Case Name: Navtej Singh Johar & Ors vs. Union Of India Ministry Of Law And Justice
Court: Supreme Court of India
Year: 2018
Citation: AIR 2018 SC 4321
Table of Contents
The Case Background: Navtej Singh Johar v. Union of India
Navtej Singh Johar v. Union of India was a landmark Supreme Court case in India that challenged the constitutional validity of Section 377 of the Indian Penal Code. Section 377 criminalized carnal intercourse “against the order of nature”, which was interpreted to include same-sex relations.
The petitioners in the case included Navtej Singh Johar, a renowned Bharatanatyam dancer, along with four other LGBT activists – Sunil Mehra, Ritu Dalmia, Aman Nath, and Ayesha Kapur. Navtej Singh Johar is an acclaimed classical dancer from India who identifies as gay. He argued that Section 377 denied him his right to privacy, dignity, and autonomy granted under the Constitution.
The other petitioners were business people, journalists, and hoteliers belonging to the LGBT community. Together, they contended that Section 377 violated their fundamental rights to equality, freedom of expression, life and privacy.
This constitutional challenge came after the Supreme Court had previously upheld Section 377 in 2013 in Suresh Kumar Koushal v. Naz Foundation. The Naz Foundation had initially filed a petition challenging 377 in 2001.
The 2018 case marked a major turning point, as the Supreme Court ruled that Section 377 was unconstitutional. The judgment established that consensual adult relationships, including same-sex relationships, are protected under the right to privacy. This historic verdict decriminalized homosexuality in India.
The Supreme Court’s Ruling on Section 377 of the Indian Penal Code
On September 6, 2018, a five-judge constitutional bench of the Supreme Court of India issued a landmark ruling partially striking down Section 377 of the Indian Penal Code (IPC), effectively decriminalizing consensual homosexual relations between adults. Section 377, enacted in 1860 under British colonial rule, criminalized “unnatural offences,” including voluntary “carnal intercourse against the order of nature.” Though the law did not explicitly mention homosexuality, it was widely used to persecute LGBTQ individuals in India.
In the historic judgment of Navtej Singh Johar v. Union of India, the Supreme Court ruled that Section 377 was unconstitutional because it violated the fundamental rights to equality, freedom of expression, life, and privacy guaranteed under Articles 14, 15, 19, and 21 of the Constitution.
The verdict was welcomed by human rights activists as a major victory for LGBTQ rights in India after decades of discrimination and social stigma. By reading down Section 377, the Supreme Court effectively ended the criminalization of consensual same-sex relations between adults, affirming that such activities can no longer be considered “against the order of nature.”
The judgment is expected to have wide-ranging implications for the LGBTQ community. Legal experts have noted that it opens up the possibility for further challenges to discriminatory laws and policies on issues like same-sex marriage, adoption and inheritance rights. Socially, the verdict is seen as reducing stigma and encouraging greater acceptance of sexual minorities. Though discrimination still persists, the judgment represents a progressive step towards equal rights and dignity for LGBTQ individuals in Indian society.
The Legal Journey
The case of Navtej Singh Johar v. Union of India focused on key legal arguments surrounding the right to privacy and personal liberty. The petitioners argued that Section 377 of the Indian Penal Code violated their fundamental rights under Articles 14, 15, 19, and 21 of the Constitution by criminalizing consensual homosexual acts between adults.
The Supreme Court played a pivotal role in safeguarding the constitutional rights of LGBTQ individuals. As the ultimate protector and guarantor of fundamental rights, the Court examined whether Section 377 violated such rights. The Delhi High Court had earlier read down Section 377 in the Naz Foundation case, decriminalizing consensual homosexual acts between adults. However, this was overturned by the Supreme Court in 2013 in Suresh Kumar Koushal v. Naz Foundation.
The 2018 judgment by a five-judge constitutional bench unanimously ruled that the right to privacy is an essential element of the right to life and personal liberty under Article 21 of the Indian Constitution. They also ruled that Section 377, which criminalized consensual homosexual sex between adults, was unconstitutional. This landmark judgment paved the way for the decriminalization of homosexuality in India.
Human rights activists hailed the September 2018 ruling as a landmark victory for LGBTQ rights in India. It culminated in a two-decade legal battle against this discriminatory colonial-era law. The judgment gave hope to millions of LGBTQ individuals who had faced stigma and prejudice due to their sexual orientation.
The Role of International Human Rights in the Judgment
The Supreme Court’s decision in Navtej Singh Johar v. Union of India made extensive use of international human rights law and precedents from other countries to support its ruling decriminalizing consensual same-sex relations.
The judgment cited international human rights treaties and covenants, such as the International Covenant on Civil and Political Rights and the Yogyakarta Principles, to emphasize the universal nature of rights relating to sexual orientation and gender identity. It also referenced landmark LGBTQ rights cases from countries like the United States, Canada, South Africa, and the United Kingdom to demonstrate an emerging global consensus on these issues.
The Supreme Court specifically pointed to jurisprudence from the United Nations Human Rights Committee to argue that criminalizing private consensual sexual conduct violates principles of equality and privacy under international law. It also cited precedents like Lawrence v. Texas from the US Supreme Court to highlight how other democracies had declared similar anti-sodomy laws unconstitutional.
By grounding its reasoning in established international human rights norms, the Indian Supreme Court strengthened the universal appeal of its verdict. It demonstrated that the rights of LGBTQ persons are not limited to any one cultural context but are part of a global framework of fundamental, inalienable human rights that all countries must recognize and protect. The extensive use of comparative jurisprudence from around the world lent additional credibility and persuasive force to the Court’s progressive decision.
Reaction from Political Parties and Organizations
The 2018 Supreme Court verdict decriminalizing homosexuality was met with mixed reactions from political parties and organizations in India.
The Congress party welcomed the verdict, with Rahul Gandhi tweeting that the judges had “shone a light on an archaic and unjust law” and it was time to “build a truly inclusive India”. The CPI(M) also hailed the judgment as progressive and called for social attitudes to change.
However, the ruling BJP took a more muted stance. While not openly criticizing the judgment, senior BJP leaders avoided commenting on it directly. The RSS also did not issue any statement, reflecting conservative opinions within the Sangh Parivar.
Religious organizations and leaders expressed divergent views. The Vishwa Hindu Parishad opposed the verdict, saying same-sex relationships are against Hinduism. However, the head of the Ajmer Dargah welcomed decriminalization. The Catholic Church said the LGBT community should be treated with compassion.
Overall, the judgment sparked debate between liberal and conservative ideologies. It signified growing acceptance of homosexuality among some political parties but reluctance among others to embrace LGBTQ rights fully. The varied reactions highlighted the complex social attitudes and religious viewpoints that still exist regarding homosexuality in India.
Future Implications and Ongoing Debates
The Supreme Court’s landmark judgment in Navtej Singh Johar v. Union of India has had far-reaching implications for LGBTQ+ rights in India. By decriminalizing same-sex relationships, the verdict paved the way for greater acceptance of queer identities in the country. However, much work remains to be done to achieve full equality.
Comparatively, India lags behind many other countries in terms of LGBTQ+ rights and protections. Same-sex marriage is still not legal, and there are no comprehensive anti-discrimination laws covering sexual orientation and gender identity. According to a 2020 study by the Williams Institute at UCLA School of Law, India ranked 49 out of 50 countries surveyed for LGBTQ+ inclusion and rights.
While the reading down of Section 377 was a significant milestone, activists have pointed out that it only partially decriminalized same-sex relations. Other provisions like Section 375 of the IPC that define rape as penile penetration of a vagina are still applicable, effectively criminalizing certain consensual same-sex acts. There have also been instances of misuse of Section 377 even after the verdict.
Going forward, the queer community will have to continue advocating for equal rights and status under civil laws about marriage, adoption, inheritance, healthcare, employment, and housing. While the judgment was a big step forward, true equality can only be achieved through comprehensive legal reform and changes in societal attitudes.
How Section 377 will be Replaced in Bharatiya Nyaya Sanhita 2023
Section 377 of the Indian Penal Code, which criminalized homosexuality among other “unnatural” sexual activities, has been repealed under the Bharatiya Nyaya Sanhita 2023 (BNS). This removes rape of men and bestiality as offences.
The BNS omits Section 377 of IPC, which the Supreme Court read down in 2018. This effectively decriminalizes consensual homosexual activities between adults. The government decided to exclude Section 377 from the Bharatiya Nyaya (Second) Sanhita Bill, 2023, despite recommendations from a review committee.
Under the BNS, the definition of rape will be gender-neutral and include forced penetration of bodily orifices of another person using genitals, fingers or objects. Bestiality will also be covered under provisions relating to cruelty to animals.
Overall, the repeal and replacement of Section 377 is a significant step forward in ensuring equality and non-discrimination on the basis of sexual orientation. By omitting Section 377, the BNS aligns the law with the Supreme Court judgment and contemporary human rights standards.
Conclusion
The 2018 Supreme Court judgment in Navtej Singh Johar v. Union of India was a landmark decision that decriminalized homosexuality in India by declaring Section 377 of the Indian Penal Code unconstitutional. This verdict overturned the Court’s own 2013 judgment in Suresh Kumar Koushal v. Naz Foundation, which upheld the constitutionality of Section 377.
The case was brought by a group of LGBT activists and organizations who argued that Section 377 violated their fundamental rights to equality, freedom of expression, life, and privacy. In a unanimous decision, the five-judge bench ruled that Section 377 was unconstitutional as it infringed on the right to privacy and violated basic human dignity.
This landmark judgment is significant as it finally decriminalized same-sex relationships between consenting adults in India. It paved the way for greater LGBT rights and anti-discrimination laws in the country. LGBT activists and groups celebrated the verdict as a significant milestone in the struggle for equality. It also boosted the overall global movement for LGBT rights. The case will remain significant in India’s constitutional and human rights history.
