NAVTEJ SINGH JOHAR v. UNION OF INDIA (2018), 10 SCC 1

Supreme Court of India (Constitution Bench of 5 Judges)

Bench –  Chief Justice Dipak Misra ,Justice A.M. Khanwilkar, Justice R.F. Nariman,  Justice D.Y. Chandrachud , Justice Indu Malhotra

Date of Judgment: 6 September 2018

Petitioners: Navtej Singh Johar (a renowned Bharatnatyam dancer) along with other LGBTQ+ individuals including Sunil Mehra (journalist), Ritu Dalmia (chef), Aman Nath (historian), and others.

Respondent: Union of India (represented through the Ministry of Home Affairs)

FACT OF THE CASE

Section 377 of the Indian Penal Code was an archaic piece of legislation that was introduced in India during British colonization in 1860.^[1] It criminalized “unnatural sexual acts”. Over the years, this broad legal language had begun to produce consequences for members of the LGBTQ+ community in India,^[2] particularly with regards to gay men and women. Even when these acts occurred between two consenting adult individuals in a private capacity, the law was applied to induce fear, harassment, blackmail, and feelings of public disgrace to LGBTQ+ individuals, who faced possible criminalization simply for falling in love with someone of the same sex.

In 2009, the Delhi High Court decriminalized same-sex relationships between two consenting adults,^[3] but in 2013, the Supreme Court restored Section 377 in its original form, on the argument that “the number of affected people is very small”^[4] in the case of Suresh Kumar Koushal. Many more LGBTQ+ people found themselves feeling unsafe again, along with feelings of the threat of arrest and public shame regarding their sexual identity in Section 377.

In 2016, a prominent dancer, Navtej Singh Johar, and five individuals filed a petition in the Supreme Court stating that Section 377 effectively outlawed their sexual orientation, which is a natural part of themselves; that the provision violated their rights of equality (Article 14), dignity and privacy (Article 21), freedom of expression (Article 19), and freedom from discrimination (Article 15). In their case, they relied upon the privacy ruling of the Supreme Court in Puttaswamy (2017), which stated that sexual orientation is an aspect of one’s dignity and privacy^[5].

The government did not defend either strongly the law regarding consensual relationships.  The government told the Court to simply be fair.  Nonetheless, certain religious and social organizations opposed the petition, claiming that homosexuality was immoral, or against custom. The Supreme Court assembled a five-judge Constitution Bench to consider whether Section 377, in relation to private, consensual same-sex relationships, violated fundamental rights, and humanity.

ISSUES RAISED

1.     Should the prior ruling (2013) that upheld Section 377 be reversed or amended?

2.     Is it appropriate to label LGBTQ+ individuals as criminals simply due to who they love?

3.      Does the criminalization of consensual same-sex relationships infringe on an individual’s right to live with dignity, privacy, and autonomy?

ARGUMENTS OF THE PARTIES

⮚     PETITIONERS’ ARGUMENTS

Petitioners claimed that Section 377 IPC criminalizes them not for committing a crime, but for the simple reason of their sexual orientation^[6] which is a natural part of the existence of each petitioners. Petitioners argued that instead of just being attracted to someone of the same sex, the law treats them as criminals even though they engage in private, consensual activities with other adults^[7]; petitioners argued that this violates their right to equality as guaranteed by Article 14 of the Constitution. Petitioners further argued that sexual orientation fell within “sex” under Article 15, so the law punishes petitioners for one’s attraction to same sex, which constitutes discrimination based upon one’s sexual identity, even when the Constitution does not allow for discrimination. They further argued that Section 377 forced LGBTQ+ communities to conceal their identity, and to live in fear, therefore further restricting their freedom of expression as protected and enshrined in Article 19(1)(a)^[8]. They argued that the freedom to express love, emotional attachments and identity constituted an important aspect of one’s personality. They also relied heavily on the Supreme Court’s historic judgment in Puttaswamy (Privacy)^[9] to assert that the right to privacy includes the freedom to make intimate decisions concerning one’s body and sexual life. They argued that sexual relationships between consenting adults in private are part of personal liberty and dignity – both rights protected under Article 21. The petitioners, in addition, voiced strong disapproval of the earlier Supreme Court judgement in Suresh Kumar Koushal v. Naz Foundation (2013)^[10], which endorsed Section 377 and brushed aside the concerns of LGBTQ+ people with the phrase “minuscule minority.” They asserted, however, that even a small group has basic rights and that those rights cannot be denied simply because a smaller number of people are impacted^[11]. The petitioners maintained that Minorities are protected from majoritarian prejudice by the Constitution and that Section 377 was inconsistent with constitutional morality in that it allowed social and religious prejudices in the name of antiquity to override legal precepts.

⮚     RESPONDENTS’ ARGUMENTS

The Union of India (respondent) essentially adopted a neutral stand on the criminalization of consensual same-sex relationships between adults^[12]. It indicated that it would leave the matter to the “wisdom of the Court,” particularly with respect to consenting adults in private. However, it made clear that aspects of Section 377 not involving consensuality  such as acts of non-consensuality, sexual offences involving minors, and sexual acts involving non-consenting animals should remain in place. It indicated that if the Court read down Section 377 to cover consensual LGBTQ+ relationships, it would expect the provision to be read down to nevertheless operate to punish unnatural sexual acts involving exploitation or coercion, or that cause harm to public morals. However, numerous intervener’s that challenged the petition religious and conservative social groups vigorously supported retaining Section 377, as is. They asserted that homosexuality was “unnatural”, “against Indian culture”, and undermined the traditional moral fiber of society. Some intervener’s said that decriminalizing same-sex relations would advance sexually “immoral behavior” and undermine the institution of marriage, which they viewed as the union of a man and woman for procreation. They also argued that legal sanctioning of homosexual conduct would negatively impact societal values and lead to demands for same-sex marriage, adoption rights, and other civil protections, which they believed were not culturally ready for India. Some of the intervener’s attempted to inject the consideration of public health, arguing that decriminalizing the law regarding consensual same sex relations would contribute to the increased spread of sexually transmitted diseases^[13], including HIV and AIDS. They claimed public health consequences since Section 377 has a deterrent effect to those types of behaviours. They also maintained it is the legislature, not the court, that is best positioned to make changes to laws dealing with morality and social constructs in upholding the separation of powers. Lastly, they argued that Section 377 does not violate any rights of LGBTQ+ individuals since it does not apply to them specifically, and related to acts that are “unnatural” relating to the violation of traditional morals, therefore it is not discriminatory. In sum, while the government took a neutral stance on consensual relations, each set of interveners opposing it sought to justify Section 377 based on moral, cultural, religious, public health, and institutional rationales, arguing that Section 377 should continue to exist as it was embedded in the social fabric, and further, the fear of creating other legal and broader social considerations.

JUDGMENT OF THE CASE

In a historic verdict, the Supreme Court of India decided that Section 377 of the Indian Penal Code, which made criminal “carnal intercourse against the order of nature” was unconstitutional as far as consensual sexual conduct between adults of the same sex was concerned. The Court observed that sexual orientation is an essential aspect of a person’s identity, and making any such conduct a criminal offence suppressed the fundamental rights under Articles 14 (equality), 15 (no discrimination), 19 (freedom of expressive conduct), and 21 (right to life and personal liberty) of the Indian Constitution. The Court subsequently overruled its earlier judgment (in Suresh Kumar Koushal v. Naz Foundation (2013)), which had upheld the constitutionality of Section 377. The Bench found that the Koushal decision did not account for the changing nature of constitutional morality and the rights of sexual minorities. In decriminalising consensual same-sex relations, the Court noted that Section 377 would still apply to non-consensual acts^[14], sexual acts with minors, and bestiality. The ruling emphasized the significance of maintaining the dignity and autonomy of individuals^[15], and held that statutes need to change to align with the constitutional principles of liberty and equality.

RATIO DECIDENDI

On 6 September 2018, in a unanimous ruling by a five-judge constituted bench, the Supreme Court delivered a historic judgment and held that Section 377 of the IPC was unconstitutional to the extent that it criminalized completed consensual sexual acts between adults of the same sex. The Court noted that sexual orientation is a natural and recognized part of a person’s identity, and punishing an individual based on sexual orientation is a violation of both the fundamental right to equality (Article 14) and the right not to be discriminated against (Article 15). The bench further ruled that criminalizing private consensual relations between adults is arbitrary, capricious and violates the core of basic human dignity^[16]. The Supreme Court held that section 377 violates the rights to privacy, personal liberty, and dignity found in Article 21. Furthermore, the Court stated intimate choices, including consensual sexual relations are at the very heart of personal autonomy, and adults should not be made to conduct these choices without fear of criminal prosecution. The Court also found that each individual’s freedom of expression found in Article 19 includes the ability to express one’s sexual identity and orientation. The Court responded to a pressing issue related to social and moral considerations by introducing the notion of constitutional morality^[17], as it justified the need to protect fundamental rights irrespective of the demands of a society or of the majoritarian view. The Court rejected the reasoning in the Koushal case from 2013 which had described LGBTQ+ persons as a “minuscule minority” and denied them protection under the law. The Court clarified that Section 377 continues to apply to non-consensual conduct, intercourse with minors, and bestiality, but provides no punishment for private, consensual sexual conduct by adults. The ratio of the judgment implies that adults are able to engage in private sexual conduct without the fear of arrest. Laws cannot discriminate against individuals based on their sexual orientation, and the Constitution guarantees the rights, dignity, liberty and equality of all individuals, including people defined as sexual minorities. The judgment reaffirmed the idea that constitutional rights are tied to the individual, and not to any prejudices of societal or cultural norms and are permitted to evolve to protect appropriate classes of similarly situated individuals who are vulnerable.

IMPACT OF THE CASE

The Navtej Singh Johar judgment was a landmark moment for LGBTQ+ rights in India. The Supreme Court stated unequivocally that adults in consensual and same-sex relationships cannot be classified as criminals^[18] and thus removed fears and stigma that LGBTQ+ individuals have carried for decades. The judgment found that sexual orientation is a natural feature of identity and everyone, regardless of who they love, is entitled to equality, dignity, and freedom under the Constitution. The Court also placed significance on constitutional morality^[19] meaning that the protection of basic rights comes first over what society or the majority view as “right” or “moral.” This was a concrete message that laws are not allowed to legislate against a group of people who are a minority simply that they do belong to a minority, and that the Constitution provides protections for even those whose choices or actions lie on a different spectrum. As a result of this ruling, LGBTQ+ individuals could live freely in both public and private without fear of harassment or prosecution. It likewise opened the door for critical dialogues about LGBTQ+ rights and the rights of persons to marry, adopt^[20], and for individuals to be free from discrimination on the basis of sexual orientation. Finally, this case was a catalyst for an increased push for social action and legal change both in India and internationally, affirming that these human rights apply to all individuals. In short, this case has changed lives, culture, and the law by affirming that love, identity, and choice are constitutionally protected, no matter who you love.

REFERENCES

BOOKS / COMMENTARIES / JOURNALS REFERRED

1. M.P. Jain, Indian Constitutional Law (8th ed. 2018).
2. H.M. Seervai, Constitutional Law of India: A Critical Commentary (4th ed. 2013).
3. V.N. Shukla, Constitution of India (13th ed., Mahendra Pal Singh ed., 2017).
4. Justice A.P. Shah, Equality, Dignity and Privacy Jurisprudence in India, NUJS L. Rev. (2018).
5. D. Chandrachud, Constitutional Morality and Transformative Constitutionalism in India, Indian Law Review (2019).
6. Gautam Bhatia, The Transformative Constitution: A Radical Biography in Nine Acts (2019).
7. P.P. Craig & G. de Búrca, EU Law: Text, Cases, and Materials (Oxford University Press, 5th ed. 2011) (comparative constitutional morality development).
8. Justice R.F. Nariman, A Critique on Majoritarian Morality in Indian Journal of Constitutional Studies (2018).

 ONLINE ARTICLES / SOURCES REFERRED

1. LiveLaw, Supreme Court Decriminalises Section 377: Major Victory for LGBTQ+ Rights (Sept. 2018), available at https://www.livelaw.in.
2. Bar & Bench, Navtej Johar Judgment: A Step Towards Transformative Constitutionalism (2018), available at https://www.barandbench.com.
3. The Wire, Constitutional Morality and Minority Rights: Navtej Singh Johar Case Analysis (2019), available at https://thewire.in.
4. PRS Legislative Research, Brief on Section 377, available at https://prsindia.org
5. Human Rights Watch, India: Supreme Court Ruling Historic for LGBT Rights (2018), available at https://www.hrw.org.
6. National Legal Services Authority (NALSA) Commentary on Gender Equality Rights (2018), available at https://nalsa.gov.in.
7. ORF (Observer Research Foundation), Post-Navtej: The Path Forward for LGBTQ+ Rights in India (2019).

CASES REFERRED

1. Navtej Singh Johar 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 DLT 277 (Del. HC 2009).
4. Justice K.S. Puttaswamy (Retd.) v. Union of India, (2017) 10 SCC 1.
5. Shayara Bano v. Union of India, (2017) 9 SCC 1.
6. Francis Coralie Mullin v. Adm’r, Union Territory of Delhi, (1981) 1 SCC 608.
7. Independent Thought v. Union of India, (2017) 10 SCC 800.
8. National Legal Services Authority v. Union of India, (2014) 5 SCC 438 (NALSA case).
9. Govind v. State of Madhya Pradesh, (1975) 2 SCC 148.
10. State of W.B. v. Anwar Ali Sarkar, AIR 1952 SC 75.
11. Asif Hameed v. State of J&K, 1989 Supp (2) SCC 364.

STATUTES / CONSTITUTIONAL PROVISIONS REFERRED

1. Section 377, Indian Penal Code, 1860 (pre-amendment).
2. Article 14, Constitution of India – Equality before Law.
3. Article 15, Constitution of India – Non-discrimination.
4. Article 19(1)(a), Constitution of India – Freedom of Speech and Expression.
5. Article 21, Constitution of India – Right to Life and Personal Liberty.
6. Article 13, Constitution of India – Judicial review of pre-constitutional laws.
7. Article 32, Constitution of India – Right to Constitutional Remedies.
8. General Clauses Act, 1897 (interpretation principles for colonial-era statutes).

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

[2] Id

[3] Id.; see also Naz Found. v. Gov’t of NCT of Delhi, 160 DLT 277 (Del. HC 2009).

[4] Suresh Kumar Koushal v. Naz Found., (2014) 1 SCC 1.

[5] Justice K.S. Puttaswamy (Retd.) v. Union of India, (2017) 10 SCC 1.

[6] INDIA CONST. art. 14

[7] K.S. Puttaswamy (Retd.) v. Union of India, (2017) 10 SCC 1

[8] INDIA CONST. art. 19(1)(a)

[9] Justice K.S. Puttaswamy (Retd.) v. Union of India, (2017) 10 SCC 1

[10] Suresh Kumar Koushal v. Naz Found., (2014) 1 SCC 1

[11] State of W.B. v. Anwar Ali Sarkar, AIR 1952 SC 75

[12] Asif Hameed v. State of J&K, 1989 Supp (2) SCC 364.

[13] Naz Found. v. Gov’t of NCT of Delhi, 160 DLT 277 (Del. HC 2009)

[14] Thought v. Union of India, (2017) 10 SCC 800

[15] Mullin v. Adm’r, Union Territory of Delhi, (1981) 1 SCC 608

[16] NDIA CONST. art. 14; see Shayara Bano v. Union of India, (2017) 9 SCC 1

[17] Govind v. State of Madhya Pradesh, (1975) 2 SCC 148.

[18] Coralie Mullin v. Adm’r, Union Territory of Delhi, (1981) 1 SCC 608.

[19] Shayara Bano v. Union of India, (2017) 9 SCC 1

[20] National Legal Servs. Auth. v. Union of India, (2014) 5 SCC 438