|Navtej Singh Johar v. Union of India|
|Court||Supreme Court of India|
|Full case name||Navtej Singh Johar & Ors. versus Union of India thr. Secretary Ministry of Law and Justice|
|Decided||6 September 2018|
|Citation(s)||W. P. (Crl.) No. 76 of 2016|
D. No. 14961/2016
|Prior action(s)||Suresh Kumar Koushal v. Naz Foundation|
|Appealed from||Supreme Court of India|
|Judge(s) sitting||Dipak Misra, CJI; Rohinton Fali Nariman, J.; A. M. Khanwilkar, J; D. Y. Chandrachud, J; and Indu Malhotra, J|
|Decision by||Dipak Misra, R. F. Nariman, D. Y. Chandrachud and Indu Malhotra|
|Plurality||Dipak Misra, joined by A. M. Khanwilkar|
|Concurrence||Rohinton Fali Nariman, Indu Malhotra, D. Y. Chandrachud|
This case overturned a previous ruling
|Suresh Kumar Koushal v. Naz Foundation by Supreme Court of India|
Navtej Singh Johar & Ors. versus Union of India thr. Secretary Ministry of Law and Justice is a landmark decision of the Supreme Court of India in 2018 that decriminalised all consensual sex among adults in private, including homosexual sex.
The court was asked to determine the constitutionality of Section 377 of the Indian Penal Code, a colonial-era law which among others criminalised homosexual acts as an "unnatural offence". On 6 September 2018, the court unanimously declared the law unconstitutional "in so far as it criminalises consensual sexual conduct between adults of the same sex". Portions of Section 377 relating to sex with minors, non-consensual sexual acts such as rape, and bestiality remain in force.
On 27 April 2016, five people from the LGBT community filed a new writ petition in the Supreme Court challenging the constitutionality of Section 377 of the Indian Penal Code. The petitioners claimed that the issues which they raised in their petition were varied and diverse from those raised in the pending curative petition in the 2013 Koushal v. Naz case, in which the Supreme Court had upheld the constitutionality of Section 377. The Naz case was earlier referred to a five-judge bench in order to decide whether the curative petition could be accepted for consideration. The petitioners were dancer Navtej Singh Johar, journalist Sunil Mehra, chef Ritu Dalmia, hoteliers Aman Nath and Keshav Suri, and businesswoman Ayesha Kapur. Specifically, it happened to be the first case where the petitioners had argued that they had all been directly aggrieved because of Section 377 alleging it to be a direct violation of fundamental rights. In a survey conducted by the Centre for the Study of Developing Societies and Konrad-Adenauer-Stiftung, only 25% of Indian youth approved of a homosexual relationship in April 2017.
The petition was placed before Justice S. A. Bobde and Justice A. K. Bhushan on 29 June 2016 where an order was passed to post the matter before the Chief Justice of India, Justice Dipak Misra for appropriate orders as the bench was apprised of the curative petition pending before the constitution bench. On 8 January 2018, the case (Navtej Singh Johar and others v. Union of India) was listed to be heard by Chief Justice's bench which passed an order stating that the case will be heard by a constitution bench.
"Taking all the aspects in a cumulative manner, we are of the view, the decision in Suresh Kumar Kaushal's case (supra) requires re-consideration. As the question relates to constitutional issues, we think it appropriate to refer the matter to a larger Bench."
The matter was heard from 17 January 2018 by a five-judge constitution bench of the Supreme Court. On 10 July 2018, the SC commenced hearing of the pleas challenging the constitutionality of section 377. The bench ended its hearing on 17 July and reserved its verdict, asking for both sides to submit written submissions for their claims by 20 July.
On 6 September 2018, the court delivered its verdict, declaring portions of the law relating to consensual sexual acts between adults unconstitutional in a unanimous decision. This decision overturns the 2013 ruling in Suresh Kumar Koushal vs. Naz Foundation in which the court upheld the law. However, other portions of Section 377 relating to sex with minors, non-consensual sexual acts, and bestiality remain in force.
The court found that the criminalisation of sexual acts between consenting adults violated the right to equality guaranteed by the Constitution of India. While reading the judgment, Chief Justice Misra pronounced that the court found that "[c]riminalising carnal intercourse" to be "irrational, arbitrary and manifestly unconstitutional". The court ruled that LGBT people in India are entitled to all constitutional rights, including the liberties protected by the Constitution of India. This included "the choice of whom to partner, the ability to find fulfilment in sexual intimacies and the right not to be subjected to discriminatory behaviour are intrinsic to the constitutional protection of sexual orientation". The judgement also made note that LGBTs are entitled to an equal citizenship and protection under law, without discrimination.
While the statute criminalises all anal sex and oral sex, including between opposite-sex couples, it has largely affected same-sex relationships. As such, the verdict was hailed as a landmark decision for LGBT rights in India, with campaigners waiting outside the court cheering after the verdict was pronounced.
The largest constituent party of the National Democratic Alliance, a right-wing Hindu nationalist coalition, currently having a majority in the Lok Sabha (House of the People), the Bharatiya Janata Party (BJP), was one of the few parties which officially stayed silent on the verdict. Several party members did express their personal opinions on the subject, including the BJP spokesperson G. V. L. Narasimha Rao, who said that any decision on the matter "takes in sync with the jurisprudential developments on gay rights the world over would be welcome". Meanwhile, Subramanian Swamy, a Rajya Sabha (Council of the States) member of the BJP, attacked the decision, questioning if the court will legalise sexual intercourse with animals in the name of personal liberty. He was of the view that the decision could be overruled "[i]f it leads to excesses, including paedophilia, gay bars, increase in HIV cases, etc." The Prime Minister of India, Narendra Modi, has a record of saying relatively little about LGBT rights compared to other socio-political issues, and refused to comment on the same.
The right-wing organisation Rashtriya Swayamsevak Sangh conveyed its agreement with the court's verdict as it didn't believe homosexuality was a crime, but did label the orientation as "unnatural". In January 2018, the BJP's coalition partner, the Shiv Sena had supported legalisation, with its member and a member of parliament in Lok Sabha for Mumbai South, Arvind Sawant Ganpat saying, "They have the right to live the way they want. What can we say on it."
The largest opposition party in India, the Indian National Congress of the United Progressive Alliance, issued a statement welcoming the ruling. The organisation remarked that the judgement should bring about "the beginning of a more equal and inclusive society". This was in contrast to its previous objection in the same case in 2009 when it was in government during the initial Naz Foundation case, stating that gay sex was 'immoral' and that it cannot be decriminalised.
In terms of non-governmental organisations, the group Human Rights Watch welcomed what happened, with its South Asia director labelling the judgement as "hugely significant". Amnesty International also praised the ruling. The United Nations welcomed the judgement, hoping that it will be the first step towards guaranteeing the full range of fundamental rights to LGBTI persons.
Global News suggested that similar colonial laws in South Asia, modelled on India's Section 377, could be declared unconstitutional following this verdict. The agency stated that the ruling "emboldened activists in neighbouring countries". In terms of LGBT rights in Sri Lanka, a similar law in that nation, which has not been enforced in decades, was declared unenforceable by its Supreme Court and is effectively dormant. However, differences in how constitutional matters are handled mean that the law cannot be removed without the consent of the electorate. Global News also noted that the nations of Bangladesh, Myanmar, and Pakistan face problems with LGBT people suffering from public discrimination, outside of the context of laws restricting homosexuality.
Simon Chesterman, dean of the National University of Singapore Faculty of Law, congratulated India on the verdict in a Facebook post. In response to Chesterman's post, Singaporean diplomat Tommy Koh wrote on Facebook that Singaporean LGBT activists should take the opportunity to overturn Section 377A of the Penal Code, a position supported by Chief of Government Communications Janadas Devan. Later, on September 10, disc jockey and producer Johnson Ong Ming filed a lawsuit in court against Section 377A. However, Law and Home Affairs Minister K. Shanmugam stated that “[t]his issue relates to social mores, values - so can you impose viewpoints on a majority when it so closely relates to a social value system?”