Transformative constitutionalism is a doctrine that allows constitutional interpretation to evolve in tandem with societal progress, particularly in advancing human rights and freedoms. In the Indian context, this principle has been instrumental in shaping the judiciary's approach to expanding individual rights. A landmark instance of this is the decision in Navtej Singh Johar v. Union of India (2018) 10 SCC 1, where the Supreme Court of India decriminalized consensual same-sex relationships by reading down Section 377 of the Indian Penal Code, 1860 (IPC).

This article offers a detailed examination of transformative constitutionalism through the lens of the Navtej Singh Johar case, focusing on the interpretation of Articles 14, 15, 19, and 21 of the Indian Constitution. The article further highlights significant case law that has influenced this progressive approach and explores the role of the judiciary in enforcing constitutional values, even when they conflict with societal norms.

Introduction
The concept of transformative constitutionalism envisions a Constitution that adapts to the changing realities of society, allowing for the progressive realization of rights. In India, the judiciary has embraced this doctrine by interpreting the Constitution not as a static legal text, but as a dynamic framework meant to foster social justice and equality.

This idea was brought to the forefront in Navtej Singh Johar v. Union of India, where the Supreme Court held that Section 377 IPC, which criminalized same-sex relationships, was unconstitutional insofar as it penalized consensual relationships between adults.Transformative constitutionalism, as applied in the Navtej Singh Johar case, reflects the judiciary's role in dismantling archaic legal provisions that no longer serve a just purpose.

The judgment emphasizes the judiciary's duty to uphold constitutional values such as equality, liberty, and dignity, even when such interpretations challenge entrenched societal prejudices. By focusing on the decriminalization of homosexuality, this article discusses how the judiciary has reinterpreted key constitutional provisions to bring about social transformation.

Relevant Constitutional Provisions
Several provisions in the Indian Constitution form the bedrock of transformative constitutionalism. In Navtej Singh Johar, the Supreme Court relied heavily on Articles 14, 15, 19, and 21 to arrive at its decision, reshaping the constitutional landscape to accommodate the rights of the LGBTQIA+ community.

Article 14: Right to Equality
Article 14 of the Indian Constitution guarantees equality before the law and the equal protection of the laws. The Supreme Court held that Section 377, by criminalizing a specific group based on their sexual orientation, violated Article 14. It was observed that the statute failed the test of reasonable classification, as it targeted consensual same-sex acts without a legitimate state objective.

Article 15: Prohibition of Discrimination
Article 15 prohibits discrimination on various grounds, including "sex." The court in Navtej Singh Johar interpreted the term "sex" broadly, extending it to encompass "sexual orientation." By doing so, the court made it clear that discrimination on the basis of sexual orientation is constitutionally impermissible.

Article 19: Freedom of Expression
Article 19(1)(a) guarantees the right to freedom of speech and expression. The court recognized that an individual's sexual orientation is an essential facet of their identity, and criminalizing consensual same-sex relationships would infringe on this freedom. The ruling underscored that sexual orientation, as an expression of identity, cannot be stifled under a law that was rooted in colonial-era moral beliefs.

Article 21: Right to Life and Personal Liberty
Article 21 guarantees the right to life and personal liberty, which has been expansively interpreted to include the right to dignity and privacy. In Navtej Singh Johar, the court built on the privacy jurisprudence established in Justice K.S. Puttaswamy v. Union of India (2017) 10 SCC 1, where the right to privacy was deemed an intrinsic part of individual liberty. The court held that Section 377 was a direct affront to the dignity and privacy of LGBTQIA+ individuals, thus violating Article 21.

The Judicial Shift: From Suresh Kumar Koushal to Navtej Singh Johar
The journey towards decriminalizing homosexuality in India was fraught with judicial setbacks, the most notable being the Suresh Kumar Koushal v. Naz Foundation (2014) 1 SCC 1 decision, where the Supreme Court upheld the constitutionality of Section 377, overturning the Delhi High Court's earlier verdict that had decriminalized consensual same-sex acts. The reasoning in Koushal was heavily criticized for its failure to recognize the evolving understanding of individual rights, particularly with respect to the LGBTQIA+ community.

The turning point came in Navtej Singh Johar, where a five-judge Constitution Bench rejected the reasoning in Koushal. The court decisively moved towards a more inclusive interpretation of constitutional rights, embracing the doctrine of transformative constitutionalism. The judges acknowledged that societal morality, rooted in majoritarian values, cannot dictate constitutional interpretation, particularly when it infringes upon individual freedoms.

Notable Case Laws Shaping Transformative Constitutionalism
The doctrine of transformative constitutionalism in Navtej Singh Johar was not formulated in isolation; it drew upon several landmark judgments that progressively expanded the scope of constitutional rights.

Justice K.S. Puttaswamy (Retd.) v. Union of India (2017) 10 SCC 1
This case, commonly referred to as the Privacy judgment, laid the foundation for the recognition of individual privacy as a fundamental right under Article 21. The court in Navtej Singh Johar extensively cited Puttaswamy, emphasizing that the right to privacy includes the right to make personal decisions regarding intimate relationships, free from state interference.

Nalsa v. Union of India (2014) 5 SCC 438
In Nalsa, the Supreme Court recognized the rights of transgender persons, declaring that they are entitled to the same rights as all other citizens under the Constitution. The court's emphasis on dignity and non-discrimination in Nalsa set a precedent for the broader recognition of rights for sexual minorities in Navtej Singh Johar.

Shafin Jahan v. Asokan K.M. (2018) 16 SCC 368
In this case, the Supreme Court upheld the right of individuals to choose their partners, reaffirming that personal autonomy is a key component of Article 21. This judgment was pivotal in Navtej Singh Johar, where the court reiterated that personal choices, especially in matters of love and sexuality, are intrinsic to individual liberty.

Anuj Garg v. Hotel Association of India (2008) 3 SCC 1
The court in Anuj Garg struck down a discriminatory law that prohibited women from working in establishments serving alcohol. The judgment underscored the necessity of interpreting the Constitution in a manner that promotes substantive equality, a principle that the court applied in Navtej Singh Johar to dismantle discriminatory norms surrounding sexuality.

Constitutional Morality and the Role of the Judiciary
The concept of constitutional morality played a crucial role in the court's reasoning in Navtej Singh Johar. Constitutional morality requires adherence to constitutional values, irrespective of popular opinion or majoritarian morality. In his concurring opinion, Justice D.Y. Chandrachud emphasized that the judiciary must act as a sentinel of constitutional rights, particularly when societal prejudices infringe upon the liberties of minority groups. He noted that societal morality, shaped by transient and often regressive views, cannot override the constitutional guarantee of fundamental rights.

The judgment also highlighted the role of the judiciary in actively engaging with the Constitution to ensure that marginalized communities are protected from unjust laws. By invoking constitutional morality, the court asserted that its primary duty is to uphold the Constitution and its values, even when those values conflict with societal norms.

Conclusion
The Navtej Singh Johar judgment stands as a testament to the Indian judiciary's commitment to transformative constitutionalism. By striking down Section 377, the Supreme Court not only recognized the rights of LGBTQIA+ individuals but also reaffirmed the Constitution's role as a living document that must evolve with societal progress. The judgment highlights the importance of the judiciary in interpreting the Constitution to reflect contemporary values of equality, dignity, and liberty.

This decision marks a crucial step forward in the quest for social justice in India, reminding us that the Constitution is not merely a set of rules but a vehicle for transformation. As India continues to grapple with issues of individual rights and societal norms, the doctrine of transformative constitutionalism will remain a guiding principle in the protection of fundamental rights and the pursuit of equality.

References:

• Navtej Singh Johar v. Union of India (2018) 10 SCC 1
• Suresh Kumar Koushal v. Naz Foundation (2014) 1 SCC 1
• Justice K.S. Puttaswamy (Retd.) v. Union of India (2017) 10 SCC 1
• Nalsa v. Union of India (2014) 5 SCC 438
• Shafin Jahan v. Asokan K.M. (2018) 16 SCC 368
• Anuj Garg v. Hotel Association of India (2008) 3 SCC 1
• Indian Penal Code, 1860, Section 377
• Constitution of India, Articles 14, 15, 19, and 21