Navtej Singh Johar v. Union of India: Decriminalized Homosexuality

Navtej Singh Johar v. UOI 

Navtej Singh Johar v. Union of India is a landmark judgment by the Supreme Court of India that was delivered on September 6, 2018. This historic verdict decriminalized consensual homosexual sex among adults in private by declaring Section 377 of the Indian Penal Code (IPC) unconstitutional insofar as it applies to consensual sexual conduct between adults of the same sex. 

India stands as one of the 28 Asian countries that have decriminalized homosexuality and acknowledged the rights of the LGBTQIA+ community. This significant shift was catalyzed by the landmark ruling in the case of Navtej Singh Johar and others v. Union of India in 2018, marking a pivotal moment for LGBTQIA+ rights in the country. Before this historic decision, the rights of the LGBTQIA+ community were severely restricted, with homosexuality being deemed a criminal offense under Section 377 of the Indian Penal Code, 1860 (IPC).

Section 377, a colonial-era law introduced by the British in 1861, criminalized sexual activities "against the order of nature," which had been interpreted to include homosexual sex, thereby making it a punishable offense. The law was widely criticized for being used to harass, discriminate, and blackmail members of the LGBTQIA+ community.

What is Homosexuality?

Homosexuality is a sexual orientation characterized by a romantic or sexual attraction or behavior between members of the same sex or gender. Like heterosexuality and bisexuality, homosexuality is one aspect of the broader spectrum of human sexuality. Individuals who identify as homosexual, often referred to as gay (for men) or lesbian (for women), may form emotional, romantic, and sexual relationships with people of the same sex.

Sexual orientation, including homosexuality, is considered an inherent or immutable characteristic that is not chosen by the individual. The understanding and acceptance of homosexuality have varied significantly across different cultures, historical periods, and religions, with attitudes ranging from acceptance and celebration to discrimination and criminalization.

Scientific research suggests that the causes of homosexuality, like other sexual orientations, are complex and likely a combination of genetic, hormonal, and environmental factors. Major psychological, medical, and professional health organizations do not consider homosexuality a disorder or illness; instead, they recognize it as a natural variation of human sexuality.

Navtej Singh Johar v. Union of India

The case was filed by dancer Navtej Singh Johar, journalist Sunil Mehra, chef Ritu Dalmia, hoteliers Aman Nath and Keshav Suri, and business executive Ayesha Kapur, along with other petitioners, challenging the constitutionality of Section 377 on the grounds that it violated several fundamental rights enshrined in the Indian Constitution, including the right to equality before the law (Article 14), the prohibition of discrimination on grounds of religion, race, caste, sex, or place of birth (Article 15), the right to freedom of expression (Article 19), and most significantly, the right to life and personal liberty (Article 21).

The Supreme Court's unanimous decision in Navtej Singh Johar v. Union of India was celebrated as a significant victory for human rights and LGBTQIA+ rights in India. The judgment emphasized the importance of individual autonomy, intimacy, and identity, stating that sexual orientation is an intrinsic part of self-expression, dignity, and autonomy. The court held that Section 377, to the extent that it criminalized consensual sexual conduct between adults of the same sex, was irrational, indefensible, and manifestly arbitrary.

This judgment was a pivotal moment in the struggle for LGBTQIA+ rights in India, leading to greater social acceptance and visibility for the community. However, it also underscored the need for further legal and societal reforms to ensure full equality and non-discrimination for LGBTQIA+ individuals in all aspects of life.

The Navtej Singh Johar v. Union of India judgment not only decriminalized consensual homosexual acts among adults in private but also laid the foundation for subsequent legal and social recognition of LGBTQIA+ rights in India. The Supreme Court's decision was significant for several reasons, and its impact goes beyond the mere striking down of a portion of Section 377 of the Indian Penal Code (IPC). Here are some key aspects and implications of the judgment:

Recognition of Privacy and Dignity: The judgment recognized the right to privacy and dignity as fundamental rights, underscoring that these rights extend to protecting an individual's sexual orientation and the freedom to express it without fear of criminal prosecution.

Equality and Non-discrimination: By declaring part of Section 377 unconstitutional, the Court reinforced the principle of equality before the law and the prohibition of discrimination on the basis of sexual orientation. It affirmed that discrimination on the basis of sexual orientation is a violation of the right to equality.

Mental Health Considerations: The judgment acknowledged the adverse mental health impacts of Section 377 on LGBTQIA+ individuals, including depression, anxiety, and other mental health issues resulting from stigmatization, discrimination, and criminalization of their sexual orientation.

Decriminalization vs. Legalization: It's important to note that while the judgment decriminalized consensual same-sex acts among adults, it did not legalize same-sex marriage or provide for comprehensive legal protections against discrimination in employment, housing, education, and other areas. These issues remain areas of advocacy within the LGBTQIA+ community in India.

Cultural and Societal Impact: The decision has had a profound cultural and societal impact, leading to increased visibility and acceptance of LGBTQIA+ individuals in many parts of Indian society. It has encouraged more people to come out and live openly, and it has also influenced discussions on LGBTQIA+ rights in other spheres, including media representation, workplace policies, and education.

Future Legal Challenges: The Navtej Singh Johar judgment set a precedent for challenging other laws and practices that discriminate against LGBTQIA+ individuals. It has opened the door for further litigation aimed at securing a broader range of rights, including anti-discrimination laws, same-sex marriage, and transgender rights.

International Context: The decision was hailed by human rights organizations and LGBTQIA+ advocacy groups around the world as a major victory for human rights. It positioned India as part of a global movement towards recognizing and protecting the rights of LGBTQIA+ individuals.

In summary, the Navtej Singh Johar v. Union of India case is a landmark in the journey toward equality and freedom for LGBTQIA+ individuals in India. While it marked a significant step forward, the judgment also highlighted the need for continued efforts to achieve full legal and social equality for LGBTQIA+ people.

History of Section 377 IPC

Section 377 of the Indian Penal Code (IPC) has its roots in the British colonial era, reflecting the legal and moral codes imposed by the British during their rule in India. The IPC was drafted in 1860 by Lord Macaulay and others, as part of the British effort to establish a uniform criminal code across their Indian territories. Section 377, titled "Unnatural offences," was a part of this colonial legacy, criminalizing "carnal intercourse against the order of nature" with any man, woman, or animal.

Historical Background:

The provision was imposed without consideration of the diverse cultural practices and norms regarding sexuality that existed in India before the British rule. It reflected Victorian moral values of the time, which viewed certain sexual acts as against the nature and morality dictated by British society.

The language of Section 377 was broad and vague, leading to its application against a wide range of sexual activities, including homosexual acts between consenting adults. It did not distinguish between consensual and non-consensual acts, nor did it consider the nature of the relationship between the individuals involved.

Despite India's independence in 1947, Section 377 remained part of the IPC as the country continued to use the legal framework established during the colonial era. For decades, it was used to persecute and discriminate against the LGBTQIA+ community, infringing upon their rights to privacy, dignity, and equality.

The provision faced increasing scrutiny and legal challenges in the 21st century, becoming a focal point for debates on human rights, morality, and the legacy of colonial laws. The Naz Foundation, an NGO working on HIV/AIDS and sexual health, filed a petition in the Delhi High Court in 2001, challenging the constitutionality of Section 377 as it applied to consenting adults.

The Delhi High Court's landmark judgment in 2009, in the case of Naz Foundation v. Govt of NCT of Delhi, decriminalized homosexual acts among consenting adults. However, this decision was overturned by the Supreme Court of India in 2013 in Suresh Kumar Koushal vs. Naz Foundation, which reinstated Section 377.

The struggle for decriminalization continued, leading to the historic judgment in 2018 in the case of Navtej Singh Johar & Ors. v. Union of India, where the Supreme Court decriminalized all consensual sex among adults, including homosexual sex, thus reading down Section 377 to exclude consensual same-sex relations from its purview.

The journey of Section 377 from its inception to its partial decriminalization reflects the evolving understanding and acceptance of human rights and individual freedoms in the face of outdated colonial laws. It underscores the tension between legal codes imposed by colonial powers and the cultural and social norms of the colonized societies, as well as the ongoing process of decolonization and the assertion of indigenous values and rights.

Challenges to Section 377 IPC

The challenges to Section 377 of the Indian Penal Code (IPC), which criminalized "carnal intercourse against the order of nature," have been multifaceted, evolving from legal battles to shifts in social attitudes and international human rights norms. Here are some key challenges that Section 377 faced:

• The legal struggle against Section 377 has been a critical aspect of the broader fight for LGBTQIA+ rights in India. Legal challenges aimed at either decriminalizing or altogether repealing the section highlighted its inconsistency with fundamental rights guaranteed by the Indian Constitution, including the right to privacy, dignity, equality before the law, and protection from discrimination.

• The existence of Section 377 contributed significantly to the stigma and discrimination faced by LGBTQIA+ individuals. It legitimized societal biases and enabled harassment, blackmail, and abuse, often with the threat of legal action under this section. Activists and LGBTQIA+ communities have worked tirelessly to combat these societal attitudes and advocate for acceptance and equality.

• The criminalization of consensual same-sex relationships under Section 377 had severe implications for the mental health of LGBTQIA+ individuals. It contributed to feelings of shame, fear, and isolation, exacerbating issues like depression, anxiety, and suicidal tendencies among the community. Highlighting these mental health concerns was crucial in challenging the validity and morality of Section 377.

• Section 377 was also a barrier to effective public health initiatives, particularly in the context of HIV/AIDS prevention. The criminalization of homosexual acts hindered outreach efforts, discouraged individuals from seeking information or treatment for sexually transmitted infections, and impeded the work of health professionals and NGOs.

• Global shifts towards recognizing LGBTQIA+ rights and decriminalizing homosexuality put pressure on India to reconsider Section 377. International human rights organizations, as well as rulings and declarations from bodies like the United Nations, emphasized that laws criminalizing consensual same-sex conduct violate international human rights law. India's adherence to these international norms became an important aspect of the debate around Section 377.

• The inconsistency of Section 377 with other judicial precedents that upheld individual rights and freedoms was a significant challenge. The landmark judgment in the Justice K.S. Puttaswamy (Retd.) vs Union Of India case, which recognized privacy as a fundamental right, played a crucial role in the ultimate reading down of Section 377 in 2018 by the Supreme Court in Navtej Singh Johar & Ors. vs Union of India.

The culmination of these challenges led to a historic moment in 2018 when the Supreme Court of India decriminalized consensual homosexual acts among adults, thereby affirming the rights to privacy, dignity, and equality for the LGBTQIA+ community. This decision was celebrated as a monumental victory for human rights and personal freedom in India.

NGO- AIDS Bhedbhav Virodhi Abhiyan (ABVA)

AIDS Bhedbhav Virodhi Andolan (ABVA) translates to AIDS Anti-Discrimination Movement, is a non-governmental organization in India that has been at the forefront of the fight against AIDS and for the rights of LGBTQIA+ individuals since the early 1990s. ABVA has been instrumental in advocating for the rights of people living with HIV/AIDS, working to eliminate the stigma and discrimination they face, and pushing for changes in laws and policies that impact their lives.

ABVA has been involved in significant legal actions aimed at protecting the rights of people living with HIV/AIDS and the LGBTQIA+ community. One of their landmark efforts was petitioning the Supreme Court in 1994 to decriminalize homosexual acts under Section 377 of the Indian Penal Code (IPC), making them one of the first organizations to challenge the law on constitutional grounds.

The organization has worked tirelessly to raise public awareness about HIV/AIDS, focusing on prevention, treatment options, and the need to combat stigma and discrimination. Through pamphlets, workshops, and public campaigns, ABVA has sought to educate both the general public and specific groups such as healthcare workers.

ABVA has also been involved in providing support services to people living with HIV/AIDS, including counseling, advocacy for medical treatment, and legal support. Their work has been crucial in ensuring that individuals receive the care and support they need without discrimination.

ABVA has conducted and published research on various issues related to HIV/AIDS and the rights of sexual minorities. Their reports and studies have highlighted the challenges faced by these communities and have been used to advocate for policy changes.

The organization has been active in policy advocacy, participating in discussions and debates around laws and policies affecting people living with HIV/AIDS and the LGBTQIA+ community. Their efforts have been aimed at ensuring that these laws and policies are inclusive, humane, and supportive of the rights of marginalized populations.

ABVA's work has contributed significantly to the broader movement for LGBTQIA+ rights and the fight against HIV/AIDS in India. Their advocacy, legal challenges, and public education efforts have played a key role in bringing about social and legal changes that benefit these communities.

Naz Foundation v. Government of NCT and Ors. (2009)

Naz Foundation v. Government of NCT of Delhi and Ors. (2009) is a landmark judgment by the Delhi High Court that played a pivotal role in the fight for LGBTQ+ rights in India. The case was filed by the Naz Foundation, an NGO working on HIV/AIDS and sexual health, challenging the constitutionality of Section 377 of the Indian Penal Code (IPC), which criminalized homosexual acts between consenting adults.

Key Aspects of the Naz Foundation Case:

Petition: The Naz Foundation petitioned the Delhi High Court in 2001, arguing that Section 377 violated the fundamental rights of equality, non-discrimination, freedom of expression, and life and personal liberty under Articles 14, 15, 19, and 21 of the Indian Constitution.

Arguments: The petitioners argued that Section 377 served as a weapon for police abuse, extortion, and harassment of LGBTQ+ individuals. It was also pointed out that the law hindered public health efforts to combat HIV/AIDS by pushing the affected individuals underground, away from essential health services.

Judgment: On July 2, 2009, the Delhi High Court delivered a historic judgment. The court declared that Section 377, insofar as it criminalized consensual sexual acts of adults in private, was violative of Articles 21, 14, and 15 of the Constitution. The court held that such discrimination was unjust and that the right to privacy and dignity must be upheld.

Impact: The ruling was a significant victory for LGBTQ+ rights, as it was the first time a court in India recognized the rights of LGBTQ+ individuals to equality and privacy. Although the judgment was specifically applicable within the jurisdiction of the Delhi High Court, it set a precedent and was a major step towards decriminalizing homosexuality in India.

The Supreme Court of India, however, overturned the Delhi High Court's decision in 2013 in Suresh Kumar Koushal vs. Naz Foundation, reinstating Section 377. This decision was met with widespread criticism from national and international human rights organizations. Finally, the Supreme Court, in Navtej Singh Johar v. Union of India (2018), decriminalized consensual homosexual acts among adults in private, effectively overturning its earlier judgment and affirming the Delhi High Court's 2009 decision on the matter.

The Naz Foundation case was a watershed moment in the legal and social movement for LGBTQ+ rights in India, setting the stage for subsequent legal battles and the eventual decriminalization of homosexuality in the country.

Suresh Kumar Koushal and Ors. v. NAZ Foundation and Ors. (2013)

Suresh Kumar Koushal and Ors. v. NAZ Foundation and Ors. (2013) is a significant judgment by the Supreme Court of India that had a profound impact on the LGBTQ+ community's rights in India. This case marked a pivotal moment in the legal battle over Section 377 of the Indian Penal Code (IPC), which criminalized "carnal intercourse against the order of nature."

Key Points of the Suresh Kumar Koushal Judgment:

Overturning the Delhi High Court Decision: The Supreme Court's verdict came as a response to several petitions challenging the Delhi High Court's 2009 judgment in Naz Foundation v. Govt. of NCT of Delhi, which had decriminalized consensual homosexual acts among adults in private by reading down Section 377 of the IPC.

Rationale of the Supreme Court: The Supreme Court, in its judgment delivered in December 2013, set aside the Delhi High Court's ruling, effectively re-criminalizing homosexual acts. The Court reasoned that Section 377 was a legislative decision and represented a "minuscule fraction" of the country's population. It stated that those who engage in acts that Section 377 criminalizes are a negligible part of the population, and it was hence not unjustifiable for the section to remain in force.

Legal Justification: The Court argued that there was no constitutional infirmity in Section 377, and it was up to the parliament to legislate on the matter. It emphasized that the judiciary should not interfere with a law enacted by the legislature unless it's clearly violative of the Constitution.

Public and Legal Reaction: The judgment was met with widespread criticism from LGBTQ+ rights groups, human rights organizations, and legal experts, both within India and internationally. Critics argued that the decision was a setback for human rights and the dignity of LGBTQ+ individuals.

The setback was temporary, as the issue was revisited in the landmark case of Navtej Singh Johar & Ors. v. Union of India (2018), where the Supreme Court, overturning its earlier decision, decriminalized consensual homosexual acts among adults in private by ruling Section 377 unconstitutional insofar as it applies to consensual adult homosexual acts, affirming the rights to privacy, dignity, and equality.

The Suresh Kumar Koushal judgment represents a controversial chapter in India's legal history, one that was eventually overruled, leading to the affirmation of LGBTQ+ rights in the country.

Application of interpretation of statute in Navtej Singh Johar v. Union of India

The landmark judgment in Navtej Singh Johar v. Union of India (2018) by the Supreme Court of India serves as a quintessential example of the application of statutory interpretation principles to advance human rights and uphold the constitutional values of liberty, dignity, equality, and inclusivity. The case led to the decriminalization of consensual homosexual acts among adults in private, by reading down Section 377 of the Indian Penal Code (IPC), a colonial-era law that criminalized "carnal intercourse against the order of nature."

Application of Interpretation of Statute Principles:

Harmonious Construction: The Court applied the principle of harmonious construction to ensure that the interpretation of Section 377 does not conflict with constitutional values. The judges interpreted the statute in a manner that harmonizes with the fundamental rights enshrined in the Constitution of India, especially the right to privacy, dignity, equality before the law, and protection from discrimination.

The Doctrine of Colorable Legislation: By examining the effect of Section 377 on LGBTQ+ individuals, the Court implicitly addressed the concept of colorable legislation—where a law may appear to be legitimate but is, in reality, discriminatory in its operation or effect. The Court found that, under the guise of penalizing certain acts, Section 377 was effectively discriminating against a specific community.

The Principle of Proportionality: The judgment employed the principle of proportionality to assess whether the impugned section's restrictions on personal liberty were justified by a legitimate state interest. The Court concluded that Section 377 fails the test of proportionality since it infringes on the intimate personal choices of individuals without serving any legitimate public interest.

Reading Down: Instead of striking down Section 377 entirely, the Court used the technique of "reading down" the provision. This means that while the text of the law remains, its interpretation and application are narrowed to exclude consensual homosexual acts among adults in private. This approach allowed the Court to address the specific constitutional violations related to the LGBTQ+ community without removing the provision that could apply to non-consensual acts or bestiality.

Use of Comparative Law: The Court looked at legal developments in other jurisdictions where similar laws had been overturned or declared unconstitutional. This comparative analysis helped underscore the global trend towards recognizing and respecting the rights of LGBTQ+ individuals, reinforcing the argument for decriminalization based on evolving standards of decency, morality, and human rights.

Dynamic Interpretation: Embracing a dynamic and progressive interpretation of the Constitution, the Court recognized that societal norms and values evolve over time. The justices underscored that the Constitution is a living document meant to be interpreted in a manner that reflects contemporary understandings of human rights and dignity.

In Navtej Singh Johar v. UOI, the Supreme Court of India adeptly applied various principles of statutory interpretation to align an outdated and discriminatory law with the contemporary values and rights enshrined in the Constitution. This judgment not only marked a significant milestone for LGBTQ+ rights in India but also illustrated the power of judicial review in protecting fundamental rights against legislative and societal prejudices.

Significance of the judgement in Navtej Singh Johar v. Union of India

The judgment in Navtej Singh Johar v. Union of India (2018) by the Supreme Court of India is a landmark decision with profound significance, both legally and socially, in the context of LGBTQ+ rights and beyond. Here are the key aspects of its significance:

Decriminalization of Homosexuality:

The most direct and immediate impact of the judgment was the decriminalization of consensual homosexual acts among adults in private. By reading down Section 377 of the Indian Penal Code, which criminalized "carnal intercourse against the order of nature," the Court ensured that homosexuality is no longer a criminal offense, thus liberating a significant portion of the population from the shadows of criminality, stigma, and fear.

Affirmation of Constitutional Rights:

The judgment reinforced the fundamental rights guaranteed under the Indian Constitution, including the right to equality (Article 14), the prohibition of discrimination (Article 15), the right to freedom (Article 19), and most importantly, the right to life and personal liberty (Article 21). It underscored that these rights apply equally to all individuals, regardless of their sexual orientation.

Recognition of the Right to Privacy:

Building on the 2017 judgment in Justice K.S. Puttaswamy (Retd.) vs Union Of India, which declared the right to privacy as a fundamental right under the Constitution, Navtej Singh Johar v. UOI further cemented the right to privacy in the context of one's sexual orientation and personal relationships. It recognized that intimate consensual relationships are an intrinsic part of an individual's privacy and identity.

Social and Cultural Impact:

The judgment has had a profound social and cultural impact, contributing significantly to the destigmatization of homosexuality and the LGBTQ+ community in India. It has facilitated greater visibility, acceptance, and discussion around LGBTQ+ rights and issues, paving the way for more inclusive policies and practices in various sectors, including employment, healthcare, and education.

Legal Precedent:

This judgment set a significant legal precedent for courts in India and potentially in other jurisdictions with similar colonial-era laws. It demonstrated the application of constitutional principles to strike down laws that are discriminatory and violate fundamental rights. The judgment can serve as a reference point for future legal battles concerning LGBTQ+ rights and other issues related to personal liberty and equality.

Momentum for Further Legal Reforms:

While the judgment was a monumental step forward, it also highlighted the need for further legal reforms to ensure full equality and protection of rights for LGBTQ+ individuals. Issues such as marriage equality, adoption rights, anti-discrimination laws, and gender recognition remain areas where legal advocacy and reform are needed.

Global Impact:

The decision resonated beyond India's borders, contributing to the global movement towards recognizing and protecting LGBTQ+ rights. It provided a beacon of hope for activists in countries with similar laws and societal attitudes, reinforcing the universal principles of human dignity, equality, and freedom.

In summary, the Navtej Singh Johar v. UOI judgment is a watershed moment in the history of LGBTQ+ rights in India, with far-reaching implications for legal jurisprudence, societal attitudes, and the lives of countless individuals who had been marginalized due to their sexual orientation.

Two-pronged test under Article 14 of the Indian Constitution

The two-pronged test, often referred to in the context of legal analysis and constitutional law, is a method used by courts to determine the constitutionality or legality of a statute or government action. This test typically involves two key criteria or prongs that must be satisfied for the statute or action to be deemed valid. While the specific criteria can vary depending on the legal context or jurisdiction, a common application of the two-pronged test is found in the analysis of laws or actions for violation of fundamental rights under constitutional law. Here are two examples of how a two-pronged test might be applied:

Rational Basis Review (in the context of equality rights): This test might ask, first, whether the law has a legitimate government purpose (the first prong) and, second, whether the law is rationally related to achieving that purpose (the second prong).

Strict Scrutiny Test (often applied in cases involving fundamental rights or suspect classifications): Here, the first prong may require that the law serves a compelling government interest, and the second prong demands that the law is narrowly tailored to achieve that interest with the least restrictive means.

In the context of the Indian Constitution, the two-pronged test can be understood as a framework used by the judiciary to examine if a state action or legislation:

Is based on a valid and legitimate state aim or objective (legality).

Is proportional, in that the means adopted by the state are directly related and necessary to achieve the state's aim, and there is a rational nexus between the object of the law and the means adopted to achieve it.

This approach ensures that any restriction on fundamental rights, such as the right to equality (Article 14) or the right to life and personal liberty (Article 21), is justified and meets the requirements of being fair, just, and reasonable. The two-pronged test thus plays a crucial role in protecting individual rights while allowing for reasonable restrictions in the interest of the greater public good.

Article 14 of the Indian Constitution guarantees to every person the right to equality before the law and equal protection of the laws within the territory of India. This fundamental right is crucial in ensuring that the state does not deny any person equality before the law or the equal protection of the laws. Over the years, Indian courts have developed a two-pronged test to determine whether a law or state action meets the requirements of Article 14. This test comprises:

1. The Classification Test:

Under this prong, the law is examined to see if it creates any classification of persons or things. The classification must satisfy two conditions:

Intelligible Differentia: The classification must be based on an intelligible differentia, which distinguishes those that are grouped together from others left out of the group.

Rational Relation: The differentia must have a rational relation to the objective sought to be achieved by the law in question. This means that there should be a reasonable link between the classification and the object of the act, making it not arbitrary but justifiable.

2. The Reasonableness Test (or Non-Arbitrariness Test):

Introduced through the evolution of judicial interpretation, this prong focuses on whether the classification made by the law or state action is reasonable and not arbitrary. This test ensures that the law is not discriminatory, providing equal protection to all persons under similar circumstances. The test of reasonableness is applied to ascertain if the legislative or executive decision is fair, just, and not arbitrary, ensuring that there is equality of treatment.

The two-pronged test under Article 14 thus serves as a safeguard against arbitrary classification and ensures that all laws and state actions are fair, just, and equitable. It mandates that all persons in similar circumstances should be treated alike both in privileges conferred and liabilities imposed. Through these tests, the Supreme Court of India and other courts have significantly contributed to the development of a more inclusive understanding of equality, adapting to the changing needs and complexities of society.

Important Questions

Which judgement upheld the constitutional validity of Section 377?

The judgment that upheld the constitutional validity of Section 377 of the Indian Penal Code (IPC) was delivered by the Supreme Court of India in the case of Suresh Kumar Koushal and Ors. v. NAZ Foundation and Ors. (2013). This judgment came as a response to a Delhi High Court verdict from 2009 (Naz Foundation v. Govt. of NCT of Delhi and Ors.), which had decriminalized consensual sexual acts of adults in private, effectively reading down Section 377 to exclude consensual homosexual acts between adults.

However, the Supreme Court in the Koushal case set aside the Delhi High Court's ruling, reinstating the criminalization of consensual homosexual acts under Section 377. The Supreme Court held that Section 377 does not suffer from the vice of unconstitutionality and that the declaration made by the High Court was legally unsustainable. The Court reasoned that a minuscule fraction of the country’s population was actually affected by this law, and that mere reliance on international precedents without considering the societal context of India was insufficient for reading down the statute. The Supreme Court also emphasized that it was for the legislature, and not the judiciary, to amend the law.

This 2013 verdict was widely criticized by human rights activists, members of the LGBTQIA+ community, and legal scholars for being regressive and infringing on the personal freedoms and human rights of LGBTQIA+ individuals. The decision was eventually overturned in 2018 by the Supreme Court in the landmark judgment of Navtej Singh Johar & Ors. v. Union of India, which decriminalized all consensual sex among adults in private, including homosexual sex, affirming the right to privacy and the protection of sexual orientation under the Indian Constitution.

Which organisation started with the struggle to decriminalise homosexuality?

The struggle to decriminalize homosexuality in India saw contributions from various organizations and activists over the years. One of the earliest and most notable organizations involved in this struggle is the Naz Foundation (India) Trust, a non-governmental organization working on HIV/AIDS and sexual health. The Naz Foundation has been instrumental in the legal battle to decriminalize homosexuality, particularly through its involvement in the landmark case Naz Foundation v. Govt. of NCT of Delhi (2009).

Are the marriages of homosexuals recognised under the Hindu Marriage Act or the Special Marriage Act?

No, marriages between homosexual couples are not recognized under the Hindu Marriage Act, 1955, or the Special Marriage Act, 1954, in India. Both of these acts currently define marriage as a union between a man and a woman.

The legal recognition of same-sex marriages has been a topic of debate and litigation in India. There have been multiple petitions filed in various courts seeking legal recognition for same-sex marriages under existing laws or for the enactment of new legislation to allow such unions. Advocates for LGBTQ+ rights argue that recognizing same-sex marriages is a matter of equality, dignity, and personal liberty under the Constitution of India, particularly in light of the Supreme Court's landmark judgment in Navtej Singh Johar v. Union of India (2018), which decriminalized consensual homosexual acts among adults.

Which all fundamental rights were violated when members of LGBTQIA+ community were punished under Section 377?

The application of Section 377 of the Indian Penal Code (IPC) to consensual homosexual acts among adults was criticized for violating several fundamental rights as enshrined in the Constitution of India. The landmark judgment in Navtej Singh Johar v. Union of India (2018) by the Supreme Court of India highlighted the following fundamental rights that were being violated:

Right to Equality (Article 14): The use of Section 377 to criminalize consensual homosexual acts among adults was seen as discriminatory and arbitrary, thus violating the right to equality before the law and equal protection of the laws.

Right to Non-Discrimination (Article 15): By penalizing individuals based on their sexual orientation, Section 377 was seen as contravening the right to non-discrimination on the grounds of sex, which by extension includes sexual orientation.

Right to Freedom of Expression (Article 19): The criminalization of consensual homosexual acts restricted individuals' ability to express their sexual orientation, thereby infringing upon the right to freedom of expression.

Right to Life and Personal Liberty (Article 21): This fundamental right was significantly impacted by Section 377. The Supreme Court recognized that the right to life and personal liberty extends to the protection of dignity, mental privacy, and the autonomy of personal choice regarding intimate relations between consenting adults. By criminalizing such acts, Section 377 was seen as a direct infringement on the personal liberty and dignity of LGBTQIA+ individuals.

Right to Privacy (Article 21): In the judgment of Justice K.S. Puttaswamy (Retd.) v. Union of India (2017), the Supreme Court declared the right to privacy as a fundamental right under Article 21 of the Constitution. The court noted that privacy includes at its core the preservation of personal intimacies, the sanctity of family life, marriage, procreation, the home, and sexual orientation. Section 377 was seen as an invasion of the privacy and dignity of individuals, particularly those of the LGBTQIA+ community, by criminalizing their consensual sexual acts.

The Supreme Court's decision in Navtej Singh Johar v. Union of India effectively decriminalized consensual homosexual acts among adults, affirming the aforementioned rights and marking a significant step towards recognizing the rights and dignity of LGBTQIA+ individuals in India.

Conclusion

The landmark judgment of Navtej Singh Johar v. Union of India marked a monumental shift in Indian jurisprudence concerning individual rights, particularly those of the LGBTQIA+ community. By decriminalizing consensual homosexual acts among adults in private, the Supreme Court not only affirmed the principles of liberty, dignity, and privacy embedded in the Indian Constitution but also set a precedent for the protection of sexual orientation under the ambit of fundamental rights. This decision underscored the importance of constitutional morality over societal norms and prejudices, asserting that the law must uphold the dignity of individual choice and freedom. It acknowledged the historical injustices faced by the LGBTQIA+ community and paved the way for further legal and social reforms. The judgment is a testament to the evolving nature of constitutional rights and reflects India's commitment to human rights, equality, and non-discrimination. It represents a significant step towards achieving inclusivity and equality for all citizens, irrespective of their sexual orientation, and reinforces the idea that love and personal relationships are fundamental to the human experience, deserving of protection and respect under the law.