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Navtej Singh Johar vs. Union of India (2018): Decriminalizing Homosexuality in India

The judgment of Navtej Singh Johar vs. Union of India stands out as a historic and progressive step in the sphere of LGBTQ+ rights in India. In this landmark 2018 verdict, the Supreme Court of India decriminalized homosexuality by reading down Section 377 of the Indian Penal Code (IPC), a colonial-era law that criminalized “unnatural offenses.”

Background of the Case:

Bharatnatyam dancer Navtej Singh Johar, journalist Sunil Mehra, restaurateur Ritu Dalmia, hoteliers Aman Nath and Keshav Suri, and business executive Ayesha Kapur, with the support of Akkai Padmashali and others, filed a writ petition in the Supreme Court, challenging the constitutional validity of Section 377 of the IPC as it criminalized consensual homosexual acts between adults.

Key Takeaways from the Judgement:

  1. Decriminalization: The Supreme Court unanimously ruled that consensual sex between adults of the same gender in private is not violative of the fundamental rights enshrined in the Constitution. The court held that Section 377, to the extent it criminalizes consensual acts, is unconstitutional.
  2. Right to Equality and Non-Discrimination: The judgment emphasized that Section 377 is discriminatory as it targets a particular community based on their sexual orientation. This is violative of Article 14 (Right to Equality) and Article 15 (Prohibition of Discrimination) of the Constitution.
  3. Right to Dignity and Privacy: The court reiterated the importance of individual dignity, privacy, and autonomy, drawing from the Puttaswamy judgment (2017) which recognized privacy as a fundamental right. The court affirmed that one’s choice of partner is an integral aspect of individual autonomy.
  4. Freedom of Expression: The court held that Section 377 curtails the LGBTQ+ community’s right to express their sexuality, identity, and relationship choices, thus infringing upon Article 19(1)(a) (Freedom of Expression).
  5. Historical Mistake Rectified: The court recognized the historical oppression and stigma faced by the LGBTQ+ community due to the existence of Section 377 and stated that history owes an apology to these individuals.

Critical Analysis:

  • Progressive Jurisprudence: The Navtej Singh Johar judgment is celebrated for its progressive and empathetic stance. It departs from the 2013 Suresh Kumar Koushal vs. Naz Foundation verdict, where the Supreme Court had upheld Section 377.
  • Constitutional Morality vs. Majoritarian Morality: The court emphasized that the Constitution’s ethos and values outweigh societal morality. Majoritarian views cannot dictate the rights of a minority.
  • Scope for Further Rights: While the judgment decriminalizes homosexuality, it doesn’t explicitly confer rights such as marriage, inheritance, or adoption for LGBTQ+ couples. The judgment does, however, pave the way for further litigation and reforms in these areas.
  • Societal Acceptance: Although the law has changed, societal acceptance remains a challenge. The judgment, though significant, is a first step, and there’s a need for broader societal change.

In conclusion, Navtej Singh Johar vs. Union of India is more than just a legal verdict. It’s a commitment to individual freedom, dignity, and equality. The judgment not only decriminalizes a particular act but serves as a broader affirmation of the principles of justice, equality, and liberty, transcending beyond the confines of sexuality.

Shivendra Pratap Singh

Advocate

High Court Lucknow

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