This Case Commentary is written by Tanishka Rana, a Third-Year Law Student of Delhi Metropolitan Education

Judgment Date: September 6, 2018
Citation: (2018) 10 SCC 1
Appellant: Navtej Singh Johar & Others
Respondent: Union of India
Judges: Dipak Misra, R.F. Nariman, A.M. Khanwilkar, D.Y. Chandrachud, Indu Malhotra, Rohington Nariman
Court: Supreme Court of India

INTRODUCTION

In this case, Navtej Singh Johar v. Union of India (2018) which is a landmark case that decriminalized homosexuality by striking down section 377 of the Indian Penal Code (IPC). Through this judgment, the rights of the LGBTQ+ community such as Article 21[1], 14[2], and 15[3] Of the Constitution in India which was violated through Section 377[4] Of IPC now ensure their fundamental rights, constitutional rights, dignity, and equality.

Background

During British colonial rule in 1861, Section 377 was introduced which criminalized "carnal intercourse against the order of nature” which means that two individuals of the same sex having consensual sexual intercourse with each other is against the order of nature. Those who fall under this section have to face harsh punishment, including imprisonment for up to life.[5].

In the 21st century, people start recognizing LGBTQ+ individual rights which result in increasing activism and legal challenges to Section 377. There were several attempts to decriminalize this section, including:

1. Naz Foundation Case (2009)[6]: In this case, the Delhi High Court ruled that Section 377 was unconstitutional as it criminalized consensual sexual acts between same-sex adults. Later, this decision was overturned by the Supreme Court in the Suresh Kumar Koushal v. Naz Foundation (2013)[7] Case, which reinstated Section 377, stating that the legislature is responsible for changing any law and not the judiciary.

2. Curative Petition and Public Interest Litigation (PIL): The Koushal judgment[8] Faced heavy criticism, leading to curative petitions and renewed activism. In 2016, the Supreme Court agreed to reconsider the constitutionality of Section 377, eventually leading to the Navtej Singh Johar case.

FACTS OF THE CASE

Navtej Singh Johar, a renowned Bharatanatyam dancer who is the lead petitioner in this case along with Sunil Mehra (journalist), Ritu Dalmia (chef and restaurateur), Aman Nath (historian and hotelier), Ayesha Kapur (businesswoman), Keshav Suri (hotelier and LGBTQ+ activist) has appealed in Supreme Court contended that section 377 violated their fundamental rights, particularly the rights to equality, privacy, dignity, and freedom of expression guaranteed under the Constitution of India.

ISSUE OF THE CASE

Whether Section 377 of the IPC is constitutional or not?

Arguments by the Petitioners

· The petitioner contended that Section 377 was discriminatory and infringed upon their fundamental right which is guaranteed under the constitution. Those rights are equality (Article 14), freedom of expression (Article 19), and privacy (Article 21). They emphasized that consensual sexual relations between adults were a private matter.

· In K.S. Puttaswamy vs. Union of India (2017)[9], Supreme Court recognized that the right to privacy falls under Article 21 which is a fundamental right. They claimed that consensual same-sex relations in private fell within the realm of privacy.

· There has been development in international law as many countries started recognizing LGBTQ+ rights and have decriminalized same-sex relations.

Arguments by the Respondent

· The Union government, left the matter to the "wisdom of the court" without taking a strong position in favor of or against Section 377.

· Some religious and conservative groups argued in favor of retaining Section 377, stating the moral and cultural values of India. They argued that homosexuality was against Indian culture and religious beliefs and stated that people are adopting Western culture trends which is harmful to Indian tradition and culture.

Supreme Court’s Judgment

The Supreme Court of India on September 6, 2018, delivered its judgment in the Navtej Singh Johar v. Union of India case, with a five-judge constitutional bench. The key aspects of the ruling are:

· The court decriminalized homosexuality and excluded consensual sexual acts between adults in private but the provision for non-consensual acts, bestiality, and sex with minors is still punishable

· The Court held that Section 377 violated fundamental rights under the Constitution, including the rights to equality, freedom, and dignity.

· The court stated that the state has no business interfering in consensual adult relationships and the right to privacy and autonomy also included sexual orientation.

· The court recognized LGBTQ+ rights rejected the judgment given in the Koushal case, and stated that the judiciary must protect the fundamental rights and constitutional rights of people, especially for marginalized and vulnerable groups, even when legislative action is lacking.

COMMENT

· The Navtej Singh Johar decision is also being considered to be the beginning of improved human rights and gender equality for the LGBTQ community in India. It is a new milestone in the legal status of LGBTQ+ people. For the first time in history, India’s supreme court lawfully approved gay marriage. As much as this victory is a great legal victory, the essay describes the problems that subsist and need to be addressed in order to achieve full integration into society.

· The threat of social disapproval and discrimination[10] is a major obstacle for people of all LGBTQ nations, offenders are subject to abuse and humiliation and may be wholly isolated from the rest of the population of the country. However, acceptance is gradually creeping in major towns, and attitudes in most rural areas remain obscure with outdated views and beliefs that promote segregation and stereotypes. Perhaps, it is this imbalance that underscores the need for further action and education to get all people on board.

· More importantly, the ruling fell short of some key legal matters that affect the LGBTQ population that as same-sex marriage, inheritance, and adoption rights. Reportedly, the absence of imposing laws in these areas deprived a large number of people of the rights and recognition that people in heterosexual marriage take for granted. It is because of their understanding that there has not been enough progress in terms of legal reforms that there is still a need for the promotion of LGBTQ+ rights because laws that are passed and recognized do not equal society’s acceptance. There is no single answer to the problem and therefore a combination of legal measures and social action is required so that the community as a whole will not discriminate against nor harm anyone regardless of sexual orientation.

Conclusion

The Navtej Singh Johar v. Union of India judgment is a landmark in the journey toward equality and justice for LGBTQ+ individuals in India. By decriminalizing homosexuality, the Supreme Court reaffirmed the principles of dignity, autonomy, privacy, and equality. The case represents a crucial step toward ensuring that all citizens enjoy the fundamental rights guaranteed by the Constitution regardless of sexual orientation. However, the fight for by LGBTQ+ community in India for full equality continues as there is still a social stigma for its acceptance.

References

[1] CONSTITUTION OF INDIA_ GOVERNMENT OF INDIA MINISTRY OF LAW AND JUSTICE LEGISLATIVE DEPARTMENT, OFFICIAL LANGUAGES WING https://cdnbbsr.s3waas.gov.in/s380537a945c7aaa788ccfcdf1b99b5d8f/uploads/2024/07/20240716890312078.pdf accessed on 19/9/24

[2] CONSTITUTION OF INDIA_ GOVERNMENT OF INDIA MINISTRY OF LAW AND JUSTICE LEGISLATIVE DEPARTMENT, OFFICIAL LANGUAGES WING https://cdnbbsr.s3waas.gov.in/s380537a945c7aaa788ccfcdf1b99b5d8f/uploads/2024/07/20240716890312078.pdf accessed on 19/9/24

[3] CONSTITUTION OF INDIA_ GOVERNMENT OF INDIA MINISTRY OF LAW AND JUSTICE LEGISLATIVE DEPARTMENT, OFFICIAL LANGUAGES WING https://cdnbbsr.s3waas.gov.in/s380537a945c7aaa788ccfcdf1b99b5d8f/uploads/2024/07/20240716890312078.pdf accessed on 19/9/24

[4] The editor of RAMAN DEVGAN_DEVGAN_IPC Section 377_ https://devgan.in/ipc/section/377/ accessed on 19/9/24

[5] The editor of THE TIMES OF INDIA_What is section 377 of IPC?_https://timesofindia.indiatimes.com/india/what-is-section-377/articleshow/66067994.cms accessed on 19/9/24

[6] The editor of IPLEADERS Unconstitutionality of Section 377 of IPC : overview of Naz Foundation v. Government of NCT of Delhi https://blog.ipleaders.in/unconstitutionality-section-377-ipc-overview-naz-foundation-v-government-nct-delhi/ accessed on 19/9/24

[7] The editor of GLOBAL FREEDOM OF EXPRESSION COLUMBIA UNVERSITY_ Koushal v. Naz Foundation _ https://globalfreedomofexpression.columbia.edu/cases/koushal-v-naz-foundation/ accessed on 19/9/24

[8]The editor of Microsoft word_Case Summary Suresh Kumar Koushal and another v NAZ Foundation and others Supreme Court of India: Civil Appeal No. 10972 of 2013 https://www.equalrightstrust.org/ertdocumentbank/Case%20Summary%20Suresh%20Kumar%20Koushal%20and%20another%20v%20NAZ%20Foundation%20and%20others.pdf accessed on 19/9/24

[9] The editor of SOUTH ASIAN TRANSLAW DATABASE_ JUSTICE K.S. PUTTASWAMY VS. UNION OF INDIA _ accessed on 19/9/24https://translaw.clpr.org.in/case-law/justice-k-s-puttaswamy-anr-vs-union-of-india-ors-privacy/ accessed on 19/9/24

[10] The editor of UNITED NATION_ India’s LGBTQIA+ community notches legal wins but still faces societal hurdles to acceptance, equal rights _https://news.un.org/en/story/2024/05/1149956 accessed on 19/9/24