NAVTEJ SINGH JOHAR V. UNION OF INDIA, AIR 2018 SC 4321

Case Name: Navtej Singh Johar v. Union of India
Citation: AIR 2018 SC 4321; 2018 Cri LJ 4754 (SC)
Court: Supreme Court of India
Petitioners: Navtej Singh Johar, Ritu Dalmia, Ayesha Kapur, Aman Nath
Respondent: Ministry of Health
Bench: Chief Justice Dipak Mishra, Justice Rohinton Fali Nariman, Justice D.Y. Chandrachud, Justice A.M. Khanwilkar, Justice Indu Malhotra
Date of Judgment: September 6, 2018

I. Facts of the Case

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

This constitutional challenge originated in 2009 with Naz Foundation v. Government of NCT of Delhi,[1] wherein the Delhi High Court held Section 377 unconstitutional on the grounds that it treated the LGBT community unfairly and violated their right to privacy. This progressive decision was subsequently overruled by the Supreme Court in Suresh Kumar Koushal and Another v. Naz Foundation,[2] where a two-judge bench held that Section 377 was constitutional. The Court reasoned that only a small number of people belonged to the LGBT community and therefore the provision did not affect a large part of society. It further stated that amending the law was a matter for the legislature, not the judiciary.

When the present petition was filed in 2016 challenging the 2014 decision, a three-judge bench expressed the opinion that a larger bench should adjudicate the issues raised, particularly given the pending curative petitions. Consequently, a Constitution Bench of five judges was constituted to hear the matter.

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

Article 14: Right to Equality
Article 15(1): Prohibition against discrimination on grounds of religion, race, caste, sex, or place of birth
Article 19(1)(a): Right to Freedom of Expression, including the right to express gender identity
Article 21: Right to Life and Personal Liberty

II. Issues Raised

The Constitution Bench framed the following issues for determination:

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. Whether the rationale of the Supreme Court’s judgment in Suresh Kumar Koushal was sound in its understanding of morality as constitutional morality versus social morality?

3. Whether Section 377 violates Articles 14 and 15 by permitting discrimination on the basis of sexual orientation and gender identity?

4. Whether Section 377 violates the right to autonomy and dignity under Article 21 by penalizing private consensual acts between same-sex adults?

III. Arguments Advanced by the Petitioners

The petitioners contended that homosexuality, bisexuality, and other sexual orientations are natural variations of human sexuality and represent consensual relationships between competent adults. They argued that sexual orientation is neither a physical nor mental illness, and that criminalizing it constitutes a violation of individual dignity and decisional autonomy inherent in personhood.

The petitioners further argued that Section 377 creates discomfort regarding gender identity and violates the right to privacy, which is a fundamental element of Article 21 of the Constitution.[3] They contended that the provision adversely affects personality development, relationship building—including the ability to enter into live-in relationships or form associations based on shared interests—and the right to choose one’s sexual partner. This, they argued, violates Article 19(1)(a) of the Constitution.

The petitioners emphasized that the LGBT community comprises a significant portion of India’s population and that their rights need recognition and protection. They cannot be abused, discriminated against, or treated as outsiders merely because they constitute a numerical minority. Indeed, they argued, minorities require greater protection to live freely and with dignity.

The petitioners’ argument was bolstered by the Supreme Court’s decision in Justice K.S. Puttaswamy v. Union of India,[4] which recognized privacy as a fundamental right and held that sexual orientation is an essential aspect of privacy. The Puttaswamy judgment established that sexual orientation and privacy are core elements of fundamental rights guaranteed under Articles 14, 19, and 21.

The petitioners contended that Section 377 violates Article 14 due to the lack of intelligible differentia or reasonable classification between “natural” and “unnatural” sex. These terms are neither defined in the section nor in any other statute, rendering the provision unconstitutionally vague.

Regarding Article 15, the petitioners argued that the provision prohibits discrimination on grounds of “sex” and is therefore violated by Section 377, which discriminates based on the sex of one’s sexual partner.

Finally, the petitioners noted that despite the rights recognized in National Legal Services Authority v. Union of India,[5] their consensual activities continued to be treated as criminal offenses under Section 377.

IV. Arguments Advanced by the Respondents

The respondents argued that the right to privacy under Article 21 is subject to reasonable restrictions and cannot be misused. They contended that sufficient rights had already been granted to the LGBT community in NALSA v. Union of India,[6] and that the reliefs sought by the petitioners constituted an abuse of privacy and personal liberty, breaching constitutional morality.

The respondents further argued that persons engaging in acts punishable under Section 377 have higher chances of contracting HIV and AIDS. They contended that homosexual persons face greater risk of HIV and AIDS transmission than heterosexual persons, and therefore the right to privacy should not be extended where there is potential harm to individuals themselves.

The respondents also contended that declaring Section 377 unconstitutional would disturb established institutions such as family and marriage.

Additionally, the respondents argued that Article 15 does not explicitly mention prohibition of discrimination based on sexual orientation, but only prohibits discrimination based on “sex.”

V. Judgment

The Supreme Court unanimously held that Section 377 of the Indian Penal Code, insofar as it criminalizes consensual sexual conduct between adults of the same sex, is unconstitutional. However, the Court clarified that non-consensual sexual acts and any sexual acts with animals remain criminalized under the provision. The Court thus partially struck down Section 377 and explicitly overruled its earlier decision in Suresh Kumar Koushal and Another v. Naz Foundation.[7]

The Court held that regardless of how minuscule the LGBT community might be as a numerical minority, its members possess the same fundamental rights to privacy, dignity, and sexual orientation as all other citizens. The Court declared that Section 377, to the extent it criminalized consensual same-sex relations between adults, violated Articles 14, 15(1), 19(1)(a), and 21 of the Constitution of India.

The Supreme Court held that differential treatment based solely on sexual orientation violated Article 14 of the Constitution. The Court recognized that “sex” under Article 15(1) is not limited to biological attributes but encompasses sexual orientation as well, referencing the broader interpretation established in NALSA v. Union of India.[8]

The Court further held that the LGBT community constitutes a sexual minority entitled to protection under Article 15 of the Constitution. It found that Section 377 violated Article 21, which encompasses the rights to dignity, identity, and privacy of LGBT community members.

In a separate but concurring opinion, Justice Rohinton Fali Nariman observed that Section 377 also violated the right to health, as the stigma and criminalization prevented LGBT individuals from seeking necessary medical care, thereby increasing the risk of sexually transmitted diseases.

VI. Ratio Decidendi

The key legal principles established by this judgment are:

1. The judgment in Suresh Kumar Koushal and Another v. Naz Foundation[9] was expressly overruled.

2. Section 377 continues to apply to bestiality and non-consensual sexual acts.

3. Section 377, insofar as it criminalizes consensual sexual conduct between adults of the same sex, violates Articles 14, 15(1), 19(1)(a), and 21 of the Constitution of India.

4. Sexual orientation is an integral component of identity and dignity protected under Articles 14, 15, 19, and 21.

5. The term “sex” under Article 15(1) includes sexual orientation and is not restricted to biological sex.

While delivering the judgment, the Court primarily relied on three landmark cases:
• Suresh Kumar Koushal and Another v. Union of India[10]
• National Legal Services Authority v. Union of India[11]
• Justice K.S. Puttaswamy v. Union of India[12]

VII. Conclusion

This landmark judgment represents a significant milestone in India’s constitutional jurisprudence and exemplifies the concept of “transformative constitutionalism”—the principle that constitutional interpretation must evolve with societal progress and changing norms. The decision recognizes the LGBT community’s constitutional rights and establishes that sexual orientation is an inherent aspect of human identity, not an illness or disorder.

The Supreme Court’s decision had profound implications for India’s legal, social, and cultural landscape. The judgment vindicated decades of activism and advocacy by individuals and organizations fighting for LGBT rights and marked a substantial reduction in institutionalized discrimination. The ruling had a transformative psychological impact on members of the LGBT community, enabling them to live with dignity and without fear of criminal prosecution for their identity.

This decision also contributed to a gradual shift in societal attitudes toward the LGBT community, promoting greater acceptance and understanding. The judgment stands as a testament to the judiciary’s role in protecting minority rights and ensuring that constitutional guarantees of dignity, equality, and liberty extend to all citizens, regardless of sexual orientation.

References

[1] Naz Foundation v. Government of NCT of Delhi, 2010 Cr LJ 94 (Del) (DB).
[2] Suresh Kumar Koushal and Another v. Naz Foundation, AIR 2014 SC 563.
[3] Constitution of India, art. 21.
[4] Justice K.S. Puttaswamy v. Union of India, (2017) 10 SCC 1.
[5] National Legal Services Authority v. Union of India, AIR 2014 SC 1863.
[6] Id.
[7] Suresh Kumar Koushal and Another v. Naz Foundation, AIR 2014 SC 563.
[8] National Legal Services Authority v. Union of India, AIR 2014 SC 1863.
[9] AIR 2014 SC 563.
[10] Id.
[11] AIR 2014 SC 1863.
[12] (2017) 10 SCC 1.