NAVTEJ SINGH JOHAR V. UNION OF INDIA (2018 10 SCC 12)
INTRODUCTION
Section 377 of the Indian Penal Code, titled as “Unnatural Offences”, stated that “whoever
voluntarily has carnal intercourse against the order of nature with any man, woman or animal
shall be punished with imprisonment for life, or with imprisonment of either description for a
term which may extend to ten years, and shall also be liable to [a] fine.” [1]
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Police, the court system, and society for a long time considered “homosexuality” to be one of
these behaviors and outlawed it. The same led to many Indians losing their right to sexual
autonomy as well as their privacy. But after numerous court hearings and decisions, the Supreme
Court took a second look at the case after filing a curative petition. And on September 6, 2018, a
five-judge Supreme Court bench struck down Section 377, decriminalizing consensual
intercourse between adults of the same sex.
In the 2018 ruling, Justice Indu Malhotra made an appropriate apology to the LGBTQ
community on behalf of “history.” The Court said that sexual liberty and orientation were
responsible for India’s legislative change for the queer community.
FACTS
The case began in 2009, when the Delhi High Court ruled in “Naz Foundation v. Govt. of
N.C.T. of Delhi (160 Delhi Law Times 277)” that Section 377 was unconstitutional insofar as it
related to consensual sexual conduct between two adults of the same sex [2]. In the case of
“Suresh Kumar Koushal v. Naz Foundation [(2014) 1 SCC 1]”, a two-judge bench of the
Supreme Court overturned the Delhi High Court judgement and gave Section 377 “the stamp of
approval” [3].
Navtej Singh Johar, a dancer, petitioned in the Supreme Court in 2016 to challenge Section 377,
claiming that it violated his constitutional rights to equality, freedom of speech, privacy, and
protection from discrimination.
Some intervenors contended that the right to privacy was not absolute, that such actions were
degrading to the “constitutional idea of dignity,” that such acts would increase the incidence of
HIV/AIDS in society, and that ruling Section 377 unlawful would destroy the institution of
marriage.
DECISION OVERVIEW OF SECTION 377
The Court argued that outlawing consensual sex between adults in private violates the right to
privacy, that discrimination based on sexual orientation violates the right to equality, that sexual
orientation is an essential component of self-identity and denying it would be a violation of
the right to life and that fundamental rights cannot be denied because they affect a very small
percentage of the population. The constitutional bench of the supreme court unanimously ruled
that Section 377 was unlawful [4].
This decision was quite historic. This ruling is likely to carry persuasive value, given that such
identical restrictions still exist in certain Commonwealth countries like Singapore, Sri Lanka,
Pakistan etc.
LITERATURE AND CASES REFERRED TO IN SECTION 377 CASE
To emphasize the importance of their rulings, the judges, in this case, have cited a number of
literary works.
Goethe’s “I am what I am, therefore take me as I am” opens the verdict, and Shakespeare’s
“What’s in a name?” appears somewhere in the middle. When describing love and its concerns,
Justice Nariman highlighted that, ‘The love that dare not speak its name’, citing from one of
the poems written by Alfred Douglas.
Arthur Schopenhauer, Shakespeare, Leonard Cohen, John Stuart Mill, and Oscar Wilde are
among the writers cited during the pronouncement of this judgment. The text was unique to the
queer community and also the Court’s desire which was to recognize an outcast community.
Delhi High Court In Naz Foundation
The 2009 Delhi High Court decision, Naz Foundation v. NCT of Delhi and Others, was a
watershed moment in the LGBT community’s quest for sexual liberty. However, it took nearly
eight years for the Indian judiciary to recognize queer love. In order to reiterate that gender
identity is intrinsic to one’s personality and that to deny it would be to violate one’s dignity, the
Court cited its ruling in “National Legal Services Authority v. Union of India (2014) 5 SCC
438.” The NALSA ruling established transgender people’s gender identity as a third
gender.
The Court held that depriving the LGBT community of their right to privacy on the grounds
that they are a minority would be a violation of their fundamental rights, citing its ruling in “K.S.
Puttaswamy v. Union of India (2017) 10 SCC 1”. It was determined that Section 377
constitutes an unreasonable restriction on the right to freedom of expression because consensual
carnal intercourse in private “does not in any way harm public decency or morality” and its
continued existence would “violate the privacy right under Art. 19(1)” and have a chilling effect
on speech [5]. The Court further reiterated that an adult’s freedom to “select a life partner of
his/her choice” is a component of individual liberty relying upon cases like “Shafin Jahan v.
Asokan K.M 2018 (5) SCALE 422 and Shakti Vahini v. Union of India (2018 7 SCC 192).”
CONTRIBUTIONS MADE BY THE NAVTEJ JUDGEMENT
The view of the Court and its comprehension of Section 377 evolved between the Naz
Foundation and Navtej judgments.
The Supreme Court in Navtej adopted a rights-based stance, acknowledging S. 377’s
consequences on a community, no matter how little they may be. The Court took the question of
social standardization a step further by declaring that “individual orientation is essentially
natural.” This judgment was a key legal step toward allowing the LGBTQIA+ community equal
rights and status and opened the door for them to pursue other claims for rights. While it
continues to undermine societal morality, it gives people breathing space by defending their
rights.
The verdict introduced three novel ideas: constitutional morality, transformative
constitutionalism, and the right to privacy.
Before Navtej, there were several instances and reports of harassment of LGBTQIA+ people.
Under S. 377, same-sex couples were separated and detained. With the adoption of the
Puttaswamy and Navtej judgments, this procedure, however, changed. The Navtej Johar ruling
has played a crucial role in raising awareness of the LGBT community. Navtej
judgment strongly promotes that sexual decisions are a component of the right to dignity and
that the right to privacy protects a person’s choice of who to love or be intimate with.
Additionally, it creates a shared understanding between the law, the court, and the queer
community.
LACUNAS NEEDED TO BE FILLED
Although much has changed ever since section 377 was struck down, a lot more requires
attention. The queer community has yet not received the attention, respect and opportunities as
the other two genders. They are still look down upon and are not treated at par. How do we
expect people who have been seeing them in bad light since ages to change their perspective
when the executive itself reflects such notions?
Senior lawyer Saurabh Kirpal, whose appointment as a High Court judge has been on hold at
least since 2017, told recently that he thought the holdup was due to his gay orientation. The
administration denied that his orientation had anything to do with his appointment. According to
reports, the Intelligence Bureau was worried about Kirpal’s Swiss companion, who they
considered to be a “security danger” [6]. The irony is quite clever. The same administration that
has long denied same-sex relationships in general is the one that is now so worried about Kirpal’s
partner. The concept of same-sex marriage is not accepted, and same-sex couples are not given
any acknowledgment.
This community is yet to be granted adoption rights and do not enjoy the pleasure and pain of
raising a child.
This ruling is indeed positive, but what LGBTQ Indians eventually want are combined bank
accounts, health insurance policies, shared custody arrangements for children, and hospital
visitation privileges.
Like every other pair, actually.
Since the judiciary is limited in what it can accomplish, there is still a long way to go. To give
the LGBTQIA+ community in India more authority, the legislature must intervene and either
draft new laws or amend those that already exist.
REFERENCES
- https://indiankanoon.org/doc/1836974/
- https://indiankanoon.org/doc/100472805/
- https://indiankanoon.org/doc/58730926/
- https://indiankanoon.org/doc/168671544/
- https://globalfreedomofexpression.columbia.edu/cases/navtej-singh-johar-v-union-india/
- https://timesofindia.indiatimes.com/blogs/paper-cut/a-gay-judge-is-great-but-lgbtq-need-
much-more-than-that/
WRITTEN BY –
ANISHA TRIPATHI
BA LLB, NATIONAL LAW UNIVERSITY ODISHA Intern at Fastrack Legal Solutions
