Navtej Singh Johar vs Union Of India Ministry Of Law And Ors: A Jurisprudential Analysis.

Navtej Singh Johar vs Union Of India Ministry Of Law And Ors: A Jurisprudential Analysis.

Author: Siddharth Sen,
3rd Year,
School of Law, Christ (deemed to be University

Navtej Singh Johar vs Union Of India Ministry Of Law And Ors.


The above judgement, was declared at the back drop of massive social discourse regarding the status that was to be given to the members of the LGBTQ community. The above judgement provided for acquiesce to the prospective judicial interpretation as seen over the years. The major contention that one has is justifying the judgment in light of the Jurisprudential understanding of rights.  This analysis aims to justify the proclamation of the court using the ideas promulgated by various philosophers. The question of wether granting of such rights is justified in law, is provided for in this paper, analysing the varying thoughts of the multiplicity of the thinkers, and the rationale provided for by the them.

In the above case, five people from the LGBT community filed a new writ petition in the Supreme Court challenging the constitutionality of Section 377 of the Indian Penal Code. The petitioners claimed that the issues which they raised in their petition were varied and diverse from those raised in the pending curative petition in the 2013 Koushal v. Naz[1] case, in which the Supreme Court had upheld the constitutionality of Section 377. The Naz case was earlier referred to a five-judge bench in order to decide whether the curative petition could be accepted for consideration. Specifically, it happened to be the first case where the petitioners had argued that they had all been directly aggrieved because of Section 377 alleging it to be a direct violation of fundamental rights. This case was in furtherance of the already existing tussle between a spree of peptones filled before the court in various other Public Interest Petitions. The governments abstinence from having any from of action taking any form of action and despite the court agreeing to refrain from dwelling upon the Parliament’s decision.
Decisions and laws involved.
The above case was a landmark judgement passed by the supreme court of India. It paved way for the dawn of a new age in the country allowing for a more liberal outlook to societal behaviour. Rejecting the conservative approach to addressing homosexuality, the Supreme Court of India decriminalised the much contended section 377 of the Indian Penal Code. The ricocheting stance of the Government and the hierarchy of the hierarchy of the courts proved to be a major impedance on the rights of individual belonging to the LGBTQIA+ community. The conjuring of this section dates back to the colonial era of the Indian Penal Code. The very nature of the existence of members of this community was alien to humanity. As times progressed, societal norms were deconstructed, and across the globe, the very stigma behind ones sexual orientation was mitigated. Despite, this trend trickling down to India on a much later stage, the Supreme Court of India in the Case Navtej Singh Johar v union of India, ministry of law and Ors. , decriminalised the impugned provision of law.
The turtle in India has been trifled over for nearly three decades. The spur of the divesting opinions of the Various Judges in a Court, and the governments acceptance of the very rationale of this theory led to a long lasting tussle.
Jurisprudential Justification
Before delving into the Jurisprudential Philosophy of behind the right that exists with citizens, it becomes extremely important to clarify the schools of thought that one needs to address and the contradicting opinion that arises when justifying the acceptance of this community. It is important to point out Bentham’s contribution in the two primary schools of Jurisprudential thought. Bentham famously, drew out the difference between a legal right and a moral right. This distinction becomes extremely important in this commentary, the will theory and the interest theory provide for two very contradicting outcomes in the same situation.
Let us first attempt at justifying the courts decision by using the Bentham understanding of Rights and the theory propounded by him. According to Bentham, all rights required a corresponding duty. No legal right could exists in vacuum. It became imperative to insure that with every right coexisted a corresponding duty. Bentham, further related rights as a societal phenomenon. According to Bentham, Legal right’s were something enforced by law and gave sanction to the justification of societal development. [2]

Bentham’s thoughts are further streamlined in Salmond’s theory of rights. While studying the conception of law, we noticed that Salmond defined the term law as consisting of the rules recognised and acted on by courts of justice. The object of the administration of justice is the maintenance
of safety and security of the people within the state and the object is achieved by the cue of the physical force of the state in enforcing rights and punishing their violation. The term “right” has, therefore, a fundamental legal conception and requires a careful study.
[3] [4]

            At this juncture it becomes imperative to Justify the recent Judgement given by the Supreme Court of India. Despite the judgement having both moral/ natural and legal backing, the objectivity of the court in this instance was something extremely interesting in this case. The petitioners contested in a breach of the right to life of the patrons to this case. Not giving them legal status and criminalising certain normalised human behaviour, incriminated their very existence. This became problematic as they had no way of braking through societal barriers and encumbrances in ones expression became grossly stigmatised. Upon analysing the words of Art. 21 of the Indian constitution, a certain sense of non-discrimination looms over the wordings of the constitution. Gender and sex are evolving societal constructs.[5] above all the Indian Constitution recognises ones Right to life (Art 21)[6] at places it at a very prominent level.

            The Supreme Court recogni
sed the Right to Life of these individuals and the corresponding duty of the state in this instance to provide the petitioners a legal status. The much contended question of law in this case was cleared out. The supreme court further justified their reasoning to a certain moral standard. This Justification is were a certain dichotomy is highlighted in the reasoning given by the Court.

The high court citing the works of poetry and placing the obiter of love and emotions as a deduction, convulses the matter. The addition of such terms such intertwines a certain moral high ground on the recognition of the petitioners. The problem arises in pitting the logical deduction of the two opinions against each other.
As addressed before, the inclusion of the will theory or the natural theory includes a certain divine right and a common understanding between the various members of any particular society. H.L.A Hart contests that all rights are driven by the will of an individual and the acceptance of society to the same right.[7] There is a certain sense of will and recognition thrown into the equation of the genesis of rights on the whole. Here, basing the divine nature of right and the will of ones to access this right, one can question the Supreme Courts decision of Justifying this right on the ground’s of Kelsen’s work. Societys outlook on the entire subject matter at hand is grossly misrepresented in this case. If you analyse the lack of  gross cultural homogeneity, there seems a lapse on the unfair burden the court has recognised. Majority of prevailing customs and religious practices stigmatise any form of homosexual activity. There seems to be a taboo attached to this kind of an analysis on the whole. The court lacked to count for the Moral standard that was present in this case from the very start of the case. Despite the court in this case having a burden, does this societal anomaly have the societal approval? This question remains unanswered. The convolution of the two distinct theory of rights has created an unsound justification behind the same. When it comes to addressing this question of Morality, it becomes important to analyse Dworkin’s Post modernism, where he actuates on the subjective nature of Morality. The inconsistency in the courts decision crystallises further when the second leg on Hart’s theory is analysed.
The Will theory states that having a right involve being in the position to control the performance of a duty. [8] Now, it becomes extremely important to analyse the position of conferring any form of duty with these patron’s. The question that arises is wether these mem
bers are in a position to fulfil certain societal duty’s. Being a legal Person it becomes important on ones behalf to fulfil certain duties entrusted upon one by the state. To a large extent every recognised citizen to fulfil its duty which are entangled with all Right’s in Rem, i.e. the duty to abstain or intervene by abridging ones right. The question comes as to wether these patrons can fulfil societal duties, such as marriage and procreation and wether their legal recognition is in the basic progression of society on the whole. The analysis of this statement becomes extremely important. Despite the petitioners in the case, might have the will to adopt/ marry, structural encumbrances impede their right. It becomes extremely difficult for the state to fulfil these wills at the cost of the inert morality of society on the whole.

The above statement brings out an extremely pertinent contra-distinction in the will theory in itself. The will of a particular citizen comes at what cost? How much importune must the state give to the inert morality of a given society. These questions remain exclusively unanswered. The courts decision to justify the recognition of these rights on the grounds go an intern sense of Morality becomes grossly violative of the inert sense of morality every citizen possess and the functionality of every citizen.
Further, the lack of any further rights prevents members of the LGBT community from fulfilling these rights. This makes it clear that there seems to be no sense of approval from the masses, and societies morality as provided a consensus. The corresponding will of a particles queer cannot be fulfilled as the state hasn’t proved with ay form of mechanism to normalise or regulate sam-sex marriage. This only adds to the unclear position of the LGBTQIA+ community and created a lack of any form of clarity in the entire moral justifying.
To state that the courts judgement is wrong becomes extremely unfair on any citizens behalf. But to criticise the rationale behind the justification given by the court becomes the practice of free speech. In this case it is clear as to how the supreme court of India has failed in accurately justifying the decision taken by them. A sound Jurisprudential justification behind the courts judgement becomes extremely important as it results in a sense of oblivion. Therefore, it is safe to conclude that in certain cases there needs to be no moral grounds for any particular right and the mere positivist approach holds valid as it gives scope for clarification. The moral intrinsic value of a said right only aggravates the decent. Morality can be used as a secondary deterrent in certain cases and a simple justification on basing rights as they are seems to be a far more logical deduction. This begs to question the sanctity of the above judgement and its implications in the long run. Despite India being a country primarily driven by the laws of precedence it becomes extremely important to see as to how the country decisions are upheld by society. In a survey conducted by the Centre for the Study of Developing Societies and Konrad-Adenauer-Stiftung, only 25% of Indian youth approved of a homosexual relationship in April 2017.  This shows the thought process of the Youth and the need for sound justification to convince the future generations. Sound reasoning can only formalise a creation decision. Arguing on the basis of Dworkin’s  natural law; Dworkin pushes forth the Idea of absolutism of law in the hands of the Judges; the final implications of the law lying in the hands of a judge becomes extremely important to understand as India is governed by a Realistic school of thought.[9] This furthermore cals for a far more uniform, crystallised Jurispru
dential arguments

[1] CIVIL APPEAL NO.10979 OF 2013

[2] P. Fitzgerald, Salmond on Jurisprudence, 4th edition, pg 217.

[3] P. Fitzgerald, Salmond on Jurisprudence, 4th edition, pg 219.

[4] Geoffrey C. Shaw,H. L. A. Hart’s Lost Essay: “Discretion” And The Legal Process School,Harvard Law Review, Vol. 127, No. 2 (December 2013), Pp. 666-727

Lindsey, Linda L. (2015). “The sociology of gender” (PDF). Gender roles: a sociological perspective. Boston: Pearson. p. 4.

[6] Indian Constitution, 1950

[7] Graham, Paul. “The Will Theory of Rights: A Defence.” Law and Philosophy 15, no. 3 (1996): 257-70.

[8] Hart, Essays on Bentham, pg 168

[9] Ronald Dworkin, Is democracy possible here?, Princeton University press, 2008.

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