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Navtej Singh Johar v. Union of India

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Navtej Singh Johar v. Union of India
CourtSupreme Court of India
Full case name Navtej Singh Johar & Ors. versus Union of India thr. Secretary Ministry of Law and Justice
Decided6 September 2018
Citations2018 INSC 790
Case history
Prior actionSuresh Kumar Koushal v. Naz Foundation
Court membership
Judges sittingDipak Misra, CJI; Rohinton Fali Nariman, J.; A. M. Khanwilkar, J; D. Y. Chandrachud, J; and Indu Malhotra, J
Case opinions
The Court decriminalised all consensual sex among adults, including homosexual sex.
Decision byDipak Misra, R. F. Nariman, D. Y. Chandrachud and Indu Malhotra
PluralityDipak Misra, joined by A. M. Khanwilkar
Laws applied
This case overturned a previous ruling
Suresh Kumar Koushal v. Naz Foundation by Supreme Court of India
Keywords
Criminalization of Homosexuality, Discrimination Based on Sexual Orientation

Navtej Singh Johar & Ors. v. Union of India thr. Secretary Ministry of Law and Justice (2018) is a landmark decision of the Supreme Court of India that decriminalised all consensual sex among adults, including homosexual sex.[1]

The court was asked to determine the constitutionality of Section 377 of the Indian Penal Code, a colonial-era law which, among other things, criminalised homosexual acts as an "unnatural offence". While the statute criminalises all anal sex and oral sex, including between opposite-sex couples, it largely affected same-sex relationships.[2] 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".[3] 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.[2]

Elements of Section 377 relating to sex with minors, non-consensual sexual acts such as rape, and bestiality remain in force.[4]

Background

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On 27 April 2016, five people 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 had been 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.[5] This case was the first instance wherein the petitioners argued that they had all been directly aggrieved because of Section 377, alleging it to be a direct violation of fundamental rights.[6][7] The opposition to decriminalisation petitions was led by Apostolic Alliance of Churches, Utkal Christian Council and Trust God Ministries. Advocate Manoj George represented the first two and Senior Advocate KS Radhakrishnan the third. The NDA government took a neutral stance, leaving the decision to the "wisdom of the court" as long as it applies to "consensual acts of adults in private".[8]

Proceedings

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The petition was first placed before the former Chief Justice of India Justice T.S. Thakur, Justice S. A. Bobde and Justice A. K. Bhushan on 29 June 2016. An order was passed to post the matter before Justice Dipak Misra for appropriate orders since a curative petition was already pending before the constitution bench.[9][10] On 8 January 2018, the case (Navtej Singh Johar and others v. Union of India) was listed to be heard by the Chief Justice's bench, which passed an order stating that the case would be heard by a constitution bench.[11][12][13]

The matter was heard from 17 January 2018 by a five-judge constitution bench of the Supreme Court.[14] On 10 July 2018, the SC commenced hearing of the pleas challenging the constitutionality of section 377.[15][16][17] 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.[18]

Judgment

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The judgement of the Supreme Court of India of 6 September 2018 overturning its own verdict in Suresh Kumar Koushal vs. Naz Foundation hence declaring all private consensual sexual acts between adults legal including homosexual ones.

On 6 September 2018, the court delivered its unanimous verdict, declaring portions of the law relating to consensual sexual acts between adults unconstitutional.[2][19] The Bench unanimously found that the criminalisation of sexual acts between consenting adults to be violation of the Article 14, 15, 19, and 21 of Indian Constitution.[1]

This decision overturns the 2013 ruling in Suresh Kumar Koushal v. Naz Foundation in which the court upheld the law.[1][2] However, other portions of Section 377 relating to sex with minors, non-consensual sexual acts, and bestiality remain in force.[4]

While reading the judgment, the then Chief Justice of India Dipak Misra pronounced that the court found "criminalising carnal intercourse" to be "irrational, arbitrary and manifestly unconstitutional".[2] The court ruled that LGBTQ people in India are entitled to all constitutional rights, including the liberties protected by the Constitution of India.[1] It held that "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".[1]

In his concurring opinion, Justice D.Y. Chandrachud, observing the discrimination, stigmatisation and magrinalisation of sexual and gender minorities due to dominance of endosex, heterosexual and cisgender norms, said[1]

Individuals belonging to sexual and gender minorities experience discrimination, stigmatization, and, in some cases, denial of care on account of their sexual orientation and gender identity. However, it is important to note that ‘sexual and gender minorities’ do not constitute a homogenous group, and experiences of social exclusion, marginalization, and discrimination, as well as specific health needs, vary considerably. Nevertheless, these individuals are united by one factor - that their exclusion, discrimination and marginalization is rooted in societal heteronormativity and society’s pervasive bias towards gender binary and opposite-gender relationships, which marginalizes and excludes all non-heteronormative sexual and gender identities.

— para. 72, page 93

In her concurring opinion, Justice Indu Malhotra, acknowledging historical discrimination and apologizing for delay in redressal, said[1]

History owes an apology to the members of this community and their families, for the delay in providing redressal for the ignominy and ostracism that they have suffered through the centuries. The members of this community were compelled to live a life full of fear of reprisal and persecution. This was on account of the ignorance of the majority to recognise that homosexuality is a completely natural condition, part of a range of human sexuality. The mis-application of this provision denied them the Fundamental Right to equality guaranteed by Article 14. It infringed the Fundamental Right to non-discrimination under Article 15, and the Fundamental Right to live a life of dignity and privacy guaranteed by Article 21. The LGBT persons deserve to live a life unshackled from the shadow of being ‘unapprehended felons’.

— para 20, page 50

The judgement also made note that LGBT community is entitled to equal citizenship and protection under law, without discrimination.[1]

Public Opinion

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The Government of India decided to abstain from the hearings and had left the matter to the "[w]isdom of the [c]ourt".[20]

Political parties and organisations

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The largest constituent party of the National Democratic Alliance, a right-wing 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.[21][22] 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".[23] 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.[24] 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."[25] 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.[19]

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".[26] 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."[23]

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".[2] 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.[27]

Overseas

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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".[19] Amnesty International also praised the ruling.[28] 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.[29]

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".[30] 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.[31][30] 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.[30]

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,[32] a position supported by Chief of Government Communications Janadas Devan. Later, on 10 September, disc jockey and producer Johnson Ong Ming filed a lawsuit in court against Section 377A.[33] 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?”[34]

Successive cases

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The case also opened the door for development of rights for same-sex couples through successive litigation. The case Deepika Singh v. Central Administrative Tribunal (2022) widened the definition of family under Indian law to include same-sex couples for the first time, ruling that families are deserving of equal protection under law guaranteed in the Article 14 of the Indian Constitution and benefits available under social welfare legislation.[35] However, the case Supriyo v. Union of India (2023) stopped short of ruling in favor a right to marriage, civil union or adoption for same-sex couples under existing law, instead placing the onus on Parliament and the Cabinet to pass successive legislation to define the rights of same-sex couples.

See also

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Similar Foreign Cases

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References

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  1. ^ a b c d e f g h Navtej Singh Johar & Ors. v. Union of India thr. Secretary Ministry of Law and Justice, 2018 INSC 790 (Supreme Court of India 6 September 2018), archived from the original.
  2. ^ a b c d e f "Historic India ruling legalises gay sex". BBC News. 6 September 2018. Archived from the original on 27 March 2019. Retrieved 6 September 2018.
  3. ^ Safi, Michael (6 September 2018). "Campaigners celebrate as India decriminalises homosexuality". The Guardian. Archived from the original on 26 May 2019. Retrieved 7 September 2018.
  4. ^ a b Pundir, Pallavi (6 September 2018). "I Am What I Am. Take Me as I Am". Vice News. Archived from the original on 15 September 2020. Retrieved 8 September 2018.
  5. ^ "Gay sex decriminalised: History owes apology to LGBT community and kin, says Supreme Court". The Indian Express. Express Web Desk. New Delhi: Indian Express Group. 6 September 2018. OCLC 70274541. Retrieved 6 September 2018.{{cite news}}: CS1 maint: others (link)
  6. ^ Ganz, Kian. "Read the wonderful new 377 challenge by 5 out-and-proud celebrities that'll hit SC today". Legallyindia.com. Archived from the original on 15 April 2023. Retrieved 15 January 2018.
  7. ^ "Navtej Singh Johar & ors. vs. UoI: Supreme Court petition 29 June 2016 – Orinam Section 377". Orinam Section 377. 29 June 2016. Archived from the original on 15 April 2023. Retrieved 15 January 2018.
  8. ^ Arpan Chaturvedi. "Who Argued What In Challenge Against Section 377". BloombergQuint. Archived from the original on 1 November 2019. Retrieved 9 March 2020.
  9. ^ FP Staff (29 June 2016). "Section 377: Supreme Court refers fresh petition on homosexuality to CJI". Firstpost. Archived from the original on 6 June 2023. Retrieved 6 September 2018.
  10. ^ "Supreme Court Order - Navtej Johar vs Union of India - 29 June 2016" (PDF). Archived from the original (PDF) on 15 January 2018.
  11. ^ Taneja, Richa (8 January 2018). "Section 377: All you need to know". New Delhi Television Limited. Archived from the original on 19 April 2023. Retrieved 6 September 2018.
  12. ^ India TV News Desk (6 September 2018). "Section 377 verdict: What has happened so far in the case". India TV. Archived from the original on 19 April 2023. Retrieved 6 September 2018.
  13. ^ "Supreme Court Order - Navtej Johar vs Union of India - 8 January 2018" (PDF). Archived from the original (PDF) on 15 January 2018.
  14. ^ "All You Want To Know About 8 Cases Listed For Hearing By Constitution Bench From Wednesday (17 Jan) [Read Notice] | Live Law". Live Law. 15 January 2018. Archived from the original on 2 June 2023. Retrieved 15 January 2018.
  15. ^ Correspondent, Legal; Correspondent, Legal (10 July 2018). "SC to hear pleas to scrap Section 377". The Hindu. ISSN 0971-751X. Archived from the original on 19 April 2023. Retrieved 10 July 2018. {{cite news}}: |last1= has generic name (help)
  16. ^ Bench, Bar & (10 July 2018). "Section 377 hearing: Live Updates from the Supreme Court". Bar & Bench. Retrieved 10 July 2018.
  17. ^ "Fall of Sec. 377 will embolden LGBTQ people: CJI". Clpr.org.in. Archived from the original on 18 August 2018. Retrieved 18 August 2018.
  18. ^ TNM Staff (17 July 2018). "Marathon hearing on Section 377 concludes, SC reserves verdict". The News Minute. Archived from the original on 7 June 2023. Retrieved 6 September 2018.
  19. ^ a b c Gettleman, Jeffrey; Schultz, Kai (6 September 2018). "India Strikes Down Colonial-Era Law Against Gay Sex". The New York Times. Archived from the original on 6 September 2018. Retrieved 6 September 2018.
  20. ^ "Section 377 Supreme Court hearing: Centre defers to 'wisdom of court'; Menaka Guruswamy says IPC section violates Article 15". Firstpost.com. 11 July 2018. Archived from the original on 20 June 2024. Retrieved 8 September 2018.
  21. ^ "Section 377: BJP Has Nothing To Say About Supreme Court's Historic Verdict Legalizing Gay Sex". HuffPost India. 6 September 2018. Archived from the original on 8 September 2018. Retrieved 8 September 2018.
  22. ^ "BJP mum on SC verdict on Section 377". Deccan Herald. 7 September 2018. Archived from the original on 8 September 2018. Retrieved 8 September 2018.
  23. ^ a b "Ruling and Opposition parties on the same side against Section 377". The Hindu. 8 January 2018. ISSN 0971-751X. Archived from the original on 20 June 2024. Retrieved 10 September 2018.
  24. ^ "Subramanian Swamy on Twitter". Twitter. Archived from the original on 9 November 2020. Retrieved 8 September 2018.
  25. ^ "'Step towards self-destruction': Far-right comes out against Supreme Court's Section 377 verdict". Firstpost.com. 6 September 2018. Archived from the original on 8 September 2018. Retrieved 8 September 2018.
  26. ^ "Homosexuality not a crime, but unnatural: RSS". The Times of India. Archived from the original on 2 May 2023. Retrieved 8 September 2018.
  27. ^ "Gay sex is immoral and can't be decriminalised, Govt tells HC". Outlookindia.com. Archived from the original on 10 September 2018. Retrieved 14 September 2018.
  28. ^ "India decriminalises gay sex". Amnesty.org.uk. Archived from the original on 20 June 2024. Retrieved 8 September 2018.
  29. ^ "United Nations in India welcomes Supreme Court judgment on Section 377". UN India. Archived from the original on 8 September 2018. Retrieved 8 September 2018.
  30. ^ a b c "India legalized homosexuality, but many of its neighbours haven't". Global News. Archived from the original on 10 September 2018. Retrieved 10 September 2018.
  31. ^ "SL committed to non-discrimination based on sexual orientation: Nerin Pulle". Dailymirror.lk. Archived from the original on 8 September 2018. Retrieved 14 September 2018.
  32. ^ "Inspired by India, veteran Singapore diplomat calls for gays to challenge sex ban". Reuters. 7 September 2018. Archived from the original on 13 September 2018.
  33. ^ "After Section 377 verdict in India, Singapore DJ files court challenge against law banning gay sex". Firstpost.com. 12 September 2018. Archived from the original on 13 September 2018. Retrieved 14 September 2018.
  34. ^ "Singapore society has to decide which direction it wants to take on laws against gay sex: Shanmugam". Channelnewsasia.com. Archived from the original on 13 September 2018. Retrieved 14 September 2018.
  35. ^ Deepika Singh versus Central Administrative Tribunal & Ors., Civil Appeal No 5308 of 2022 (Supreme Court of India 16 August 2022), archived from the original.

Further reading

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  • McGoldrick, Dominic (2019). "Challenging the Constitutionality of Restrictions on Same-Sex Sexual Relations: Lessons from India". Human Rights Law Review. 19 (1): 173–185. doi:10.1093/hrlr/ngy041.
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