NAVTEJ SINGH JOHAR

FACTS OF THE CASE 

The primary issue of this case was the constitutional validity of Section 377 of the Indian Penal  Code,1860. Section 377 was titled as “unnatural offences” which states, “Whoever voluntarily has carnal intercourse against the order of nature with any man, woman or animal, shall be  punished with, or with imprisonment of either description for a team which may extend to ten  years, and shall also be liable to fine”.  

This issue was originated in 2009, in the Naz Foundation v. Government of NCT of Delhi, 2010 Cr LJ 94 Del. (DB), wherein the Delhi High Court held Section 377 as unconstitutional,  as it treats the LGBT community unfairly and is violation of their privacy. This decision was  overruled in Suresh Kumar Koushal Anr v. Naz Foundation, AIR 2014 SC 563 the Supreme  Court held that Section 377 is constitutional and said that only a small number of people are  from LGBT community therefore it does not affect a large part of the society. It further stated  that amending law was a matter of legislation. 

When this petition was filed in 2016 challenging the 2014 decision, the three judge-bench  expressed their opinion that a larger bench should deal with the issue raised and there were also  curative petitions pending for larger bench. As a result, five judge bench heard the matter. 

The Petitioner in the present case, Navtej Singh Johar, a dancer and a member of LGBT  community filed the writ petition in the Supreme Court of India, declaring Section 377 as  unconstitutional and seeking recognition of the rights to sexuality, right to sexual autonomy  and right to choice of a sexual partner under Right to Life guaranteed by Article 21 of  Constitution of India. The petitioner further stated that Section 377 was violative of : 

Article 14- Right to Equality 

Article 15(1)- The State shall not discriminate against any citizen on grounds only of religion,  race, caste, sex, place of birth or any of them. 

Article 19(1)(a)- Right to Freedom- Right to express gender identity 

ISSUES RAISED 

1. Whether Section 377 violates the fundamental right to expression under Article 19(1)(a)  by criminalizing the gender expression of persons belonging to the LGBTQI+  community? 
2. Was the rationale of the Supreme Court judgement in the Suresh Kaushal case sound in  its understanding of morality as social morality? 
3. Whether Section 377 violates Article 14 and 15 by allowing discrimination on the basis  of “sexual orientation” and “gender identity”?
4. Whether Section 377 violates right to autonomy and dignity under Article 21 by  penalizing private consensual acts between same-sex persons? 

ARGUMENTS BY PETITIONER 

Homosexuality, bisexuality and other sexual orientation are equally natural and are reflection  of consent given by two persons who are competent to give their consent in the eyes of law. It  is neither physical nor a mental illness and criminalising sexual orientation is a violation of  concept of individual dignity and decisional autonomy inherent in the personality of a person.  It creates discomfort regarding gender identity, violation of right to privacy which is the  fundamental element under Article 21 of the Constitution of India. It affects the growth of  personality, relation building such as entering in live-in-relationship or forming association  with a shared interests has become difficult, including right to choose sexual partner this  violates Article 19(1)(a) of Constitution of India. 

LGBT Community comprises of 7-8% of India’s population and their rights needs to be  recognised and protected. They cannot be abused, discriminated or treated as an alien just  because they are less in number. Hence, they need more protection than the majority in order  to live freely. This argument of Section 377 being unconstitutional and discriminating the  LGBT Community people based on their sexual orientation was supported by Justice K.S. Puttaswamy v. Union of India, (2019) 1 SCC 1 in which this is the essential aspect of privacy.  Further, it lays down that sexual orientation and privacy are the core element of fundamental  right that are guaranteed under Article 14, 19 and 21. 

Section 377 is violative of Article 14 due to lack of intelligible differentia or reasonable  classification between the natural and unnatural sex. These terms are neither defined in section  or in any statute, this makes its meaning vague. 

Article 15 prohibits the discrimination on grounds of sex and therefore is being violated here  since the section is discriminatory towards the sex of the sexual partner of the person. 

Even though there are rights for us that were laid in National Legal Services Authority v.  Union of India, AIR 2014 SC 1863, still their consensual are activities are treated as offence. 

ARGUMENTS BY RESPONDENTS  

It was argued by the Respondents that Right to Privacy under Article 21 is subject to restriction  and it cannot be misused. There are sufficient rights that are given to the community in NALSA 

Union of India, AIR 2014 SC 1863 and the reliefs asked by the Petitioner are mere abuse  to privacy and personal liberty breaching the concept of morality. 

It was argued that people who practice unnatural sex that is punishable under Section 377 of  Indian Penal Code have high chances of contracting HIV and AIDS. Homosexual persons have  more chances of getting HIV and AIDS than heterosexual persons. Hence, the right to privacy  must not be extended where there is potential harm to their own self. If Section 377 is declared  as unconstitutional than it will disturb the established institution such as family and marriage. 

It was further stated that Article 15 no where mentions the prohibition on discrimination on  sexual orientation but it prohibits discrimination based on sex. 

JUDGEMENT 

The Supreme Court unanimously held Section 377 of Indian Penal Code as unconstitutional  applies to consensual same-sex between adults by striking it down. However, non-consensual  acts with man, women and any sexual act with animal against the “order of nature” is still  criminalised. The Court partially strike down Section 377 and the bench overruled the decision  of Suresh Kumar Koushal Anr v. Naz Foundation, AIR 2014 SC 563. The Court also stated  no matter how minuscule minority rationale LGBT community has, yet they have the right to  privacy and sexual orientation. The Court also declared that to some extent it violates Article,  14, 15(1), 19(1)(a) and 21 of the Constitution of India. The Supreme Court held that different  treatment given based on sexual orientation violated Article 14 of Constitution of India. It also  recognised that “sex” under Article 15(1) is not limited to biological attributes but sexual  orientation also, for this reference to NALSA vs Union of India,AIR 2014 SC 1863 was made.  It also stated that LGBT community is a sexual minority and are entitled to seek protection  under Article 15 of Constitution of India. The Court found that Section 377 violates the Article  21 that covers Right of dignity, identity and privacy of LGBT community members. Justice  Rohington Nariman found that it also violated right to health has due to stereotype they are  unable to seek medical health which increases the risk of sexually transmitted diseases. 

RATIO-DECIDENDI 

It overruled the judgement of Suresh Kumar Koushal Anr v. Naz Foundation, AIR 2014 SC  563. 

It stated that Section 377 covered bestiality and non-consensual sex.

It stated that Section 377 does violates Article 14, 15(1), 19(1)(a) and 21 of Constitution of  India. 

Whie giving judgement the court mostly referred three cases: 

1. Suresh Kumar Koushal Anr. v. Union of India, AIR 2014 SC 563. 
2. NALA vs Union of India, AIR 2014 SC 1863 
3. K. S. Puttaswamy vs Union of India, (2019) 1 SCC 1 

CONCLUSION 

This landmark judgement was a reflection of the progressive transformation of the Constitution  with the change of time also known as “Transformative Constitutionalism”. This case  recognises LGBT community and gave us an understanding that sexual orientation is not any  kind of illness or diseases. The decision of the Supreme Court had a strong impact on India’s  religious & belief system. The judgement held Section 377 of the Indian Penal Code  unconstitutional. This decision was a win for the activists and organization who fought for the  rights of LGBT community and reduced the level of discrimination in the society. This ruling  had a deep psychological effect on people of LGBT community, as now they can live their live  freely without any fear. This judgement also had a positive impact on society’s attitude towards  LGBT community.

REFERENCE(S): 

1. Case comment: Navtej Singh Johar and Ors V. Union of India, ACADEMIKE (2024),  https://www.lawctopus.com/academike/case-comment-navtej-singh-johar-and-ors-v union-of-india/ (last visited Oct 22, 2025).  
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