Navtej Singh Johar v. Union of India: Questions Remain Unanswered
Updated: Jun 22, 2020
Sourabh Balwani, Content Writer, Nyayshastram
The Supreme Court of India, in one of the historical judgements of Navtej Singh Joharin 2018, read down Section 377 of the Indian Penal Code (IPC) as unconstitutional to the extent that it criminalised consensual sexual conduct of adults of same-sex in private. This Section hitherto obliquely nurtured discrimination to the queer persons in India and rendered them being denied right to dignified living as well as impinged upon their right to speech and expression due to their sexual orientations. This judgement marked a deviation from the court’s earlier pronouncement in Suresh Kumar Koushal v. Naz Foundation in 2014, wherein it held the Section to be gender-neutral and not unconstitutional. The court earlier in this judgement, cited queer groups and individuals to be a small fraction of total population of India, postulating that only minuscule queer people had been arrested for the offence under this Section. While the 2018 judgement aligns with the 2009 Delhi High Court judgement of Naz Foundation v. Government of NCT and Ors. maintaining Section 377 to be unconstitutional, it leaves too many questions concerning the rights of the LGBTQ+ community unanswered.
Facts of the Case
A writ petition was filed in the Supreme Court in 2016 by one Navtej Singh Johar, a dancer identified as part of the LGBTQ+ community pleading recognition of the right to sexuality and right to choice of a sexual partner under Article 21 of the Indian Constitution. The petitioner among other things also pleaded the court to declare Section 377 of IPC to be violative of right to privacy, right to equality and equal treatment, right to freedom of speech and expression, and other constitutional rights of human dignity and protection from discrimination. The petitioner emphasised that Section 377 stipulated “carnal intercourse against the order of nature” but did not define what it constitutes as such. On this ground, it was contended to be violative of Article 14 (Right to equal treatment). It was also pleaded to be infringing Article 15 for discriminating individual based on the sex of one’s sexual partner.
While discrimination on the basis of sexual orientation would also force individuals to remain reticent to talk on one’s sexual identity and thus it was claimed that the Section had a “chilling effect” on Article 19 which guarantees freedom of expression. The queer community was subjected to various impediments to exercise the right to choice of a sexual partner, while also being denied the right to privacy since they feared ostracism because of their choosing a manner of living being considered as ‘grotesque’.
While respondents on the other side, mainly comprising of Non-governmental organisations, religious groups along with the Union of India, emphatically challenged the contentions of the petitioner. It was contended by them that declaration of Section 377 as unconstitutional would prove fatal for the institutions of Indian society including marriage, customs and traditional foundations. Contesting that the right to privacy and other fundamental rights could not be prioritised over the overall public welfare, mannerism and morals, the respondents submitted that this would also disparage various personal laws in India. It was contended that the sexual conduct of adults of same-sex was derogatory to the constitutional concept of dignity and would also increase the proliferation of diseases, including HIV/AIDS in the Indian societal structures.
The Decision of the Court
The court pronounced Section 377 of IPC to be unconstitutional to the extent that it impinged upon rights of the LGBTQ+ community including those of sexuality, choosing sexual partners and also infringed their right to privacy. The court held that consensual carnal intercourse performed by the members of LGBTQ+ community was unjustifiably classified under unnatural offences and violated constitutional principles enshrined under Articles 14, 15, 19 and 21 of the Indian Constitution. Reiterating its pronouncement in the National Legal Services Authority (2014) case, the court said that gender identity is intrinsic to one’s personality and denying the same would impinge upon one’s dignity. It relied on the judgement of K.S. Puttaswamy v. Union of India, highlighting that the community cannot be denied the right to privacy, just because it represented only minuscule part of the population. The Constitution of India envisages to protect fundamental rights of every individual, irrespective of the individual’s standing in larger populace or minuscule group of people, the court said. The court highlighted that Section 375 of IPC already criminalised non-consensual intercourse and therefore, Section 377 proves to be redundant and also violative of constitutional principles as far as it discriminates people based on sexual orientation. The court also conformed to the view that the larger web of sex as a ground for discrimination under Article 15 also includes sexual orientation. Further, the court stated that consensual conduct by adults of the LGBTQ+ community does not in any way disturb the public order or moral values to the point it is not obscene. Thus, the court paved the way to decriminalise homosexuality in India through this judgement.
Lacunas in the Judgement
Queer people have, since time immemorial, faced discrimination and problems including that of banishment, unemployment, lack of education facilities, and continue to face many more. The judgement did remove some nebulous legal principles that hindered their equal treatment with other members of Indian society. However, the pitfalls in the enactment of proper legislations by those responsible for doing so, have rendered queer people in India to remain in a quagmire. Being continuously marginalised due to their inability to fit in the societal structure of multi-cultural Indian society, these lacunas in legislations inflict excruciating anguish to the members of the LGBTQ+ community in India. Take, for instance, Article 14, 15 and 16 of the constitution which guarantee equal rights to every individual, including the members of the LGBTQ+ community. However, despite this soothing judgement, transgender community in India continues to be discriminated, and this resultingly makes a case for constitutional amendments to Articles 15 and 16 which hitherto prohibit discrimination based on sex but not on the basis of gender as a ground. This judgement failed to identify the fissures of legal principles and codes, and neither attempted to answer these by and large.
The situation is further aggravated when the shortcomings of various laws of civil and criminal nature are taken into consideration. There are several statutes currently in force in India, which recognise only two categories of gender, i.e. man and woman. In this range, laws such as the Indian Penal Code (IPC), Criminal Procedure Code and Hindu Succession Act, may be counted. The judgment of the Supreme Court in Navtej Singh Johar also failed to identify these gaps in legislations and did not provide for them to be amended to take into account the interest of the LGBTQ+ community.
Nevertheless, the most glaring blank in this judgement of the Supreme Court could be accorded to the oblivious nature of the court to deduct the concomitant instances which would follow after recognising the sexual autonomy rights of the queer people. This includes the gap of necessary provisions concerning matrimonial affairs, guardianship, succession and reproductive rights of the LGBTQ+ community. The various personal laws as well as the Special Marriage Act, 1954 have not been till this date amended to include queer people in their expanse. Disappointingly, nor did the Supreme Court in this judgement predicated upon rights relating to matrimonial affairs and procreative rights of the queer people, neither it directed the legislature to fill the gap. Recently, a petition for marriage equality for the LGBTQ+ community was filed in Kerala High Court, and this has rekindled the debate around the question of same-sex marriage rights in India. Does not the non-recognition of same-sex marriage and acts of LGBTQ+ community to have progeny, violates various constitutional rights provided in Part III of the Constitution?
The judgement of the Supreme Court in Navtej Singh Johar was a remarkable moment in the judicial history of the court, where it liberated the queer politics and their rights from the shackles of legal torments. The Court denounced Section 377 as a discriminatory provision to the extent that it prevented homosexual acts. This judgement also entitled the LGBTQ+ community to a full protection of all the civil liberties available to others. However, the judgement pronounced by the court fails to provide explicitly for profound injustices that the community continues to experience. These rights, which are quintessential to make a dignified living, inhibit the community from finding a place in the legislations of Victorian-era, still not amended to undo their parochiality. Failure of various personal laws and secular laws to accord matrimonial as well as reproductive rights to the LGBTQ+ community reflects the shortcomings of the judiciary and legislative machinery of the country. This judgement of the Supreme Court, which attributed half-hearted efforts to assuage the conundrum of queer community members, left several significant questions concerning rights of the same people unanswered. Navtej Singh Johar case could thus prove to be meaningless and incomplete in affording the LGBTQ+ community access to various fundamental rights and liberties which the others enjoy. It would also fail the constitutional principle guaranteeing every individual dignified living and autonomy in private matters. These fissures of the judgement need urgent attention and codification to obliterate the gross injustices rendered to the community.
 Navtej Singh Johar and Ors. v. Union of India, (2018) 10 SCC 1.  Suresh Kumar Koushal v. Naz Foundation, (2014) 1 SCC 1.  Naz Foundation v. Government of NCT and Ors., (2009) SCC OnLine Del 1762.  National Legal Services Authority v. Union of India, (2014) 5 SCC 438.  K.S. Puttaswamy v. Union of India, (2017) 10 SCC 1.  Sushan Mhatre, A Well Drafted Law – A Myth in Modern India, LiveLaw.in, available on http://www.livelaw.in/columns/a-well-drafted-law-a-myth-in-modern-india-157678, last seen on 17/06/2020.  Nishant Sirohi, LGBTQ+: Petition for marriage equality filed in Kerala High Court, THE LEAFLET, available on http://theleaflet.in/lgbtq-petition-for-marriage-equality-filed-in-kerala-high-court-2/, last seen on 17/06/2020.