Constitutional Law

Navtej Singh Johar v. Union of India

(2018) 10 SCC 1

Citation: (2018) 10 SCC 1
Court: Supreme Court of India
Date: 6 September 2018
Bench: Dipak Misra C.J.; A.M. Khanwilkar; R.F. Nariman; D.Y. Chandrachud; Indu Malhotra

Facts

Section 377 of the Indian Penal Code criminalised “carnal intercourse against the order of nature.”
Its broad language had been used to criminalise consensual sexual intimacy between adults of the same sex.
In Naz Foundation, the Delhi High Court had read down the provision.
In Suresh Kumar Koushal, the Supreme Court reversed that ruling and restored criminalisation.
Navtej Singh Johar and other LGBTQ+ petitioners directly challenged Section 377.
They argued that criminalisation:
denied dignity and autonomy;
invaded intimate privacy;
discriminated on sexual orientation;
forced concealment of identity; and
created fear of prosecution, harassment and blackmail.
A five-judge Constitution Bench reconsidered Suresh Koushal.

Whether criminalising consensual same-sex intimacy violated Articles 14, 15, 19 and 21.
Whether sexual orientation is a constitutionally protected aspect of identity.
Whether social disapproval can justify criminal prohibition.
Whether Suresh Kumar Koushal was correctly decided.
What part of Section 377 could constitutionally remain operative.

Sexual orientation is an intrinsic and protected aspect of personality.
Article 14 prohibits laws based on irrational classifications and stereotypes.
Article 15’s prohibition of discrimination on “sex” includes discrimination connected with sexual orientation.
Article 19 protects expression of identity and intimate association.
Article 21 protects:
dignity;
privacy;
bodily autonomy;
sexual choice; and
decisional freedom.
Constitutional morality, not majoritarian social morality, governs fundamental-rights adjudication.
Fundamental rights do not depend upon how few persons exercise them.

Section 377 treated consensual intimacy between LGBTQ+ adults as criminal merely because it departed from dominant heterosexual norms.
The classification had no rational connection with protecting persons from harm where:
all participants were adults;
consent was freely given; and
the conduct occurred privately.
Criminalisation reinforced the stereotype that LGBTQ+ persons were unnatural or inferior.
It compelled them to hide a central part of their identity.
The law’s existence also enabled harassment even where prosecutions were rare.
The Court rejected Suresh Koushal’s description of LGBTQ+ persons as a “minuscule minority.”
Constitutional protection is especially important for minorities who cannot rely on political majorities.
The judges emphasised slightly different constitutional ideas:
Misra C.J. focused on constitutional morality and identity;
Nariman J. stressed manifest arbitrariness;
Chandrachud J. examined stereotypes, privacy and indirect social exclusion;
Malhotra J. emphasised that history owed LGBTQ+ persons an apology.
All agreed that consensual adult intimacy could not constitutionally remain criminal.