This article is written by Ritwik Guha Mustafi, a student of School of Law, Christ University, Bangalore. The author, in this article, has discussed the case of Navtej Singh Johar V. Union of India and critically analysed it with the help of decided cases.
There has been no dearth of debates on the issue of the rights of homosexuals in India. The constitutionality of section 377 of the Indian Penal Code (hereinafter I.P.C) of 1860 which spoke about unnatural offences and inter alia, criminalised homosexuality was also a very controversial issue. The whole concept of homosexuality was perceived as against the course of nature and therefore undesirable in the society. Debates against the criminalization of homosexuality focussed on the articles 14, 15, and 21 of the Indian constitution which are fundamental rights and envisage equality, non-discrimination on basis of sex, and personal liberty respectively and that section 377 violates these rights. In essence, homosexuality is an enduring pattern of romantic, emotional, and/or sexual attractions to people of the same sex . The case of Navtej Singh Johar v. Union of India is a landmark case which decriminalized homosexuality and in the process, addressed some important constitutional questions.
Coming to the facts, Navtej Singh Johar (petitioner) who was a dancer and identified himself with the LGBT (Lesbian, Gay, Bisexual, and Transgender) community filed a writ petition in the court seeking inclusion of right to sexual autonomy and right to choose the sexual partner within the ambit of right to life under article 21. He also sought the declaration of section 377 of the I.P.C. as unconstitutional. He contended that the language of section 377 is vague and there is no intelligible differentia between natural and unnatural sexual acts. He also said that section 377 discriminates on the basis of sexual partners and has a ‘chilling effect’ on freedom of speech and expression by denying the expression of one’s sexual identity through choice of romantic partners. Also, section 377 violates the right to privacy by putting the LGBT people in fear of humiliation due to their lifestyle.
The respondent (Union of India) left the question of the constitutional validity of section 377 to the wisdom of the court. They, however, contended that the acts of homosexuality were against the concept of constitutional dignity .
The issues before the court were:
- Whether the rationale adopted in the Suresh Kaushal judgement was proper or not?
- Whether section 377 violates articles 14 and 15 of the constitution?
- Whether section 377 violates the right privacy under article 21?
- Whether section 377 has a ‘chilling effect’ on article 19 (1) (a) by criminalizing gender expression by the LGBT community? 
As for the first issue, the court opined that improper rationale was adopted in the Suresh Kaushal case. Even if a certain section of the society is in minority, it has to be protected by the fundamental rights. The court overruled Suresh Kaushal case.
For the second issue, the court held that there is no reasoned classification between natural and unnatural sexual acts. The intimacy between consenting adults of same-sex is outside the jurisdiction of the state. Section 377 also discriminates a segment of people for their sexual orientation without any reasonable ground. So, it violates Articles 14 and 15 of the Constitution of India.
Thirdly, the court said that not granting privacy to LGBT community merely because they are a minority is violative of the fundamental right to live with dignity . Also, carnal intercourse between two people of same-sex in private is not derogatory to public morality. Also, the LGBT community has been marginalized for long and they do have a fear of being shunned from the society.
Finally, the court said that gender identity is intrinsic to a person’s identity and denying the same will be violative of one’s dignity . Due to section 377, LGBTs often find themselves stigmatized. Homosexuals also face a lot of pressure. So, they often hide their identity. It has immense social ramifications.
The 5-judge bench unanimously declared section 377 as unconstitutional insofar as it criminalises consensual sexual acts of adults in private.
The Navtej Johar case is not the first case in India which dealt with the rights of homosexuals. There are two important precedents which dealt with this issue. Before analysing the Navtej Johar case, it is important to look at the evolution of judicial interpretation about the rights of homosexuals. These precedents are:
Naz Foundation, an NGO committed to HIV-AIDS prevention filed a lawsuit in Delhi High Court seeking legalisation of homosexuality as criminalization of homosexuality led to hindrances in its initiatives. High Court dismissed the petition on grounds of no locus standi of the petitioner. An appeal was made to the Supreme Court. The apex court said that section 377 creates unreasoned classification and targets homosexuals. Public disgust is not a proper ground for criminalizing homosexuality. The word ‘sex’ under article 15 includes ‘sexual orientation’ as well and since article 15 prevents discrimination based on sex, section 377 is violating article 15. Right to life under article 21 includes ‘right to health’ and section 377 is a hindrance to it as the homosexuals often hide their identity due to criminalisation of homosexuality. So, adequate treatment is not provided. Section 377 was declared unconstitutional insofar as it criminalises consensual sexual acts of adults in private.
Suresh Kaushal (petitioner) challenged the decision of the apex court in the Naz Foundation case wherein the apex court legalised homosexuality. The petitioner contended that the documentary evidence of the Naz foundation was non-reliable. The apex court can’t take over the work of the legislature. Section 377 is gender-neutral and there is no violation of Article 14. Right to privacy under article 21 doesn’t include elements of section 377. Finally, the petitioner said that if homosexuality is legalised, the institution of marriage and social structure would break down.
The respondent re-stated the arguments concerning the violation of the fundamental rights of homosexuals under articles 14, 15, and 21 due to section 377 of I.P.C. The respondent also contended the need of flexible laws as per the changing needs of society.
The apex court said that homosexuals are in minority in the country and laws needn’t be changed for their interests. Court said that section 377 was a pre-constitutional law and had it been violative of any provision under Part III, it would’ve been struck down long ago. So, section 377 was held to be constitutionally valid.
This case consisted of substantial questions of law which had far-reaching implications and consequences. Various constitutional provisions were taken into account in this case. First of all, let’s look at the language of the disputed Section 377 of the IPC- “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 be also liable to fine” . This section’s language suggests that no person is to have carnal intercourse against the course of nature with other person or animal and consequently, the act of homosexuality was considered as against the course of nature for a long time as heterosexuality was supposed to be mandated by the whole society through the respective customs, religious beliefs, and traditions.
Needless to say, the homosexuals faced severe repercussions due to this. They were not only seen as criminals without a justified reason but also they were grossly discriminated against in fields of education, work etc. The basic human rights were denied to them just because of their gender identity and sexual orientation. The various organs of the state also remained oblivious of this issue till the Naz Foundation v/s Govt. of NCT, Delhi case wherein homosexuality was legalised by the apex court. This was overruled by the apex court’s judgement in the Suresh Kumar Kaushal v/s Naz Foundation case. One of the major grounds taken in the aforementioned case was that since the LGBT community is in minority in the country, their interests can’t be given priority over societal values and morality.
This ground was beautifully struck as invalid in the Navtej Johar case wherein the court said that constitution is for every individual in the country, regardless of whether it is a part of a minority group or that of majority. India doesn’t support any majority group rule. Every section of society is entitled to equal treatment. The preamble of the constitution also points towards this. So, the researcher opines that the court took a correct stand in this case and the reasoning was also proper.
The court also said that the discrimination is created in the social environment against the homosexuals and that due to the fear of being humiliated and punished, in most cases, the homosexuals hide their gender identity, ignore their necessary requisites such as healthcare, and actually, have a stigma attached to themselves due criminality attached to them. Also, a major characteristic of law is that it can’t remain stagnant in the face of the rapidly changing needs of society. The law has to evolve and be flexible.
So, criminalisation of homosexuality is to be done away with. The researcher supplements the court’s views by stating that sexual orientation is a matter of choice. It can’t be forced upon someone. Indu Malhotra, J. opined in this case that homosexuality is a variation, not abhorrence. Due to the pressure upon the homosexuals, they turn into bisexuals and this has large social ramifications . The researcher would like to state that due to such attitude shown by the society towards homosexuals, the very spirit of the Indian constitution is violated. The objective of the constitution becomes questionable as the homosexuals are forced to live an undignified and insecure life. Criminalising homosexuality only aggravated the already-sensitive issue.
Now coming to the issue of privacy, it is to be noted that privacy i.e. protection against unreasonable interference is an essential element of living a proper and dignified life. The researcher would like to connect this issue with that of denial of the right to speech and expression of homosexuals. Now, there has to be a balance between the fundamental rights and their reasonable restrictions. The counter-argument by the respondents, in this case, was that homosexuality degrades public morality and notions of decency. This argument is not legally sustainable as what happens within the four walls of a room between two consenting adults regardless of their sex can’t be reasonably foreseen to have a derogating effect on public morals as a private act can’t deprave morals of the society.
Also, the Indian society has become much more liberal in the current times. The conservatives may have a feeling of ‘disgust’ for certain ‘out-of-line’ practices but it can’t be seen as a proper ground for denying basic rights to a particular section of society. Also, many western countries have recognised homosexuality. It is high time for India to do the same. The court correctly held in this case that not giving privacy to homosexuals is denying them a dignified life and personal liberty under article 21 and also that by denying the expression of homosexuals regarding their sexual choice or gender identity, their right to freedom of speech is being unreasonably curtailed. So, section 377 was to be struck down insofar as it concerned with the consensual sexual acts between two adults in private. Other parts of the section were to remain intact.
Finally, the researcher feels that the court gave a good and courageous judgement in this case. The judgement upheld constitutional morality and also indicated towards the shift of the Indian society from an archaic to a pragmatic one. This judgement focused more on the desired goals of the fundamental rights rather than on societal perceptions. Also, the issues in concern were answered properly. This judgement laid down the foundation for other historical progressive judgements such as the Joseph Shine case (decriminalization of adultery) and the Sabarimala case (rights of women to enter a worship place).
The judgement in Navtej Johar case is undoubtedly a historical one. As a result of this judgement, the homosexuals can now live in a more dignified environment and can freely express themselves. The judgment also underlined the progressive realisation of people’s rights. However, is this end of the problem? The answer is ‘no’ as still there is discrimination meted out against homosexuals as there is no proper legislation which addresses this issue. The court had ordered the government to take certain measures for upholding the interests of homosexuals but no specific steps have been taken.
The need of the hour is overreaching legislation which provides equality to all persons on the basis of sexual orientation, gender identity, and other grounds. The law should impose obligations of equality and non-discrimination on every person .
So, the historical judgement has to be supplemented with positive government efforts to give meaningful life to homosexuals. The organs of the state have to coordinate with each other. That will have an even more positive impact of the court’s judgement.
- Hershel Goldwasser & Hillel Goldberg, Homosexuality, 29 Tradition: A Journal of Orthodox Jewish thought, 96-102 (1955).
- Navtej Singh Johar v. Union of India, (2018) 1 SCC 791 (India) [globalfreedomofexpression.columbia.edu/cases/navtej singh johar v/s union of India].
- Constitutionality of section 377 of IPC, Supreme Court observer, https://www.sccobserver.in.
- S. Puttaswamy v. Union of India, (2017) 10 SCC 1 (India).
- National Legal Services Authority v. Union of India, (2014) 5 SCC 438 (India).
- Naz Foundation v. Govt. of NCT, Delhi, (2016) 15 SCC 619 (India).
- Suresh Kumar Kaushal v. Naz Foundation, (2014) 1 SCC 1 (India).
- 4 T. BHATTACHRYYA, INDIAN PENAL CODE 538-539 (Central Law Agency, 4th 2004).
- Supra note 2.
- Jayna Kothari, One year after ‘Navtej Johar’, imagining an equality law, The Hindu, September 11, 2019.