The case of Navtej Singh Johar v. Union of India is a milestone case whose judgments led to the decriminalization of all forms of homosexual activity between consenting adults throughout India.
On 27 April, 2016, a petition was filed by five aggrieved parties who claimed to have had their sexual orientation rights infringed upon because of the precolonial statute of section 377 of the Penal Code of India. The opposing parties constituted three religious organizations, namely the Apostolic Alliance of Churches, Trust God Ministries, and the Utkal Christian Council.
Former Chief Justice of India Justice S. A. Bobde and Justice A. K. Bhushan presided over the first court to accept the petition in 2016. Prior to this petition, the case of Suresh Kumar Koushal v. Naz Foundation, whose facts were similar to this case, was given a ruling by the Supreme Court of India stating that section 377 of the Indian Penal Code be upheld.
As a result of the aforementioned ruling, the aggrieved parties in Suresh Kumar Koushal v. Naz Foundation brought a curative petition before the court. A curative petition is not conducted in open court but in the chambers of the justices, who review the judgment and determine whether there has been a miscarriage of justice. It is a last resort effort by the petitioners and can only be conducted after the courts have pronounced their final ruling on the matter.
After a curative review of the Suresh case, the Navtej Singh Johar v. Union of India was listed for a hearing at the Chief Justice’s bench. This court directed the matter to be heard in January 2018 by a constitutional bench composed of five judges.
The constitutional bench did not deliver judgment but transferred the case to the Supreme Court for a final ruling, where both parties proceeded to challenge the constitutionality of section 377. The trial concluded in July 2018, and the court asked both parties to prepare their written submissions for presentation before it delivered its ruling.
The delivery did not come till 6 September, 2018. The Supreme Court held that specific parts of section 377, especially those referring to unnatural offenses and anal sex, which specifically targeted the LGBTQ community, were unconstitutional. However, the court also upheld the portion of section 377 that referred to rape, bestiality, and child molestation. This ruling was in opposition to the ruling delivered under the Suresh Kumar Koushal v. Naz Foundation, where the court upheld all parts of section 377.
The court in Navtej Singh Johar v. Union of India ruled that discrimination based on the sexual acts of consenting adults violated the right to equality as stated in Articles 14 to 18 under the Indian Constitution. In delivering the judgment, Dipak Mira, the former Chief Justice of India, stated that “criminalising carnal intercourse” was “irrational, arbitrary and manifestly unconstitutional.” The courts also recorded that all members of the LGBTQ community were deserving of all the rights available under the constitution.
In its final submission, the Supreme Court tendered an apology to the LGBTQ community for all the state-sanctioned persecution they had suffered over the years and for the judiciary’s delay in addressing the infringement of their rights.
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