Landmark Supreme Court Judgment Decriminalizes Homosexuality in India: Navtej Singh Johar vs. Union of India (2018)

Case Background

The case originated from a writ petition filed in 2016, challenging the constitutionality of Section 377 of the Indian Penal Code. This section, a relic of British colonial law, criminalized “carnal intercourse against the order of nature,” which has been interpreted to include homosexual acts. The petitioners argued that this law violated the fundamental rights of LGBT individuals, including their right to equality, dignity, and privacy. The case was referred to a larger bench of the Supreme Court after a three-judge bench noted that a previous two-judge bench decision in Suresh Koushal v. Naz Foundation had upheld the validity of Section 377, which was based on social morality and not constitutional morality.

The petitioners sought to declare that the right to sexuality, sexual autonomy, and choice of a sexual partner are part of the right to life under Article 21 of the Constitution. They also argued that Section 377 was unconstitutional and violated the fundamental rights of the LGBT community. The petitioners also argued that the phrase “order of nature” was limited to the procreative concept and did not take into account inborn traits or developed orientations.

The Union of India submitted that the matter was referred to a Constitution Bench to decide the constitutional validity of Section 377 insofar as it applies to consensual acts of adults in private, and left the decision to the wisdom of the Court.

Several intervenors also made submissions, both in favour and against the decriminalization of homosexuality. Some argued that Section 377 was necessary for the preservation of social and moral values, while others argued that it violated fundamental rights and was discriminatory.

Timeline

Course of Proceedings

The course of proceedings began with the filing of a writ petition in 2016, challenging Section 377. The matter was initially heard by a three-judge bench, which noted the conflicting opinions in previous rulings of the Supreme Court. The bench then referred the matter to a larger bench, leading to the present judgment by a five-judge constitution bench. The court heard extensive arguments from both sides, including the petitioners, the Union of India, and various intervenors.

Legal Framework

The legal framework of the case centers around Section 377 of the Indian Penal Code, 1860, which reads:

“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 fine. Explanation.—Penetration is sufficient to constitute the carnal intercourse necessary to the offence described in this section.”

The court also considered the following articles of the Indian Constitution:

• Article 14: Guarantees equality before the law and equal protection of the laws.
• Article 15: Prohibits discrimination on grounds of religion, race, caste, sex, or place of birth.
• Article 19(1)(a): Guarantees the right to freedom of speech and expression.
• Article 21: Guarantees the right to life and personal liberty.

The court also referred to the Yogyakarta Principles, which outline the application of international human rights law to sexual orientation and gender identity. Additionally, the court considered the Mental Healthcare Act, 2017, which recognizes that homosexuality is not a mental illness and provides for protection against discrimination on the basis of sexual orientation.

Arguments

The arguments presented by the petitioners and the intervenors supporting them highlighted that homosexuality, bisexuality, and other sexual orientations are natural variations of human expression and choice. They contended that criminalizing consensual acts between adults of the same sex violates individual dignity, autonomy, and the right to privacy. The petitioners argued that the phrase “order of nature” is a socially constructed concept and does not reflect the reality of human sexuality. They also submitted that Section 377 perpetuates discrimination and stigma against LGBT individuals, violating their fundamental rights.

The respondents and other intervenors opposing the decriminalization argued that Section 377 does not target any particular group but only criminalizes certain acts. They further contended that the law is based on a reasonable classification between natural and unnatural sex and that decriminalizing homosexuality would undermine religious and social values. They also raised concerns about the potential impact on the family system and public morality.

Innovativeness of the arguments: The petitioners innovatively argued that Section 377 is not merely a law against certain acts, but a tool of discrimination against LGBT persons. They also argued that the concept of “order of nature” is a social construct and not a legal principle.

Issues Framed by the Supreme Court

The Supreme Court framed the following key issues for consideration:

1. Whether Section 377 of the Indian Penal Code, 1860, is unconstitutional insofar as it criminalizes consensual sexual acts of adults in private.
2. Whether sexual orientation is an essential attribute of privacy, and if so, whether discrimination based on sexual orientation violates fundamental rights.
3. Whether the decision in Suresh Koushal v. Naz Foundation requires reconsideration.

The Court also considered the sub-issue of whether the definition of ‘sex’ under Article 15 should include sexual orientation and gender identity.

Treatment of the Issue by the Court

The Supreme Court addressed the issues by considering the following aspects of the case:

Authorities

The Court relied on several previous judgments and legal provisions to arrive at its decision. These included:

• National Legal Services Authority v. Union of India (2014): Recognized transgenders as a third gender and emphasized the importance of gender identity and sexual orientation.
• K.S. Puttaswamy v. Union of India (2017): Affirmed the right to privacy as a fundamental right and stated that sexual orientation is an essential attribute of privacy.
• Maneka Gandhi v. Union of India (1978): Established that the procedure under Article 21 has to be fair, just and reasonable.
• Navtej Singh Johar & Ors. v. Union of India (2018): A three judge bench referred the matter to a larger bench for reconsideration of Suresh Koushal.
• American Psychological Association: Studies and opinions on homosexuality being a natural condition and not a mental illness.
• Yogyakarta Principles: Outlined the application of international human rights law to sexual orientation and gender identity.
• Mental Healthcare Act, 2017: Recognized that homosexuality is not a mental illness and provided for protection against discrimination on the basis of sexual orientation.

The Court also referred to the following cases from other jurisdictions:

• Dudgeon v. United Kingdom: A European Court of Human Rights case that held that laws criminalizing homosexual acts violated the right to privacy.
• Lawrence v. Texas: A US Supreme Court case that struck down laws criminalizing same-sex sexual acts.
• Obergefell v. Hodges: A US Supreme Court case that recognized the right of same-sex couples to marry.
• Vriend v. Alberta: A Canadian Supreme Court case that held that sexual orientation is a protected ground under the Canadian Charter of Rights and Freedoms.
• National Coalition for Gay and Lesbian Equality v. Minister of Justice: A South African Constitutional Court case that struck down sodomy laws as violative of the rights to equality, dignity, and privacy.

Judgment

The Supreme Court, in a unanimous decision, decriminalized consensual homosexual relations between adults in private, declaring Section 377 of the Indian Penal Code, 1860, to be unconstitutional to that extent. The Court held that Section 377 violated the fundamental rights of LGBT individuals, including their right to equality, dignity, privacy, and freedom of expression.

How each authority was viewed by the Court?

• National Legal Services Authority v. Union of India (2014): Cited to emphasize the importance of gender identity and sexual orientation.
• K.S. Puttaswamy v. Union of India (2017): Cited to establish that sexual orientation is an essential attribute of privacy.
• Dudgeon v. United Kingdom: Cited to show how laws criminalizing homosexuality violate the right to privacy.
• Lawrence v. Texas: Cited to demonstrate that laws criminalizing same-sex sexual acts are unconstitutional.
• Obergefell v. Hodges: Cited to recognize the right of same-sex couples to marry.
• Vriend v. Alberta: Cited to show that sexual orientation is a protected ground under the Canadian Charter.
• National Coalition for Gay and Lesbian Equality v. Minister of Justice: Cited to highlight the violation of the rights to equality, dignity, and privacy by sodomy laws.

The Court held that the decision in Suresh Kumar Koushal v. Naz Foundation was incorrect and overruled it. The Court also clarified that Section 377 would continue to apply to non-consensual sexual acts, sexual acts with minors, and bestiality.

The Court emphasized that the right to life includes the right to live with dignity and that sexual orientation is an essential component of personal identity. The Court also stressed that constitutional morality must prevail over social morality and that the rights of minorities must be protected.

What weighed in the mind of the Court?

The Court’s decision was heavily influenced by the following considerations:

The court emphasized the importance of protecting fundamental rights, recognizing sexual orientation as natural and innate, and upholding individual dignity and autonomy. The court also stressed that constitutional morality should override social morality and that the rights of minorities must be protected. The ratio of law to fact indicates that the court relied more on legal principles and constitutional values than on the specific facts of the case.

Logical Reasoning:

The Court considered alternative interpretations but rejected them because they were not in line with the constitutional values. The final decision was reached by applying the principles of equality, liberty, and dignity to the facts of the case and the relevant legal provisions.

The Court’s reasoning was based on the following points:

• Section 377 is vague and overbroad.
• It is discriminatory as it targets the LGBT community.
• It violates the right to privacy, dignity, and autonomy.
• It is based on outdated social norms and does not reflect constitutional morality.
• The law has a chilling effect on freedom of expression and choice.
• The law impedes the ability of LGBT persons to lead a dignified life.

The Court also considered the international perspective and noted that several countries have decriminalized homosexuality. The Court emphasized that the Constitution is a living document that must be interpreted in light of evolving social norms and values.

The Court quoted extensively from the judgment, including:

“At the core of the concept of identity lies self-determination, realization of one’s own abilities visualizing the opportunities and rejection of external views with a clear conscience that is in accord with constitutional norms and values or principles that are, to put in a capsule, ‘constitutionally permissible’.”

“The individual autonomy and also individual orientation cannot be atrophied unless the restriction is regarded as reasonable to yield to the morality of the Constitution. What is natural to one may not be natural to the other but the said natural orientation and choice cannot be allowed to cross the boundaries of law and as the confines of law cannot tamper or curtail the inherent right embedded in an individual under Article 21 of the Constitution.”

“The search for identity as a basic human ideal has reigned the mind of every individual in many a sphere like success, fame, economic prowess, political assertion, celebrity status and social superiority, etc. But search for identity, in order to have apposite space in law, sans stigmas and sans fear has to have the freedom of expression about his/her being which is keenly associated with the constitutional concept of ‘identity with dignity’.”

The Court also addressed the issue of majority and minority opinions, noting that constitutional rights are not determined by popular acceptance. The Court emphasized that it is the duty of the judiciary to protect the rights of all citizens, including minorities, and that the Constitution is a living document that must be interpreted in light of evolving social norms and values.

Key Takeaways

• Section 377 of the Indian Penal Code is unconstitutional insofar as it criminalizes consensual same-sex relations between adults in private.
• Sexual orientation is an essential attribute of privacy and is protected under the Constitution.
• Discrimination based on sexual orientation is a violation of fundamental rights.
• The right to choose a partner and engage in intimate relationships is part of the right to life and liberty.
• Constitutional morality must prevail over social morality.

The judgment has significant implications for the LGBT community in India, providing them with legal recognition and protection of their fundamental rights. It also sets a precedent for future cases involving issues of sexual orientation and gender identity.

Directions

The Supreme Court directed the Union of India to take the following steps:

• Ensure wide publicity of the judgment through public media.
• Initiate programs to reduce the stigma associated with LGBT persons.
• Provide sensitization and awareness training to government officials, including police officers.

Development of Law

The ratio decidendi of this case is that Section 377 of the Indian Penal Code, insofar as it criminalizes consensual sexual acts between adults of the same sex in private, is unconstitutional. The judgment represents a significant change in the legal position of LGBT individuals in India. It overrules the previous decision in Suresh Koushal v. Naz Foundation, which had upheld the validity of Section 377. The judgment establishes that sexual orientation is an essential attribute of privacy and that discrimination based on sexual orientation is a violation of fundamental rights. It also clarifies that constitutional morality must prevail over social morality, and that the rights of minorities must be protected.

Conclusion

The Supreme Court’s judgment in Navtej Singh Johar v. Union of India is a landmark decision that decriminalizes homosexuality in India. By recognizing sexual orientation as an essential aspect of privacy and dignity, the Court has affirmed the fundamental rights of LGBT individuals. The judgment marks a significant step towards creating a more inclusive and equitable society in India, and is a testament to the transformative power of the Constitution.

Category

Parent Category: Indian Penal Code, 1860

Child Categories: Section 377, Indian Penal Code, 1860; Constitutional Law; Fundamental Rights; Right to Privacy; LGBT