Gender Expression, Privacy, Data Protection and Retention
Koushal v. Naz Foundation
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The Supreme Court of India unanimously held that Section 377 of the Indian Penal Code, 1860, which criminalized ‘carnal intercourse against the order of nature’, was unconstitutional in so far as it criminalized consensual sexual conduct between adults of the same sex. The petition, filed by dancer Navtej Singh Johar, challenged Section 377 of the Penal Code on the ground that it violated the constitutional rights to privacy, freedom of expression, equality, human dignity and protection from discrimination. The Court reasoned that discrimination on the basis of sexual orientation was violative of the right to equality, that criminalizing consensual sex between adults in private was violative of the right to privacy, that sexual orientation forms an inherent part of self-identity and denying the same would be violative of the right to life, and that fundamental rights cannot be denied on the ground that they only affect a minuscule section of the population.
The central issue of the case was the constitutional validity of Section 377 of the Indian Penal Code, 1860 (Section 377) insofar as it applied to the consensual sexual conduct of adults of the same sex in private. Section 377 was titled ‘Unnatural Offences’ and stated that “[w]hoever 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 for a term which may extend to ten years, and shall also be liable to [a] fine.”
The issue in the case originated in 2009 when the Delhi High Court, in the case of Naz Foundation v. Govt. of N.C.T. of Delhi, held Section 377 to be unconstitutional, in so far as it pertained to consensual sexual conduct between two adults of the same sex. In 2014, a two-judge bench of the Supreme Court, in the case of Suresh Kumar Koushal v. Naz Foundation, overturned the Delhi HC decision and granted Section 377 “the stamp of approval” [p. 11, para. 9]. When the petition in the present case was filed in 2016 challenging the 2014 decision, a three-judge bench of the Supreme Court opined that a larger bench must answer the issues raised. As a result, a five-judge bench heard the matter.
The Petitioner in the present case, Navtej Singh Johar, a dancer who identified as part of the LGBT community, filed a Writ Petition in the Supreme Court in 2016 seeking recognition of the right to sexuality, right to sexual autonomy and right to choice of a sexual partner to be part of the right to life guaranteed by Art. 21 of the Constitution of India (Constitution). Furthermore, he sought a declaration that Section 377 was unconstitutional. The Petitioner also argued that Section 377 was violative of Art. 14 of the Constitution (Right to Equality Before the Law) because it was vague in the sense that it did not define “carnal intercourse against the order of nature”. [p.25, para 26] There was no intelligible differentia or reasonable classification between natural and unnatural consensual sex. Among other things, the Petitioner further argued that (i) Section 377 was violative of Art. 15 of the Constitution (Protection from Discrimination) since it discriminated on the basis of the sex of a person’s sexual partner, (ii) Section 377 had a “chilling effect” on Article 19 (Freedom of Expression) since it denied the right to express one’s sexual identity through speech and choice of romantic/sexual partner, and (iii) Section 377 violated the right to privacy as it subjected LGBT people to the fear that they would be humiliated or shunned because of “a certain choice or manner of living.” [p. 22, para. 21]
The Respondent in the case was the Union of India. Along with the Petitioner and Respondent, certain non-governmental organizations, religious bodies and other representative bodies also filed applications to intervene in the case.
The Union of India submitted that it left the question of the constitutional validity of Section 377 (as it applied to consenting adults of the same sex) to the “wisdom of the Court”. [p. 270, para. 8] Some interveners argued against the Petitioner, submitting that the right to privacy was not unbridled, that such acts were derogatory to the “constitutional concept of dignity” [p. 32, para. 39], that such acts would increase the prevalence of HIV/AIDS in society, and that declaring Section 377 unconstitutional would be detrimental to the institution of marriage and that it may violate Art. 25 of the Constitution (Freedom of Conscience and Propagation of Religion).
The five-judge bench of the Indian Supreme Court (Court) unanimously held that Section 377 of the Indian Penal Code, 1860 (Section 377), insofar as it applied to consensual sexual conduct between adults in private, was unconstitutional. With this, the Court overruled its decision in Suresh Koushal v. Naz Foundation (( Suresh Koushal v. Naz Foundation, (2014) 1 SCC 1 )) that had upheld the constitutionality of Section 377.
The Court relied upon its decision in National Legal Services Authority v. Union of India (( National Legal Services Authority v. Union of India, (2014) 5 SCC 438 )) to reiterate that gender identity is intrinsic to one’s personality and denying the same would be violative of one’s dignity [p. 156, para. 253(i)]. The Court relied upon its decision in K.S. Puttaswamy v. Union of India (( K.S. Puttaswamy v. Union of India, (2017) 10 SCC 1 )) and held that denying the LGBT community its right to privacy on the ground that they form a minority of the population would be violative of their fundamental rights. It held that Section 377 amounts to an unreasonable restriction on the right to freedom to expression since consensual carnal intercourse in private “does not in any way harm public decency or morality” [p. 165, para. 253(xvi)] and if it continues to be on the statute books, it would cause a chilling effect that would “violate the privacy right under Art. 19(1)(a)” [p. 224, para. 83]. The Court affirmed that that “intimacy between consenting adults of the same sex is beyond the legitimate interests of the state” [p. 142] and sodomy laws violate the right to equality under Art. 14 and Art. 15 of the Constitution by targeting a segment of the population for their sexual orientation. Further, the Court also relied upon its decisions in Shafin Jahan v. Asokan K.M. ((Shafin Jahan v. Asokan K.M., 2018 (5) SCALE 422 )) and Shakti Vahini v. Union of India ((Shakti Vahini v. Union of India, (2018) 7 SCC 192 )) to reaffirm that an adult’s right to “choose a life partner of his/her choice” [p. 72, para. 107] is a facet of individual liberty.
Chief Justice Misra (on behalf of himself and J. Khanwilkar) relied on the principles of transformative constitutionalism and progressive realization of rights to hold that the constitution must guide the society’s transformation from an archaic to a pragmatic society where fundamental rights are fiercely guarded. He further stated, “constitutional morality would prevail over social morality” [p. 79, para. 121] to ensure that human rights of LGBT individuals are protected, regardless of whether such rights have the approval of a majoritarian government.
J. Nariman in his opinion analyzed the legislative history of Section 377 to conclude that since the rationale for Section 377, namely Victorian morality, “has long gone” [p. 239, para. 78] there was no reason for the continuance of the law. He concluded his opinion by imposing an obligation on the Union of India to take all measures to publicize the judgment so as to eliminate the stigma faced by the LGBT community in society. He also directed government and police officials to be sensitized to the plight of the community so as to ensure favorable treatment for them.
J. Chandrachud in his opinion recognized that though Section 377 was facially neutral, its “effect was to efface identities” [p. 328, para. 51] of the LGBT community. He stated that, if Section 377 continues to prevail, the LGBT community will be marginalized from health services and the “prevalence of HIV will exacerbate” [p. 368, para. 90]. He stated that not only must the law not discriminate against same-sex relationships, it must take positive steps to achieve equal protection and to grant the community “equal citizenship in all its manifestations” [p. 270, para. 7].
J. Malhotra affirmed that homosexuality is “not an aberration but a variation of sexuality” [p. 455]. She stated that the right to privacy does not only include the right to be left alone but also extends to “spatial and decisional privacy” [p. 476]. She concluded her opinion by stating that history owes an apology to members of the LGBT community and their families for the delay in providing redress for the ignominy and ostracism that they have suffered through the centuries.
Decision Direction indicates whether the decision expands or contracts expression based on an analysis of the case.
The case expands expression as it holds, inter alia, that sexual orientation forms part of one’s Right to Freedom of Expression and is an integral part of the Right to Privacy.
Global Perspective demonstrates how the court’s decision was influenced by standards from one or many regions.
Case significance refers to how influential the case is and how its significance changes over time.
The decision is historic in nature and holds an extremely high precedential value as it has been decided by a five-judge Constitutional Bench of the Supreme Court of India. It establishes a biding precedent on all courts across India and smaller benches of the Supreme Court.
Considering that the provision struck down was from a colonial-era legislation and similar provisions still exist in some Commonwealth nations (Singapore, Sri Lanka, Malaysia, Pakistan, Ghana etc.) the decision is likely to hold persuasive value in such jurisdictions too.
Let us know if you notice errors or if the case analysis needs revision.