Navtej Singh Johar v. Union of India (2018) 10 SCC 1

Facts of the case:

It was a historic moment for the constitution in India, and in fact, for the Supreme Court in India that reaffirmed LGBTQ rights within the country, when it was attended by the case of Navtej Singh Johar v. Union of India. The issue was the instructional validity of Section 377 of the Indian Penal Code,1860, which is a remaining colonial legacy still criminalising “carnal intercourse against order of nature.”

More harmless than anything else, historically Section 377 of the Indian Penal Code served the purpose of harassing and discriminating against the criminalization of persons belonging to the LGBTQ community. Although the implementation varied through decades, the existence of this law continued to create a culture of fear and the stigma attached toward sexual minorities in the country. The Supreme Court, in Suresh Kumar Koushal v. Naz Foundation (2013) 1 SCC 747, overturned the ruling of the Delhi High Court for the year 2009 that decriminalized consensual same-sex relations in India. The Koushal judgment ruled that the LGBTQ community was a “minuscule minority,” not deserving of special protection under Articles 14, 15, and 21 of the Constitution.

In 2016, five petitioners including Navtej Singh Johar (Bharatnatyam dancer), Sunil Mehra (journalist), Ritu Dalmia (chef), Aman Nath (historian and writer), and others filed a writ petition under Article 32 of the Constitution challenging the constitutional validity of Section 377 in as much as it criminalized consenting sexual acts between adults in private. The challenge was based on the right to consenting sexual acts and expressed as violations to their fundamental rights guaranteed to them under Articles 14, 15, 19, and 21 of the Indian Constitution.

Legal issues:

Several important constitutional questions arose in this case, which are:

1. Was Article 14, the provision guaranteeing equality to everyone, violated by Section 377 of the Indian Penal Code?
2. Did this provision discriminate on the ground of sexual orientation and thereby infringe on Article 15?
3. Is the criminalization of consensual same-sex relations between adults a violation of Article 19(1)(a)?
4. Did it violate Article 21-the right to life and personal liberty-touching infamous wish, privacy, and sexual autonomy?

Arguments of the parties:

Petitioners’ Arguments –

The petitioners argued that:

• The provision of Section 377 is invalid, as it criminalises consensual sexual acts between adults in private which violated their fundamental rights.
• It would have violated Article 14 for being arbitrary, overbroad, and not distinguishing between consensual or non-consensual acts.
• It discriminated on grounds of sexual orientation, which is an essential part of one’s identity and therefore violated Article 15.
• Since sexual orientation is an integral part of self-expression, it denied the petitioners their right to freedom of expression, as guaranteed under Article 19(1)(a) of the Constitution.
• The provision violates Article 21 by taking away the rights of LGBTQ+ individuals in regard to dignity, autonomy, and privacy, particularly after the judgment in Justice K.S. Puttaswamy v. Union of India (2017) 10 SCC 1.
• The doctrine of progressive realisation of rights allowed for a current understanding of dignity, liberty and equality to inform interpretation of the Constitution.
• The Koushal judgment was wrong and should be overruled for failing to take into account the trauma of criminalisation, indirect stigma, mental health issues, etc.

Respondent’s Arguments (union of India) –

• The Union has left the matter of constitutional interpretation to the wisdom of the court, not defending Section 377 with full vigour.
• It requested that the Court confine its ruling to private consensual sexual acts between adults, not venture into areas such as same-sex marriage or adoption.
• The State would further argue that concerning child sexual abuse and non-consensual sexual activity, Section 377 may have continuing legitimate applicability.

Holding:

The Supreme Court, through its five-judge Constitution Bench, has delivered four opinions, all of which have concurred in striking down the portion of Section 377 criminalizing consensual sexual conduct of adults in private.

The Court ruled –

• Section 377 is unconstitutional, at least to the extent that it criminalizes private consensual sexual conduct between adults.
• However, it would still apply to non-consensual sexual acts, bestiality, and sexual conduct with minors.

Thus, the Court has decriminalised homosexuality in India, recognising it to be part of the constitutional rights of equality, dignity, privacy and expression.

Reason:

Each of the four concurring opinions behaved like different layers of nuanced reasoning to arrive at their separate conclusions.

1. Chief Justice Dipak Misra and Justice A.M. Khanwilkar (Plurality Opinion):

• Emphasised that constitutional morality must triumph over social morality.
• Section 377 was violative of Article 14 since it was manifestly arbitrary and was overbroad.
• The right to sexual orientation is guaranteed by Article 21 including dignity and autonomy.
• Referenced Puttaswamy, finding the right to privacy included the right to choose a sexual partner.
• Held that “An individual’s choice to perform certain acts in the privacy of their own private space must be entitled to be protected and insulated from the disapproving glare of society

1. Justice Rohinton F. Nariman:

• Found that the Section 377 was clearly arbitrary and, therefore, violated Article 14.
• Held that even though “sexual orientation” was not overtly mentioned, it fell under “sex,” which is prohibited under Article 15.
• Highlighted the chilling effects on freedom of expression (Article 19) that arise from criminalisation of same sex relationships.
• Proposed that constitutional guarantees are something that is changing and must be interpreted in a progressive way.

1. Justice D.Y. Chandrachud :

• It severely criticized the Koushal judgment for its constricted view of equality and refusal to accept the traumatic experiences faced by LGBTQ+ persons.
• Stated that constitutional morality is founded on the core tenets of liberty, dignity and equality.
• Emphasized that the “State has no business interfering in the personal matters of individuals.”
• Noted that Section 377 was a colonial imposition that was based on Victorian morality, which did not match the Indian Constitution.
• Stressed that, homosexuality is not a mental illness, and suggesting that it is a mental illness, is a violation of the dignity of LGBTQ+ persons.

1. Justice Indu Malhotra:

• Recognized the historical wrong done to the LGBTQ+ community.
• Infamously stated, “History has an apology to make to members of this community.”
• Emphasized that LGBTQ+ persons are entitled to full citizenship rights as bestowed by the Constitution.
• Provided an argument that discrimination based on inherent characteristics like sexual orientation are violations of constitutional rights.

Conclusion:

The judgment in Navtej Singh Johar v. Union of India is a turning point in the history of Indian constitutional law. The Supreme Court has corrected an age-old injustice that was carried forth by a colonial law and accepted in Koushal by affirming that rights to dignity, privacy, and equality are extended to LGBTQ+ persons.

The ruling of the Court reinforces the principle that constitutional morality and not majoritarian or social morality has to guide the interpretation of fundamental rights. The case has opened avenues for stronger legal protections and recognition of LGBTQ+ persons in India, as well as normalized discussions of same-sex marriages, adoption, anti-discrimination laws, and workplace protections.

The apex court’s judgment is further committed to being a custodian of constitutional values and rights, particularly minority rights. It restates that personal liberty, dignity, and autonomy mark the very heart of the Indian Constitution and ought not to be upset by antiquated social prejudices or the inertia of legislation.

References:

1. Navtej Singh Johar and Others v Union of India, (2018) 10 SCC 1.
2. Suresh Kumar Koushal v Naz Foundation, (2013) 1 SCC 747.
3. Justice K.S. Puttaswamy v Union of India, (2017) 10 SCC 1.
4. Indian Penal Code 1860, s 377.
5. Constitution of India, arts 14, 15, 19, 21.
6. Arvind Narrain, ‘The Indian Supreme Court’s Decision in Navtej Johar v. Union of India: A Transformative Constitutionalism Perspective’ (2019) 3 Oxford Human Rights Hub https://ohrh.law.ox.ac.uk (last visited on 9:44pm, 25 April 2025)
7. Gautam Bhatia, Transformative Constitutionalism: The Case of Navtej Johar v. Union of India (2018) Indian Constitutional Law and Philosophy Blog https://indconlawphil.wordpress.com (last visited on 9:45pm, 25 April 2025)