Navtej Singh Johar v Union of India

On 6 September 2018, a five-judge Constitutional Bench of the Supreme Court of India unanimously struck down Section 377 of the Indian Penal Code, 1860, to the extent it criminalised consensual sexual acts between adults of the same sex. *Navtej Singh Johar v Union of India* is a constitutional landmark in the history of equality, dignity, and individual liberty. It overruled the 2013 judgment in *Suresh Kumar Koushal v Naz Foundation*, which had reinstated Section 377 after the Delhi High Court's *Naz Foundation* decision (2009) had first decriminalised it.

Background & Facts

Section 377 IPC — a provision introduced by the British in 1861 — criminalised "carnal intercourse against the order of nature" with any man, woman, or animal, punishable with up to life imprisonment. Historically applied primarily against gay men and transgender persons, the provision was used to harass, extort, and criminalise consensual same-sex relations.

In 2001, the Naz Foundation (a Delhi HIV/AIDS NGO) filed a petition before the Delhi High Court challenging Section 377. In 2009, the Delhi High Court (*Naz Foundation v Govt. of NCT of Delhi*) held that insofar as Section 377 criminalised consensual adult same-sex relations, it violated Articles 14, 15, 19, and 21. However, in 2013, the Supreme Court in *Suresh Kumar Koushal v Naz Foundation* reversed this, reinstating Section 377 and holding that the LGBT community was a "minuscule minority" and that it was for Parliament, not courts, to change the law.

Navtej Singh Johar, a classical dancer, and four other petitioners filed curative petitions before the Supreme Court challenging *Koushal* (2013) and seeking reconsideration. A five-judge Bench was constituted.

Legal Issues

1. Was *Suresh Kumar Koushal v Naz Foundation* (2013) correctly decided?

2. Does Section 377 IPC, insofar as it criminalises consensual sexual acts between adults of the same sex, violate Articles 14, 15, 19, and 21 of the Constitution?

3. Is sexual orientation a protected ground under Article 15 (prohibition of discrimination)?

4. Does the right to privacy (*K.S. Puttaswamy*, 2017) include protection for same-sex intimacy?

Arguments

**Petitioner's Contentions:**

The petitioners argued that *Koushal* was fundamentally wrong in dismissing the constitutional claim of a minority group on the ground that they were a "minuscule minority." Constitutional rights are not subject to majoritarian approval. Section 377 violated: Article 14 (by criminalising a class of persons based on a personal attribute — sexual orientation); Article 15 (discrimination on the ground of "sex" includes discrimination on the ground of sexual orientation and gender identity); Article 19(1)(a) (the right to expression of one's identity); and Article 21 (the right to live with dignity and the right to privacy as recognised in *Puttaswamy*). They also relied on the NALSA judgment's recognition of gender identity as a fundamental right.

**Respondent's Contentions:**

Religious and social organisations appearing in opposition argued that homosexuality was against Indian culture and morality, against the tenets of several religions, and that the courts should not override the legislative policy reflected in Section 377. They argued that decriminalisation should be a matter for Parliament.

Judgment & Reasoning

All five judges wrote concurring opinions unanimously holding Section 377 unconstitutional as applied to consensual adult same-sex relations:

**1. *Koushal* Overruled:** The 2013 *Koushal* decision was squarely overruled. Its reasoning — that LGBT persons were a "minuscule minority" unworthy of constitutional protection — was characterised as an affront to constitutional values. The Court emphasised that fundamental rights are counter-majoritarian by design; they protect minorities precisely when majorities would deny them their rights.

**2. Sexual Orientation is Immutable and Fundamental:** Sexual orientation is an innate and immutable characteristic that forms part of a person's core identity. It cannot be a basis for criminalisation, discrimination, or unequal treatment.

**3. Section 377 Violates Article 14:** Criminalising consensual same-sex conduct between adults is arbitrary and irrational. The distinction drawn by Section 377 between sexual conduct that is "natural" and "against the order of nature" has no constitutional basis. Consensual adult conduct, regardless of the sex of the participants, is not the State's domain to criminalise.

**4. Section 377 Violates Article 15 (Sex Discrimination):** Justice Chandrachud held that discrimination on the ground of sexual orientation is a form of discrimination on the ground of "sex" within the meaning of Article 15. Sexual orientation is a ground analogous to sex that the Constitution protects.

**5. Section 377 Violates Article 21 (Privacy, Dignity, Autonomy):** The right to privacy, as elaborated in *K.S. Puttaswamy* (2017), expressly includes the right to consensual intimate relations. Section 377 criminalises the most intimate sphere of an individual's life — their consensual sexual relationships — in violation of the constitutional guarantee of privacy and dignity.

**6. Limited Retention of Section 377:** The Court did not strike down Section 377 entirely. It continues to apply to: (a) non-consensual sexual acts (regardless of the sexes of the parties); (b) sexual acts with minors; and (c) bestiality. The provision remains in force for these purposes.

Significance

**A Constitutional Reckoning:** *Navtej Singh Johar* is one of the most celebrated and symbolically important judgments in India's constitutional history. It restored the constitutional standing of LGBTQ persons, affirming that they are full citizens entitled to all fundamental rights.

**Impact on LGBTQ Rights in India:** While the ruling decriminalised same-sex relations, it did not address other rights — including marriage equality, adoption rights, and family recognition. These remain ongoing legal battles. The Supreme Court's judgment in *Supriyo v Union of India* (2023) declined to recognise same-sex marriage as a fundamental right, leaving this to Parliament.

**Legacy of *Puttaswamy* and *NALSA*:** *Navtej Singh Johar* built directly on the foundations of *K.S. Puttaswamy* (privacy) and *NALSA* (gender identity). It represents the culmination of a decade-long trajectory of expanding constitutional rights for sexual and gender minorities.

Key Takeaways

- **Section 377 IPC was read down** — consensual same-sex relations between adults are no longer criminal; Section 377 still applies to non-consensual acts, acts with minors, and bestiality.

- **Sexual orientation is a protected ground** under Articles 14, 15, and 21 — discrimination on this basis is unconstitutional.

- The 2013 *Suresh Kumar Koushal* judgment was **expressly overruled**.

- The ruling draws heavily on *K.S. Puttaswamy* (right to privacy) and *NALSA* (gender identity and dignity).

- Marriage equality and other LGBTQ family rights remain unsettled — the Court declined to recognise same-sex marriage in *Supriyo* (2023), leaving it to Parliament.

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*This article is for informational and educational purposes only and does not constitute legal advice. For specific legal matters, please consult a qualified advocate.*