Navtej Singh Johar v Union of India (2018): Decriminalisation of Section 377 IPC

Which earlier decision did a five-judge bench of the Supreme Court overrule on 6 September 2018? The answer is Suresh Kumar Koushal v Naz Foundation, (2014) 1 SCC 1. The new decision is Navtej Singh Johar v Union of India, reported at (2018) 10 SCC 1, and it deals with how far Section 377 of the Indian Penal Code can punish consensual sexual acts between adults.

The judgment is long and has several opinions. This blog follows the lead judgment of Dipak Misra, CJI (for himself and A.M. Khanwilkar, J.), especially its eighteen conclusions, because that is the part most useful for the Civil Judge Exam, PCS J Exam and APO Exam. It also looks at how the case reached the larger bench.

The road to a five-judge bench

Writ Petition (Criminal) No. 76 of 2016 asked the Court to declare that the right to sexuality, the right to sexual autonomy and the right to choice of a sexual partner form part of the right to life under Article 21. It also asked the Court to declare Section 377 IPC unconstitutional.

When the petition came up before a three-judge bench on 8 January 2018, the Court looked at Suresh Kumar Koushal, a two-judge bench decision that had reversed the Delhi High Court's judgment in Naz Foundation v Government of NCT of Delhi, 111 DRJ 1 (2009). Senior counsel Arvind Datar argued that Suresh Kumar Koushal had been guided by social morality and majoritarian perception, when the issue should be viewed through constitutional morality. He also pointed to National Legal Services Authority v Union of India, (2014) 5 SCC 438 (the NALSA case) and the nine-judge bench decision in K.S. Puttaswamy v Union of India, (2017) 10 SCC 1.

The three-judge bench noted that the phrase carnal intercourse against the order of nature is not constant, since social morality changes from age to age. It recorded that Mr. Datar did not challenge the part of Section 377 relating to carnal intercourse with animals and confined his challenge to consenting acts between two adults. The bench said that consent between two adults has to be the primary pre-condition, otherwise children would become prey. It held that Suresh Kumar Koushal required reconsideration and referred the matter to a larger bench.

Nariman, J. described the background in his separate judgment. The Delhi High Court in Naz Foundation had declared Section 377, insofar as it criminalises consensual sexual acts of adults in private, violative of Articles 21, 14 and 15. The Supreme Court reversed that in Suresh Kumar Koushal, and review petitions were dismissed. In the meantime, NALSA construed Articles 15 and 21 to include the right to gender identity and sexual orientation, and Puttaswamy followed.

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The eighteen conclusions, in plain language

The Chief Justice recorded his conclusions in seriatim. Instead of listing all eighteen word for word, here they are grouped by theme. Your answer can follow the same groups.

Identity, autonomy and dignity

·        Identity is connected with human rights and the guarantee of life and liberty with dignity, as stated in the NALSA case. Identity cannot be reduced only to one's orientation, and at its core lies self-determination.

·        Autonomy is individualistic. Under the autonomy principle, an individual has sovereignty over his or her body, and intimacy in privacy is a matter of choice. Autonomy establishes identity, and identity becomes a part of dignity.

·        The right to live with dignity is a human right, and without it every other right would be meaningless. The Constitution places the duty on the judiciary to protect every individual's right to express and choose without impediment.

·        Sexual orientation is one of the many natural and inherent biological phenomena in an individual, controlled by neurological and biological factors. Discrimination on the basis of sexual orientation violates the fundamental right of freedom of expression.

How the Constitution should be read

·        The Constitution is a living and organic document. Courts must be guided by its principles and use progressive and pragmatic interpretation, and their role is even more important when the rights affected belong to a minority group long deprived of basic rights.

·        The Constitution is transformative. Its provisions should not be limited to the literal meaning of words. Discrimination of any kind strikes at the core of a democratic society.

·        Constitutional morality means a pluralistic and inclusive society. It cannot be sacrificed to social morality, and the veil of social morality cannot be used to violate the fundamental rights of even a single individual.

·        Rights evolve with society under the doctrine of progressive realization, which gives rise to the doctrine of non-retrogression. Accepting Suresh Kumar Koushal would be a retrograde step.

Why Suresh Kumar Koushal was wrong

The Chief Justice said Suresh Kumar Koushal had overturned Naz Foundation on the ground that the LGBT community was a minuscule fraction of the population and that mere misuse of the Section did not reflect on its validity. The Court called this view constitutionally impermissible.

After Puttaswamy raised privacy to a fundamental right, the minuscule fraction reasoning was found to be a discordant note and fallacious. The framers could never have intended that fundamental rights be extended only for the benefit of the majority. The Court must step in whenever there is a violation, even if the right of a single individual is in peril.

Section 377 compared with Section 375

The Court observed that Section 375 recognises the absence of wilful and informed consent as the test for rape. Section 377 contains no such qualification. So it criminalises even voluntary carnal intercourse between homosexuals, heterosexuals, bisexuals and transgenders. The Court also noted that, after the Criminal Law (Amendment) Act, 2013, Section 375 no longer carries the words subject to any other provision of the IPC, which indicates that Section 375 is not subject to Section 377.

On the words against the order of nature, the Court said they are not defined in Section 377 or any other provision of the IPC. Judicial pronouncements had given them the meaning of all sexual acts not intended for procreation. But if coitus is not performed for procreation only, it does not per se become against the order of nature.

Testing Section 377 against Articles 14 and 19

The Court said that because Section 377 violates dignity and privacy, it must be tested on Articles 14 and 19, following Maneka Gandhi.

·        Article 14: The classification in Section 377 has no reasonable nexus with its object, because non-consensual carnal intercourse is already penalised by Section 375 IPC and the POCSO Act. The Section has the unwanted collateral effect of targeting consensual acts by the LGBT community that are not harmful to children or women, leading to discrimination and unequal treatment.

·        Manifest arbitrariness: The Section does not distinguish between consensual and non-consensual acts of competent adults in private, which are neither harmful nor contagious to society. It has become an odious weapon of harassment. Following Shayara Bano, it is liable to be partially struck down for violating Article 14.

·        Article 19(1)(a): It is an unreasonable restriction. Public decency and morality cannot be stretched beyond a rational limit to curb the freedom of expression and choice of the LGBT community. Consensual carnal intercourse among adults, homosexual or heterosexual, in private, does not harm public decency or morality.

The operative holding

The final operative conclusions are in two parts, and you should write them carefully.

·        Section 377 IPC, so far as it penalises any consensual sexual relationship between two adults, whether between two men, a man and a woman, or two women, cannot be regarded as constitutional.

·        If anyone, a man or a woman, engages in any kind of sexual activity with an animal, that aspect of Section 377 is constitutional and remains a penal offence. Any act covered by Section 377 done between two individuals without the consent of either of them would still invite penal liability under Section 377.

The Court also held that Suresh Kumar Koushal, not being in consonance with these conclusions, is overruled. The writ petitions were disposed of with no order as to costs.

Notice the language the Court used. It said Section 377 was liable to be partially struck down. In an exam answer, do not write that the whole Section was struck down. The Section survives for non-consensual acts and for acts with animals.

Linking the case with other judgments

This case is a good example of how one judgment draws on many earlier ones. The lead judgment relies on NALSA for gender identity, on Puttaswamy for privacy, on Maneka Gandhi for the test under Articles 14, 19 and 21 and on Shayara Bano for manifest arbitrariness. It also deals with Naz Foundation and Suresh Kumar Koushal directly.

A useful way to remember it is a four-step chain. Naz Foundation (Delhi High Court, 2009) declared the Section unconstitutional in part. Suresh Kumar Koushal (2014) reversed that. NALSA (2014) and Puttaswamy (2017) built the ground on identity and privacy. Navtej Singh Johar (2018) overruled Suresh Kumar Koushal.

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How to write this in an exam

Begin with the reference to the five-judge bench, then give the holding in the two-part form above. Support it with three or four of the Court's reasons: dignity and autonomy, privacy after Puttaswamy, the Article 14 analysis with Section 375 and the POCSO Act, and Article 19(1)(a). Finish with the overruling of Suresh Kumar Koushal.

A caution: this blog is based on the lead judgment of the Chief Justice and the opening of Nariman, J.'s judgment. The bench had five judges, so for a full study read the other opinions as well.

Frequently Asked Questions on Navtej Singh Johar

What is the citation of Navtej Singh Johar v Union of India?

It is reported as (2018) 10 SCC 1 and AIR 2018 SC 4321, and was decided on 6 September 2018.

Who were on the bench?

Dipak Misra CJI, R.F. Nariman, A.M. Khanwilkar, D.Y. Chandrachud and Indu Malhotra, JJ.

Which earlier decision was overruled?

Suresh Kumar Koushal v Naz Foundation, (2014) 1 SCC 1.

How did the case reach a five-judge bench?

A three-judge bench on 8 January 2018 held that Suresh Kumar Koushal required reconsideration and referred the matter to a larger bench.

Was Section 377 IPC struck down completely?

No. It was held unconstitutional so far as it penalises consensual sexual relationships between two adults. It remains valid for sexual activity with animals and for acts done without the consent of either person.

Which Articles were used to test Section 377?

Articles 14 and 19(1)(a), along with the rights to dignity, privacy and autonomy under Article 21.

Why did the Court say Section 377 fails under Article 14?

Because its classification has no reasonable nexus with its object, since non-consensual acts are already covered by Section 375 IPC and the POCSO Act, and it targets consensual acts by the LGBT community. It is also manifestly arbitrary.

What did the Court say about the minuscule fraction reasoning?

It called it fallacious and said fundamental rights are not meant only for the majority, and the Court must act even where one individual's right is in peril.

What does constitutional morality mean in this judgment?

It stands for a pluralistic and inclusive society and cannot be sacrificed to social morality, which cannot be used to violate even a single individual's fundamental rights.

Which other cases does the lead judgment rely on?

National Legal Services Authority v Union of India, K.S. Puttaswamy v Union of India, Maneka Gandhi v Union of India and Shayara Bano, among others.

What to Take Away

Navtej Singh Johar v Union of India (2018) 10 SCC 1 shows how dignity, autonomy, privacy and constitutional morality shaped the Court's reading of Articles 14, 19 and 21. Learn the operative holding with its two parts, and the chain from Naz Foundation to Suresh Kumar Koushal to this judgment.

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