AIR 2018 SC 4321; WP (Crl.) No. 76 of 2018 D. No. 14961/2016
6th September 2018
Navtej Singh Johar, Ritu Dalmia, Ayesha Kapur, Aman Nath, Sunil Mehra.
Ministry of Health, represented by Tushar Mehta.
CJI Dipak Misra, Justice A.M. Khanwilkar, Justice Rohinton Fali Nariman, Justice D.Y. Chandrachud, and Justice Indu Malhotra.
Constitutionality of Section 377 of IPC.
Personal laws play a dominant role within Indian Legal jurisprudence. Most current-day laws are based on the codifications made to the uncodified legal literature by the British during colonialization. This is especially evident from the Hindu Personal law concepts like the co-parcener system, succession, and inheritance, mentioning the contract law aspects in works like Vyavahara Mayukha and Criminal laws from the Smritis and Shrutis. India has witnessed a phased manner of liberalization of these ancient uncodified laws, stripping away the unconstitutional aspects of patriarchal society- such as the right to equality conferred to women in claiming property from their ancestors, by the 2005 amendment to the Hindu Succession Act, among many others. Post this phase marked a further liberalization movement for equal rights by the third gender category, i.e., the LGBTQIA+ (Lesbian, Gay, Binary, Transgendered, and Queer), which has finally reached a successful end by the landmark verdict pronounced by the honourable Supreme Court of India in the Navtej Singh Johar case. This article tries to give a view on whether the verdict can be considered an end goal to the journey of struggle by the LGBTQIA+ community or if anything is left ahead.
Historical Backdrop of Homosexuality in India
The concept of homosexuality is not new to India. Ancient texts in multiple instances show its presence through multiple instances1. Matsya Purana describes the instance where lord Vishnu had to take up the form of a beautiful woman (Mohini) in order to destroy the then demon Mahishasur, which further coupled with this union with Lord Shiva giving birth to Lord Ayappa. Mahabharat’s Shikandi and Arjun turning into a homosexual person named Brihannala for one year of exile adds to the claim of the age-long presence of homosexuality in ancient India2. Further extending to legal texts like Manusmriti, Naradha Purana, Kautilya Arhtashastra, and Vatsyayana Kamasutra, among others, strictly criticize these homosexual acts and provide for stringent punishments- which thereby clearly seeped into the codified Indian Penal Code, 1860 by the inclusion of Section 377 in the form of penalizing Unnatural offenses. Research also shows that the British Buggery Act of 15533 explicitly criminalized these sexual activities against the order of nature as illegal, which was ultimately reflected in the form of Section 377.
Judicial Precedents giving rise to Navtej Singh
The landmark nature of Navtej Singh is primarily due to the contrasting judicial opinions available by then. It all started 24 years back, in 1994, when an NGO named AIDS Bhedbhav Virodhi Abhiyan (ABVA) filed a petition before the Delhi High Court4 challenging the ban on the oversupply of condoms by the Tihar Jail Authorities- Kiran Bedi, the then IG of Tihar Jail’s decision on this front to discourage such unlawful and unnatural acts as a whole. Delhi High Court however had to dismiss the petition due to non-involvement by the petitioners, paving the way for the second case instituted on these grounds in Naz Foundation v. Govt of NCT of Delhi & Others5.
In 2001, Naz foundation, another NGO working on HIV AIDS eradication filed a PIL before the Delhi High Court upon the same grounds to strike down Section 377 due to the absence of any constitutional validity. However, the high Court dismissed the PIL in 2004 on the technical grounds of the absence of locus standi of the petitioners. A subsequent review petition was also dismissed in 2006. It was then that the matter went as an appeal to the apex court. Supreme court ordered for reinstatement of the issue before the Delhi Court and to deal with the issue on merits. The contentions of the petitioners were upheld by the High Court considering the violation of fundamental rights of equality, privacy, and dignity, international treatises (Article 12 of the Universal Declaration of Human Rights, Article 17 of the International Covenant on Civil and Political Rights, and the European Convention on Human Rights), constitutional morality, and the recommendations made by the 142nd Law Commission. The section, however, was kept intact to deal with cases of non-consensual activities.
This reasoning was challenged by a Delhi-based astrologer- Suresh Kumar Kaushal, before the Supreme Court by way of a Special Leave Petition in 2009 in Suresh Kumar Kaushal and Ors v. Naz Foundation6. The Supreme Court, finally in 2013, overturned the Delhi High Court’s verdict, thereby re-criminalizing consensual homosexual acts. The main reasoning by the apex court was the absence of proving the unconstitutionality of section 377 beyond a reasonable doubt. According to the Court, Section 377 is gender-neutral, and it does not in any way violate any particular group’s fundamental rights. This was coupled with the further fact that the criminalization rate, over the 150 years, was a bare minimum of just 200 prosecutions- intending no ultra-vires or unconstitutional nature.
While this decision was widely criticized as a backward step, the apex court in the meanwhile has pronounced several landmark judgments beginning with National Legal Services Authority v. Union of India7, 2014, where transgender people were conferred officially as the “third gender,” providing them an equal pedestal in enjoying fundamental rights and the right to self and separate identity. In the nine-judge bench landmark judgment in Justice K. S. Puttaswamy (Retd.) and Anr. vs. Union of India and Ors8, declared the right to privacy as a fundamental right, implicit under Article 21 of the Constitution, thereby overturning the previous rulings in ADM Jabalpur v. S.S. Shukla9, M.P. Sharma and Others v. Satish Chandra and Kharak Singh v. State of Uttar Pradesh10. This decision had a phenomenal bearing on the then ongoing skepticism of Section 377 and the rights of the LGBTQIA+ community as the judges, including D.Y. Chandrachud (accepted further by Chief Justice J.S. Khehar and Justices A. Abdul Nazeer and R.K. Agrawal) expressed explicit critiques to the observations made in SK Kaushal, such as the consideration of “minuscule minority” of prosecutions under Section 377- whose privacy of sexual orientation cannot, hence, be denied based on majoritarian view. All these formed a groundwork for inevitably decriminalizing Section 377 in Navtej Singh.This led to the filing of multiple curative petitions before the Supreme Court, which prompted the apex court to hear the issue afresh by a five-judge Constitutional bench- paving the way for the landmark ruling in Navtej Singh Johar v. Union of India.
Rise of Navtej Singh Johar- Important observations
This case began on Apr 27th, 2016, when five petitioners filed a new writ petition before the then CJI S.A. Bobde, challenging the constitutionality of Section 377 and the SK Kaushal verdict. The petitioners this time did not commit the mistake of filing through any NGO, thereby not losing any locus standi, which included dancer Navtej Singh Johar, journalist Sunil Mehra, chef Ritu Dalmia, hoteliers Aman Nath and Keshav Suri, and businesswoman Ayesha Kapur- who were all directly aggrieved by the criminalization of Section 377. This matter was posted to a five-judge constitutional bench headed by CJI Deepak Mishra before which the curative petitions from SK Kaushal were already pending. Finally, the issue was taken up as a joinder, with the hearings starting on Jan 17th, 2018. The deliberate hearings and written submissions lasted for about nine months, ending with the final verdict on Sept 6th, 2018.
The arguments coming from the petitioners’ counsel primarily were based on drawing a nexus between section 377 and the infringement of Fundamental rights under Articles 14, 15, and 21 of the constitution, based on the underlying premise of viewing section 377 as a Victorian and colonial view, which is redundant in the progressive society. The core idea is the basic fact that consensual homosexual union, shouldn’t be seen, and termed as unnatural by its very definition. Counters from the opposite counsel for respondent union government involved taking into account the overall effect of the decriminalization on other laws, especially on the very concept of marriage and the personal and matrimonial laws surrounding it- belonging to multiple religious communities such as the Hindu Marriage Act, Parsi Marriage and Divorce Act, Special Marriage Act, and even succession laws in India, thereby further ruining the socioeconomic, political and cultural heritage of the nation. In countering the fundamental rights claims, the state relied on the already existing rights conferred to LGBT communities by the NALSA case11, thereby arguing that these sort of bizarre claims by the petitioners is beyond public morality and a mere abuse of personal liberty.
Key takeaways from the judgment
It was finally, on Sept 6th, 2018, that the longstanding issue concluded with the five-judge bench of the Supreme Court unanimously re-iterated the Delhi High Court’s verdict in Naz Foundation, over-ruling Suresh Kumar Kaushal, thereby decriminalizing consensual sex between homosexual persons and concluding section 377 as violative of Articles 14, 19 (1)(a), and 21 of the Indian Constitution. The rationale behind the decision is primarily based on the ones held by Naz Foundation, including the following grounds:
- Failure of the litmus test on Fundamental Rights- The apex court reasoned section 377 as violative of Fundamental rights enshrined in the constitution on the following grounds:
- The absence of consensual and non-consensual sex, as opposed to the presence of the same u/s 375, renders section 377 arbitrary and discriminatory against same-sex persons. The object of section 377 to protect children (under POCSO) and women (u/s 375 of IPC) lacks any reasonable nexus with the very classification of distinguishing between natural and un-natural intercourse, rendering 377 redundant and discriminatory- targeting only the LGBTQIA+ community. Hence, it violates the Right to Equality under Article 14.
- Freedom of choice of a sexual partner under Article 19(1)(a), with the element of consent, is infringed by Section 377. Such private, consensual acts among homosexual persons do not in any way affect constitutional and public morality; hence there is no justification for imposing reasonable restrictions on this freedom of choice of the LGBTQIA+ community.
- The full and free realization of one’s sexual identity is an essential facet of the right to life embedded under Article 21 of the constitution. The right to privacy extends to the right to protect sexual privacy. Section 377, by denying and restricting this right to determine one’s sexual orientation and partner, curtails the right to privacy of an individual.
- Violation of Yogyakarta Principles12– India, being a signatory to this intentional convention, binds the nations to affirm sexual orientation and gender identity as an integral part of human dignity. The preamble of this convention clearly defines sexual orientation as the “sexual attraction to, and intimate and sexual relations with, individuals of a different gender or the same gender or more than one gender.” Section 377, thereby, clearly violates these principles, too.
From Navtej to the present- challenges persist
1. Legal hurdles with other laws-
This issue of conferring equal sexual rights to homosexual groups is equally a matter of marriage and personal laws as much is an issue of constitutional law. Litigation in this area, starting from 1994’s petition by AIDS Bhedbhav Virodhi Abhiyan (ABVA) to this pertinent landmark Navtej Singh in 2018, only focused on the infringement of fundamental rights of the LGBTQIA+ community, making it a predominately constitutional law matter. This gives the landmark Navtej Johar judgment a limited application in the issues of homosexuality as a whole, especially due to the fact of ignoring personal law and family law matters.
The intact prevalence of heteronormative notions in all the matrimonial and personal laws in India is the major hurdle in this regard13. Section 5 of the Hindu Marriage Act, providing for the grounds for solemnization of a marriage, is the basis for all the other provisions to chip in, only mentions the heterosexual identifications of bride and bridegroom, excluding individuals from the LGBTQIA+ community within the purview of Hindu marriage. The conditions of the Indian Majority Act inculcated u/s 4 of the Special Marriage Act- “21 years for male and 18 years for female”, thereby subjecting the third gender to discrimination. Along similar lines, sections 7 and 8 of the Hindu Adoption and Maintenance Act exclude third genders’ capacity to take a child in adoption14. Section 21 of the same act impliedly denies LGBTs from claiming maintenance by conferring this right only to heterosexuals. Especially when same-sex couples lack that ability to procreate, one of the options, apart from adoption, to confer a biological child is to go for surrogacy. However, section 2(h) of the Surrogacy Regulation Act 2021 restricts the definition of a couple to only a male and female, clearly taking away the natural rights of a homosexual couple. This line of heterosexual depiction also extends to Assisted Reproductive Technology (Regulation) Act 2021.
Four years post the landmark judgment widely hailed both nationally and internationally, where the right to sexual orientation has been recognized as an implicit part of the right to privacy which is further an essential facet of dignity, these heterosexual ideas, and beliefs, stereotypically based on the traditional notions of family system act as a hurdle to the actual exercising of sexual rights by LGBTQIA+ community.
2. Judicial and governmental responses-
Considering the above-stated existence of improper application of LGBT rights due to the intact application of other laws in force, Judiciary has, from time to time, over four years, evolved a case-by-case conferring of real-time liberty to LGBTs for exercising their rights. Most famously, the Single judge bench of the Madras High Court in Arunkumar v. Inspector General of Registration (2019) has recognized marriage between a cis-gendered male and a transwoman as a valid marriage u/s 5 of the Hindu Marriage act. The judge, here, made applauding observations of expanding the said matrimonial rights and allowing queer people to gain access to artificial reproductive technologies, surrogacy, and perhaps, even finally adopt children15. The Court has clearly explained that the term ‘bride would comprise cis-gendered women, including transgender women and intersex individuals who identify themselves as a “woman.” This reasoning follows from the long-settled case in Mahadeolal Kanodia v. The Administrator General of West Bengal (1960), where the Supreme Court observed that the strict grammatical interpretation giving rise to absurdity or inconsistency could be discarded to adopt an interpretation that will give effect to the purpose of the legislature16. High courts across the nation have also received multiple petitions challenging the various provisions of the Assisted Reproductive Technology (Regulation) Act, 2021 and the Surrogacy (Regulation) Act, 2021, in which the courts have affirmatively ordered the concerned governments to submit their views on the issue. Madras High Court’s judgment in S. Sushma v. Commissioner of Police17 rendered by Justice N Anand Venkatesh on a plea by a lesbian couple granted police protections from unlawful incarceration by the police engaged by their parents, has been widely hailed by activists and people connected with LGBTQIA + persons. The judgment also sought to prohibit attempts to “medically cure persons” associated with the community by creating mass awareness and sensitivity.
The response from the government, however, is not the same. Though the governmental response from the BJP-led ministers clearly applauded the inevitable decision in Navtej, their view, however, is restricted. Union Minister of Law and Justice Kiran Rejiju, in February 2021, remarked that “’legitimate State interest’ lay in limiting the institution of marriage to those of the opposite sex only to preserve ‘social morality. Hence, the government’s stance on the issue was clear: courts should refrain from legitimizing same-sex marriage.18” Even in Abhijeet Iyer Mitra v. Union of India (2021), the Centre has argued that a marriage under the Special Marriage Act is permissible only between a biological man and a biological woman. It is the “legitimate State interest” that limits the recognition of marriage only to persons of the opposite sex, as the concept of marriage is not solely relegated to the domain of privacy of an individual19.
3. Issue of Same-Sex Marriage on the rise-
Another vital issue pertaining to the LGBT community- conferring legal recognition to same-sex marriage, is still unsettled by the Navtej judgment. Marriage, as opposed to the western tradition where it is considered a mere contract between the couples, whereas, in Indian jurisprudence, it is traditionally and at present recognized as a sacrosanct, legitimate union, authorizing the couples to share their positives and negatives in their lives with one another. This authorization also extends to procreation, sexual union, inheritance, and so on, which form a definite chain of legal aspects. For the third gender to enjoy the same legal rights arising from a valid marriage and also to societally erase the conception of the unnaturalness of same-sex relationships requires a sacrosanct bond of marriage.
Enormous litigation has become widespread before multiple High Courts, contending for conferring legal authorization to same-sex marriage in order to claim the rights conferred by Navtej Johar. Starting from the previously mentioned Madras High Court case in Arunkumar v. Inspector General of Registration20, the court recognized marriage between a cis-gendered male and a transwoman as a valid marriage u/s 5 of the Hindu Marriage act. From the year 2020, writ petitions are pending before the Delhi High Court21 for altering the provisions of the Foreign Marriage Act, 1969, and the Special Marriage Act, 1954 to provide for registration/recognition of same-sex marriages22, they being secular legislations and the Supreme Court conferring LGBT rights in the above-said cases. A gay couple from Kerala also filed a writ petition in the same year, contending the same fact that the landmark decision of Navtej Singh would become meaningless in the absence of conferring equal access to the institution of marriage23.
4. Conferring Reservations- the road ahead-
The minuscule minority argument in reference to the LGBTQIA+ community continues to be heard from S.K. Kaushal till the Navtej Johar. Nevertheless, the fact in numerical is true that the third-gender community constitutes a minority population. This minuscule population, therefore, requires special reservations for their upliftment on equal footing with that of the dominant heterosexual society. This topic itself requires phenomenal research as the reservations for women are still unsettled in our country. Though the parliament of India has passed the Transgender Persons (Protection of Rights) Act, 2019, there is no mention of conferring reservations for these groups, especially when Article 16(4) of the Indian constitution clearly provides for this measure. Though the NALSA judgment provides for self-identification but does not mention the provisions regarding the mechanism to be drawn in this regard.
Expecting a step in this direction is obvious in the near future, which therefore requires how the implementation of these laws is to take place. The primary obstacle in this direction is to determine who the beneficiaries are, which usually requires the formation of boards consisting of medical practitioners, psychologists, bureaucrats, and social welfare activists for the issuance of identity cards. The result, however, with this approach is quite negatively evident from the increased bureaucratic influence, as seen with disabled persons’ identity card issuance. While some states like West Bengal have adopted the law for compulsory Sexual reassignment surgery in order to determine gender identity, this goes with a toss to the ruling in NALSA, which for not enabling such tests compulsory and is also opposed by the National Human Rights Commission, as infringing and putting at stake the LGBT’s human rights24.
Further mentioning in this aspect involves the very form of reservations to be conferred, i.e., whether it needs to be a horizontal conferment of reservation on the basis of ‘gender identity under Article 15 of the constitution or to adopt a vertical reservation model wherein they will be categorized as a subset under the Socially and Educationally Backward Class (SEBC) category, under Article 16(4) of the constitution25. Activists in this regard vigorously contest for the horizontal reservation over the vertical, as the clubbing down of LGBT persons under the banner of OBCs or SEBCs would curtail their self-identity as the third gender, and also when there is an express arrangement of providing for the gender-based reservations under Article 15. States like Karnataka have made a positive step in this regard by conferring 1% reservation for LGBTQIA+ people under the horizontal model for public sector jobs. While in Tamil Nādu, a vertical mode of reservation was conferred, wherein the third genders were placed under the Most Backward Classes (MBC), equivalent to the OBC category in other states26.
5. Protection of Transgenders Health-
The main issue of Navtej Johar involved the matter of consensual sex between two homosexuals or third genders, which is directly connected to the health of the LGBTQ community. However, the reality shows a clear sign of amplified discrimination against patients from this community, primarily due to the fact that the very practice and training of medical staff inculcates the idea that acts of lesbianism, homosexuality, etc., are the breeding grounds for other diseases like HIV AIDS, and therefore considered as unnatural. This, therefore, required proper sensitization and training facilities for the medical profession and also to include people from the same community in the medical field so they can better understand the problems of their own community.
High Courts in this regard have made due efforts to uphold the healthy life of LGBTs. Madras High Court in S. Sushma v. Commissioner of Police27 case clearly emphasized mental as well as medical health support to LGBTs, caused due to the lack of knowledge on the part of the medical practitioners (a psychologist in that case), due to the prevalent queerphobia among the healthcare workers caused by the way MBBS course was designed in such a way. In Swati Bidhan Baruah v. State of Assam28, a two-judge bench of the Guwahati High Court ordered the concerned government to take measures for the health and welfare of LGBTs.
This enormous research, over the 24 years of a legal battle by the LBTQIA+ community, shows the mixed response from the community- rendering this as a battle between traditional and conservative family-oriented approach to a more liberalized and modernized forward-looking and rights-centered approach, i.e., a battle of Naturalness v Unnaturalness, a battle of restrictions and autonomy-liberty. With this fact getting legal backing that homosexuality is natural, civil society demands protection of and equal treatment of the most vulnerable citizens. This aspect puts a further burden on the state to accommodate the feminist demands on the one hand and this emerging trend of the third gender on the other hand. This clears one straightforward inevitability of the reduced masculine majority trend in the public sphere- with an increased share of feminine and third genders coming into the public forum in multiple sectors, thereby representing every community’s view and accommodating every community’s needs. Indian laws are yet to witness radical changes for accommodating these issues, especially in the personal and matrimonial laws, which might also lead to a complete reading down of present laws and enacting more egalitarian ones, representing the liberties and privacies of all three genders.29
- Prabhash K Dutta, Homosexuality in ancient India: 10 instances, THE INDIA TODAY (July, 10, 2018, 18:40 IST), https://www.indiatoday.in/india/story/10-instances-of-homosexuality-among-lgbts-in-ancient-india-1281446-2018-07-10
- The same mythological tales were re-emphasized in Arunkumar v. Inspector General of Registration, 2019 SCC OnLine Mad 8779.
- The Buggery Act, Parliament of England, 1553.
- Geetanjali Mishra, Decriminalising homosexuality in India, RHM J, 2009, 21-22.
- Naz Foundation v. State (NCT of Delhi), 2009 SCC OnLine Del 1762.
- Suresh Kumar Koushal v. Naz Foundation (2014) 1 SCC 1.
- National Legal Service Authorities v. Union of India, (2014) 5 SCC 438.
- K.S. Puttaswamy (Aadhar-5J.) v. Union of India, (2018) 1 SCC 809.
- ADM, Jabalpur v. Shivakant Shukla, (1976) 2 SCC 521.
- M.P. Sharma v. Satish Chandra, 1954 SCR 1077.
- Supra Note 7.
- The Yogyakarta Principles, March 2007, https://translaw.clpr.org.in/wp-content/uploads/2018/08/Yogyakarta-Principles.pdf.
- Puneet Deshwal, Anadi Tiwari, Four years since the Supreme Court’s Navtej Johar verdict, matrimonial rights still remain in the closet, BAR AND BENCH (Sept 11th, 2022, 11:26 am), https://www.barandbench.com/columns/litigation-columns/four-years-since-the-supreme-courts-navtej-johar-verdict-matrimonial-rights-still-remain-in-the-closet?utm_source=izooto&utm_medium=push-notification.
- A similar provision in Adoption Regulation, 2017, published on the official website of the Central Adoption Resource Authority (CARA), http://cara.nic.in/PDF/Regulation_english.pdf.
- Arunkumar v. Inspector General of Registration, 2019 SCC OnLine Mad 8779.
- Mahadeolal Kanodia v. Administrator-General of WB, (1960) 3 SCR 578.
- S. Sushma v. Commissioner of Police, 2021 SCC OnLine Mad 2096.
- Sofi Ahsan, Centre opposes same-sex marriage in Delhi HC, says not comparable with ‘Indian family unit concept,’ THE INDIAN EXPRESS (Feb 26th, 2021, 4:05:42 am), https://indianexpress.com/article/india/same-sex-marriages-legal-recognition-centre-7204303/.
- Abhijeet Iyer Mitra v. Union of India, WP (C) No. 6371/2020 & CM Appl. No. 22554/2020.
- Supra Note 15.
- Supra Note 20.
- Karan Tripathi, Marriage Equality For Same-Sex Couples: The Delhi HC Says This Is Not an Adversarial Petition, LIVE LAW (Oct 14th, 2020, 12:57 PM), https://www.livelaw.in/news-updates/marriage-equality-for-same-sex-couples-the-delhi-hc-says-this-is-not-an-adversarial-petition-164444.
- Live Law News Network, Gay Couple Moves Kerala HC For Recognition Of Homosexual Marriages Under Special Marriage Act, LIVE LAW (Jan 27th, 2020, 2:07 PM), https://www.livelaw.in/news-updates/gay-couple-moves-kerala-hc-for-recognition-of-homosexual-marriages-under-special-marriage-act-152046
- Shemin Joy, Introduce quota for LGBTQI+, bring law to prevent forced reassignment surgery: NHRC Core Group, DECCAN HERALD (Dec 14th, 2020, 18:12 IST), https://www.deccanherald.com/national/introduce-quota-for-lgbtqi-bring-law-to-prevent-forced-reassignment-surgery-nhrc-core-group-927313.html
- Reservation for Transgender persons in India, Centre For Law & Policy Research (Nov 11th, 2018), https://clpr.org.in/wp-content/uploads/2018/12/Reservations-for-Transgender-Persons-Draft-Policy-Brief.pdf.
- Venkatesan V, Karnataka Becomes The First State To Reserve Jobs For Transgender Persons, THE WIRE (Jul 22nd, 2021), https://thewire.in/lgbtqia/karnataka-first-state-reserve-jobs-transgender-persons.
- Supra Note 18.
- Swati Bidhan Baruah vs. The State of Assam and Ors. (06.09.2021 – GUHC) : MANU/GH/0523/2021.
- Nayantara Ravichandran, Legal Recognition of Same-sex Relationships in India, vol 5 JILS, 95, 105-108 (2017).
This article is written by Mokshith Venkata Shiva Bhyri, a 2nd-Year BA., LLB (Hons) student from the National Academy of Legal Studies and Applied Research (NALSAR), Hyderabad.