This Case analysis has been done by Abhigyan (BA.LLB (2018-2023) Delhi Metropolitan Education, GGSIPU)
Table of Contents
Title: “Navtej Singh Johar v Union of India”
Date and Year of Judgement: 6th September 2018
Case Type/Origin: Writ Petition
Citation:“AIR 2018 SC 4321; (2018) 10 SCC 1; WP (Crl.) 76/2016; WP (C) 572/2016”
Court: “Supreme Court of India”
Bench: “Former CJI Dipak Misra; Justice Rohinton Nariman; Justice Indu Malhotra; Justice D.Y. Chandrachud; Justice A.M. Khanwilkar;”
Consensual sexual intercourse between same-sex persons was termed as an “unnatural offence” that is “against the order of nature” under Section 377 of the IPC. It stipulated a sentence of ten years in jail. The provision was a statute from the Victorian period that persisted until the twenty-first century. The entire notion of homosexuality was viewed as being against nature’s will and was unwelcomed in society. Through the petition of “Navtej Singh Johar v Union of India”, the right to sexuality, sexual autonomy, and the freedom to choose a sexual partner were all sought to be recognised as part of the right to life protected by Article 21 of the Indian Constitution. The debate centred on Articles 14, 15, and 21, which are basic rights that guarantee “equality, non-discrimination on the basis of sex, and personal liberty” and that section 377 infringes on these rights. “Navtej Singh Johar v. Union of India” is a landmark judgement that represents the first, ground-breaking steps toward improving the legal status of LGBTQ individuals. It not only decriminalised homosexuality but also addressed some crucial constitutional issues. By issuing this decision, the Apex Court reaffirmed its commitment to keeping up with changing circumstances and public opinion. India became one of the 28 Asian countries that have legalised homosexuality and recognised LGBT rights.
Criminalisation of Homosexuality
The Buggery Act of 1533 declared homosexual practises, sodomy, and sexual activity with animals to be unnatural. This Act was passed by the English Parliament in 1533, during the reign of King Henry VII. Buggery was defined as an act against God’s will in this act. Unnatural offences were punished by death under this statute. This legislation was brought into India by Thomas Macaulay’s first law commission, which wrote it as Sec-377 of the Indian Penal Code of 1860.
Sec 377 was confronted with its first obstacle in 1994. NGO “Aids Bhedbhav Virodhi Abhiyan” filed a petition in Delhi High Court to decriminalise Sec 377. The facts were that the “NGO employees sought to deliver contraceptives to the male convicts after spotting homosexuality at the Tihar Jail. Kiran Bedi, the then-superintendent of Tihar Jail, was against it because she believed it would encourage homosexuality.” In 2001, the petition was rejected.
In the same year another NGO, Naz Foundation filed a PIL in the High Court of Delhi challenging the validity of the section; however, it was dismissed due to a lack of locus standi in 2004. Following that, a review petition was also dismissed.
Naz Foundation than 2006 filed a Special Leave Petition. “Naz Foundation was aiming to prevent HIV/AIDS and engaged with people from all walks of life, including homosexuals. According to the NGO, this segment of society was particularly vulnerable to HIV because it was discriminated against, mistreated by the public, and disregarded by government officials. Sec-377 of the IPC, according to the petitioner, also violates certain of homosexuals’ basic rights, including Articles 14, 15, and 21.” The Apex Court ordered the HC of Delhi to re-examine the case as the petitioners have valid ground to file the same. “In 2009, the Delhi High Court held that Section 377 cannot be used to penalise sex between two consenting adults since it violates Article 21 of the Constitution’s right to privacy and personal liberty. The Court ruled that categorising and targeting gays violates the equal protection given under Article 14 of the Indian constitution. As a result, Section 377 violates the Indian Constitution’s essential value of human dignity.”
The ruling in the “Naz Foundation” case was appealed against in the Apex Court claiming that the HC of Delhi made a serious error in pronouncing Section 377 decriminalised. The appellants claimed that the statistics demonstrating that Section 377 had a significant impact on HIV/AIDS transmission were inadequate and deceptive. In addition, if this is permitted, the social structure and institution of marriage in Indian culture would be harmed. They contended that it was the legislature’s responsibility to decide on legislation, not the judiciaries. The Apex Court overturned the Delhi High Court’s decision in 2013. The court determined that the decision outlaws particular conduct rather than a specific group of persons. The same applied to a small portion of persons in the LGBT community at the time.
Five LGBTQ people (“Navtej Singh Johar, Ritu Dalmia, Ayesha Kapur, Aman Nath, and Sunil Mehra”) challenged the Apex Court decision and filed a writ before a three-judge bench contesting the constitutionality of 377. The petitioners pleaded that the “right to sexuality, right to sexual autonomy, and right to choose a sexual partner” be declared to be part of the “Right to life” provided by Article 21 of the Constitution. The petitioners also asked for Section 377 of the Indian Penal Code to be declared illegal as it is ultra vires of Articles 14, 15 and 19 of the Indian Constitution. The Apex Court’s three-judge bench concluded that the issue needed to be heard by a bigger panel.
- Whether Section 377, by criminalising the gender expression of LGBTQ people, breaches their basic right to expression under Article 19(1)(a)
- Was the Apex’s Court judgement Suresh Kaushal case reasonable
- Whether Section 377, by enabling discrimination based on “sexual orientation” and “gender identity,” breach Articles 14 and 15?
- Whether Section 377, by punishing private consensual activities between same-sex people, breaches Article 21’s right to autonomy and dignity?
Arguments by Petitioner
Petitioners argued that “homosexuality, bisexuality, and other sexual orientations” are founded on consent, and not illnesses of any kind. They claimed that the provision went against the notion of “individual dignity and decisional autonomy” as well as Article 21’s right to privacy.
The petitioners said that the LGBT community’s rights, which account for 7-8 per cent of India’s population, should be acknowledged and safeguarded. “Petitioners cited the K.S. Puttaswamy case to argue that Section 377 was unconstitutional because it discriminated against the LGBT community on the basis of sexual orientation, which was an essential attribute of privacy, and that sexual orientation and privacy were at the heart of Articles 14, 19, and 21’s fundamental rights.” The Petitioners wanted the “right to sexuality, sexual autonomy, and the ability to choose a sexual partner” to be recognised as part of the right to life provided by Article 21.
Argument by Respondents
The Respondents and intervenors claimed that Section 377 should be kept because it promotes “a strong state interest in reinforcing morality in public life.” The intervenors argued that because fundamental rights are not absolute, the provision is not discriminatory because it “criminalises acts, not people and applied equally to all unnatural sexual conduct, regardless of sexual orientation, and criminalised some forms of carnal intercourse by heterosexual and homosexual couples.”
The judgement of the Apex Court in Suresh Kaushal was overturned by all five judges and there were 4 opinions on the same. “The Court drew on the doctrine of progressive realisation of rights to hold that rights should not be revoked. The march of a progressive society should only be forward.” While reviewing its decision in Suresh Kumar Koushal, Apex Court highlighted that it took the justification of the LGBT community being in minority and denied them their basic right. The court also lacked in contrasting consensual and non-consensual sexual activities. On this point, the Court stated that “a distinction must be drawn between consenting adult private relationships, whether heterosexual or gay in character. Furthermore, adult consensual partnerships could not be classed alongside sodomy, bestiality, or non-consensual relationships.”
The Court cited its judgement in “National Legal Services Authority v. Union of India” to reaffirm that “gender identity is an integral part of one’s personality and that rejecting it would be a violation of one’s dignity.” The Court cited its decision in “K.S. Puttaswamy v. Union of India ((2017) 10 SCC 1)” to hold that depriving the LGBT people of their rights because they are a minority group would be a violation of their basic rights. It was determined that Section 377 unjustifiably restricts the right to freedom of expression because consensual carnal intercourse in private “does not in any way harm public decency or morality, and if remains on the books, it will violate the privacy right under Art. 19(1)(a).”
The Apex Court also cited its decision in “Shakti Vahini vs. Union of India & Ors. ((2018) 7 SCC 192)” to restate that “freedom to select life partner is a feature of human liberty and dignity guaranteed by Article 19 and Article 21 of the Constitution”, and referred to principles established in “Shayara Bano vs. Union of India and Ors. ((2017) 9 SCC 1)” and held that Section 377 was illogical, arbitrary, and in violation of Article 14 since it criminalised consensual relationships in private areas and discriminated against the LGBT population. Furthermore, the Court applied the maxim “et domus sua cuique est tutissimum refugium” meaning “a man’s house is his castle” to declare that provision was excessive and unjustified in restricting gay people’s right to freedom of speech and choice since the prohibitions did not preserve “public order, decency, or morality.”
The five-judge panel unanimously declared Section 377 unlawful and interpreted it down to the point where it criminalised consensual sexual contact between adults in private, whether of the same sex or not. The Court did, however, specify that permission must be given freely, voluntarily, and without pressure or compulsion.
Opinion of the Bench
Former Chief Justice Dipak Misra on behalf of Justice Khanwilkar as well argued that “the constitution must guide the society’s transition from an ancient to a rational society where basic rights are carefully guarded, based on the principles of transformative constitutionalism and progressive realisation of rights.” He went on to say that “constitutional morality will prevail over social morality” to ensure that LGBT people’s human rights are safeguarded, regardless of whether they are approved by a majority government.
Justice Nariman in his conclusion examined Section 377’s legislative history and concluded that the law’s justification, Victorian morality, “had long gone”, hence there was no need to keep it in place. He finished his ruling by requiring the UOI to take all reasonable steps to publish the verdict in order to remove the stigma associated with the community. He also ordered that government and police authorities be made aware of the community’s suffering in order to guarantee that they are treated fairly.
Justice Chandrachud’s judgment iterated that although Section 377 seemed to be facially neutral, it had the effect of “effacing identities” of the LGBT community, If Section 377 remains in place, he claims, “the population of the community would be excluded from health-care facilities, and the prevalence of HIV will worsen Not only must the law not discriminate against same-sex couples, but it must also take proactive efforts to ensure equal protection and offer the community equal citizenship in all its forms”
Homosexuality is “not an aberration, but a variety of sexuality,” according to Justice Indu Malhotra. She went on to say that the right to privacy encompasses not just the right to be left alone, but also “spatial and decisional privacy.” She completed her argument by arguing that history owes an apology to members of the LGBT community and their families for the decades of humiliation and ostracism they have endured.
The Apex Court decision was a milestone for the rights of the LGBTQ people and also a reflection of the judiciary being an institution that runs parallel to this society with a progressive and open mindset. It was time that the LGBTQ community after suffering a great deal of mental abuse and torture be embraced as a part of society.
 Navtej Singh Johar v. UOI- Judgment which Decriminalized Homosexuality https://blog.ipleaders.in/navtej-singh-johar-v-uoi-judgment-which-decriminalized-homosexuality/ (last visited 08.04.2022)
 “A Case Analysis- Navtej Singh Johar v. Union of India” https://www.lawsphere.in/landmark-judgements/a-case-analysis-navtej-singh-johar-v-union-of-india/ (last visited 08.04.2022)
 “Case Summary: Navtej Singh Johar v/s Union Of India” https://www.legalserviceindia.com/legal/article-6402-case-summary-navtej-singh-johar-v-s-union-of-india.html (last visited 08.04.2022)
 Case Comment on Navtej Singh Johar v. Union of India https://blog.ipleaders.in/case-comment-navtej-singh-johar-v-union-india/ (last visited 08.04.2022)
 National Legal Services Authority v. Union of India (2014) 5 SCC 438)