NAVTEJ SINGH JOHAR AND OTHERS VS UNION OF INDIA

Equivalent Citation – (2018) 10 SCC I

Bench – Dipak Misra, C.J., Rohinton Fali Nariman, A.M. Khanwilkar, Dr. D.Y. Chandrachud, and Indu Malhotra, JJ.

PETITIONER – NAVTEJ SINGH JOHAR AND OTHERS

V.

RESPONDENT – UNION OF INDIA

DATE OF JUDGEMENT – 6.09.2018

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

Citation: AIR (2018) 10 SCC I, 2018 SC 4321

Introduction:

Section 377 of the Indian Penal Code imposed criminal liability on individuals who “voluntarily have carnal intercourse against the order of nature.” This provision was challenged primarily on the grounds of “consent,” leading the Supreme Court to decriminalize certain aspects of the section. This decision marked a significant and progressive precedent. The Court reaffirmed its role in responding to evolving societal norms and public sentiment.

Provisions of law involved:

Section 377 IPC Articles 14, 15, and 19(1)(a) of the Constitution of India

Issues:

The main issues before the Hon’ble Supreme Court were:

• Whether the judgment delivered in Suresh Kumar Koushal v. NAZ Foundation was appropriate.

• Whether Section 377 of the IPC violates Articles 14 and 15 of the Constitution of India.

• Whether Section 377 is contrary to the Right to Privacy, which is recognized as a fundamental right.

• Whether Section 377 has a “chilling effect” on Article 19(1)(a) by criminalizing the gender expression of the LGBT community.

Facts of the case:

A writ petition was filed before a three-judge bench of the Supreme Court on January 8, 2018. The petitioners sought a declaration that the “right to sexual autonomy” and the “right to choose a sexual partner” form an integral part of the right to life under Article 21 of the Constitution of India. They also urged the Court to declare Section 377 of the Indian Penal Code unconstitutional.

The three-judge bench concluded that the matter required adjudication by a larger constitutional bench.

Contentions:

Arguments by Petitioner:

1. Homosexuality, bisexuality, and other sexual orientations are natural and valid, grounded in the consensual relationship between two legally competent individuals. These orientations do not constitute physical or mental illness.

2. Criminalizing such orientations infringes upon the principles of individual dignity and autonomy. Sexual orientation is a vital aspect of one’s privacy.

3. The LGBT community, representing approximately 7-8% of India’s population, deserves recognition and legal protection irrespective of its minority status.

4. Section 377 violates Article 14 due to its vagueness in defining “carnal intercourse against the order of nature.” It fails to offer intelligible differentia or reasonable classification when consent is present.

5. Section 377 contradicts Article 15 and suppresses Article 19(1)(a) by hindering the free expression of sexual identity by LGBT persons.

6. The right to sexual autonomy and freedom to choose a partner are inherent under Article 21. Additionally, Section 377 compromises an individual’s reputation, a key aspect of Article 21.

7. Section 377 impedes the LGBT community’s access to safe housing. Members are compelled to seek support from private networks like Gay Housing Assistance Resources (GHAR), highlighting the urgent need for governmental and judicial intervention.

Arguments by the Respondent:

1. Individuals do not possess the liberty to misuse their bodies. The acts described in Section 377 involve such misuse and are, therefore, punishable.

2. These acts are derogatory to the constitutional value of dignity. Decriminalizing them would be immoral and unconstitutional.

3. Section 377 appropriately criminalizes such acts, reflecting traditional Indian legal and cultural values. The section is still relevant in modern times across legal, medical, moral, and constitutional dimensions.

4. Invalidating Section 377 could undermine the institution of marriage and destabilize the family system.

5. Despite global decriminalization trends, India must consider its distinct cultural, political, and economic context.

6. If consensual same-sex acts are removed from the scope of Section 377, a married woman could be left without legal remedy against her bisexual husband and his consenting male partner. This change could also affect personal laws and statutes like the Special Marriage Act.

7. The doctrine of manifest arbitrariness does not apply, as the law treats individuals equally regardless of gender or sexual orientation.

8. Consent may be obtained through coercion, intoxication, mental incapacity, or misrepresentation.

9. Section 377 does not breach Article 14. It simply defines an offence and its punishment. The State has the authority to determine reasonable classifications under the law.

Rationale:

The legal debate began in 2009 when the Delhi High Court, in Naz Foundation v. Government of NCT of Delhi, declared Section 377 unconstitutional in light of Articles 14, 15, and 21. However, in Suresh Kumar Koushal v. Naz Foundation, another bench reversed the decision, reasoning that the provision did not target individuals based on sexual orientation or identity but criminalized specific acts regardless of gender, age, or consent.

From a constitutional perspective, the Indian Constitution enshrines certain inalienable rights. Indian courts have consistently upheld that Articles 14 and 21 guarantee evolving and dynamic rights to liberty and equality. A static interpretation would contradict the Constitution’s spirit. This doctrine is rooted in “Transformative Constitutionalism,” which emphasizes the Constitution’s adaptability to changing societal values. It also entrusts the judiciary with the responsibility of upholding constitutional principles.

Hence, applying this doctrine and constitutional morality, it was necessary to recognize LGBT rights under Articles 14, 19, and 21. Constitutional morality promotes an inclusive and diverse society while maintaining adherence to constitutional values. Since 1860, Indian society has undergone significant change, especially after the NALSA judgment. Despite this progress, Section 377 continued to produce a chilling effect on acceptance and judicial enforcement of LGBT rights.

Permitting continued discrimination against the LGBT community would reflect a failure of the judiciary in protecting fundamental rights. Courts must ensure that marginalized communities, often subjected to discrimination and violence by family, society, and the State, receive due protection. Judicial development should not obstruct the realization of rights for these vulnerable individuals.

The argument that the LGBT community is a statistical minority is irrelevant. Fundamental rights apply to all citizens, irrespective of their population size. The Court aptly noted that “the idea of number, in this context, is meaningless; like zero on the left side of any number.”

Petitioners also argued that Section 377 violated Article 14 due to a lack of intelligible differentia. In today’s context, where sex is not limited to reproduction, what constitutes “natural” is subject to change. Article 15 was also violated, as it has traditionally excluded interpretations of sex that encompass sexual orientation and gender identity. The Article must be broadened to include LGBT individuals.

Regarding Article 19, Justices Misra and Khanwilkar clarified that expressing one’s sexual orientation does not infringe upon public decency or morality, as these concepts are not majoritarian. Furthermore, the section infringed Article 21 since the right to life includes the right to privacy, consensual sexual conduct, and choice of a partner. The right to sexual autonomy is intrinsic to Article 21.

The K.S. Puttaswamy case reaffirmed that denying privacy to LGBT individuals due to their minority status breaches fundamental rights. The NALSA decision, which recognized gender identity as intrinsic to one’s personality and essential for dignity, further supports this interpretation. Therefore, the Court rightfully held that consensual sexual acts between adults, regardless of gender, are natural and decriminalized such acts accordingly.

To summarize: the Supreme Court concluded that sexual orientation is part of the right to expression under Article 19 and an essential aspect of privacy under Article 21.

Inference:

When the writ petition was first presented by dancer Navtej Singh Johar before a three-judge bench, the Court referred to the Suresh Koushal case, which had overturned the Naz Foundation decision. Recognizing the complex legal and social dimensions involved in interpreting Section 377, such as “order of nature,” social morality, and constitutional rights, the bench deemed it appropriate for consideration by a larger bench.

After reviewing the matter through various lenses, the five-judge bench of the Supreme Court delivered a unanimous judgment in favor of the petitioners. It held Section 377 unconstitutional to the extent that it criminalized consensual sexual acts between two adults, regardless of gender. As this decision came from a five-judge bench, it stands as a binding precedent for all courts across India.

Conclusion:

The Supreme Court’s decision to decriminalize consensual sexual relations between adults, irrespective of their gender or orientation, was a landmark step toward ensuring equality. At the same time, the Court rightly preserved the applicability of Section 377 in cases involving bestiality, minors, or non-consensual acts, preventing potential misuse of the ruling.

By overruling the Suresh Kumar Koushal judgment, the Court delivered justice to a community long marginalized and dehumanized. After years of social ostracization and being labeled “untouchables,” it was imperative for the highest court of the land to adopt a progressive stance and affirm the LGBT community’s rightful place within Indian society.