Navtej Singh Johar v. Union of India (2018) – Overturning Colonial-Era Law Criminalizing Same-Sex Relationships

Name- Samaira Singha
Designation- 1^st year law student, Indore Institute of Law

Introduction

The Supreme Court of India’s landmark judgment in Navtej Singh Johar v. Union of India (2018) marked a significant turning point in the legal and social landscape of India. This case effectively decriminalized consensual same-sex relationships, overturning Section 377 of the Indian Penal Code, a remnant of colonial-era legislation that had long stigmatized the LGBTQ+ community. This commentary will analyze the background, arguments, judgment, and implications of this pivotal case.

Background

Section 377 of the Indian Penal Code, introduced in 1861 during British colonial rule, criminalized “carnal intercourse against the order of nature,” effectively making consensual same-sex relationships illegal. For over 150 years, this law perpetuated discrimination, harassment, and violence against the LGBTQ+ community in India.

Efforts to challenge Section 377 began in earnest in the 2000s. In 2009, the Delhi High Court declared the law unconstitutional in Naz Foundation v. Government of NCT of Delhi, a decision that was subsequently overturned by the Supreme Court in 2013 in Suresh Kumar Koushal v. Naz Foundation. This reversal re-criminalized same-sex relationships and reignited the legal battle, culminating in the Navtej Singh Johar case.

Facts of the Case

The petitioners in Navtej Singh Johar v. Union of India included Navtej Singh Johar, a renowned dancer, along with other prominent figures such as Sunil Mehra, Ritu Dalmia, Aman Nath, and Ayesha Kapur. They argued that Section 377 violated their fundamental rights under the Indian Constitution, particularly the rights to equality, freedom, and privacy. The case was brought to the Supreme Court after the Delhi High Court’s decision in Naz Foundation v. Government of NCT of Delhi (2009), which had decriminalized consensual same-sex relations, was overturned by the Supreme Court in Suresh Kumar Koushal v. Naz Foundation (2013). The petitioners contended that this reversal had led to discrimination and harassment of the LGBTQ+ community, necessitating a fresh challenge to Section 377.

The Petitioners’ Arguments

The petitioners, comprising dancers, a journalist, a businesswoman, and an LGBTQ+ rights activist, contended that Section 377 violated their fundamental rights under the Constitution of India. They argued that the law:

1. Violated the Right to Equality (Article 14): The petitioners claimed that Section 377 was arbitrary and discriminatory, lacking any rational basis, and thus violated their right to equality before the law.
2. Infringed upon the Right to Freedom (Article 19): The law restricted their freedom of expression, association, and privacy, essential aspects of personal autonomy and dignity.
3. Encroached on the Right to Life and Personal Liberty (Article 21): The petitioners argued that Section 377 violated their right to live with dignity and their right to privacy, as recognized in the landmark judgment in Justice K.S. Puttaswamy (Retd.) v. Union of India (2017).
4. Contravened International Obligations: The petitioners highlighted that India, as a signatory to various international human rights treaties, had an obligation to protect the rights of the LGBTQ+ community.

The Respondent’s Arguments

The Union of India, while not defending the constitutionality of Section 377, argued for its retention to address non-consensual and non-adult sexual acts. The government left the matter to the “wisdom of the court.”

The Judgment

On September 6, 2018, a five-judge Constitutional Bench of the Supreme Court delivered a unanimous verdict decriminalizing consensual same-sex relationships between adults. The judgment was authored by Chief Justice Dipak Misra and Justices Rohinton Nariman, A.M. Khanwilkar, D.Y. Chandrachud, and Indu Malhotra.

Key aspects of the judgment include:

1. Dignity and Privacy: The court held that Section 377 infringed upon the right to dignity and privacy of LGBTQ+ individuals. It emphasized that sexual orientation is an intrinsic aspect of identity and denying the right to express one’s orientation violated the right to privacy.
2. Equality and Non-Discrimination: The court ruled that Section 377 was arbitrary and discriminatory, violating the right to equality. It underscored that the Constitution’s guarantee of equality is applicable to all individuals, regardless of their sexual orientation.
3. Transformative Constitutionalism: The judgment embraced the doctrine of transformative constitutionalism, recognizing the Constitution as a living document that must evolve to meet the changing needs of society. It acknowledged the need to rectify historical injustices faced by marginalized communities.
4. International Precedents: The court drew upon international legal principles and precedents, including decisions from the European Court of Human Rights and the Supreme Court of the United States, to bolster its reasoning.

Implications

The Navtej Singh Johar judgment has far-reaching implications for Indian society and the legal system:

1. Affirmation of LGBTQ+ Rights: The judgment affirmed the fundamental rights of LGBTQ+ individuals, paving the way for greater acceptance and inclusivity. It marked a significant step towards dismantling societal stigma and discrimination.
2. Judicial Activism: The judgment demonstrated the role of the judiciary in upholding constitutional rights and promoting social justice. It reinforced the idea that the judiciary can be a powerful agent of social change.
3. Legal Reforms: The decriminalization of same-sex relationships has opened the door for further legal reforms, including the recognition of same-sex marriages and anti-discrimination laws specifically protecting LGBTQ+ individuals.
4. Societal Impact: While the judgment has been celebrated as a victory for human rights, it also highlights the ongoing challenges faced by the LGBTQ+ community in India. Social attitudes and prejudices remain deeply ingrained, necessitating continued advocacy and education to achieve true equality.

Conclusion

The Supreme Court’s judgment in Navtej Singh Johar v. Union of India is a landmark decision that has reshaped the legal and social landscape of India. By decriminalizing consensual same-sex relationships, the court affirmed the fundamental rights of LGBTQ+ individuals and set a precedent for future legal reforms. This judgment not only rectifies a historical wrong but also symbolizes the ongoing struggle for equality and justice in India. It is a testament to the resilience of the LGBTQ+ community and the transformative power of constitutionalism.

References

1. Navtej Singh Johar v. Union of India, (2018) 10 SCC 1, 2018 INSC 790.
2. Indian Penal Code, Section 377.
3. Naz Foundation v. Government of NCT of Delhi, 2009.
4. Suresh Kumar Koushal v. Naz Foundation, (2013) 1 SCC 1.
5. Justice K.S. Puttaswamy (Retd.) v. Union of India, (2017) 10 SCC 1.