NALSAandK S Puttaswamy case. The Court also relied upon the authorities in Shakti Vahini v. Union of India and others 7 and Shafin Jahan v. Asokan K.Mwherein it has been recognised that an individual’s exercise of choice in choosing a partner is a feature of dignity and, therefore, it is protected under Articles 19 and 21 of the Constitution.[10]The court also classified that its decision of decriminalising same sex relationships between consenting individuals cannot be classified along with offenses like bestiality, sodomy and non-consensual relationship.

Significance of the Case:

The case is a landmark judgement regarding the rights of individuals belonging to the LGBTQ+ community. It established that Section 377 was unconstitutional and violative of the fundamental rights guaranteed by the Constitution of India. The court through this judgement decriminalised the same-sex relationship between two consenting adults. It recognised the rights of individuals belonging to the LGBTQ+ community. It also stated that they are entitled to the rights guaranteed by Articles 14, 15, 19 and 21 of the Constitution, therefore they should not be discriminated against based on their sexual orientation. The decriminalisation of consensual homosexual acts paved the way for further legal and social reforms to protect the rights of LGBTQ+ individuals. It opened the door for discussions on issues such as same-sex marriage, adoption rights, and anti-discrimination laws.

Analysis and Criticism:

Though the case serves as a landmark judgment, it has received a lot of criticism. The Judgement decriminalised only a part of Section 377 legalising the same sex relationship between consenting adults. It did not decriminalise other parts of the section which deal with bestiality and carnal intercourse against the order of nature. We can understand that the Judges wanted to retain certain parts of this section to protect children, women and men who are being forced to get into a same-sex relationship.[11]The Indian society, though it has gone through lots of development is still a traditional society with religious and cultural roots so widely prevalent. This judgement decriminalising same-sexrelationships is viewed to be the promotion of immoral behaviour. Though the Law recognises it the Indian people are still hesitant to accept it.

Conclusion:

The judgement has been significant regarding the rights of individuals belonging to the LGBTQ+ community. Judges’ decision can be considered a well thought decision that focuses on providing inclusivity to all individuals. Though they have different sexual orientations they are all human beings and are entitled to be treated equally without any discrimination. The Judges also understood that law is based on the society and changes as the society changes while giving out this judgement.

[1]Navtej Singh Johar v. Union of India, (2018) 10 SCC 1.

[2] Suresh Kumar Koushal & Anr vs Naz Foundation & Ors on 11 December 2013 2014 (1) SCC 1

[3]https://www.constitutionofindia.net/articles/article-14-equality-before-law/ 18/5/2024

[4]https://www.constitutionofindia.net/articles/article-15-prohibition-of-discrimination-on-grounds-of-religion-race-caste-sex-or-place-of-birth/18/5

[5]https://www.constitutionofindia.net/articles/article-19-protection-of-certain-rights-regarding-freedom-of-speech-etc/18/5

[6]https://www.constitutionofindia.net/articles/article-21-protection-of-life-and-personal-liberty/ 19/5

[7]https://indiankanoon.org/doc/168671544/ 19/5

[8]https://indiankanoon.org/doc/168671544/ 20/5

[9]https://indiankanoon.org/doc/168671544/

[10]https://indiankanoon.org/doc/168671544/

[11] “The judgment decriminalised consensual homosexual acts between adults but did not address other aspects of Section 377, such as non-consensual acts and acts involving minors.” (Navtej Singh Johar v. Union of India, (2018) 10 SCC 1).