CONSTITUTIONAL MORALITY VERSUS SOCIAL MORALITY: A CRITICAL EXAMINATION IN LIGHT OF NAVTEJ SINGH JOHAR V. UNION OF INDIA

Abstract

The Supreme Court of India’s landmark judgment in Navtej Singh Johar v. Union of India (2018) has decriminalised consensual homosexual sex under Section 377 of the Indian Penal Code, 1860 and, in the process, defined one of the most important doctrinal divisions in Indian constitutional law jurisprudence – namely, the tension between constitutional morality and social morality. In this essay, an analysis is undertaken of the two competing normative theories chronologically and critically. First, the historical background which includes the colonial and post-colonial era which has led to the establishment of the legally conservative framework is explored, followed by an analysis of how social morality developed as a judicially acknowledged standard and its flaws as an oppressive mechanism for the majoritarian majority. Finally, an analysis of constitutional morality is undertaken through the judgment delivered in Navtej Singh Johar along with other precedent decisions and the Court’s reasoning. Subsequently, the argument seeks to highlight the need for legal change by analyzing how practices accepted in Indian society in the past have to give way to changing notions of dignity, equality, and individual liberty. Finally, the paper points out some problems that might be created by legalisation and provides a synthesis of the entire discussion. The paper is based on Indian Constitution and other sources of law and jurisprudence.