Case Brief: Navtej Singh Johar v. Union Of India

CASE NAME	Navtej Singh Johar v. UOI
CASE NAME (Also known as)	LGBTQ Case
CITATION	(2018) 1 Supreme Court Cases 791: (2018) Supreme Court Cases (Cri) 499: 2018 SCC online SC 10
COURT	In Supreme Court of India
BENCH	Before, Dipak Mishra, A.M. Khanwilkar and D.Y. Chandrachud
APPELLANTS	NAVTEJ SINGH JOHAR AND OTHERS
RESPONDENTS	UNION OF INDIA, MINISTRY OF LAW AND JUSTICE
DECIDED ON	January 8, 2018

Introduction 

Same-sex couples in India have long struggled for recognition, with a colonial-era ban on gay sex only being lifted in 2018. However, there are gradual changes taking place with the society constantly changing. The current case is seen as a potential milestone for LGBTQ rights in the country, signifying progress in the battle for their rights.

While the ruling allows LGBTQ individuals to freely pursue relationships without facing legal consequences, they are still denied the right to marry, resulting in a lack of legal recognition in matters such as family inheritance, succession, and hospital visitation rights. This leaves LGBTQ individuals without proper legal status and protection in important family-related affairs.

In the leading case of Navtej Singh Johar v. In Union of India (2018), the Supreme Court of India declared Section 377 of the Indian Penal Code unconstitutional as it criminalized consensual same-sex relationships. The petition, filed by a dancer, led to a unanimous ruling that declared the section, which penalized ‘carnal intercourse against the order of nature’, as unconstitutional in relation to adult same-sex sexual conduct.

Facts of the case

The issue concerned in this case deals with the constitutional validity of Section 377 of the Indian Penal Code, 1860. Section 377 of IPC deals in the relation to consensual same-sex sexual activity conducted in private. This section of the law, as defined in IPC as ‘Unnatural Offences,’ criminalizes such behavior and also imposes penalties. 

The case aimed to determine whether this provision of IPC is violating the constitutional rights to equality, non-discrimination, privacy, and personal autonomy for the adults engaging in consensual same-sex sexual intercourse in private or not.

In 2009, in the leading case of Naz Foundation v. Govt. of N.C.T. of Delhi, the Delhi High Court held that Section 377 of the Indian Penal Code, which criminalized consensual same-sex sexual intercourse in private, as unconstitutional. 

However, in 2014, a two-judge bench of the Supreme Court judgment in the referred case of Suresh Kumar Koushal v. Naz Foundation overturned this decision of Delhi High Court, reinstating the legality of this section. This decision further sparked the widespread protests and criticism from its activists and the LGBTQ+ community, leading to a subsequent legal battle and eventually the landmark 2018 Supreme Court judgment finally decriminalizing homosexuality in India.

The Petitioner in this case, Navtej Singh Johar, a member of the LGBTQ community and a dancer, filed a Writ Petition in the Supreme Court in 2016. The petition sought recognition of the right to same sexuality, right to sexual autonomy, and their right to choose a sexual partner as essential components of the right to privacy.

Issues concerned in the case

The Court examined the validity of the Koushal verdict. It also assessed whether Section 377 breaches:

1. Article 14 by discriminating against individuals based on their “sexual orientation” and “gender identity”?
2. Article 21’s rights to autonomy and dignity by penalizing private consensual acts among same-sex individuals?
3. Article 19(1)(a)’s right to expression by making the gender expression of the LGBTQI+ community a criminal offense?

Arguments by Petitioner 

The Petitioner argued that Section 377 was unconstitutional and violated Article 14 of the Constitution, as it was vague and did not provide a clear definition of “carnal intercourse against the order of nature.” Their contention deals with declaring Section 377 of IPC unconstitutional. They also contented that this part must be struck down as it violates the basic constitutional feature, the right to equality before the law. 

The Petitioner further argued that Section 377 of the Constitution violated Art. 15 as it discriminated based on a person’s sexual partner’s sex. They also claimed that Section 377 had a “chilling effect” on Article 19, which guarantees freedom of expression.

Arguments by Respondent 

The Union of India was the Respondent in the case, while several non-governmental organizations, religious bodies, and representative bodies applied to intervene in the case alongside the Petitioner and Respondent.

The Union of India argued that it deferred the decision on the constitutional validity of Section 377 (as it pertained to consenting adults of the same sex) to the discretion of the Court. Some parties intervening in the case argued against the Petitioner by asserting that the right to privacy wasn’t absolute. 

They contended that such actions were against the “constitutional notion of dignity, could lead to a rise in HIV/AIDS cases in society, and claimed that declaring Section 377 unconstitutional might harm the institution of marriage and potentially infringe upon Art. 25 of the Constitution (Freedom of Conscience and Propagation of Religion).

Litmus test for the validation of Section 377 of IPC

The Supreme Court assessed Section 377’s constitutionality in line with the principles of equality, liberty, and dignity outlined in Articles 14, 19, and 21:

• Equality and Non-Discrimination: The Court noted that Section 377 unfairly penalizes individuals engaged in same-sex relationships. It pointed out that the provision, aimed at safeguarding women and children, unreasonably groups consensual acts as “unnatural offenses” despite separate penalties under Section 375 and the POCSO Act. 

Thus, the Court deemed this unequal treatment of the LGBT community a violation of Article 14. Additionally, it found Section 377 to be manifestly arbitrary, lacking differentiation between consensual and non-consensual adult acts, fostering stereotypes and prejudices against certain choices, thereby breaching Article 14’s foundation of non-discrimination.

• Freedom of Expression: Recognizing the right of all individuals, including LGBTQI persons, to express their choices freely, the Court condemned Section 377 for stigmatizing and discriminating against transgender individuals. It scrutinized the grounds of public order, decency, and morality as insufficient to curb freedom of sexual expression under Article 19(1)(a). Highlighting that private consensual acts don’t disrupt public order or morality, the Court deemed Section 377’s restriction disproportionate and a violation of the right to freedom of expression.
• Right to Life and Personal Liberty: The Court affirmed that Section 377 curtails human dignity, autonomy, and privacy rights by impeding individuals’ freedom to engage in voluntary sexual acts, thus infringing Article 21. Denying the right to determine one’s sexual orientation restricts an individual’s right to privacy, compelling the Court to broaden the scope of privacy rights to encompass ‘sexual privacy’.
• “Order of Nature”: The Court criticized Section 377 for criminalizing ‘unnatural sex’ without valid legal classification between natural and unnatural acts, emphasizing that legality or acceptance should not hinge on naturalness.
• Constitutional Morality: Upholding ‘constitutional morality’ as the guiding principle, the Court emphasized the transformative role of the Constitution in creating an inclusive society. It stressed that assessing penal provisions’ conformity with fundamental rights should adhere to constitutional, not societal, morality.
• Yogyakarta Principles: Citing India’s commitment to the Yogyakarta Principles banning discrimination based on sexual orientation and gender identity, and NALSA vs. Union of India, which upheld gender identity non-discrimination, the Court concluded that Section 377 contradicts India’s international commitments.

Decision 

The Supreme Court, with reference to the verdict of Suresh Kumar Koushal, highlighted that it had employed the rationale of a tiny minority to deny fundamental rights to the LGBT community. It pointed out that the previous judgment failed to distinguish between consensual and non-consensual sexual acts among adults. 

The Court emphasized the necessity of differentiating between consensual relationships of adults in private, regardless of whether they are heterosexual or homosexual. Additionally, it stressed that consensual relationships between adults should not be equated with offenses like sodomy, bestiality, or non-consensual relationships.

Moreover, the Court examined the constitutionality of Section 377 based on the principles outlined in Articles 14, 15, 19, and 21. It referenced the NALSA judgment, which granted equal legal protection to transgender individuals, emphasizing that sexual orientation and gender identity were fundamental aspects of a person’s identity. 

Additionally, it referred to the Puttaswamy judgment, which acknowledged the intrinsic connection between privacy, autonomy, and the right to sexual orientation, leading to the conclusion that “expanding the realm of the right to privacy to encompass ‘sexual privacy’ is crucial to safeguard the rights of sexual minorities.” 

The Court also delved into discussions about the Yogyakarta Principles on Gender Identity and Sexual Orientation, as well as the U.K. Wolfenden Committee Report from 1957, which eliminated criminal offenses involving consensual same-sex relationships among numerous other international comparative references.

The Court determined that sexual orientation is inherent, intrinsic, and unchangeable. It stated that the decision of an LGBT individual to engage in intimate relationships with individuals of the same gender is an assertion of their personal autonomy and self-determination. Moreover, despite being a sexual minority, the LGBT community receives equal protection under Part III of the Constitution.

Analysis 

The landmark judgement by the Supreme Court recognized the LGBTQ community’s right to equality, addressing the injustice caused by outdated Victorian-era laws. It emphasized that the community deserves equal rights and respect, just like any other individual. Discrimination based on sexual orientation or gender identity is unjust and should not be tolerated. This decision marks a significant step towards ensuring equality and inclusivity for the LGBTQ community.

The Court affirmed the equal citizenship rights of all individuals within the LGBTQI community in India. As a result, it narrowed the scope of Section 377 to exclude consensual sexual relationships among adults, irrespective of whether they involve same-sex partners or not. However, Section 377 will still be applicable to non-consensual sexual activities involving adults, sexual acts against minors, and cases of bestiality.