NAVTEJ SINGH JOHAR VS UNION OF INDIA

Sadaf Shams, Student, S.S Khanna Girls’ Degree College, Prayagraj

Introduction 

The case Navtej Singh Johar vs. Union of India (2018) is a landmark judgment delivered by the Supreme Court of India that marked a major step towards the recognition and protection of the rights of the LGBTQIA+ community in India. This judgment decriminalized consensual same-sex relations between adults by striking down Section 377 of the Indian Penal Code (IPC) to the extent that it criminalized such acts.

Citation 

AIR 2018 SC 4321

(2018) 10 SCC 1

Facts 

In this case writ petition was filled by five individuals namely, Navtej Singh Johar (a renowned Bharatnatyam dancer), Ritu Dalmia, Ayesha Kapur, Aman Nath and Sunil Mehra. They challenge the constitutionality of Section of 377 of the Indian Penal Code, 1861 which criminalized “carnal intercourse against the order of nature,” which was interpreted to include same-sex relations.

They argued that the LGBTQIA+ community in India faced criminalization, discrimination, and harassment under Section 377 and it also violated fundamental rights guaranteed by the Indian Constitution.

The challenge was supported by various human rights activists, and others who emphasized the harmful impact of Section 377 on mental health and dignity.

Issues

1. Whether Section 377 of the IPC violated the fundamental rights guaranteed under Articles 14, 15, 19, and 21 of the Constitution.

2.Whether the criminalization of consensual same-sex acts infringed upon the dignity, identity, and autonomy of LGBTQIA+ individuals.

3. Whether Section 377 is unconstitutional?

Petitioners’ Arguments

1. The petitioners argued that homosexuality and other sexual orientations are natural parts of human expression and criminalizing consensual same-sex acts infringed individual dignity, freedom, and privacy under Article 21 of the Constitution.
2. The petitioners contended that Section 377 is ambiguous and subject to arbitrary enforcement. 
3. They said that Section 377 violates people’s sexual autonomy and dignity and that the legislation silences LGBTQIA+ individuals by prohibiting them from expressing their sexual identity. 
4. They also noted that medical experts agree that same-sex attraction is a natural variation of human sexuality.
5. They also said that LGBTQIA+ individuals face discrimination, abuse, and mental health issues because of Section 377, which also leads to social exclusion and denies them equal rights.
6. By referring the K.S Puttaswamy case, the petitioners argued that the sexual orientation is a part of individual personal identity and privacy and section 377 violates the right to live with dignity of LGBTQIA+ community.
7. The petitioners also argued that right to choose life partner should apply to everyone, and Section 377 violates this right of LGBTQIA+ individual.

Submissions and Intervenors

Several legal representatives, including the Additional Solicitor General and senior advocates, presented arguments on behalf of the Union of India, religious groups, and other intervenors.

The Union of India chose to remain neutral, leaving the decision up to the court while stressing the importance of procedural fairness.

Some intervenors argued that homosexuality goes against the “order of nature,” citing moral, religious, and societal concerns.

Some intervenors expressed concern that if Section 377 were entirely repealed, victims of forced sexual acts might lose legal recourse.

The court examined key legal principles, such as the doctrine of non-retrogression, which prevents any reversal of progress in fundamental rights. The argument was made that in modern society, homosexuality and consensual adult relationships should no longer be considered “against the order of nature.”

Judgment

On September 6, 2018, a five-judge Constitution Bench of the Supreme Court (comprising then-Chief Justice Dipak Misra, and Justices R.F. Nariman, A.M. Khanwilkar, D.Y. Chandrachud, and Indu Malhotra) delivered a verdict in favor of the petitioners:

The Court struck down Section 377 as it criminalized consensual same-sex acts between adults in private. The law still applies to non-consensual acts, bestiality, and acts involving minors.

The Court emphasized the need to protect the dignity, identity, and autonomy of LGBTQIA+ individuals. Justice Chandrachud stated that sexual orientation is an inherent part of a person’s identity, and discrimination against it is unconstitutional.

Justice Indu Malhotra said that society owes an apology to LGBTQIA+ individuals for the suffering caused by this law.

The Supreme Court also considered the judgments of K.S. Puttaswamy v. Union of India, 2017 case in which the Court held that the right to privacy includes the right to sexual orientation and Nalsa v. Union of India, 2014 case which recognized the rights of transgender people.

The Court also emphasized the importance of constitutional morality over societal morality, supporting equal rights for everyone.

Conclusion

For the rights of LGBTQIA+ people in India, the Navtej Singh Johar ruling was a significant win. Setting the stage for further revisions, it reaffirmed the Constitution’s emphasis on freedom, equality, and dignity. This ruling is a positive step in the continuous struggle for equality, even though there are still obstacles to overcome. Additionally, the ruling encouraged public discussions on equality, inclusivity, and accepting sexual variety.