Case Citation: AIR 2018 SC 4321, (2018) 10 SCC
Court: Supreme Court of India
Date of Decision: 6 September 2018
Petitioner: Navtej Singh Johar, Ritu Dalmia, Ayesha Kapur, Aman Nath, Sunil Mehra
Respondent: Ministry of Health
Judges: Chief Justice Dipak Misra, Justice Rohington Nariman, Justice D Y Chandrachud, Justice A M Khanwilkar, Justice Indu Malhotra
Case Background
The landmark case of Navtej Singh Johar and Others v. Union of India challenged the constitutional validity of Section 377 of the Indian Penal Code (IPC), a colonial-era law that criminalized “carnal intercourse against the order of nature.” Section 377 disproportionately affected LGBTQ individuals, effectively criminalizing consensual same-sex relations. The petitioners sought recognition of the right to sexuality, sexual autonomy, and freedom of choice in choosing a sexual partner under Article 21 of the Constitution, contending that Section 377 infringed upon their fundamental rights.
The journey toward decriminalizing Section 377 began with the Naz Foundation v. Government of N.C.T. of Delhi case in 2009, in which the Delhi High Court declared Section 377 unconstitutional for consenting adults. However, this decision was reversed by the Supreme Court in 2014 in Suresh Kumar Koushal v. Naz Foundation, reinstating the penal provision. The case was revisited in 2016, leading to a five-judge bench reviewing the matter.
Issues Before the Court
The Supreme Court was tasked with answering pivotal questions, including:
- Does Section 377 violate freedom of expression under Article 19(1)(a) by criminalizing the gender expression of LGBTQ individuals?
- Does Section 377 infringe on Article 14 and 15 by discriminating based on sexual orientation and gender identity?
- Is Section 377 a violation of the right to autonomy and dignity under Article 21 by penalizing private consensual acts between same-sex adults?
Petitioner’s Arguments
The petitioners argued that:
- Sexual Orientation Is Natural: Homosexuality and other orientations are natural and not illnesses. Criminalizing consensual same-sex relations infringes on a person’s dignity, violates privacy, and inhibits personal growth and freedom of expression under Article 19(1)(a).
- Discrimination and Injustice: As a marginalized community, LGBTQ individuals face significant social abuse and discrimination, impacting nearly 7-8% of India’s population.
- Legal Recognition of Transgender Rights: Although transgender people were granted rights under the NALSA judgment, consensual same-sex acts were still criminalized.
- Vagueness of “Carnal Intercourse Against the Order of Nature”: The undefined terms in Section 377 create a legal ambiguity, violating the principle of equality under Article 14 and non-discrimination under Article 15.
- Fundamental Rights Violations: Section 377 breaches essential rights, including the right to dignity, equality, privacy, liberty, and freedom of expression.
Respondent’s Arguments
The Respondent, representing interveners, countered that:
- Morality and Social Order: Criminalizing “unnatural acts” is essential to uphold constitutional and social morality, maintaining the family structure and protecting cultural heritage.
- Risk of Disease: LGBTQ individuals, especially those engaging in same-sex acts, are allegedly at a higher risk of contracting HIV, impacting public health.
- No Violation of Fundamental Rights: The Respondent argued that reasonable restrictions can be imposed to protect public health, morals, and social order, aligning with Articles 14 and 15.
- Family and Marriage Institution: Decriminalizing Section 377 would disrupt traditional family structures, marriage, and social values protected by laws like the Hindu Marriage Act and the Parsi Marriage and Divorce Act.
Supreme Court’s Decision
The Supreme Court, in a unanimous decision, decriminalized Section 377 as it applied to consensual same-sex relations between adults, declaring it unconstitutional. The judgment articulated the following:
- Right to Privacy and Autonomy: LGBTQ individuals have the right to privacy, autonomy, and freedom to choose a partner without fear of criminal prosecution.
- Right to Dignity and Equality: Section 377 undermines human dignity and targets a specific section of society, violating the principle of equality under Article 14.
- Proportionality and Reasonableness: Section 377 fails to meet the constitutional test of proportionality, as consensual acts between adults do not harm public morality or order.
The Court emphasized that the Constitution upholds individual freedoms and dignity, even for minority groups. Section 377’s criminalization of consensual same-sex acts violated Articles 14, 15, 19, and 21.
Concurring Opinions
Each judge highlighted unique aspects:
- Chief Justice Dipak Misra and Justice Khanwilkar: Stressed that constitutional morality supersedes societal morality.
- Justice Nariman: Acknowledged historical injustices and emphasized the judiciary’s role in correcting these wrongs.
- Justice Chandrachud: Linked the case to the right to privacy, noting that personal choices in relationships are fundamental.
- Justice Malhotra: Urged societal apology for the marginalization of the LGBTQ community and the delay in justice.
Conclusion
The Navtej Singh Johar judgment is a monumental step toward recognizing LGBTQ rights in India. The Court’s interpretation of the Constitution, grounded in principles of dignity, autonomy, and inclusivity, reaffirms India’s commitment to a progressive, diverse society. By decriminalizing Section 377, the Supreme Court not only protected the rights of LGBTQ individuals but also paved the way for a more inclusive and accepting society.
