This Case Commentary is written by Sneha Awasthi, a Second-Year Law Student of Chhatrapati Shahu Ji Maharaj University

Title: Navtej Singh Johar v. Union of India

Court: Supreme Court of India

Year: 2018

Citation : (2018) 10 SCC 1

Abstract – This case analysis examines the Supreme Court of India’s landmark judgment in Navtej Singh Johar v. Union of India, which decriminalized consensual same-sex relationships by striking down Section 377 of the IPC. The 2018 ruling affirmed the constitutional rights to equality, privacy, and personal liberty for LGBTQ+ individuals. This analysis explores the case’s background, legal arguments, and its profound impact on LGBTQ+ rights, societal attitudes, and future legal reforms in India.

Keywords – Introductions, background, Facts, Issue, Arguments, Judgement, Impact, Critical analysis, Conclusion

Introduction In its landmark judgment, Navtej Singh Johar vs. Union of India, the Supreme Court of India laid an end to what may be described as a wrenching saga in the country’s history regarding LGBTQ+ rights. Navtej Singh challenged Section 377 of the Indian Penal Code, which had criminalized consensual homosexual activities. The petitioners submitted that Section 377 violates fundamental rights conferred upon them under the Indian Constitution. The Supreme Court of India decriminalized consensual same-sex relations by declaring that this section of the Indian Penal Code violated constitutional rights; however, it further declared that it was a violation of dignity and respect for all LGBTQ+ communities to be denied rights over private consensual sexual labor. This judgment eventually proved to be the zenith point putting the verdict in the case of Navtej Singh before many in wonder.

Background –

Before the path-changing Navtej Singh Johar vs. Union of India judgment, several landmark judgments had already set the ball in motion for challenging Section 377 of the IPC over 150-year-old colonial law that criminalizes “carnal intercourse against the order of nature.” Let’s go through these landmark judgments in the light of the opinion given today:

Naz Foundation vs. Government of NCT of Delhi (2009)

The first big legal test to Section 377 came from the Naz Foundation, an NGO engaged with work in the areas of HIV/AIDS and sexual health. In 2001, it filed a petition in the Delhi High Court, where it argued that Section 377, in effect, countered the fight toward preventing HIV and was violating the fundamental rights to privacy dignity, and health for sexual minorities. Perhaps the most historic judgment by the Delhi High Court in 2009, the law has been pronounced as decriminalizing consensual homosexual acts between adults, but by declaring that Section 377 violates fundamental rights under the Constitution, including equality, non-discrimination, and privacy.

Suresh Kumar Koushal vs. Naz Foundation (2013)

However, this win proved to be momentary. The decision of 2009 was appealed and in 2013, the Supreme Court of India invoked a mandate to reverse the judgment of Delhi High Court in Suresh Kumar Koushal vs. Naz Foundation. The Supreme Court held that Section 377 was free from constitutional infirmity and that the judiciary should not interfere with legislative decisions. This decision brought back the criminalization of consensual same-sex relationships, which would greatly cause dismay among LGBTQ+ activists and allies.

Nalsa vs. Union of India (2014)

Progress seemed to be reversed but instead moved elsewhere. In 2014, the Supreme Court in the Nalsa vs. Union of India case recognized a person who claims to be transgender as a third gender and espoused their rights under the constitution. The judgment, largely premised on the right of equality and non-discrimination, thereby indirectly supports the arguments against Section 377.

Puttaswamy (Retd.) and Anr. V. Union of India 2017

The Supreme Court of India declared the right to privacy as a fundamental right in the case of Puttaswamy case, 2017. The Court held sexual orientation as an essential constituent of privacy. This judgment laid a very sound basis for challenging section 377 since it emphasized safeguarding privacy and dignity and that people should be kept away from any form of state coercion where a person is treated below his dignity.

These formed the foundation for the Navtej Singh Johar case, resulting in the judgment delivered in the year 2018 de facto decriminalizing consensual homosexual intercourse and reaffirming the constitutional rights of the LGBT community of India.

Facts –

Navtej Singh Johar vs. Union of India is a case against Section 377 IPC, which criminalizes “carnal intercourse against the order of nature.” Section 377 was enacted in 1861 by the British colonial administration as a crime where homosexual consensual acts were given prison terms. This law has borne much criticism as an infringement on personal rights and continues to justify discrimination against LGBTQ+ people.

The petitioners herein were five in number: one of them happens to be a very famous dancer, Navtej Singh Johar; Sunil Mehra, a journalist; Ritu Dalmia, a celebrity chef; Aman Nath, a hotelier; and Ayesha Kapur, who is a businesswoman. In each of their affidavit mandamuses filed before the court, all of them stated that they are part of the LGBTQ+ community and argued that Section 377 was an infringement of their fundamental rights.

They argued that the said Section 377 was taking away from them their constitutional rights, particularly those found in Articles 14, 15, 19, and 21: the right to equality, prohibition of discrimination, freedom of speech and expression, and right to life and liberty, which the latter comprised the right to privacy and dignity. What petitioners showed before the courts in their application was how Section 377 criminalized private, consensual sexual acts between adults and offended their right to privacy and dignity. They further submitted that the law allows social stigma, discrimination, and mental anguish among the people in the LGBTQ+ community.

The petitioners placed great reliance on the precedents themselves, which consisted of the judgment of the Delhi High Court in Naz Foundation vs. Government of NCT of Delhi, wherein the acts of consensual homosexuality have been considered decriminalized was set aside later by the Supreme Court in the case of Suresh Kumar Koushal. In the judgment of the Supreme Court in the year 2017 in the case of Another vs. Union of India, more famously known as the Puttaswamy case, this judgment relied upon; considering the right to privacy as being a part of the fundamental rights and then elaborating on the importance of safeguarding the autonomy and dignity of individuals.

The Union of India began by upholding Section 377, but eventually, it abandoned that position to the “wisdom of the court,” putting on a neutral pose while the case was being heard on the issue of de-criminalising consensual same-sex relations.

These facts, hence, became the bedrock on which the arguments and deliberations in the case of Navtej Singh Johar vs. Union of India became lodged, culminating in a historic judgment decriminalizing the consensual same-sex acts and upholding the rights and dignity of the LGBTQ+ in India.

Navtej Singh Johar v. Union of India

The major issue involved in this case is the constitutional validity of Section 377 of the IPC, which criminalizes consensual homosexual acts between adults. Whether the said section was intruding upon the fundamental rights that are guaranteed by the Indian Constitution had to be decided.

Article 14—Equality: Does Section 377 classify any person in a way that makes it unreasonable and arbitrary discrimination against LGBTQ+ persons, hence depriving them of equal protection under the law?

Article 15—Non-Discrimination: Does the law classify on grounds of sex and sexual orientation prohibited under Article 15?

Article 19 (Freedom of Speech: Does Section 377 infringe the freedom of speech of LGBTQ+ persons who criminalize their consenting sexual conduct?

Article 21 Right to Life and Personal Liberty: Does criminalizing consensual, same-sex relationships involve a violation of the right to life, which generally includes liberty, privacy, dignity, and autonomy?

The basic question is whether, by criminalizing same-sex consensual relationships under Section 377, the fundamentals of the rights granted to LGBTQ+ persons are infringed upon and decriminalization will stand for the principles of equality and non-discrimination, freedom, and personal liberty as enshrined in the Constitution.

Arguments – The judgment in the case of Navtej Singh Johar v. Union of India was based on arguments that violative law under Section 377 of the Indian Penal Code was against fundamental constitutional rights. In particular, Section 377, which criminalized acts of homosexuality between consenting adults, was an unjustified intrusion into personal privacy and autonomy. It was argued that legislation that was born in colonial times was violative of the modern conceptions of equality and dignity of human beings.

Petitioners submit that Section 377 is violative of the very grundnorm of equality recognized by Article 14 of the Constitution of India, as it created a differential legal regime for LGBTQ+ in comparison with heterosexuals, as it criminalized their consensual sexual activity. Article 15 embalmed this discrimination in a prohibition of discrimination on grounds of sex, among other factors, further entrenching the thought that Section 377 was not only offensive but also unconstitutional.

Moreover, the petitioners argued that it offended Article 21 of the Constitution, which guarantees that every person is entitled to life and personal liberty. They said that personal liberty includes the freedom to make private decisions regarding one’s sexual orientation and relationships. In this regard, criminalizing consensual same-sex relationships is viewed as a denial of autonomy and dignity, elements inherent in personal liberty.

The right to privacy was, however, earlier declared by Justice K.S. Puttaswamy (Retd.) v. Union of India and once again invoked by the petitioners. It was urged that consensual sexual relations between adults are essentially a matter of personal choice and no offence can be made out under penal law for the same. Therefore, in essence, what these arguments brought out is that Section 377 was not merely violative of rights guaranteed by the Constitution but also an obstacle to achieving the goal of a just and fair society.

Judgment – The great reformation of judgment was given by the Supreme Court of India, in its historic decision, in the judgment passed on Navtej Singh Johar v. Union of India, declaring Section 377 of IPC unconstitutional as applied to the consensual same-sex relation between adults by way of striking it down. This judgment, dated 6th September 2018, threw open and changed everything concerning the fight for the rights of LGBTQ+ in India.

This law was enacted by the colonial government and criminalized “carnal intercourse against the order of nature,” making consensual same-sex acts within its scope. Such a law is discriminatory and violative of the rights that the Indian Constitution guarantees to every citizen. Appellants have challenged Section 377 on the grounds of its infringement of rights to equality, privacy, and personal liberty.

Therefore, the judgments of the Supreme Court were based on the ground that Section 377, per se, was repugnant to the principles of equality and dignity espoused under the Constitution. The grounds for reasoning were that the law perpetuated an atmosphere of fear and discrimination against members, particularly those belonging to the LGBT section. It treated persons from the LGBTQ+ community on a different pedestal than persons who are heterosexual and violated Article 14 of the Constitution, which guarantees equality, by criminalizing consensual acts of homosexuality.

Additionally, the Court relied on the right to privacy, which was earlier insisted upon in Justice K.S. Puttaswamy (Retd.) v. Union of India. It submitted that privacy protects the individual’s decisions about his sexual orientation and intimate relationships. It held that private consensual sexual activity between adults, whatever their sexual orientation, is beyond the reach of the criminal law. The Court further held that criminalizing such conduct denigrated the individual autonomy and dignity of persons, which were an integral facet of the right to privacy under Article 21 of the Constitution.

The judgment spoke to the historical and social context behind Section 377 of the IPC. The law, inducted during British colonial rule, was admitted by the Court not to align with then-contemporary values or the progress and march of human rights. Therefore, Section 377 carried along with it the stigma of the colonial era. This makes it sit uncomfortably with contemporary principles of equality and non-discrimination.

Impact – The decision of the Supreme Court in Navtej Singh Johar v. Union of India created an impact in each and every sphere of Indian society and law.

The judgment declared Section 377 of the Indian Penal Code ultra vires in so far as the same made consensual homosexual acts among adults a criminal offense. It brought revolutionary change in the laws of the land about the laws related to LGBTQ+ persons and decriminalized same-sex relations among adults. This put the concepts of equity and non-discrimination into clearer expression, making the legal system peg its foundation on a contemporary standard of human rights. It became very vital in establishing a precedent relating to interpretation concerning constitutional rights, changing social circumstances, and justice.

Social Impact

The win in the decriminalization of same-sex relations was great for the activists and organizations fighting on behalf of the LGBTQ+. It reduces the level of stigma and discrimination against LGBTQ+ people because of acceptance and understanding growing within societies. Legal recognition and protection, through this judgment, have empowered the LGBTQ community, which is very vital for strengthening the mental setup of the people. It also facilitates open discussion about the issues that might arise in the LGBTQ sector while trying to increase the level of inclusiveness and support within societies.

Political Impact

Politically, such a verdict was a hallmark in the history of human rights in India which only reflected the change in thinking of the state to adopt progressive values. The judgment mounted pressure on the lawmakers to bring their legal provisions in line with constitutional guarantees of equality and freedom. This has also impacted political dialogue and thrust political parties and leaders on one forum to speak in favor of LGBTQ+ rights and other progressive reforms. It empowered the role of the judiciary in advancing civil rights and stated that further debates need to happen for further legal and policy reforms.

From a cultural point of view, judgment poses a conflict with the normable cultural and taboo standards about one’s sex, sexuality, and sexual orientation. The interference of the media, arts, and public perception by characterizing a general sense of acceptance concerning various sexualities and orientations was largely that of influence in judgment. This judgment impulse has given a chance to bring into limelight the people as such by breaking off all the stereotypes, thus encouraging diversity.

Psychological Effect

To most the LGBTQ+, such a ruling had deep psychological effects since one’s dignity and right to live without fear of criminal persecution was upheld. It provided a feeling that was necessary for an individual’s good mental health and well-being. Internalized stigma and discrimination, prevalent in LGBTQ+ subjects, were reduced by such a judgment; therefore the more positive self-image and increased self-esteem International.

The judgment created ripples worldwide as one such moment in human rights. It placed India starkly at the forefront of global change and put it within the agenda of the battle for the rights of LGBTQ people and struck off similar legal and social reforms in other parts of the world. It shows very visibly that legal orders do change and indeed do to keep abreast with current human rights standards and marks a real landmark impact on current international debates and activism on LGBTQ+ issues.

The Navtej Singh Johar judgment had far-reaching transformative effects that enhanced justice, equality, and human dignity in legal, social, political, cultural, psychological, and international spheres.

Critical analysis: one strong inference in the case of Navtej Singh Johar v. Union of India is that it has fundamentally changed the legal and social landscape of LGBTQ+ rights in India by decriminalizing consensual same-sex relationships. This type of judicial intervention brought Indian law closer to evolving human rights standards based on the experience of mankind in the present day but also served as a potential catalyst toward greater social acceptance and possible legislative reform in the future regarding sexual orientation and gender identity.

Based on the above assumption the judgment of the Court, which found Section 377 unconstitutional, as bringing the law of India into conformity with international human rights standards. Indeed, the judgment itself has been one of those that have turned out to be a milestone in impressing the rights to privacy, equality, and personal liberty in a manner that does mark a tectonic shift toward acknowledgment and protection of LGBTQ+ rights as constitutionally protected fundamental rights.

The ruling Is also said to have had a positive influence on the attitudes of society toward LGBTQ+ persons by reducing the legal stigma against same-sex relationships. It would, therefore, improve significantly the social inclusiveness and normalcy of diverse sexual orientations and identities.

More than this, though, it can be a stimulus for even more far-reaching changes in laws and policies about discrimination and rights based on sexual orientation and gender identity. Pleadingly patent is the fact that such legislation ought to be comprehensive and not restricted to, or limited to, decriminalization so that there could indeed remain scope for further improvement relative to LGBTQ+ rights.

Lastly, the case marks a landmark instance of judicial activism, which would be embedded as a precedent concerning the approach courts in the future may take concerning constitutional violations and evolving social norms. The ruling further tends to influence the long-term judicial thinking in such cases to represent the role the judiciary should play in shaping progressive legal standards in response to changing societal values.

This can be tested by examination of specific legal changes flowing from the judgment, the change in societal attitude towards the LGBTQ+, subsequent developments in legislation and policy, and subsequent court cases to see how far the reasoning in Johar has impacted judicial reasoning.

Future Directions-Future Directions of the Future of LGBTQ+ Rights in India After the Navtej Singh Johar Judgment Propane legislative reforms related to broader issues of anti-discrimination measures, marriage equality, and gender identity rights. Social integration efforts toward combating stigma through an inclusive education system, improving mental health support, and better resources for LGBTQ+ individuals will be pivotal. Increased media and public life participation is likely to promote higher acceptance. Furthermore, global human rights trends may affect further reforms, and continuing judicial oversight will further develop solid and dynamic legal protections.

Conclusion – The Supreme Court’s ruling in Navtej Singh Johar v. Union of India. Decriminalized consensual same-sex relationships, aligning Indian law with contemporary human rights standards. This landmark decision invalidated Section 377 of the IPC, reinforcing constitutional guarantees of equality, privacy, and personal liberty. The ruling is expected to reduce stigma and foster greater societal acceptance of LGBTQ+ individuals. It highlights the judiciary’s role in advancing civil rights and sets a precedent for future legal interpretations. While a significant legal and social step, the case underscores the need for ongoing legislative and policy reforms to address broader issues of discrimination.

Reference

Navtej Singh Johar vs. Union of India 6 September, 2018 https://indiankanoon.org/doc/168671544/

Navtej Singh Johar v. UOI: decriminalized homosexuality February 7, 2024 https://blog.ipleaders.in/navtej-singh-johar-v-uoi-judgment-which-decriminalized-homosexuality/

Case Summary: Navtej Singh Johar v/s Union Of India By Shruti Verma

https://www.legalserviceindia.com/legal/article-6402-case-summary-navtej-singh-johar-v-s-union-of-india.html

Navtej Singh Johar & Ors. Vs. Union of India thr. Secretary Ministry of Law & Justice By Jasmin Jose -March 7, 2019 https://lawtimesjournal.in/navtej-singh-johar-ors-vs-union-of-india-thr-secretary-ministry-of-law-justice/