Navtej Singh Johar v. Union of India (2018): LGBTQ+ Rights in India

The Navtej Singh Johar v. Union of India (2018) judgment is a watershed moment in the history of Indian jurisprudence, as it decriminalized consensual homosexual relationships between adults and struck down Section 377 of the Indian Penal Code (IPC) to the extent it criminalized such acts. Delivered by a five-judge bench of the Supreme Court, this judgment upheld the principles of equality, dignity, and liberty, marking a significant step toward protecting the rights of the LGBTQ+ community in India.

This decision not only overturned centuries of oppression but also reflected the evolving values of Indian society and its legal framework, firmly embedding inclusivity and human rights within the Constitution’s ambit.

Background of the Case

Section 377 of the IPC, enacted in 1860 during British colonial rule, criminalized “carnal intercourse against the order of nature,” which was often interpreted to include consensual homosexual acts. The provision prescribed imprisonment for life or for a term extending to ten years along with a fine. Over the years, the LGBTQ+ community in India faced harassment, discrimination, and persecution under this law.

The fight to decriminalize Section 377 gained momentum in the late 20th and early 21st centuries. Notable developments include:

1. Naz Foundation Case (2009):
   In 2009, the Delhi High Court decriminalized consensual homosexual acts by reading down Section 377. However, this decision was overturned by the Supreme Court in Suresh Kumar Koushal v. Naz Foundation (2013), which reinstated the law, stating that only Parliament had the power to amend it.
2. Rise of Judicial Review:
   The Koushal judgment faced widespread criticism for its regressive stance. The LGBTQ+ community, backed by human rights activists, legal experts, and public figures, renewed their efforts to challenge the constitutionality of Section 377.

The Petitioners and Their Arguments

The case was initiated by a group of individuals from the LGBTQ+ community, including dancer Navtej Singh Johar, who argued that Section 377 violated their fundamental rights. Their main arguments were:

1. Violation of Fundamental Rights:
   • Section 377 infringed upon the Right to Equality (Article 14), as it discriminated against individuals based on their sexual orientation.
   • It violated the Right to Freedom of Expression (Article 19) by criminalizing the expression of love and intimacy.
   • It was inconsistent with the Right to Life and Personal Liberty (Article 21), as it denied individuals the dignity and autonomy to choose their partners.
2. Impact on Mental Health and Dignity:
   The petitioners highlighted the psychological trauma, fear, and stigma faced by LGBTQ+ individuals due to criminalization. They argued that the law perpetuated societal prejudice and alienation.
3. Changing Global Perspective:
   The petitioners pointed out that many countries had decriminalized homosexuality and recognized LGBTQ+ rights, aligning their laws with international human rights standards.

Arguments by the Respondents (Union of India)

The Union of India, while taking a neutral stance, left the matter to the “wisdom of the Court.” However, certain groups opposing the petition argued:

1. Moral and Religious Grounds:
   Opponents claimed that homosexuality was against Indian culture, tradition, and morality, and decriminalizing it would disrupt societal norms.
2. Legislative Domain:
   Some argued that the issue should be addressed by Parliament, not the judiciary.

Supreme Court’s Judgment

Delivered on 6th September 2018, the Supreme Court’s judgment was unanimous and progressive. The five-judge bench, led by Chief Justice Dipak Misra, delivered concurring opinions that collectively addressed the core issues of the case. The key highlights of the judgment are:

1. Reading Down Section 377:

• The Court decriminalized consensual sexual acts between adults in private, stating that such acts are protected by the Constitution.
• Section 377 was retained for non-consensual acts, acts involving minors, and bestiality.

2. Violation of Fundamental Rights:

• The Court held that Section 377 violated Articles 14, 19, and 21 of the Constitution.
• The law was deemed arbitrary, discriminatory, and violative of the dignity and autonomy of LGBTQ+ individuals.

3. Recognition of Sexual Orientation as an Innate Trait:

• The Court declared that sexual orientation is an essential attribute of privacy and individuality, protected under Article 21 as established in the Justice K.S. Puttaswamy v. Union of India (2017) judgment on the right to privacy.

4. Emphasis on Constitutional Morality:

• The judgment emphasized constitutional morality over societal morality, asserting that individual rights cannot be suppressed by the majority’s views.
• The Court highlighted the Constitution’s role in safeguarding minority rights and promoting inclusivity.

5. Restoration of Dignity:

• The bench acknowledged the historical wrongs suffered by LGBTQ+ individuals and recognized their right to live with dignity and equality.

Impact of the Judgment

1. Legal Recognition for LGBTQ+ Rights:
   The decriminalization of Section 377 marked the beginning of legal recognition for LGBTQ+ individuals, paving the way for future reforms in areas such as same-sex marriage, adoption, and inheritance rights.
2. Societal Shift:
   The judgment challenged deep-seated prejudices and sparked conversations about inclusivity, diversity, and human rights in Indian society.
3. Alignment with Global Trends:
   The decision aligned India with international human rights standards, reinforcing its commitment to uphold equality and dignity.
4. Inspiration for Activism:
   The verdict inspired LGBTQ+ activists and allies to demand further reforms and protections for the community.

Criticism of the Judgment

While celebrated, the judgment faced some criticism and challenges:

1. Lack of Specific Protections:
   The ruling decriminalized homosexuality but did not provide affirmative protections or recognize civil rights such as marriage or adoption.
2. Resistance from Conservative Groups:
   Some sections of society continue to oppose the judgment on moral, religious, and cultural grounds, leading to ongoing debates and challenges.

Subsequent Developments

1. Push for Same-Sex Marriage:
   Post-judgment, the LGBTQ+ community and activists have petitioned for the legalization of same-sex marriage, which remains under judicial and legislative consideration.
2. Policy Reforms:
   Several organizations and educational institutions have adopted more inclusive policies to support LGBTQ+ individuals, although discrimination and stigma persist.

Conclusion

The Navtej Singh Johar v. Union of India (2018) judgment is a milestone in India’s journey toward equality and justice. By decriminalizing consensual homosexual acts, the Supreme Court upheld the core constitutional values of dignity, liberty, and inclusivity. While significant challenges remain, this judgment has laid the foundation for a more inclusive society where every individual, regardless of their sexual orientation, can live with respect and freedom.

Recommended:

1. Kesavananda Bharati v. State of Kerala (1973)

2. Maneka Gandhi v. Union of India (1978)

3. S.R. Bommai v. Union of India (1994)

4. Indra Sawhney v. Union of India (1992)