NAVTEJ SINGH JOHAR – A CONSTITUTIONAL ANALYSIS

NAVTEJ SINGH JOHAR – A CONSTITUTIONAL

ANALYSIS

 Rajat Maloo **Vanshika Katiyar

ABSTRACT

Navtej Singh Johar is one of the latest judgments delivered by the Supreme
Court of India where the Court in its legal reasoning has resorted to the
concept of transformative constitutionalism. This Article is an analytical comment
at the Court’s decision and an explanation to the Court’s construction of the
three most important concepts it has applied in Navtej Singh Johar, namely,
transformative constitutionalism, constitutional morality and the Right to
Privacy. We endeavor to highlight how in the judgment, the Court has
adopted a reformatory and revolutionary approach while reading down
Section 377 of Indian Penal Code which has bolstered the movement for
equal rights for homosexuals.

INTRODUCTION

Navtej Singh Johar v. Union of India1 is a landmark judgment by the Apex Court
and the initial, founding steps towards ameliorating the legal position of
homosexual adults. The Supreme Court of India, in September 2018, read
down Section 3772 of the Indian Penal Code while reversing the earlier
decision of the Court in Suresh Kumar Koushal.3 The five-judge bench of the
Court while doing so recognized the Fundamental Rights possessed by the
homosexual and the LGBT community. The judgment came as a moment of
celebration for numerous individuals and groups who had been advocating
equal rights for homosexuals since a long time now.

 nd
2 year Student, B.A., L.L.B. (Hons.), National Law School of India University. Bengaluru.
** 2nd year Student, B.A., L.L.B. (Hons.), National Law School of India University. Bengaluru.
1 Navtej Singh Johar v. Union of India, (2018) 10 SCC 1.
2 The Indian Penal Code, 1860, S. 377.
3 Suresh Kumar Koushal and Anr. v. Naz Foundation and Ors., (2014) 1 SCC 1.

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While reading down Section 377, the Court excluded from its ambit -
consensual sexual intercourse between adults in private. The three most
important concepts which developed and constituted the Court’s reasoning
and analysis, in the opinion of the researchers, were the conception of
transformative constitutionalism, constitutional morality and the recently
guaranteed Right to Privacy. The archaic principles, on which the foundation
of Section 377 rested, could not stand upright when challenged against these
three facets of the Constitution. The Court’s dynamic interpretation of the
issue emanating from Section 377 - which criminalised homosexual acts
between consenting adults – and the entire reasoning adopted by the Court
deserves strict academic scrutiny. The Court’s stance on this issue has
undoubtedly been visionary, revolutionary and reformative.

In this research paper, the researchers endeavour to analyse the important

aspects of the Supreme Court of India’s recent decision in Navtej Singh Johar.
First, we shall present a brief judicial history regarding Section 377 and the
issues raised in the present case; secondly, we will do a thorough analysis of the
concept of ‘transformative constitutionalism’; thirdly, we shall attempt to understand
the Court’s reasoning on ‘constitutional morality’; lastly, we shall delve into how
the court has interpreted the newly recognised fundamental ‘right to privacy’ in
relation to Section 377 of the Indian Penal Code.

JUDICIAL BACKDROP

Navtej Singh Johar and Others v Union of India4 is a Supreme Court decision by a
five-judge bench of the then Chief Justice Dipak Mishra, Justice A.M.
Khanwilkar, Justice D.Y. Chandrachud, Justice R.F. Nariman and Justice Indu
Malhotra. Four separate judgments were delivered wherein the court partially
struck down Section 377 of the Indian Penal Code which states that
“whoever 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

4 supra note 1.
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for a term which may extend to ten years, and shall also be
liable to fine.”5

This is not the first time when this issue was brought before the court. In the
case of Naz Foundation v. Government of NCT of Delhi,6 the Delhi High Court
had stated that discrimination on the basis of sex was prohibited under Article
15 of the Constitution.7 The Court interpreted ‘sex’ to include ‘sexual
orientation’. The High Court stated that individuals who are looked down as
deviants should not be ostracized or excluded. The High Court had ruled that
part of Section 377 which criminalized consensual sexual acts between adults
was in violation of Articles 14, 15 and 21.

This judgment was challenged in the Supreme Court in Suresh Kumar Koushal v.
Naz Foundation.8 The Court gave the justification that the Section does not
discriminate against any particular group of people or identity but only
criminalizes certain acts which when committed would be an offence. The
Court went on to say that the LGBT community was only a ‘miniscule’ fraction
of the total population. One of the arguments placed before the Court was
that the Section had become a tool for the harassment and torture of the
LGBT community. The Court had rejected the argument by stating that the
misuse by police authorities is not a reflection of the vires of the Section.

TRANSFORMATIVE CONSTITUTIONALISM

The Constitution of India on various occasions has been referred to as a

dynamic document. Apart from being the fundamental governing law of the
country, it is also considered to be a social document. In addition to that, the
Constitution envisaged to protect and promote the essential liberties of
minority groups and classes of individuals who had been systematically and
historically disadvantaged and discriminated against. This underlying principle
entailed that the Constitution was aware of the status quo at the time of its
enactment, however, unlike the American Constitution; it chose and aspired

5 The Indian Penal Code, 1860, S. 377.

6 Naz Foundation v. Government of NCT of Delhi, (2009) 3 SCR 1.
7 INDIA CONST. art. 15.
8 supra note 3.

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to transform the society from what it was. Although the society was unequal,
it aimed to achieve equality rather than reinforcing the status quo. One of the
essential purposes of Constitution is considered to have a reformatory effect
on the society for the better and this objective is the fundamental pillar of
transformative constitutionalism.9

The Supreme Court of India, while interpreting the Constitution incorporates

the concept of transformative constitutionalism. Essentially, this denotes that
the Constitution aspires to transform the society rather than bolster the
existing values subscribed by the majority. The Court in Navtej Singh Johar
adopted this line of reasoning quite eloquently. The Court enunciated the
inner thirst of the Constitution to transform the Indian society and thereby,
embrace the ideals of justice, liberty, equality and fraternity. This also suggests
that the Constitution has the ability to change with time and adopt according
to the societal needs. It is this ability of the Constitution which gives it the
character of a dynamic, living and organic document.

With regard to Section 377 of the IPC, the Court observed that the society has
progressively transformed a lot from what it was in 1860 when IPC was
brought into force. The sexual minorities have been recognised and accepted
in various legal spheres10 however, criminalisation of homosexual conduct
under Section 377 creates nothing but a chilling effect. The principle of
transformative constitutionalism is applied to ameliorate this condition.

The Court observed that the judiciary has the duty to ensure that a sense of
transformation emanates and is propagated in the society via the Constitution
as well as other provisions of law. The purpose of transformative
constitutionalism thus, is to steer the society with the help of legal institutions,
in a direction of democratic egalitarianism with an increased protection of
fundamental rights and other freedoms. The bench applied this principle to
hold that the ideals and values enshrined in our Constitution must be a
reformatory nudge to bring about change in the societal beliefs.

9 State of Kerala and Anr. v. N.M. Thomas and Ors., AIR 1976 SC 490.
10 National Legal Services Authority v. Union of India and Ors., (2014) 5 SCC 438.
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Penalising homosexual conduct, in the opinion of the bench, denuded

individuals belonging to LGBT community of their constitutional right to live
a fulfilling life. The Court went on to hold that Section 377 violates the Right
to Life and equal protection of law. However, the underlying principle in the
whole reasoning emanated from the ‘transformative constitutional’ facet of the
Constitution. In de-criminalisation of consensual homosexual intercourse
between two adults, the Constitution assured that not just the homosexual but
the entire LGBT community can live a fearless life with freedom from state
intrusion in consensual intimacy.

Moreover, the Court while taking a sensitive stance recognized that the entire
homosexual community had been oppressed, deprived of justice within a
country, which is dedicated to human freedom. To address this issue,
transformation of the society is essential. Transformative constitutionalism
entails that the Constitution in and of itself has the ability to produce a social
catharsis. In such a case, the transformative power of the Constitution is a way
in which the Constitution speaks to the rest of the society. Essentially,
Constitution plays the important role of questioning the existing notions
about the dominance of sexes and genders. It plays a transformative role as
well as directs the society’s attention towards resolving the polarities of sex
and binary nature of gender. By virtue of which, “…the constitutional values
prevail over the impulses of the time.”

The conception of ‘transformative constitutionalism’ has been adopted by the apex

court in its other judicial decisions as well. While decriminalising the archaic
offence of adultery, the Court in Joseph Shine11 recognised the transformative
nature of the Constitution and how it affects the society. One of the basic
purposes of law is considered to act as a guiding light for an individual’s
conduct in the society. In our opinion, the recent judgments of the Supreme
Court seek to transform the status quo which exists in the society by asserting
the transformative nature of constitution and the values which emanate from
it.

11 Joseph Shine v. Union of India, 2018 (11) SCALE 556.

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Therefore, transformative constitutionalism played a very important role in

determining the Court’s basis of its reasoning in Navtej Singh Johar. However,
the question which remains is whether merely by decriminalisation of
homosexual conduct, that is, by removing a negative barrier without ensuring
any positive rights for the LGBT community, how far will the society be
transformed? If societal transformation through constitutional values was the
purpose of the Navtej Singh Johar judgment, it can be considered nothing more
than a first step towards enhancing the position of the homosexual
community in the society.

Albeit being an initial step towards realising the rights of minority LGBT
community, it was an extremely significant one. It reversed the decision in the
preceding case of Suresh Kumar Koushal where the court had relied upon the
morality of the majority to uphold the constitutional validity of Section 377.
Navtej Singh Johar, on the other hand, aspires to transform the current
majoritarian societal opinion in relation to homosexuality. However, only time
will tell as to how far the Constitution and the law would be successful to
achieve its transformative aim.

CONSTITUTIONAL MORALITY

The then Chief Justice of India, Dipak Mishra, had observed in his judgement
that constitutional morality was not restricted to the literal text and provisions
of the Constitution as this concept was not about the ‘mere observance of the core
principles of constitutionalism’.12 It should enable in ushering a pluralistic and
inclusive society.

The aim of our Constitution was to secure inalienable rights to the citizens to
foster a spirit of growth and development. Moreover, it was envisaged that the
executive, legislature and the judiciary would practice and stay alive to the
concept of constitutional morality. This concept urges these organs of the
State to maintain a heterogeneous fibre in the society.

The principle of constitutional morality will be violated if there is an attempt

to shove a uniform, homogenous and standardized philosophy in the society

12 supra note 1.
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and hence, the organs of the state should ensure that majoritarian principles
do not overpower other considerations during policy decisions.

In Government of NCT of Delhi v. Union of India and Others,13 it was observed that
“Constitutional morality, appositely understood, means the morality that has inherent
elements in the constitutional norms and the conscience of the Constitution. Any act to
garner justification must possess the potentiality to be in harmony with the constitutional
impulse.”14

The courts have a duty to uphold the principles emanating from the
constitution and adjudicate over the validity of a law. The courts also have a
duty to not be influenced by the majoritarian view. When a penal provision,
like Section 377 in this case, is challenged, notions of social morality and
popular opinions which have no legal tenability, should not be allowed to
trample over constitutional morality. Through this principle, the courts can
decide in a just manner even if the group whose fundamental right is violated
is fairly small. This is in contrast to the Suresh Kumar Koushal case where the
court while upholding the constitutional validity of Section 377 stated that
“…a miniscule fraction of the country’s population constitutes lesbians, gays,
bisexuals or transgenders…”15

Courts play an essential role in ensuring that whenever there is a violation of a

fundamental right, constitutional morality overcomes societal morality. Due to
the prevalence of social morality, the members of the LGBT community have
been, for a long period of time, outlawed by the society. The court in the
Suresh Kumar Koushal case, had failed to protect the Fundamental Rights of the
community. Just like the Constitution aimed to rectify the discrimination
against the backward community, these facets of the majoritarian social
morality against the LGBT community should be rectified. Social morality
cannot be a justification for the violation of fundamental rights.

13 Government of NCT of Delhi v. Union of India and Ors., 2018 (8) SCALE 72.
14 Id.
15 Suresh Kumar Koushal v. Naz Foundation, (2014) 1 SCC 1, ¶43.

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Section 377 is a Victorian era law and hence, the rationale behind the
provision and the morality which was prevalent at that time is not relevant
anymore and there is no reason to continue with the law.

It is clear that social morality cannot be used as a veil to criminalize

homosexual intercourse between consenting adults. The court had made clear
in S. Khushboo v Kanniamaal16 that “notions of social morality are inherently
subjective and the criminal law cannot be used as a means to unduly interfere
with the domain of personal autonomy. Morality and Criminality are not co-
extensive.”17

Since the Fundamental Rights are a part of the Constitution, the majoritarian
governments do not have the subject of dignity and liberty of any individual
within their reach and the courts can apply constitutional morality to ensure
the rights of ‘discrete and insular’ minorities.18 Constitutional morality ensures
that a particular majoritarian view of social morality does not prevail. Justice
DY Chandrachud stated that constitutional morality reflects that in the
struggle for existence, the ideal of justice should be an overriding factor over
any other notion of social acceptance. Constitutional morality is a balance
against popular public morality.

Opponents argue that homosexuality is against morality and is unacceptable in

the Indian society. In the case of Naz Foundation it was held,
“Thus, popular morality or public disapproval of
certain acts is not a valid justification for restriction of
the fundamental rights under Article 21. Popular
morality, as distinct from a constitutional morality
derived from constitutional values, is based on
shifting and subjecting notions of right and wrong. If
there is any type of “morality” that can pass the test
of compelling state interest, it must be
“constitutional” morality and not public morality…
In our scheme of things, constitutional morality must

16 S. Khushboo v. Kanniamaal, (2010) 5 SCC 600.

17 Id.
18 supra note 1.

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outweigh the argument of public morality, even if it

be the majoritarian view.”19

The Right to Live a dignified life is guaranteed by the Constitution and hence
the Court declared that LGBT individuals are equal citizens of India. They
cannot be discriminated against and have the Right to Express themselves
through their intimate choices.20 The Court further stated that constitutional
morality will supersede any culture or tradition and the expression of sexuality
between consenting adults cannot be dictated by the opinions prevalent in the
society. The Court acts like a counter majoritarian institution and protect the
rights guaranteed by the constitution irrespective of the majoritarian view.

THE RIGHT TO PRIVACY

The Indian jurisprudence on the Right to Privacy witnessed its zenith in 2017
when the Supreme Court of India through a nine-judge bench read Right to
Privacy as a Fundamental Right within the ambit of Article 21 of the
Constitution in Justice K S Puttawamy v. Union of India.21 The Court in Navtej
Singh Johar gave due regard to the principles laid down in the aforementioned
case. It recognised that the individual autonomy includes sexual orientation of
a person as well. One’s sexual identity is an inalienable and intrinsic part of
his/her very identity. Essentially, the individual autonomy determines the
identity of an individual and thereby, constitutes a significant aspect of the
dignity of such individual.

The LGBT community is seeking a basic Right to Companionship, as long as

it is consensual. This Right to Consensual Companionship has been a
recognized right as it is observed and understood that sexual intimacy is
essential for the well-being of a society and thorough development of human
personality.22 The South African Supreme Court has also noted that the theory
of privacy incorporates sexuality as well. In that Court’s opinion, privacy

19 Naz Foundation v. Government of NCT of Delhi, (2009) 3 CCR 1.

20 supra note 1.
21 Justice K S Puttawamy v. Union of India, (2017) 10 SCC 1.
22 Bowers v. Hardwick, 478 U.S. 186 (1986).

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acknowledges both a Right to Private Intimacy and autonomy without any

sort of interference.23

The Indian Supreme Court while reversing the judgment in Suresh Kumar
Koushal held that subsequent to the interpretation of Right to Privacy under
Article 21, the principle laid down in Suresh Kumar Koushal is not relevant
anymore and is not a sustainable basis to deny the Right to Privacy. The very
purpose of Right to Privacy is to protect individuals form the disdain of the
majorities. The Right to Privacy does not depend on what the majority
opinion is. The Court in Navtej Singh Johar criticised the method adopted in
Suresh Kumar Koushal which regarded mere popular acceptance as a valid basis
to disregard rights conferred on individuals by virtue of the Constitution.
Majoritarian principles must not be applied to deny Rights guaranteed by the
Constitution.

As the nine-judge bench in Puttaswamy judgment held sexual orientation to be

a facet of a person’s privacy, Section 377 of IPC interferes with a homosexual
person’s private, individual life. The Court held that Section 377 violated the
Right to Privacy guaranteed to an individual, disregarding the public/majority
opinion.

The Supreme Court of India has in various recent cases relied upon the right
to privacy, recognised as a fundamental right in Puttaswamy judgment. The
Apex Court in Joseph Shine while dealing with the issue of adultery and in
Common Cause (A Registered Society) v. Union of India and Another24 while dealing
with the issue of euthanasia, acknowledged and enunciated the importance of
an individual’s autonomy in the backdrop of the recently recognised right to
privacy.

Therefore, the growing recognition of the right to privacy leading to

recognition of autonomy in an individual’s private sphere cannot accept an
archaic law such as Section 377, which intrudes upon the private life of
consenting homosexual individuals. The Court bolstered the Right to Privacy

23 National Coalition for Gay and Lesbian Equality and another v. Minister of Justice and Ors., 1998 (12)
BCLR 1517 (CC).
24 Common Cause (A Registered Society) v. Union of India and Anr., (2018) 5 SCC 1.

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while denying the provision any constitutional validity. This is again, an

important step taken by the judiciary towards complete realisation of
fundamental rights for the LGBT community in India.

CONCLUSION

The Supreme Court of India in Navtej Singh Johar, has undoubtedly taken a
boldly significant step towards a legal system which enforces the
incorporationist and egalitarian values of the Constitution of India. It
endeavours to change the status quo and the current societal beliefs by virtue
of transformative constitutionalism while upholding constitutional morality
over and above the morality of the majority society. While doing so, the Court
recognised the importance of the right to privacy and how it is essential for it
to operate in the private, consensual conduct of homosexual adults.

The researchers in this paper have endeavoured to give a holistic view of the
various previous judicial decisions in relation to Section 377 of the IPC.
Thereafter, three most important principles are dealt with by us, which the
Supreme Court of India has recently adopted in its reasoning in several
landmark judgments, namely, the principle of transformative constitutionalism,
constitutional morality and the well-recognised individual’s Right to Privacy.

De-criminalising private homosexual intercourse between two consenting

adults by reading down Section 377 of the IPC, is a bold step which the Court
has taken in an aspiration towards a society where the members of the LGBT
community enjoy all fundamental rights granted by the Constitution, on par
with everyone else. However, a lot still needs to be done, in a positive manner,
for the protection of the LGBT community from the systematic oppression
and discrimination which it has suffered in the Indian society. Reading down
of Section 377, thus, is only a first step towards equal protection of the LGBT
community. The three organs of the State and the society has a long way to go
from Navtej Singh Johar to ensure that the morality and values emanated from
the Constitution prevail and guide us towards a better tomorrow with dignity,
sexual autonomy and individuality for the LGBT community in India.

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