couple, man love, homosexual

CASE COMMENT ON

NAVTEJ SINGH JOHAR v, UNION OF INDIA

(2018) 10 SCC 1

Abstract

Navtej Singh Johar is one of the most recent and landmark judgments of the Supreme Court of India in which the Hon’ble Supreme Court had used the concept of transformative constitutionalism in its rationale. The Hon’ble Court has elucidated and has applied notions such as transformative constitutionalism, constitutional morality, and the Right to Privacy in Navtej Singh Johar Case. In this case comment, I will try to emphasize how, in the judgment, the Court took a reformatory and revolutionary method while striking down Section 377 of the Indian Penal Code, which has reinforced the movement for equal treatments and opportunities for homosexuals.

Introduction

 In a Shakespearean play, it was quoted that “What’s in a name? That we call a rose by any other name would smell as sweet.” In layman’s terms, this expression simply means that what primarily defines a human being are the fundamental tenets of the basic virtues that he or she possesses, rather than what people call him or her. So, according to this, a name is merely a denotative concept, but it is an entity’s identity that distinguishes it in reality and can thus be equated with divinity. This distinguished individuality of a person is the salt or the quintessence of a person’s life, and denying this annotation welcomes death[1].

Certain sections of society continue to live under the fanatical social conventions of rigid stereotypes, hypocritical perceptions, and preconceived notions, and that leads to the obscure possibilities of sociocultural exclusion and isolation. Breaking free from such shackles of society can only contribute to what we foresee as a “free and democratic society. “The first step towards the envisioned society is to embrace the diversity present in the society, as well as to guarantee equal rights and opportunities for less equal segments of society. “The society could perhaps begin to appreciate that how an individual is formed and what identity he embodies is offered to him by nature which is a creation within its own, and thus must not be masked, mocked or frowned upon as stated by our Hon’ble Supreme Court of India.

Homosexuality has been a contentious issue in India because it was thought to be against natural laws, and people who identified as homosexuals were shunned by society. Hence, in this case of Navtej Singh Johar v. Union of India, “the right to sexual orientation”, the “right to sexual freedom” and the “right to choose a sexual partner” were established as part of the right to life guaranteed under “Article 21 of the Constitution of India” and Section 377 of the Indian Penal Code was then deemed to be “unconstitutional”.

Facts

On April 26, 2016, Navtej Singh Johar, a dancer, hoteliers Keshav Suri and Aman Nath, businesswomen Ayesha Kapur and Chef Ritu Dalmia from the LGBTQ+ community filed a writ petition before the Supreme Court of India challenging the constitutionality of Section 377 of the Indian Penal Code (IPC), that criminalized consensual sexual intercourse between same-sex adults in private. The petitioners claimed that Section 377 of the IPC is unclear and uncertain because there is no defined distinction between natural and unnatural sex. The petitioners prayed for the inclusion of the “right to sexuality,” “right to sexual autonomy,” and “right to choose a sexual partner” as part of the “right to life” guaranteed by Article 21 of the Indian Constitution. They also stated that Section 377 violates “freedom of speech and expression” by preventing individuals from expressing their sexual identity through the act of selecting sexual or romantic partners. Further, it was also argued that Section 377 violates the LGBT community’s right to privacy, which is enshrined in Article 21 of the Constitution as a fundamental right.

Issues raised

  1. Whether Section 377 of IPC infringes the Right to Equality under Article 14 of the Indian Constitution?
  2.  Whether Section 377 of IPC violates Freedom of Speech and Expression under Article 19 of the Constitution?
  3. Whether Section 377 of IPC violates the Right to Life with dignity under Article 21 of the Constitution?
  4. Whether discrimination based on sexual orientation under Section 377 of IPC violates Article 15 of the Constitution?
  5. Whether the reasoning of the Supreme Court of India in the Suresh Kumar Koushal v. NAZ Foundation case sound in terms of morality as social morality?

Procedural History

  • Section 377 of the Indian Penal Code was challenged for the first time in 1994. The NGO- AIDS Bhedbhav Virodhi Abhiyan (ABVA) filed a petition before the Delhi High Court to have section 377 decriminalized. According to the facts, after noticing homosexuality in the Tihar Jail, the NGO workers wanted to distribute condoms to the male inmates. Ms. Kiran Bedi, the then-superintendent of Tihar Jail, objected because she believed it would encourage homosexuality. This petition was then dismissed in the year 2001.
  • In NAZ Foundation v. Government of NCT of Delhi and Ors.[2], Section-377 of the IPC was ruled unconstitutional by the High Court of Delhi because it violated Articles 21, 14, and 15 of the Indian Constitution. Furthermore, it held that section-377 would be enforced in cases of non-consensual penile non-vaginal sex and penile non-vaginal sex involving minors, i.e., a person who is under the age of 18. The judgment was in favor of the petitioners.
  • Suresh Kumar Koushal and Ors. v. NAZ Foundation and Ors.[3] is the appeal from the previous judgment on section-377 of the IPC, i.e., NAZ Foundation v. Government of NCT of Delhi and Ors. The Court of Appeal gave the judgment for the appellant. It was held that Section 377 of the IPC was not inconsistent with the constitution and does not contravene or infringe any rights guaranteed by the Constitution of India.

…. we hold that Section 377 IPC does not suffer from the vice of unconstitutionality and the declaration made by the Division Bench of the High court is legally unsustainable. The appeals are accordingly allowed, the impugned order is set aside and the writ petition filed by respondent No.1 is dismissed. …. we would like to make it clear that this Court has merely pronounced the correctness of the view taken by the Delhi High Court on the constitutionality of Section 377 IPC and found that the said section does not suffer from any constitutional infirmity.

  • Navtej Singh Johar v. Union of India[4]

The petition challenging the order of the Court of Appeal in Suresh Kumar Koushal and Ors. v. NAZ Foundation and Ors.

Arguments advanced

By the petitioner

  1. According to the petitioners, homosexuality, bisexuality, and other sexual preferences are normal and based on a person’s personal choice, and must not be regarded as mental or physical illness. They are based on the consent of the individuals who are capable enough for providing such consent and making it a criminal offense violates Article 21 of the Indian Constitution[5].
  2. Section 377 is in contravention with Article 14 of the Constitution that neither the section nor the IPC defines the term “carnal intercourse against the order of nature.”  Therefore, there is no intelligible difference or reasonable classification between natural and unnatural sex as long as it is consented to[6].
  3. The Petitioners advanced their argument by citing the K.S. Puttaswamy case[7] and claimed that sexual preference is an essential feature of privacy and it should be protected as without these a person’s individuality may be lost. It is the heart of the fundamental rights guaranteed by Articles 19, 20, and 21 of the Constitution of India, and therefore it must be struck down.
  4. The petitioners also stated that individuals who choose inter-religious and inter-caste marriages are just the same as the people who want a partner of the same gender. There is no difference between them. Our society and culture may or may not agree to inter-caste and inter-religious marriages, but it is the court’s responsibility to uphold every citizen’s constitutional rights. Similar is the position of the LGBTQ+ community. Even though the majority disapproves of them, but it is up to the court to safeguard their constitutional rights and freedom from being infringed.
  5. The decision in Suresh Koushal and another v. NAZ Foundation and others[8]is per incuriam because it failed to consider the amendment to section 375 that made sexual ‘carnal intercourse against the order of the nature. Section 377, on the other hand, made same-sex carnal intercourse a criminal offense even though it was consensual.
  6. The petitioners also put forth that Section 377 of IPC was also violative of Article 15 because it discriminates against the LGBTQ+ community based on the gender of their partners, which is prohibited under Article 15 of the Indian Constitution.

By the respondent

  1. If Section 377 is overturned, victims who have complaints about forced acts protected by the existing Section 377 would be rendered helpless. This would also render a married woman helpless in the event if her bisexual husband and his consenting sexual partner are engaged in any sexual act.
  2. The respondents also stated that people who engage in unnatural sex, which is punishable under Section 377, are more susceptible to contracting HIV/AIDS than heterosexuals, potentially increasing the number of AIDS victims in our country.
  3. The respondents stated that the fundamental rights are not absolute, and decriminalizing section-377 would then deliver all religions practiced in the country objectionable, resulting in a violation of Article 25 of the Indian Constitution, which must also be taken into account.
  4. Section 377 of the IPC does not violate Article 15 of the Constitution because Article 15 prohibits discrimination only based on religion, sex, caste, place of birth, or any combination of these factors, but there is no mention of “sexual orientation.” If the word “sex” is to be replaced with “sexual orientation,” a constitutional amendment would be needed.
  5. They also suggested that clarifications to Section-377 can be introduced by defining every word that is controversially mentioned in the section. Then section 377 would target the people who have malafide intentions and commit non-consensual acts.
  6. The respondents asserted that if the petitioners’ prayers are were granted, it would result in judicial intervention because courts cannot add or delete words from a statute. The words “consent” or “without consent” are not mentioned in section 377, so the court cannot make such arbitrary distinctions[9].

Overview of the Judgement

The verdict was delivered on September 6, 2018. It had also been stated that the interpretation down of Section 377 of the IPC would not result in the reawakening of any shut cases, but can certainly be relied on in all unsettled matters. Few crucial points of the judgment are:

  1. It makes no difference how minuscule the LGBT community was; they all have the right to privacy, including physical privacy. Their choices for partners may differ, however that does not mean they would be charged with a crime for it. Section-377 violates their private dignity and personal decisions, infringing on the right to privacy guaranteed by Article 21.
  2. Non-consensual activities have been enumerated as an offense under section 375 of the IPC, inferring that section 377 is obsolete and unconstitutional against a segment of the society and thus violates Article 14 of the Indian Constitution, deeming it unconstitutional and unlawful.
  3. Even though our Constitution is liberal, it is unlikely to have an absolute right of choice. As a result, certain constraints on the principle of preference have been imposed. However, the right to choose a partner for romantic relationships is solely a matter of personal preference and cannot be restricted. On the contrary, Section 377 of the Indian Penal Code, inhibits the LGBT community’s freedom to choose a sexual partner and thus is arbitrary and unreasonable.
  4. The fundamental right to free expression can be restricted based on public order, decency, and morality. Any publicly performed act of love by the LGBT community does not impede public order or moral beliefs as long as it is reasonably good and not obscene. Section-377, on the other hand, is illegal in the sense that it violates proportionality principles and violates the fundamental right of the freedom of speech of the LGBTQ community.
  5. The Chief Justice of India further asserted that “the Constitution must direct the transformation of society from an archaic to a pragmatic society in which fundamental rights are fiercely guarded,” citing the principles of “transformative constitutionalism” and “progressive realization of rights.” It was stated that Constitutional morality would triumph over social morality. They also claimed that homosexuality was “not an aberration, but rather a variation of a person’s sexual orientation.”

Judgment

The Supreme Court ruled that Section 377 of the IPC was unconstitutional because it violated Articles 14, 15, 19, and 21 of the Indian Constitution, and thus overruled the decision held in Suresh Koushal and Ors. v. NAZ Foundation and Ors[10]. Furthermore, it stated that section 377 will only apply to non-consensual sexual activities committed against any adult or minor.

The judgment was correct and clears the law.

This decision of the Hon’ble Supreme Court of India to decriminalize homosexuality is historic and memorable. Section 377 of the Indian Penal Code 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 10 years and shall be also liable to a fine.” This demonstrates how homosexuality is considered to be against the natural order simply because it was not approved, accepted, and respected due to its firm belief, rigid norms, and belief systems.

In National Legal Services Authority v. Union of India and others[11], Justice Radhakrishnan had opined that,

“Gender identity refers to each person’s deeply felt internal and individual experience of gender, which may or may not correspond with the sex assigned at birth, including the personal sense of the body which may involve a freely chosen, modification of bodily appearance or functions by medical, surgical or other means and other expressions of gender, including dress, speech, and mannerisms. Gender identity, therefore, refers to an individual’s self-identification as a man, woman, transgender or other identified category.”

Adverting to the concept of discrimination, he had further stated that,

“The discrimination on the ground of ―sex under Articles 15 and 16, therefore, includes discrimination on the ground of gender identity. The expression ―sex used in Articles 15 and 16 is not just limited to the biological sex of male or female, but intended to include people who consider themselves to be neither male nor female.”

Without an iota of doubt, it can be asserted that homosexuals or the people belonging to the LGBTQ+ community in our country were stigmatized and denied access to their basic human rights solely because of their sexual orientation and identity. They suffered severe consequences as a result of this, they were placed in an unfair position and unsafe situation in their work and education. Moreover, they even were regarded as a disgrace by society even though they had their rights protected under the Constitution of India. Howbeit, in Francis Coralie Mullin v. Administrator, Union Territory of Delhi and others [12] and Common Cause (A Registered Society) v. Union of India and another[13], it was held that “the right to life and liberty, as envisaged under Article 21 of the Indian Constitution, is meaningless unless it encompasses within its sphere individual dignity and right to dignity includes the right to carry such functions and activities as would constitute the meaningful expression of the human self.”

In Maneka Gandhi v. Union of India[14], the Court had reiterated that the term ‘Personal Liberty’ is of “the widest amplitude and it covers a variety of rights which go to constitute the personal liberty of a man.”

In this particular instance, I believe that the Hon’ble Supreme Court took the right stance and even provided proper rationale to support their claim. The decision made it clear that the Constitution and the law are equal for every individual in our country.  It instilled confidence in the people of this country that no matter how minor they are or how trivial their community is, everyone would receive equal protection from the law and the justice system. The court also pointed out that because of the constant discriminatory practices, fear of criminal charges, and probable exclusion and humiliation caused by society, many homosexuals concealed their gender identity and neglected their necessities thereby infringing their dignity, personal freedom and restricting them from expressing their sexual preferences and orientation, thus, violating the Article 21 of the Constitution. In this judgment, the court took a much-needed remedial stand as just like heterosexuals, homosexuals also have access to all the basic constitutional rights and liberties.  Justice Indu Malhotra stated that,

“Homosexuality is an alteration or diversity and not abhorrence. However, due to the fear and strain put upon them, they turn into bisexuals which has even greater social consequences.”

In addition, through this landmark judgment, a key feature of the law, namely “Transformative Constitutionalism”, was elevated to a new height. A law should always change and evolve in response to the wants and needs of society. Thus, the law should not be constant and should evolve in responding to the demands of time as Change is the only constant.

The purpose of transformative constitutionalism has been aptly described in the case of Road Accident Fund and another v. Mdeyide[15] wherein the Constitutional Court of South Africa, speaking in the context of the transformative role of the Constitution of South Africa, had observed that “ One of the most important purposes of the transformation is to ensure that, by the realization of fundamental socio-economic rights, people disadvantaged by their deprived social and economic circumstances become more capable of enjoying a life of dignity, freedom, and equality that lies at the heart of our constitutional democracy.” The Court in the State of Kerala and another v. N.M. Thomas and others[16] observed that, “the Indian Constitution is a great social document, almost revolutionary in its aim of transforming a medieval, hierarchical society into a modern, egalitarian democracy and its provisions can be comprehended only by a spacious, social- science approach, not by pedantic, traditional legalism. The whole idea of having a constitution is to guide the nation towards a resplendent future. Therefore, the purpose of having a constitution is to transform the society for the better and this objective is the fundamental pillar of transformative constitutionalism.”

Nonetheless, this case has also paved the way for a slew of future amendments revolving around our country’s legal field, in tandem with the changes occurring in a global society.

Even though our Indian Society has become more adaptable in recent years, certain individuals continue to restrict themselves to the age-old practices and beliefs object such as “out of line practices.” However, I believe that the court made a brave decision in this case by focusing on upholding and preserving constitutional morality rather than valuing social perceptions.

Conclusion

The decision in the Navtej Johar case is undeniably historic. As a result of this decision, homosexuals can now live in a more dignified surroundings and express themselves unreservedly.  However, is this the end of the issue? The answer is a big fat NO because there is no appropriate legislation addressing this issue.  The Hon’ble Supreme court had ordered the government to take relevant steps to protect the rights of homosexuals, but still, no such progress has been made.

Decriminalizing Section 377 of the IPC is only the first step in achieving a free society. As we know, “With love comes even greater hatred,” even though Section 377 has been ruled unconstitutional, many people, including doctors, still believe this is a mental illness. More discussion about homosexual rights is needed to normalize the concept that “Love is Love!” irrespective of the sexual orientation of the partner.

The need of the hour is legislation that provides equality to all people based on sexual orientation, gender identity, and other grounds. Every and every person should be bound by the obligations of the law of equality and non-discrimination. As a result, the historical judgment must be accompanied by positive government efforts to give homosexuals a worthwhile existence and a meaningful life. Hence, the pillars of democracy should coordinate and work with each other to have a more positive impact on the court’s judgment[17].


[1] Navtej Singh Johar v. Union of India, (2018) 10 SCC 1.

[2] NAZ Foundation v. Government of NCT of Delhi and Ors, (2009) DLT 27.

[3] Suresh Koushal and another v. NAZ Foundation and others, (2014) 1 SCC 1.

[4] Navtej Singh Johar v. Union of India, AIR 2018 SC 4321.

[5] Shafin Jahan v. Asokan K.M. and Ors. MANU/SC/0340/2018.

[6] Anuj Garg and Others v. Hotel Association of India and Ors., AIR 2008 SC 663.

[7] K. S. Puttaswamy v. Union of India, (2017) 10 SCC 1.

[8] Suresh Koushal and another v. NAZ Foundation and others, (2014) 1 SCC 1.

[9] Sakshi v. Union of India and Ors., (2004) 5 SCC 546.

[10] Suresh Koushal and Ors. v. NAZ Foundation and Ors, (2014) 1 SCC 1.

[11] National Legal Services Authority v. Union of India and others, (2014) 5 SCC 438.

[12] Francis Coralie Mullin v. Administrator, Union Territory of Delhi and others, (2014) 9 SCC 1.

[13] Common Cause (A Registered Society) v. Union of India and another, (2018) 5 SCC 1.

[14] Maneka Gandhi v. Union of India, AIR 1978 SC 597.

[15] Road Accident Fund and another v. Mdeyide, 2008 (1) SA 535 (CC).

[16] The state of Kerala and another v. N.M. Thomas and others, AIR 1976 SC 490.

[17] Jayna Kothari, One year after ‘Navtej Johar’, imagining an equality law, The Hindu (Aug. 17, 2021, 8:00 PM), https://www.thehindu.com/opinion/op-ed/one-year-after-navtej-johar-imagining-an-equality-law/article29385200.ece.

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