Published on: 28th November 2025
Authored by: Misbah Sayyed
A.K.K. New Law Academy
Citation: AIR 2018 SC 4321
Court: Supreme Court of India
Bench: Chief Justice Dipak Mishra, Justice Rohinton Fali Nariman, Justice A.M. Khanwilkar, Justice D.Y. Chandrachud, Justice Indu Malhotra
Date of Judgment: September 6, 2018
Relevant Provisions
The case dealt with the following constitutional and statutory provisions:
Constitutional Provisions:
- Article 14: Right to Equality
- Article 15: Prohibition of Discrimination
- Article 19: Right to Freedom
- Article 21: Right to Life and Personal Liberty
Statutory Provision:
- Section 377 of the Indian Penal Code (IPC): Criminalized “carnal intercourse against the order of nature”
Brief Facts
Navtej Singh Johar v. Union of India stands as a landmark Supreme Court judgment for LGBTQ+ rights in India. Section 377 of the Indian Penal Code, 1860, criminalized homosexual intercourse between consenting adults, prescribing punishment with imprisonment for life or for a term up to ten years, along with liability to fine.
The petitioners in this case were a group of individuals from the LGBTQ+ community, including Navtej Singh Johar (a Bharatanatyam dancer), Sunil Mehra (a journalist), Aman Nath (a historian and hotelier), Keshav Suri (a hotelier), Ritu Dalmia (a celebrity chef), and Ayesha Kapur (a businesswoman). In 2016, they filed a writ petition aiming to decriminalize same-sex relations by challenging Section 377 of the IPC.
The petitioners argued that Section 377 violated their fundamental rights under Articles 14 (Right to Equality), 15 (Prohibition of Discrimination), 19 (Right to Freedom), and 21 (Right to Life and Personal Liberty). They contended that criminalizing same-sex relations among consenting adults led to discrimination based on sexual orientation, invading their rights to privacy and dignity.
Legal Background
This case arose against the backdrop of two significant earlier judgments:
- Naz Foundation v. Government of NCT of Delhi (2009): The Delhi High Court decriminalized consenting homosexual acts.
- Suresh Kumar Koushal v. Naz Foundation (2013): The Supreme Court overruled the Delhi High Court’s decision, reinstating Section 377 of the IPC.
- Justice K.S. Puttaswamy v. Union of India (2017): The Supreme Court reaffirmed privacy as a fundamental right and acknowledged that sexual orientation falls within the scope of privacy. This judgment provided crucial jurisprudential foundation for challenging Section 377.
Issues Raised
The Supreme Court considered the following key issues:
- Whether Section 377 of the IPC, to the extent that it criminalizes same-sex consensual sexual acts among adults, violates the fundamental rights under Articles 14, 15, 19, and 21 of the Constitution?
- Whether sexual orientation is an essential aspect of the right to privacy, dignity, and autonomy under Article 21?
- Whether Section 377 amounts to unreasonable classification, thereby violating Article 14?
- Whether Section 377 violates freedom of expression and identity under Article 19(1)(a)?
- Whether constitutional morality must override social morality while interpreting fundamental rights?
Petitioners’ Arguments
The petitioners challenged Section 377 of the IPC on multiple constitutional grounds:
Right to Equality (Article 14)
The law was ambiguous and arbitrary, with no intelligible differentia between “natural” and “unnatural” sex, and discriminated on the basis of the partner’s sex.
Prohibition of Discrimination (Article 15)
Section 377 discriminated on the basis of sexual orientation, violating the constitutional prohibition against discrimination based on sex, which the petitioners argued should be interpreted to include gender identity and sexual orientation.
Right to Freedom (Article 19)
The law had a chilling effect on the freedom to express one’s sexual identity and choose one’s partner.
Right to Life and Personal Liberty (Article 21)
The petitioners argued that Section 377 violated the fundamental right to life and dignity by criminalizing consensual sexual conduct between adults, forcing LGBTQ+ individuals to live in fear and secrecy.
The petitioners contended that Section 377 infringed their fundamental rights and perpetuated social stigma and violence against the LGBTQ+ community.
Judgment
On September 6, 2018, the Supreme Court of India delivered a unanimous decision, reading down Section 377 of the IPC and decriminalizing consensual sexual conduct between same-sex adults in private. The Court held that Section 377, insofar as it criminalized consensual sexual acts between adults, violated the fundamental rights guaranteed under the Constitution of India. However, the section would continue to apply to non-consensual acts, acts of bestiality, and sexual acts with minors.
While the judgment was unanimous, each judge authored a separate but concurring opinion:
Chief Justice Dipak Mishra (along with Justice A.M. Khanwilkar)
They focused on the concept of “constitutional morality” prevailing over social morality, emphasizing the protection of LGBTQ+ rights regardless of majority opinion.
Justice Rohinton Fali Nariman
He argued that Section 377 was manifestly arbitrary and highlighted the Union of India’s obligation to ensure the judgment’s publication to combat the stigma faced by the LGBTQ+ community.
Justice D.Y. Chandrachud
He stressed that the law should not discriminate against same-sex relationships and should actively work towards equal protection for the LGBTQ+ community.
Justice Indu Malhotra
She acknowledged the historical injustice faced by the LGBTQ+ community and stated that the right to privacy extends to spatial privacy, including sexual orientation. She notably remarked that “history owes an apology” to the LGBTQ+ community for the ostracism they have faced.
Ratio Decidendi (Reasoning of the Court)
1. Violation of Article 14 (Right to Equality)
The Supreme Court observed that Section 377 created unreasonable discrimination between consensual heterosexual and homosexual acts among adults. The provision was arbitrary and violated Article 14 of the Constitution. The Court stressed that individual dignity and equal treatment before the law cannot be denied on the basis of sexual orientation.
2. Violation of Article 15 (Non-Discrimination)
Article 15 prohibits discrimination on the basis of religion, caste, race, sex, and place of birth. The Court interpreted the word “sex” to include “sexual orientation.” Therefore, discrimination on the basis of sexual orientation violates Article 15.
3. Violation of Article 19 (Right to Freedom)
The Supreme Court held that sexual orientation is a part of an individual’s personal identity, and expressing one’s sexual identity is protected under freedom of expression guaranteed by Article 19(1)(a).
4. Violation of Article 21 (Right to Life and Personal Liberty)
Section 377 invaded the right to privacy and dignity of individuals, violating their right to life under Article 21. The Court emphasized that the right to life includes the right to live with dignity and autonomy.
5. Right to Privacy
The Supreme Court heavily relied on the Justice K.S. Puttaswamy judgment, which recognized privacy as a fundamental right. Privacy encompasses intimate aspects of human life, including sexual orientation. The Court stated that the State cannot intrude into the private affairs of individuals without a valid reason.
6. Constitutional Morality
The judgment emphasized the concept of “constitutional morality”—the commitment to uphold the values and principles enshrined in the Constitution. The Supreme Court declared that constitutional morality must prevail over social morality (shared values, principles, and norms that guide behavior in society). The judges observed that the Constitution protects the rights of individuals even if the majority of society disapproves. Justice Chandrachud, in his opinion, remarked that the views of the majority cannot dictate constitutional rights.
Final Judgment
The Supreme Court unanimously held that Section 377 of the IPC, insofar as it criminalized consensual sexual conduct between adults in private, is unconstitutional as it violates Articles 14, 15, 19, and 21 of the Indian Constitution. However, Section 377 would continue to be applicable to non-consensual sexual acts, sexual acts with minors, and bestiality.
This judgment decriminalized homosexuality in India, restoring fundamental rights to the LGBTQ+ community.
Impact of the Judgment
This judgment is viewed as a historic victory for LGBTQ+ rights in India:
- Decriminalization: It ended the criminalization of consensual same-sex relations, removing the threat of criminal prosecution that had hung over the LGBTQ+ community for over 150 years.
- Constitutional Recognition: It affirmed constitutional protections for sexual minorities, reinforcing equality, privacy, and freedom of expression.
- Legal Precedent: It set a precedent for future cases involving LGBTQ+ rights, influencing laws and policies towards greater inclusivity.
- Social Impact: It has inspired social acceptance and advocacy for LGBTQ+ rights across India and globally.
- Remaining Challenges: The judgment left many questions open, such as same-sex marriage recognition, adoption rights, and anti-discrimination protection in employment and education—issues that continue to be debated in Indian courts and society.
Conclusion
The Supreme Court’s ruling in Navtej Singh Johar v. Union of India is a powerful reaffirmation of India’s commitment to the constitutional values of equality, liberty, and dignity for all citizens. The Court declared that individual rights cannot be denied or confined based on outdated societal prejudices. Rather, constitutional morality must always inform the interpretation and application of laws to ensure justice, fairness, and respect for diversity for every individual.
By decriminalizing consensual same-sex relationships between adults, the Supreme Court made a bold and historic move towards creating a more progressive, inclusive, and accepting society. This judgment opened the doors for millions of LGBTQ+ individuals in India to live their lives with dignity, freedom, and equality—marking a watershed moment in the journey toward full recognition of human rights for all, regardless of sexual orientation.
