Pursuit Of Equality - Case Commentary On Navtej Singh Johar Vs. Union Of India
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PURSUIT OF EQUALITY: CASE COMMENTARY ON
NAVTEJ SINGH JOHAR VS. UNION OF INDIA
G V Kowstubh Sarma, BBA LLB, Kristu Jayanti College of Law, Bangalore
Bairisetti Kaveri, BBA LLB, Kristu Jayanti College of Law, Bangalore
CITATION: AIR 2018 SC 4321, (2018) 10 SCC 1
BENCH: Dipak Misra CJI, A. Ν. Khanwilkar Judge, D.Y. Chandrachud Judge, Indu Malhotra Judge, R F Nariman Judge. DATE OF JUDGEMENT: SEPTEMBER 06, 2018 Statute Referred: Constitution of India,
1949. Indian Penal Code, 1860.
PETITIONER: Navtej Singh Johar. RESPONDENT: Union of India.
INTRODUCTION
Homosexuality as a topic has been the centre of debating tables from very recent times. The lens through which the LGBTQIA+ community was and is perceived, has been changing. The Supreme Court of India played a pivotal role in molding the rights and social existence of homosexuals in the society. This case commentary is an attempt to highlight the background timeline of events which subsequently led to the historical judgment of Navtej Singh Johar vs Union of India which has caused the apex court to declare section 3771of IPC (now BNS) as unconstitutional. Section
377 has been a controversial statute because of its nature.
It was only the beginning of the millennium i.e the year 2001 in which the motion was raised in the Indian courts which highlighted the need to decriminalize homosexuality and consider them as normal citizens and grant them the right to live with dignity in India. The case of Naz
1 Pen. Code § 377.
foundation is etched in the judicial history as a front-runner in its true sense as it is the first case to question the constitutionality of a 164-year-old colonial statute as to how it violates articles 14, 19, 15 and 21(2) of the constitution of India. This case further decriminalized consensual sexual acts between homosexuals. The generic societal perception of sexual intercourse being an act just for the purpose of procreation was completely overturned by the Supreme Court through this judgment. The purpose of this commentary is to discuss all such events which led to the judgment of Navtej Singh Johar vs UOI where the court held section 377 as unconstitutional and struck it down, decriminalizing homosexuality. This is an attempt to analyze how this judgment paved way for the genetically persecuted groups that there is a greater scope for their inclusiveness in the society.
The section is arbitrary and was gone unnoticed in the past. The overall societal perception that homosexuality being a ‘mental illnesses’ has been discarded through this judgment. This is a significant development and is a very crucial judgment where the voices of the unheard were considered by the apex court. This commentary highlights the multi-dimensional implications it could possibly have on a society. The archaic notions the society had about the homosexuals through the ages was debunked by the courts with this judgment. This further restored the faith of the citizens upon the higher judiciary for upholding its prime duty to serve as a ‘constitutional watchdog’.
FACTS OF THE CASE
The main question in this case was concerned about the constitutional validity of Section 377 of the Indian Penal Code, 1860, which dealt with the private, consensual sexual behaviour of adults of the same sex. Section 377 states 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 fine.” Consensual sexual relations between individuals of the same sex were illegal under Section
377 of the Indian Penal Code (IPC) because it was “against the order of nature.” In 2009, the
Delhi High Court heard a challenge to the validity of Section 377 by the Naz Foundation (India) Trust (“Naz”), citing violations of Articles 14, 15, 19, and 21 of the Constitution. The court
held that it is unconstitutional for Section 377 to penalize sexual behaviour between two consenting adults because it infringes on their rights to equality, privacy, and personal freedom. After in 2013, the Supreme Court had to review an appeal in the case of Suresh Kumar Koushal & Anr. V. Naz Foundation & Ors.2 of that ruling, and the court reversed the Naz ruling. It was held that decriminalizing homosexuality could only be done by Parliament. A fresh writ case contesting the validity of Section 377 was filed by five LGBTQ individuals: Navtej Singh Johar, Ritu Dalmia, Ayesha Kapur, Aman Nath, and Sunil Mehra.3
ISSUES
The issues raised through this petition was as follows: A.
Whether Section 377 of the IPC violates Articles 14 and 15? B.
Whether Section 377 of the IPC violates Article 21? C.
Whether Section 377 of the IPC is unconstitutional?
ARGUMENTS
The petitioner contends that Section 377 of the IPC, which criminalizes homosexuality, is out of date and should be amended to reflect the requirements and desires of modern society. Section 377 also violates the right to life guaranteed by Article 21 of the Indian Constitution, because private consenting sexual encounters are likewise protected by Article 21's right to privacy. According to Article 15, Section 377 also discriminates against people based on their sex, or more specifically, their sexual orientation, which is against another basic right of homosexuals. Furthermore, there is no logical link between the distinction made between procreative and non-procreative sexual actions and Section 377 of the IPC, which criminalizes "unnatural sexual acts.
" Based on the factors mentioned above, the petitioner contends that Section 377 of the IPC, which criminalizes private, consenting sexual intercourse between two adults, should
2 Suresh Kumar Koushal & Anr. V. Naz Foundation & Ors., (2014) 1 SCC 1.
3 Privacy Library, https://privacylibrary.ccgnlud.org/, (July 24, 2024).
be repealed. 4 The respondent stated that Section 377 does not represent a constitutional wrong or immorality, but rather criminalizes activities deemed inappropriate and demeaning, and that granting privacy and personal liberty to LGBTQIA+ people would be a misuse of these rights, violating public morals. They contended this because homosexuals are more likely to get into HIV, and other types of sexual diseases, that’s why criminalization is required to protect public health. It was also stated that declaring Section 377 unconstitutional would damage the family system, marriage institution, and social culture, as well as India's political, economic, and cultural heritage.5
JUDGMENT HELD BY THE APEX COURT
The 5-judge bench consisting of Hon’ble justices R Nariman, D Y Chandrachud, A M Khanwilkar, Deepak Misra and Indu Malhotra were of a unanimous opinion that section 377 of IPC 1860 as it was applicable to consensual intercourse is unconstitutional. To arrive at this juncture, the apex bench has relied upon various other landmark decisions and has drawn itself to a logical conclusion which catered to the interests of the homosexuals. It has also relied upon the judgment of Lawrence et al vs Texas6 where US supreme court declared a statute which proscribes homosexuals from indulging in intercourse as invalid.
(p 31) Placing reliance upon the judgment of National Coalition for Gay And Lesbian Equality Vs Minister Of Justice7 where the Constitutional court of South Africa had unanimously held that the laws which proscribed intimacy between the homosexuals violated their right to equality and decriminalized against them on the basis of their sexual orientation It relied upon the case of NALSA vs UOI8 where it has drawn conclusions that denial of gender identity is the same as depriving a person of their individual dignity (p. 156 para 253(i))
4 Amandeep Kaur, Navtej Singh Johar v. UOI: Decriminalized homosexual, IPLEADERS,(July 25,2024,
8:15PM), https://blog.ipleaders.in/.
5 Privacy Library, https://privacylibrary.ccgnlud.org/, (July 25, 2024).
6 Lawrence et al v. Texas, 539 U.S. 558 (2003).
7 National Coalition for Gay and Lesbian Equality and Another v Minister of Justice and Others, (CCT11/98) [1998] ZACC 15; 1999 (1) SA 6; 1998 (12) BCLR 1517 (9 October 1998).
8 National Legal Services Authority (Nalsa) Vs. Union of India, AIR 2014 SC 1863.
It has placed reliance on the famous Puttaswamy vs Union of India 9 judgment and reiterated that section 377 erroneously deprives the LGBTQIA+ community of their right to privacy purely on the ground that they constitute minority of the population. This is an outright violation of the fundamental rights. It was further held that private consensual sexual intercourse is valid and that public morality and decency stands unaffected due to such acts. (p165 para 253 (XVI). The prolonged existence of such acts on the paper would further lead to violation of right to privacy under article 19(1)(a). (p 224, para 83) It further placed reliance on the cases of Shakti Vahini vs UOI10 and Shafin Jahan vs. Asokan K. M. and Ors. 11 reiterating that the right to choose a partner is subjected to an individual and no moral or societal obligations can obstruct their right to choice.
Judges Individual Opinions: CJ Misra- The judge on behalf of J Khanwilkar opined that “Constitutional morality triumphs over individual morality” (p 79, para 121). Placing constitutional principles at the paramount position, he stated that for a society to progress, it has to follow the path of transformative constitutionalism which helps in a paradigm shift of an archaic society to a progressive society. J Chandrachud- He was of the notion that the sole function of section 377 was to “efface
identities” ( p328 para 51). He strongly advocated the idea of an inclusive society by highlighting the importance of granting “equal citizenships in all manifestations” to the community to be able to achieve equitable protection to the communities.(p 270 para 7) J Indu Malhotra- She opined that homosexuality is a “variation of sexuality”(p 455) She
further stated that the history must be apologetic towards these communities for making them feel excluded from the society for acquiring sexual orientation which is natural and not a “disease”. She is of an opinion that right to privacy not only means right to be left alone but also extends to “spatial and decisional privacy” (p 476) J Nariman held that the archaic and age old notions of the society has long gone where the
continuance of such statutes were backed and that there is no reason to keep them alive (p 239
9 Justice K.S. Puttaswamy Vs. Union Of India, (2017) 10 SCC 1.
10 Shakti Vahini Vs Union of India, (2018) 7 SCC 192.
11 Shafin Jahan vs. Asokan K.M. and Ors., (2018) 16 SCC 368, AIR 2018 SC 1933.
para 78). He further ordered the state to consider the plight of the society and provide them with favorable treatment12
IMPLICATIONS
1. Social Implications:
Decriminalizing homosexuality decreases societal stigma, promotes acceptance and inclusion, and allows them to live openly without fear of any discrimination. LGBTQIA+ individuals may feel more at ease expressing their identities, which resultes in increased visibility and representation in a variety of settings, including education, work, and media. LGBTQIA+ individuals who may have experienced psychological suffering because of social rejection, discrimination, and violence may benefit from decriminalization in terms of their mental health. If more families accept homosexuals as they are, the number of violent and rejecting incidents inside the family may decline because of the judgment. The decision may help to strengthen LGBTQIA+ communities and organizations by creating support networks and boosting collective empowerment.13
2. Legal Implications:
The court's decision can establish a norm for protection against sexual orientation discrimination, which leads to the creation of anti-discrimination legislation and regulations. By acknowledging LGBTQIA+ community with the equal rights and legal recognition, the decision takes a rights-based stance and opens the door for further rightsbased lawsuits. The Legal cases concerning other laws that target underprivileged groups, such those pertaining to caste, handicap, or gender identity, can be sparked. The judge's decision might result in the acceptance of same-sex partnerships for the purposes of marriage, adoption, and inheritance. The LGBTQIA+ individuals, who may have faced obstacles in obtaining legal remedies because of discrimination may now have greater access to justice as a result of the verdict. 14 12Global Freedom of Expression, https://globalfreedomofexpression. columbia.
edu, (July 25, 2024).
13 Privacy Library, https://privacylibrary.ccgnlud.org/, (July 25, 2024).[ hereinafter PRIVACY]
14 Id.
3. Political Implications:
The decision may result in a shift in political discourse, with more awareness of LGBTQIA+ rights as a political priority and possible voting issue. The LGBTQIA+ community may be more inclined to engage in politics, resulting in increased representation and support for LGBTQIA+ rights. The ruling could promote comparable initiatives for LGBTQIA+ rights elsewhere, especially in Commonwealth nations that have legislation from the same colonial era. The ruling could result in changes to laws pertaining to employment, healthcare, and education that are inclusive of LGBTQIA+ people. The ruling may result in more money going to LGBTQIA+ programs and groups, which would empower and foster community growth.15
4. Economic Implications:
Members of the LGBTQIA+ community, who may have experienced job discrimination or been compelled to conceal their identity, may participate in the economy more when decriminalization occurs. India may grow in popularity as a travel and business destination for LGBTQIA+ people, which would expand the economy. Lower healthcare expenses for HIV/AIDS care and mental health therapy may result from improved mental health outcomes. The ruling could encourage more LGBTQIA+ people to start their own businesses, which would spur innovation and employment growth. The decision might help LGBTQIA+ people become more economically empowered.
5. Cultural Implications:
The ruling could result in more LGBTQIA+ people being represented in the media, increasing their visibility and acceptance. Additionally, it may help alter society’s perceptions, encourage tolerance and acceptance, and minimize prejudice and violence. It can also promote group empowerment and self-determination by giving the LGBTQIA+ community the confidence to stand up for their rights and demand fair treatment. The ruling could encourage a livelier and more varied cultural environment by raising awareness of and celebrating inclusion and cultural variety.
15 PRIVACY, supranote 14.
CONCLUSION
The LGBTQIA+ constitutes a very miniscule of the population of India and this in anyway cannot be an excuse to turn a blind eye towards this community as it is constitutionally impermissible. It is very crucial to revisit and extract such archaic acts and infiltrate them for restoration of constitutional health from time to time. The Supreme Court through various judgments has assured the citizens of India, that the infringement of fundamental rights in any manner cannot be tolerated. In the said judgment, the court also laid down the doctrine of progressive realization of rights (p. 111 para 178) and highlighted its nature that the constitution is highly expandable, and it is perpetually growing with increasing demands of the society.
This is to be kept in mind by the framers of legislations that there must be no blind spots, and where an inclusive thinking pattern is just and necessary for maintaining equitability and to reassure equality. References:
1. https://globalfreedomofexpression.columbia.edu.
2. https://main.sci.gov.in.
3. https://privacylibrary.ccgnlud.org/.
4. https://blog.ipleaders.in/
5. www.legalserviceindia.com.