Authored By: Akanksha Dubey
Amity University, Lucknow
Abstract
The appeal was filed by five people in Supreme Court against the previous judgement made by the Supreme Court in 2013, in this present case, the constitutionality of Section 377 of the Indian penal code (IPC) which, dealt with “unnatural offences” and made “carnal intercourse against the order of nature” a crime. was challenged and the judgement made in Suresh Kumar Koushal v. Naz Foundation case stated the Section 377 of the IPC constitution was challenged. The present case was referred to the five Judge Bench considering the importance of the issue and the court recognised the violation of fundamental rights of the LGBTQI+( Lesbian, Gay, Bisexual, Transgender, Queer, Intersex,)community and declared Section 377 of the IPC unconstitutional. The court further emphasised that there is no solid foundation for concluding that section 377 IPC violates the provisions of Articles 14, 15, and 21 of the Constitution because fewer than 200 cases have arisen in 150 years.
Introduction
The story of Section 377 of the Indian Penal Code is not just about a law—it’s about the long and difficult fight for dignity, identity, and equality. Introduced in 1860 by the First Law Commission under Thomas Macaulay, the law was borrowed from the British Buggery Act of 1533 and treated consensual same-sex relationships as criminal acts, calling them “against the order of nature.” For over a century, this provision was used to target and marginalize LGBTQ+ individuals in India.
The first legal challenge came in 1994, when the AIDS Bhedbhav Virodhi Andolan (ABVA) filed a petition in the Delhi High Court. Though it was dismissed in 2001, it planted the seeds for a larger movement. In December that same year, the Naz Foundation took up the battle again, filing a public interest litigation seeking the decriminalization of homosexuality. After a long legal struggle, the Delhi High Court finally ruled in 2009 that Section 377 violated fundamental rights. But this progress was abruptly reversed in 2013 when the Supreme Court, in Suresh Kumar Koushal v. Naz Foundation, upheld the constitutionality of Section 377 and set back years of advocacy.
It was against this background that Navtej Singh Johar v. Union of India was filed. This case was not just about law—it was about lives. The petitioners, who identified as LGBTQ+ individuals, challenged the very foundation of Section 377, arguing that it denied them the right to live freely, express themselves, and love without fear. In 2018, the Supreme Court delivered a historic verdict, decriminalizing consensual same-sex relationships and restoring faith in the Constitution’s promise of equality and personal liberty. This case became a turning point in India’s legal and social history, marking a shift from silence and stigma to recognition and respect.
“Change will not come if we wait for some other person or some other time. We are the ones we’ve been waiting for. We are the change that we seek.”
Barack Obama
As a result of Supreme Court’s ruling the rights and recognistaion of LGBTQI+ community has advanced greatly and they constitute LGBTQI+ community under recent case laws and constitution .The Navtej Singh Johar & Ors v. Union of India thr. Secretary Ministry of Law and Justice has been a significant and landmark judgement in the history of India. As stated in Articles 14, 15, 16, 19, and 21 of the Indian Constitution, “enjoyment of life by all citizens and an equal opportunity to flourish as human beings irrespective of their race, caste, religion, community, socioeconomic class, and gender” is the “golden thread” that unites the equality system.
When drafting the Indian Constitution, its creators envisioned a future India that would support a society devoid of prejudice based on factors such as caste, religion, colour, sex, region, etc. They saw India’s future as one in which an equitable society had been built and there were no longer any caste, religious, gender, or regional inequalities, claiming that every individual in India has equal access to opportunities and privileges. But this doesn’t seem to be a reality in the LGBTQI community people. After struggling for their rights the LGBTQI community finally got the recognition and the ability to exercise their fundamental rights in 2018 when Section 377 of IPC was struck down by the Supreme Court and declared unconstitutional.
Facts
In this case, a new writ petition was submitted to the Supreme Court of India contesting the constitutional validity of Section 377 of the Indian Penal Code (IPC). The petition also requested a reassessment of the ruling made in Suresh Kumar Koushal v. Naz Foundation, in which the Court had earlier affirmed the constitutionality of Section 377, asserting that it did not contravene the Constitution. The petitioners claimed that Section 377, insofar as it criminalised consensual sexual activities between adults of the same sex, violated several fundamental rights protected by the Constitution, including the rights to equality, non-discrimination, personal liberty, and privacy as outlined in Articles 14, 15, 19, and 21.
The case was examined by a Constitution Bench consisting of five judges of the Supreme Court. The petitioners, who identified as members and supporters of the LGBTQ+ community, argued that the provision was discriminatory and deprived them of their right to live with dignity, thus infringing upon their fundamental rights. They maintained that their sexual orientation was an intrinsic aspect of their identity and that criminalizing it perpetuated stigma and social exclusion. In September 2018, the Supreme Court issued a landmark ruling that invalidated the enforcement of Section 377 in instances involving consensual same-sex relationships between adults. The Court explicitly overturned the Suresh Kumar Koushal decision, stating that it neglected to take into account the fundamental rights of sexual minorities. The Navtej Singh Johar ruling represented a significant advancement toward equality and justice, signifying a major triumph for LGBTQ+ rights in India and promoting greater societal awareness, legal safeguards, and acknowledgment of the dignity of sexual minorities.
Issues
- Constitutionality of Section 377 of IPC
- Does Section 377 of IPC violate the right to privacy and fundamental rights?
Arguments from Petitioner’s side
- It is not a physical or mental disorder to be homosexual, bisexual, or to have any other kind of sexual attraction. It is a representation of individual preference.
- The morality and social norms of the Victorian era, when sexual activity was viewed solely as a means of reproduction, provide the foundation of Section-377.
- The LGBT community’s basic rights to freedom of expression, privacy, equality, liberty, and dignity are all violated by Section 377.
- Petitioners have also stated that there is no distinction between those who choose a spouse of the same sex and people who choose an interfaith or intercaste marriage.
- The rights of the LGBT community which constitutes 7-8% of the Indian population need to be recognised.
Arguments from the Appelant side
- The family system will be shattered if Section 377 is ruled to be unconstitutional, and many unethical young Indians would start using gay practices as a means of profit.
- Because fundamental rights are not absolute, decriminalising Section 377 would render all of the nation’s practised religions offensive.
- They also said that section 377 should be made clearer by clarifying each word that was controversially used in the clause.
- As one of the goals of criminal law, protecting the public from something dangerous is the primary justification for criminalising carnal relations against the natural world.
- Since sexual orientation is not covered by Article 15’s prohibition on discrimination, Section 377 of the IPC does not infringe on that provision.
Judgement
In the landmark case of Navtej Singh Johar v. Union of India (2018), the Supreme Court of India reversed its earlier ruling , in Suresh Kumar Koushal v. Naz Foundation. The Court declared that the criminalization of consensual sexual acts between adults under Section 377 of the Indian Penal Code was unconstitutional. It determined that this provision infringed upon the fundamental rights enshrined in Articles 14, 15, 19, and 21 of the Constitution, particularly the rights to equality, non-discrimination, freedom of expression, and personal liberty. The judgment underscored that the constitutional rights of individuals cannot be denied. In the significant case of Navtej Singh Johar v. Union of India (2018), the Supreme Court of India reversed its earlier decision in Suresh Kumar Koushal v. Naz Foundation. The Court ruled that the criminalization of consensual sexual acts between adults under Section 377 of the Indian Penal Code was unconstitutional. It found that this provision violated the fundamental rights guaranteed under Articles 14, 15, 19, and 21 of the Constitution, specifically the rights to equality, non-discrimination, freedom of expression, and personal liberty. The judgment highlighted reversed its earlier rulingFRDthat constitutional rights cannot be denied based on an individual’s sexual orientation, regardless of how small or marginalized the LGBT community may be. The right to privacy, which encompasses intimate personal choices, was acknowledged as a fundamental aspect of human dignity and autonomy. The Court affirmed that consensual sexual relations between adults in private do not harm public morals or order and that such expressions of identity are safeguarded under the principles of constitutional morality. While Section 377 was originally enacted to prevent sexual abuse, particularly against women and children, the Court clarified that this objective does not warrant the criminalization of consensual relationships among adults. It was observed that, although this section has been historically misused to intimidate and exploit members of the LGBT community.
Conclusion
The Navtej Singh Johar case represents a pivotal moment not only in legal history but also in the larger discourse surrounding human dignity and personal freedom in India. It showcases a judiciary that is prepared to challenge centuries of bias and to reinterpret the Constitution in a way that resonates with the lived experiences of its citizens. By abolishing the colonial-era remnants of Section 377, the Supreme Court achieved more than merely reinforcing legal principles—it amplified the voices of those who have been marginalized and propelled the nation towards a more compassionate and inclusive future. This ruling serves as a reminder that constitutional values must progress in tandem with societal changes and that justice should be founded not on tradition, but on empathy, equality, and the freedom to love without fear.
