Authored By: Kasturi Ghosh
Sister Nivedita University, Kolkata
Case Name: Navtej Singh Johar & Ors. v. Union of India thr. Secretary, Ministry of Law and Justice
Citation: AIR 2018 SC 4321; (2018) 10 SCC 1; Writ Petition (Criminal) No. 76 of 2016
Court: Supreme Court of India (Constitution Bench)
Date of Decision: 6th September, 2018
Bench: Chief Justice of India, Dipak Misra (for himself and Justice A.M. Khanwilkar); Justice R.F. Nariman; Justice D.Y. Chandrachud; and Justice Indu Malhotra (four separate opinions)
- Introduction
Navtej Singh Johar v. Union of India is a landmark constitutional judgment delivered by the Supreme Court of India in 2018. In this case, the Court decriminalised consensual sexual relations between adults in private, including same-sex relationships, by reading down Section 377 of the Indian Penal Code, 1860 (“IPC”). Section 377, a colonial-era law, criminalised “carnal intercourse against the order of nature” and was often used to target and discriminate against members of the LGBTQ+ community. Notably, this provision has not been included in the Bharatiya Nyaya Sanhita, 2023 (“BNS”), which is currently in force.
The case is important because a five-judge Constitution Bench reconsidered the earlier decision in Suresh Kumar Kaushal & Anr. v. Naz Foundation & Others, which had upheld the validity of Section 377. By recognising that sexual orientation is protected under the constitutional rights to equality, dignity, privacy, and personal liberty, the Supreme Court strengthened the protection of fundamental rights. Today, the judgment is regarded as one of the most significant decisions on individual autonomy and constitutional rights in India.
- Facts of the Case
Section 377 of the Indian Penal Code, introduced in 1860 during British rule, made “carnal intercourse against the order of nature” a criminal offence punishable with imprisonment, which could extend to life. Although the wording of the section did not specifically mention homosexuality, it was mainly used to criminalise consensual same-sex relationships. As a result, many members of the LGBTQ+ community faced criminal prosecution, discrimination, harassment, and social stigma because of their sexual orientation.
The constitutional validity of Section 377 was first challenged in Naz Foundation v. Government of NCT of Delhi & Others. In this case, the Delhi High Court held that the provision, to the extent that it criminalised consensual sexual acts between adults in private, violated Articles 14, 15, and 21 of the Indian Constitution. However, this decision was overturned by the Supreme Court in Suresh Kumar Kaushal & Anr. v. Naz Foundation & Others, where a two-judge Bench upheld Section 377. The Supreme Court observed that the LGBTQ+ community formed only a “minuscule minority” and left it to the legislature to decide whether the law should be changed.
In 2016, five individuals from the LGBTQ+ community — dancer Navtej Singh Johar, journalist Sunil Mehra, restaurateur Ritu Dalmia, hotelier Aman Nath, and hotelier Keshav Suri, together with businesswoman Ayesha Kapur—filed a writ petition under Article 32 of the Constitution before the Supreme Court. They argued that Section 377 violated their fundamental rights to equality, dignity, privacy, and personal liberty. Their petition gained strength after the Supreme Court’s decision in Justice K.S. Puttaswamy v. Union of India, which recognised the right to privacy as a fundamental right and indicated that the reasoning in Suresh Kumar Kaushal required reconsideration. In January 2018, a three-judge Bench referred the matter to a five-judge Constitution Bench, stating that issues involving fundamental rights must be decided on the basis of constitutional morality rather than public opinion. After hearing the parties, the Constitution Bench delivered its judgment on 6th September, 2018.
- Legal Issues
The main legal issues before the Supreme Court were:
a) Issue 1: Whether Section 377 of the IPC, which criminalised consensual same-sex relations between adults in private, violated the fundamental rights guaranteed under Articles 14, 15, 19, and 21 of the Indian Constitution?
b) Issue 2: Whether the earlier judgment in Suresh Kumar Kaushal & Anr. v. Naz Foundation & Others, which upheld the validity of Section 377, should be reconsidered in light of the Supreme Court’s decision in Justice K.S. Puttaswamy v. Union of India, which recognised the right to privacy as a fundamental right?
c) Issue 3: Whether sexual orientation is an inherent part of a person’s identity and therefore deserves protection under the constitutional rights to equality, non-discrimination, dignity, and personal liberty?
4. Arguments Presented
Petitioner’s Argument
The petitioners argued that Section 377 of the IPC violated Article 14 because it unfairly discriminated against consenting adults in same-sex relationships without any reasonable basis. They relied on the Supreme Court’s decision in Justice K.S. Puttaswamy v. Union of India, which recognised that privacy, dignity, and sexual orientation are protected under Article 21. They also referred to National Legal Services Authority (NALSA) v. Union of India, where the Court held that gender identity and self-expression are important aspects of personal autonomy.
The petitioners further submitted that Section 377 violated Article 15 because it discriminated on the basis of sex, Article 19(1)(a) because it restricted the freedom to express one’s identity, and Article 21 because it criminalised private and consensual sexual acts between adults that did not harm anyone. They also argued that the Supreme Court’s earlier decision in Suresh Kumar Kaushal & Anr. v. Naz Foundation & Others was incorrect because it gave more importance to public perception than to constitutional morality.
Respondent’s Argument
The Union of India did not take a definite stand on the constitutional validity of Section 377 in relation to consensual sexual acts between adults and left the issue to the Supreme Court to decide. However, it supported keeping the provision in force for non-consensual sexual acts, offences involving minors, and bestiality.
Some intervenors opposed the petition and argued that decriminalising same-sex relationships would weaken the institution of marriage and family, increase the spread of communicable diseases, and be against Indian social and cultural values. They relied on the earlier decision in Suresh Kumar Kaushal & Anr. v. Naz Foundation & Others and submitted that any change to Section 377 should be made by Parliament and not by the courts.
- Court’s Reasoning And Analysis
The Supreme Court unanimously held that constitutional morality, and not public opinion or the views of the majority, should guide the interpretation of fundamental rights, especially when the rights of minorities are involved.
Chief Justice Dipak Misra, writing for himself and Justice A.M. Khanwilkar, held that Section 377 was unconstitutional to the extent that it criminalised consensual sexual acts between adults. The Court found that the provision was arbitrary and violated Article 14 because it punished private conduct without any legitimate state purpose. It also held that discrimination based on sexual orientation is a form of discrimination on the “ground of sex” and is therefore prohibited under Article 15.
Justice R.F. Nariman observed that Section 377 was based on outdated Victorian moral values introduced during British rule, which were inconsistent with the values of the Indian Constitution. He held that the law failed the test of proportionality because it imposed unnecessary restrictions on the rights of LGBTQ+ persons without a valid justification. He also directed that the judgment should be widely publicised to help reduce social stigma.
Justice D.Y. Chandrachud emphasised that the right to choose one’s partner is an essential part of privacy, dignity, and personal liberty under Article 21. Referring to Justice K.S. Puttaswamy v. Union of India, he held that Section 377 violated the autonomy and identity of LGBTQ+ individuals by criminalising their private relationships.
Justice Indu Malhotra stated that history owed an apology to the LGBTQ+ community for the discrimination they had suffered over the years. She held that sexual orientation is an inherent part of a person’s identity and that denying legal recognition to it violates the right to live with dignity under Article 21.
All four opinions agreed that the reasoning adopted in Suresh Kumar Kaushal & Anr. v. Naz Foundation & Others, which described the LGBTQ+ community as a “minuscule minority,” was incorrect. The Court held that fundamental rights cannot be denied simply because they affect a small section of society. As a result, the earlier decision in Suresh Kumar Kaushal was overruled to that extent.
- Judgement And Ratio Decendi
The Decision
The Supreme Court unanimously held that Section 377 of the IPC was unconstitutional to the extent that it criminalised consensual sexual relations between adults of the same sex in private. The Court ruled that this violated the fundamental rights guaranteed under Articles 14, 15, 19, and 21 of the Indian Constitution.
However, the Court clarified that Section 377 would continue to apply to non-consensual sexual acts, offences involving minors, and bestiality. It also overruled the earlier decision in Suresh Kumar Kaushal & Anr. v. Naz Foundation & Others insofar as it upheld the criminalisation of consensual same-sex relationships between adults. In addition, the Court directed that the judgment should be widely publicised and asked the authorities to sensitise police officers and public officials to prevent discrimination and harassment of LGBTQ+ persons.
Ratio Decendi
Consensual same-sex relationships between adults in private are protected by the constitutional rights to equality, dignity, personal liberty, and non-discrimination. The Supreme Court held that such relationships cannot be treated as criminal simply because they do not conform to the views of the majority. It emphasised that constitutional morality must take precedence over popular or social morality while protecting the rights of minorities.
- Critical Analysis
Significance of the Decision
The judgment is regarded as one of the most important decisions on individual liberty in Indian constitutional law. It made it clear that the rights of individuals cannot be restricted simply because they do not reflect the views of the majority. Building on the principles laid down in Justice K.S. Puttaswamy v. Union of India, the Court recognised that the right to privacy also protects a person’s sexual orientation and dignity. The decision also brought Indian constitutional law in line with international developments, including the ruling in Lawrence v. Texas.
Implications and Impact
The judgment allowed LGBTQ+ persons to live openly without the fear of being prosecuted for consensual same-sex relationships. It also became an important legal foundation for later cases involving marriage equality, adoption, and workplace rights, including the Supreme Court’s decision in Supriyo@Supriya Chakraborty & Anr. v. Union of India. High Courts have also relied on this judgment in cases protecting same-sex couples from harassment, such as S. Sushma v. Commissioner of Police & Ors.
Despite its significance, many legal rights for same-sex couples, including marriage, inheritance, and adoption, have still not been recognised through legislation. As a result, the full impact of the judgment remains limited. In recent years, the government has also questioned the scope of the decision in some cases, showing that the legal debate on LGBTQ+ rights is still continuing.
Critical Evaluation
One of the biggest strengths of the judgment is that all four judges gave separate opinions, each explaining the decision from a different constitutional perspective, such as equality, non-discrimination, privacy, dignity, and arbitrariness. Together, these opinions made the judgment stronger and more comprehensive.
However, the Court limited its decision to decriminalising consensual same-sex relationships and did not decide issues relating to marriage, adoption, inheritance, or other family rights. These questions were left to be addressed in future cases or through legislation. Some critics have also pointed out that although the judgment strongly affirmed the rights of LGBTQ+ persons, it did not provide specific legal or institutional measures to prevent police harassment and discrimination, relying mainly on constitutional principles rather than enforceable safeguards.
- Conclusion
Navtej Singh Johar v. Union of India is a landmark judgment that decriminalised consensual same-sex relations between adults in private by declaring Section 377 of the IPC unconstitutional to that extent. The Supreme Court also overruled the earlier reasoning in Suresh Kumar Kaushal & Anr. v. Naz Foundation & Others, which had described the LGBTQ+ community as a “minuscule minority”.
The most important principle laid down in this case is that constitutional morality must prevail over public or majoritarian opinion when protecting fundamental rights. The judgment firmly recognised that sexual orientation is protected under the constitutional rights to equality, dignity, privacy, and personal liberty, building on the principles established in Justice K.S. Puttaswamy v. Union of India.
Although the decision was a major step forward for LGBTQ+ rights in India, important issues such as marriage equality, adoption, inheritance, and other civil rights remain unresolved and continue to be debated before the courts and the legislature. Even so, the judgment remains a landmark in Indian constitutional law and continues to shape the development of LGBTQ+ rights in the country.
- Reference(S):
- Navtej Singh Johar & Ors. v. Union of India thr. Secretary, Ministry of Law and Justice, AIR 2018 SC 4321; (2018) 10 SCC 1.
- Suresh Kumar Kaushal & Anr. v. Naz Foundation & Others, (2013) 1 SCC 1.
- Naz Foundation v. Government of NCT of Delhi & Others, 160 (2009) DLT 277.
- Justice K.S. Puttaswamy (Retd.) v. Union of India, (2017) 10 SCC 1.
- National Legal Services Authority (NALSA) v. Union of India, (2014) 5 SCC 438.
- Sushma v. Commissioner of Police & Ors. , (2021) SCC OnLine Mad 2059.
- Supriyo@Supriya Chakraborty & Anr. v. Union of India, (2023) SCC OnLine SC 1348.
- Lawrence v. Texas, 539 U.S. 558 (2003).
- The Indian Penal Code, 1860, § 377.
- The Bharatiya Nyaya Sanhita, 2023.
- The Constitution of India, articles 14, 15, 19, 21, 32.
