1

NAVTEJ SINGH JOHAR V. UNION OF INDIA

THR. SECRETARY MINISTRY OF LAW AND
JUSTICE
A CASE COMMENT
submitted in the course of study in the
6th Semester
at
Rajiv Gandhi National University of Law

Submitted By: Jotsaroop Singh

(Sem VI - 19103)
Submitted To: Dr Ivneet Kaur Walia
Associate Professor of Law

1
 2

ACKNOWLEDGEMENT

I would like to express my special thanks to Professor (Dr) G.S. Bajpai, Vice-
Chancellor and Professor (Dr) Anand Pawar, Registrar, Rajiv Gandhi National
University of Law, for giving me the opportunity to deal with the topic “Navtej Singh
Johar v. Union of India thr. Secretary Ministry of Law and Justice” in detail and
presenting in the form of this case comment.

I would like to express my sincere gratitude and ineffable indebtedness to my Criminal

Law (Substantive) - II Professor Dr Ivneet Kaur Walia, who guided me throughout
the case comment. It was my privilege to work under their guidance.

At last, I would also like to thank my friends for helping me and motivating me to
complete this case comment on time.

Jotsaroop Singh
Rajiv Gandhi National University of Law Punjab
Third Year
19103

2
 3

INDEX
1. Introduction ............................................................................................................ 4

2. Background ............................................................................................................ 6

3. Decision Overview................................................................................................. 8

4. Conclusion ........................................................................................................... 10

3
 4

1. INTRODUCTION
Homosexuality, according to popular perception and research into gay behavioural
patterns, is defined as a romantic and physical attraction between two people of the
same sexual orientation. In India, the legal and social status of homosexuality, also
known as the third sex, is unclear. While we see rallies and public protests against
homosexual discrimination in society, we also see homosexuals being looked down
upon by a great number of society members. The Indian society appears to be
ambivalent, torn between popular opinion and their own conscience. These societal and
legal perspectives in turn, have a plausible psychological impact on the members of the
homosexual community, also called the LGBTQIA+ (Lesbians, Gays, Bisexuals,
transgenders, Queer, Intersex, Asexual and others) community in the local jargon.

Coined around 1050 by St. Peter Damian to denote sexual activity between men,
“sodomy” is a shortened form of “the sin of Sodom,” referring to the Genesis account
of the men of Sodom who tried to have intercourse with two angels and were smitten
with blindness.”1 The very famous scholar, William Blacksmith had always held a very
abominable approach towards sodomy. His ideas had a marked influence on the
development of anti sodomy laws in many parts of the world, including the Americas
and the British colonies. Section 377 in the Indian Penal Code, drafted by Lord
Macaulay is also an offshoot of such historical as well as popular conservative religious
beliefs.

This case comment shall focus on the landmark case of Navtej Singh Johar v. Union of
India thr. Secretary, Ministry of Law and Justice,2 where the Supreme Court of India
unanimously held that Section 377 of the Indian Penal Code, 1860, which criminalized
‘carnal intercourse against the order of nature’, was unconstitutional in so far as it
criminalized consensual sexual conduct between adults of the same sex. The petition,
filed by dancer Navtej Singh Johar, challenged Section 377 of the Penal Code on the
ground that it violated the constitutional rights to privacy, freedom of expression,

1
Dipika Jain, Impact of the Naz Foundation Judgement on The Gay, Bisexual and Transgender People
in Delhi:An Empirical Investigation, 2 Centre for Health Law, Ethics and Technology, Jindal Global
Law School viii, xi (2012) available at
http://www.jgls.edu.in/UploadedDocuments/Report_ImpactoftheNazFoundationJudgment.pdf.
2
Navtej Singh Johar v. Union of India thr. Secretary Ministry of Law and Justice, AIR 2018 SC 4321.
4
 5

equality, human dignity and protection from discrimination. The Court reasoned that
discrimination on the basis of sexual orientation was violative of the right to equality,
that criminalizing consensual sex between adults in private was violative of the right to
privacy, that sexual orientation forms an inherent part of self-identity and denying the
same would be violative of the right to life, and that fundamental rights cannot be denied
on the ground that they only affect a minuscule section of the population.

5
 6

2. BACKGROUND
The central issue of the case was the constitutional validity of Section 377 of the Indian
Penal Code, 1860 (Section 377) insofar as it applied to the consensual sexual conduct
of adults of the same sex in private. Section 377 was titled ‘Unnatural Offences’ and
stated that “[w]hoever voluntarily has carnal intercourse against the order of nature with
any man, woman or animal shall be punished with imprisonment for life, or with
imprisonment of either description for a term which may extend to ten years, and shall
also be liable to [a] fine.”3
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,4 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,5 overturned the Delhi HC decision and granted Section 377 “the
stamp of approval.”6 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
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 Petitioner also argued that Section 377 was violative of Art. 14
of the Constitution (Right to Equality Before the Law) because it was vague in the sense
that it did not define “carnal intercourse against the order of nature.”7 There was no
intelligible differentia or reasonable classification between natural and unnatural
consensual sex. Among other things, the Petitioner further argued that (i) Section 377
was violative of Art. 15 of the Constitution (Protection from Discrimination) since it
discriminated on the basis of the sex of a person’s sexual partner, (ii) Section 377 had

3
Indian Penal Code, 1860, S. 377.
4
Naz Foundation v. Govt. of NCT of Delhi, (2010) 160 DLT 477.
5
Suresh Kumar Koushal v. Naz Foundation, Civil Appeal 10972 of 2013.
6
ibid., p. 11, para. 9.
7
Navtej Singh Johar v. Union of India thr. Secretary Ministry of Law and Justice, AIR 2018 SC 4321,
p.25, para 26.
6
 7

a “chilling effect” on Article 19 (Freedom of Expression) since it denied the right to

express one’s sexual identity through speech and choice of romantic/sexual partner, and
(iii) Section 377 violated the right to privacy as it subjected LGBT people to the fear
that they would be humiliated or shunned because of “a certain choice or manner of
living.”8
The Respondent in the case was the Union of India. Along with the Petitioner and
Respondent, certain non-governmental organizations, religious bodies and other
representative bodies also filed applications to intervene in the case.
The Union of India submitted that it left the question of the constitutional validity of
Section 377 (as it applied to consenting adults of the same sex) to the “wisdom of the
Court.”9 Some interveners argued against the Petitioner, submitting that the right to
privacy was not unbridled, that such acts were derogatory to the “constitutional concept
of dignity,”10 that such acts would increase the prevalence of HIV/AIDS in society, and
that declaring Section 377 unconstitutional would be detrimental to the institution of
marriage and that it may violate Art. 25 of the Constitution (Freedom of Conscience
and Propagation of Religion).

8
Navtej Singh Johar v. Union of India thr. Secretary Ministry of Law and Justice, AIR 2018 SC 4321,
p. 22, para. 21.
9
Ibid., p. 270, para. 8.
10
Ibid., p. 32, para. 39.
7
 8

3. DECISION OVERVIEW
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 that had upheld
the constitutionality of Section 377.
The Court relied upon its decision in National Legal Services Authority v. Union of
India to reiterate that gender identity is intrinsic to one’s personality and denying the
same would be violative of one’s dignity.11 The Court relied upon its decision in K.S.
Puttaswamy v. Union of India 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.12 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”13 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).”14 The Court affirmed that that “intimacy between consenting
adults of the same sex is beyond the legitimate interests of the state”15 and sodomy laws
violate the right to equality under Art. 14 and Art. 15 of the Constitution by targeting a
segment of the population for their sexual orientation. Further, the Court also relied
upon its decisions in Shafin Jahan v. Asokan K.M.16 and Shakti Vahini v. Union of
India17 to reaffirm that an adult’s right to “choose a life partner of his/her choice”18 is
a facet of individual liberty.
Chief Justice Misra (on behalf of himself and J. Khanwilkar) relied on the principles of
transformative constitutionalism and progressive realization of rights to hold that the
constitution must guide the society’s transformation from an archaic to a pragmatic
society where fundamental rights are fiercely guarded. He further stated, “constitutional

11
National Legal Services Authority v. Union of India, (2014) 5 SCC 438, p. 156, para. 253(i).
12
K.S. Puttaswamy v. Union of India, (2017) 10 SCC 1.
13
Ibid., p. 165, para. 253(xvi).
14
Ibid., p. 224, para. 83.
15
Navtej Singh Johar v. Union of India thr. Secretary Ministry of Law and Justice, AIR 2018 SC 4321,
p. 142.
16
Shafin Jahan v. Asokan K.M., 2018 (5) SCALE 422.
17
Shakti Vahini v. Union of India, (2018) 7 SCC 192
18
Navtej Singh Johar v. Union of India thr. Secretary Ministry of Law and Justice, AIR 2018 SC 4321,
p. 72, para. 107.
8
 9

morality would prevail over social morality”19 to ensure that human rights of LGBT
individuals are protected, regardless of whether such rights have the approval of a
majoritarian government.
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”20
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.
J. Chandrachud in his opinion recognized that though Section 377 was facially neutral,
its “effect was to efface identities”21 of the LGBT community. He stated that, if Section
377 continues to prevail, the LGBT community will be marginalized from health
services and the “prevalence of HIV will exacerbate.”22 He stated that not only must
the law not discriminate against same-sex relationships, it must take positive steps to
achieve equal protection and to grant the community “equal citizenship in all its
manifestations.”23
J. Malhotra affirmed that homosexuality is “not an aberration but a variation of
sexuality.”24 She stated that the right to privacy does not only include the right to be
left alone but also extends to “spatial and decisional privacy.”25 She concluded her
opinion by stating that history owes an apology to members of the LGBT community
and their families for the delay in providing redress for the ignominy and ostracism that
they have suffered through the centuries.

19
Navtej Singh Johar v. Union of India thr. Secretary Ministry of Law and Justice, AIR 2018 SC 4321,
p. 79, para. 121.
20
Ibid., p. 239, para. 78.
21
Ibid., p. 328, para. 51.
22
Ibid., p. 368, para. 90.
23
Ibid., p. 270, para. 7.
24
Ibid., p. 455.
25
Ibid., p. 476.
9
 10

4. CONCLUSION
India has now acquired a place among the 28 countries of Asia to legalize
homosexuality and to recognize LGBT rights. The judgment passed in Navtej Singh
Johar v. Union of India has changed the life of many in the country. Prior to this
judgment, the Lesbian Gay Bisexual Transgender Community didn’t have such rights
as Homosexuality was a punishable offence under Sec. 377, and thus engaging in
homosexual behaviour was criminalised.
Homosexuality has been decriminalized but the reaction of society and different
organisations is still a challenge for the LGBT community. Though there are
organisations such as All India Muslim Personal Law Board and the Jamaat-e-Islami
Hind who expressed their disappointment towards the verdict given by the Apex Court
on Sec. 377.26 There also exist organisations and parties who are satisfied with the given
verdict, namely, Amnesty International, RSS, CPI(M) and UN. According to the
surveys conducted by various LGBT activists in different parts of the country, life is
much better and simple for the LGBT group. Every society needs time to accept any
change. The time is not so far when the society will accept the LGBT community and
their rights. 27

26
The Hindu Net Desk “, Reactions to Section 377 verdict | Jamaat-e-Islami Hind expresses dismay,”
The Hindu, Sept. 6 2018, https://www.thehindu.com/news/national/live-reactions-to-supreme-court-
judgment-on-section-377/article24879585.ece.
27
Somak Ghoshal “, Life after Section 377,” The Mint, Dec. 15 2018,
https://www.livemint.com/Leisure/o5TVfO7DY1vrs75aY94BTP/Life-after-Section-377.html.
10