Judgement of the day: Navtej Singh Johar v. Union of India
The central issue of the case was the constitutional validity of Section 377 of the Indian Penal Code.
The issue in the case originated in 2009 when the Delhi High Court, in the case of Naz Foundation v. Govt. of N.C.T. of Delhi, held Section 377 to be unconstitutional, in so far as it pertained to consensual sexual conduct between two adults of the same sex. In 2014, a two-judge bench of the Supreme Court, in the case of Suresh Kumar Koushal v. Naz Foundation, overturned the Delhi HC decision and granted Section 377 “the stamp of approval” [p. 11, para. 9]. When the petition in the present case was filed in 2016 challenging the 2014 decision, a three-judge bench of the Supreme Court opined that a larger bench must answer the issues raised. As a result, a five-judge bench heard the matter.
The Petitioner in the present case, Navtej Singh Johar, a dancer who identified as part of the LGBT community, filed a Writ Petition in the Supreme Court in 2016 seeking recognition of the right to sexuality, right to sexual autonomy and right to choice of a sexual partner to be part of the right to life guaranteed by Art. 21 of the Constitution of India (Constitution). Furthermore, he sought a declaration that Section 377 was unconstitutional.
The five-judge bench of the Indian Supreme Court (Court) unanimously held that Section 377 of the Indian Penal Code, 1860 (Section 377), insofar as it applied to consensual sexual conduct between adults in private, was unconstitutional. With this, the Court overruled its decision in Suresh Koushal v. Naz Foundation ((Suresh Koushal v. Naz Foundation, (2014) 1 SCC 1Sep)) that had upheld the constitutionality of Section 377.
The Court relied upon its decision in National Legal Services Authority v. Union of India (( National Legal Services Authority v. Union of India, (2014) 5 SCC 438 )) to reiterate that gender identity is intrinsic to one’s personality and denying the same would be violative of one’s dignity [p. 156, para. 253(i)]. The Court relied upon its decision in K.S. Puttaswamy v. Union of India ((K.S. Puttaswamy v. Union of India, (2017) 10 SCC 1 )) and held that denying the LGBT community its right to privacy on the ground that they form a minority of the population would be violative of their fundamental rights. It held that Section 377 amounts to an unreasonable restriction on the right to freedom to expression since consensual carnal intercourse in private “does not in any way harm public decency or morality” [p. 165, para. 253(xvi)] and if it continues to be on the statute books, it would cause a chilling effect that would “violate the privacy right under Art. 19(1)(a)” [p. 224, para. 83]. The Court affirmed that that “intimacy between consenting adults of the same sex is beyond the legitimate interests of the state” [p. 142]
J. Nariman in his opinion analyzed the legislative history of Section 377 to conclude that since the rationale for Section 377, namely Victorian morality, “has long gone” [p. 239, para. 78] there was no reason for the continuance of the law. He concluded his opinion by imposing an obligation on the Union of India to take all measures to publicize the judgment so as to eliminate the stigma faced by the LGBT community in society. He also directed government and police officials to be sensitized to the plight of the community so as to ensure favorable treatment for them.