NAVTEZ SINGH JOHAR V.

UNION
OF INDIA
Kanishk Patel

Abstract
Section 377 of the Indian Penal Code is a section of the Indian Penal Code introduced in
1864 during the British rule of India. Modelled on the Buggery Act of 1533, it is used to
criminalize sexual activities "against the order of nature". On 6 September 2018, the Supreme
Court of India decided to announce that the application of Section 377 to
consensual homosexual sex between adults was unconstitutional, "irrational, indefensible and
manifestly arbitrary", but that Section 377 remains in force relating to sex with minors, non-
consensual sexual acts, and bestiality.
Portions of the section were first struck down as unconstitutional with respect to gay sex by
the Delhi High Court in July 2009. That judgement was overturned by the Supreme Court of
India (SC) on 11 December 2013 in Suresh Kumar Koushal vs. Naz Foundation. The Court
held that amending or repealing section 377 should be a matter left to Parliament, not the
judiciary. On 6 February 2016, a three-member bench of the Court reviewed curative
petitions submitted by the Naz Foundation and others, and decided that they would be
reviewed by a five-member constitutional bench.

On 24 August 2017, the Supreme Court upheld the right to privacy as a fundamental right
under the Constitution in the landmark Puttuswamy judgement. The Court also called for
equality and condemned discrimination, stated that the protection of sexual orientation lies at
the core of the fundamental rights and that the rights of the LGBT population are real and
founded on constitutional doctrine. This judgement was believed to imply the
unconstitutionality of section 377.
In January 2018, the Supreme Court agreed to hear a petition to revisit the 2013 Naz
Foundation judgment. On 6 September 2018, the Court ruled unanimously in Navtej Singh
Johar v. Union of India that Section 377 was unconstitutional "in so far as it criminalises
consensual sexual conduct between adults of the same sex".

Introduction

Navtej Singh Johar v. Union of India is a landmark case, where a bench of five judges of
the Supreme Court partially struck down Section 377 of the Indian Penal Code (IPC), which
made “carnal intercourse against the order of nature” a criminal offence. Four separate
judgements were delivered by the court, by Chief Justice of India Dipak Mishra (supported
by Khanwilakar J), and Justices Nariman, Chandrachud and Malhotra. Though the
conclusions arrived at were the same, some of the reasoning was different. For example,
Justice Nariman held that there is no presumption of constitutionality of pre-constitution
laws 1, Justice Chndrachud rejected 2 the “sex plus” test laid down in Air India v Nergesh
Mirza, while the other judges didn’t dwell much on these subjects.

Background of this case

On 27 April 2016, five people from the LGBT community 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 case was 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. Specifically, it happened to be the first case where the petitioners had argued that they
had all been directly aggrieved because of Section 377 alleging it to be a direct violation
of fundamental rights. In a survey conducted by the Centre for the Study of Developing
Societies and Konrad-Adenauer-Stiftung, only 25% of Indian youth approved of a
homosexual relationship in April 2017.

Trial of the case

The petition was placed before Justice S. A. Bobde and Justice A. K. Bhushan on 29 June
2016 where an order was passed to post the matter before the Chief Justice of India, Justice
DipakMisra for appropriate orders as the bench was apprised of the curative petition pending
before the constitution bench. On 8 January 2018, the case (Navtej Singh Johar and others v.
Union of India) was listed to be heard by Chief Justice'sbench which passed an order stating
that the case will be heard by a constitution bench.
"Taking all the aspects in a cumulative manner, we are of the view, the decision in Suresh
Kumar Kaushal's case (supra) requires re-consideration. As the question relates to
constitutional issues, we think it appropriate to refer the matter to a larger Bench."
The matter was heard from 17 January 2018 by a five-judge constitution bench of the
Supreme Court. On 10 July 2018, the SC commenced hearing of the pleas challenging the
constitutionality of section 377. 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.

Judgement
Supreme Court gives its decision on the following grounds:

i. What is “natural”?
Section 377 of the Indian Penal Code (IPC) bears the heading “unnatural Offences” and it
penalizes carnal intercourse which is against the order of “nature”. Some of the Judges,
therefore, asked themselves what was meant by the word “natural”. Chief Justice Dipak

1
Nariman J, paragraph 90
2
Chandrachud J, paragraph 36
Mishra and Justice Malhotra held that a person’s sexual orientation itself is natural.3 Relying
of scholars like Zaid Al Baset and Shamnad Basheer, Justice Chandrachud wrote that there
are shortcomings in the conceptual categories of “natural” and “unnatural”, that the idea of
the “natural” was manufactured by a majoritarian suppression of the history of the prevalence
of sexual minorities, that merely because something is natural does not mean that it is
desirable (e.g., death), and just because something is unnatural (e.g., heart transplant) does
not mean that it ought to be criminal.4

ii. Constitutional Morality:

One of the central theme of the court’s decision in Johar is that the aim of the Constitution is
to transform society, not to entrench and preserve the pre-existing values of the majority. In
other words, though a majority of people in India may be heterosexuals, though the prevalent
“social morality” in India might even dictate sexual intercourse only between a man and
woman, it is “constitutional morality” which must prevail.5 Ambedkar himself has said that
“our people have yet to learn” the “sentiment” of “constitutional morality”.6

In West Virginia State Board of Education v. Barnette,7 Justice Jackson of the U.S. Supreme
Court famously wrote, “Compulsory unification of opinion achieves only the unanimity of
the graveyard.” In passages reminiscent of these words, the Johar court found: “Any attempt
to push and shove a homogeneous, uniform, consistent and a standardized philosophy
throughout the society would violate the principle of constitutional morality” 8 and :
“Democratic as it is, our Constitution does not demand conformity. Nor does it contemplate
the mainstreaming or culture. In nurtures dissent as the safety valve for societal conflict. Our
ability to recognize others who are different is a sign of our evolution.”9

iii. The Miniscule Minority:

In Suresh Kumar Koushal v. Naz Foundation10, the Supreme Court had previously upheld
Section 377 of the Indian Penal Code because only “a miniscule fraction of the country’s
population”, according to the court, belonged to the LGBTQ community. This argument was
rejected by the court in Johar.11 The number of people asserting a fundamental right, said
Chief Justice Mishra, is “meaningless; like zero on the left side of any number.”

iv. Unreasonable Classification

Section 377 of the Indian Penal Code was partially struck down by the court on the ground
that it violates the rights to equality, free speech, and life under Articles 14, 19(1)(a) and 21

3
Misra CJ, paragraphs 4,109; Malhotra J, paragraph 13.1.
4
Chandrachud J, paragraphs 28-29.
5
See, Misra CJ, paragraphs 110,119; Nariman J, paragraphs 80,81; Chandrachud J, paragraphs 3,24,141.
6
Chandrachud J, paragraph 141.
7
319 U.S. 624 (1943)
8
Misra CJ, paragraph 116.
9
Chandrachud J, paragraph 5
10
(2014) 1 SCC 1
11
Misra CJ, paragraphs 115,120,169; Nariman J, paragraph 95; Chandrachud J, paragraph 55; Malhotra J,
paragraph 19 (ii)
of the Constitution. Two tests were applied to determine whether the provision fell foul of
Article 14- the old classification test, and the new manifest arbitrariness test.

Under the classification test, a law falls foul of Article 14 if it either classifies people into
categories without applying an intelligible differentia, or if the object sought to be achieved
by the law does not bear any rational nexus with the intelligible differentia. Applying this
test, Chief Justice Misra found that the object of section 377 (“to protect women and children
from being subjected to carnal intercourse”),did not bear a reasonable nexus with the
classification of persons into those who have carnal intercourse against the order of nature
and those who do not.12 Justice Chandrachud on the other hand, held that is was “difficult to
locate any intelligible differentia between indeterminate terms such as “natural’ and
unnatural”.13 Justice Malhotra held that “where a legislation discriminates on the basis of an
intrinsic and core trait of an individual, it cannot form a reasonable classification based on an
intelligible differentia”.14

v. Manifest Aribitrariness
All the judges found that Section 377 was manifestly arbitrary15. The following were among
the reasons given by the court in support of this conclusion:

i. Section 377 does not distinguish between consensual and non-consensual sexual
intercourse among competent adults;
ii. It fails to recognize that such sexual intercourse is not harmful to society;
iii. It inflicts a stigma in members of the LGBTQ community;
iv. Modern psychiatric studies have shown that members of LGBTQ community are
not persons suffering from mental disorders;
v. Section 377 inflicts life imprisonment, which is disproportionate;
vi. It is rooted in the belief that the sole aim of sexual intercourse is procreation;
vii. It discriminates in the basis of sexual orientation, over which a person has “little
or no choice”;
viii. The phrase “carnal intercourse against the nature” is too open ended and vague to
be in a penal provision;
ix. After the 2013 amendment to Indian Penal Code, some consensual sexual acts
between heterosexual adults would no longer be considered rape under Section
375, though they would still fall foul of section 377.16

vi. Articles 19 (1) (a) and 21

The court found that section 377 violates the right of members of the LGBTQ community to dignity,
identity, and privacy, all covered under Article 21 of the Constitution.17

12
Misra CJ, paragraph 237
13
Chandrachud J, paragraph 29.
14
Malhotra J, paragraph 14.3
15
Misra CJ, paragraph 239, Nariman J , paragraph 82; Chandrachud J, paragraph 29; Malhotra J,
paragraph14.9.
16
Misra CJ, paragraph 220; Nariman J, paragraph 94; Chandrachud J, paragraph 31 (at pp. 39-41).
Two judges found that it violates the right to health, because the criminalization of
homosexual intercourse makes members of the LGBTQ community hesitate to seek medical
advice and that they are therefore more susceptible to sexually transmitted diseases. 18

The court also found that Section 377 violates the right to the freedom of expression under
Article 19 (1)(a) .19

vii. Partially struck down:

However, section 377 of the Indian Penal Code has not entirely has been struck down. It still
covers bestiality and non-consensual intercourse.20 Since the court struck down the provision
as far as it applies to consenting adults, the provision still presumably applies to consensual
sexual intercourse among minors of the same gender. Under section 375 of the Indian Penal
Code, as amended in 2013, even consensual sexual intercourse among heterosexual minors, if
the girl is under 18 years of age, is considered to be rape.

Conclusion
After the verdict of this case, on September7, 2018, the headlines of all the newspapers were
packed with just one news that “a new India has emerged today” “gay sex is no longer a
crime”, and with this verdict a minority class who had been fighting for their rights for a very
long time, could enjoy a happy ending of their fight.

Instead of saying this case to Navtej Singh Johar v. Union of India, if it is called morality v.
homosexuality, its importance will increase significantly.

17
Misra CJ, paragraphs 143,229; Nariman J, paragraph 83; Chandrachud J, paragraphs 51 (at p. 66),58;
Malhotra J, paragraphs 13.1, 14.5,16.
18
Chandrchud J, paragraphs 76,83,84,87,92; Malhotra J, paragraph 16.3.
19
Misra CJ, paragraphs 245,247; Malhotra J, paragraph 17.
20
See Misra CJ, paragraphs 252,253 (xvii), Nariman J, paragraph 97; Chandrachud J, paragraphs 7,156 (i).