Navtej Singh Johar and Ors. vs Union of India

The landmark judgement in Navtej Singh Johar and Ors. vs Union of India (2018) represents a defining moment in the evolution of LGBT rights in India. By decriminalising consensual sexual conduct among adults—including homosexual acts—this decision marked the emergence of a more inclusive interpretation of constitutional freedoms. This article provides an in-depth analysis of the background, judicial reasoning, key arguments, and the far-reaching impact of the case.

Background of Navtej Singh Johar and Ors. vs Union of India

Historical Legal Context

Section 377 of the Indian Penal Code (IPC), a law that traces its origins to the colonial era, criminalised “unnatural offences” and prescribed punishment for certain sexual acts. Historically, this provision was used not only against homosexual conduct but also covered a wider range of activities including anal and oral sex, even among opposite-sex couples. Despite its broad application, the enforcement and the societal impact of Section 377 were predominantly felt by sexual minorities, especially those in same-sex relationships.

Earlier, the Delhi High Court in the Naz Foundation case (2009) had declared Section 377 unconstitutional in the context of consensual same-sex relationships. However, this decision was later overruled by the Supreme Court in the 2013 Suresh Kumar Koushal vs Naz Foundation verdict. The 2013 judgement reinstated Section 377, thereby setting the stage for the renewed challenge spearheaded by Navtej Singh Johar and his co-petitioners.

The Petition and Its Petitioners

On 27 April 2016, five prominent citizens filed a writ petition before the Supreme Court of India challenging the validity of Section 377. The petitioners included:

• Dancer Navtej Singh Johar
• Journalist Sunil Mehra
• Chef Ritu Dalmia
• Hoteliers Aman Nath and Keshav Suri
• Businesswoman Ayesha Kapur

These petitioners argued that Section 377, in its application to consensual sexual acts between adults, infringed upon fundamental rights guaranteed under the Indian Constitution. They contended that criminalisation was not only a misinterpretation of societal morality but also a violation of personal liberty and dignity.

Opposition and the Government Stance

The challenge to decriminalisation received opposition from various groups including:

• Apostolic Alliance of Churches
• Utkal Christian Council
• Trust God Ministries

Notably, the NDA government maintained a neutral stance throughout, emphasising that the question of decriminalising homosexuality should be left to the “wisdom of the court.” The government did not support any intervention that would compromise the private nature of consensual sexual conduct among adults.

Judicial Proceedings in Navtej Singh Johar and Ors. vs Union of India

Initial Procedures and Referral to a Constitution Bench

The petition was first placed before a panel of judges, including former Chief Justice Justice T.S. Thakur, Justice S.A. Bobde, and Justice A.K. Bhushan on 29 June 2016. Recognising the complexity and national importance of the issue, the matter was subsequently referred to Justice Dipak Misra, and later, it was earmarked for a five-judge constitution bench.

On 8 January 2018, the Supreme Court announced that the case would be heard by the Chief Justice’s bench, signalling its significance in interpreting the constitutional rights of individuals. Over the next several months, hearings continued with oral arguments from both sides, along with written submissions. The process allowed for a detailed scrutiny of the law in question as well as the constitutional principles underlying the petitioners’ challenge.

The Hearing Process

The case was heard from 17 January 2018 by the constitution bench. The Court revisited the earlier jurisprudence on sexual rights and privacy, weighing the importance of personal autonomy against the state’s moral prerogatives. On 10 July 2018, the Supreme Court resumed hearings dedicated entirely to the pleas challenging Section 377. By 17 July, the Court reserved its verdict while also inviting the parties to submit additional written submissions for clarifications on their arguments.

The Judgement in Navtej Singh Johar and Ors. vs Union of India

Unanimous Verdict on Decriminalisation

On 6 September 2018, the Supreme Court delivered its unanimous verdict. The bench declared that the provisions of Section 377 which criminalised consensual sexual acts between adults were unconstitutional. This historic judgement reversed the 2013 decision in Suresh Kumar Koushal vs Naz Foundation and reinstated the civil liberties that had been denied to sexual minorities for decades.

Legal Reasoning and Constitutional Provisions

The Court found that criminalising consensual sexual behaviour violated several fundamental rights enshrined in the Constitution:

• Article 14 (Equality before the law): The differential application of the law infringed on the principle of equality.
• Article 15 (Prohibition of discrimination): Discrimination on the basis of sexual orientation was inherently unjust.
• Article 19 (Freedom of expression): Restricting one’s ability to express their identity was an unreasonable limit on personal freedom.
• Article 21 (Right to life and personal liberty): The right to personal dignity, sexual autonomy, and privacy is intrinsic to the very notion of personal liberty.

The judgement stated that the legislation was “irrational, arbitrary and manifestly unconstitutional,” particularly when it came to regulating private, consensual sexual conduct.

Preservation of Other Provisions

While the judgement decriminalised consensual acts between adults, it is important to note that not all aspects of Section 377 were annulled. The provisions related to:

• Sex with minors
• Non-consensual sexual acts, including rape
• Bestiality

remain intact. The Court was careful to ensure that its decision did not affect state interests in protecting vulnerable persons or upholding public order by criminalising acts that are inherently non-consensual or exploitative in nature.

Conclusion

Navtej Singh Johar and Ors. vs Union of India stands out as a transformative moment in Indian legal history. By recognising the inherent dignity and autonomy of every individual, the Supreme Court has carved out space for a broader interpretation of personal rights. The decision not only decriminalises consensual sexual conduct among adults but also sets a precedent for future judgements to further the cause of equality and human rights.

Researchers: Rishabh Bhardwaj and Arushi Gupta (Students, Jindal Global Law School)

Author: Aishwarya Agrawal