Published on: 16th December, 2025
Authored by: Nirali Saraf
Indore Institute of Law
Abstract
The landmark judgment in Navtej Singh Johar and Others v. Union of India[1] represents a watershed moment in Indian constitutional jurisprudence and LGBTQ+ rights. The Supreme Court of India, in a unanimous verdict delivered by a five-judge constitutional bench, struck down portions of Section 377 of the Indian Penal Code, 1860, that criminalized consensual sexual acts between adults in private. This decision vindicated fundamental rights to equality, dignity, privacy, and non-discrimination, recognizing sexual orientation as an intrinsic component of personal identity deserving constitutional protection.
Case Details
Court: Supreme Court of India
Bench: Chief Justice Dipak Misra, Justice A.M. Khanwilkar, Justice Rohinton Fali Nariman, Justice D.Y. Chandrachud, and Justice Indu Malhotra
Date of Judgment: 6 September 2018
Citation: AIR 2018 SC 4321; (2018) 10 SCC 1
Petitioner: Navtej Singh Johar and Others
Respondent: Union of India through the Secretary, Ministry of Law and Justice
Issues Involved
The constitutional bench examined the following fundamental questions:
1. Whether Section 377 of the Indian Penal Code should be struck down as unconstitutional in its application to consensual sexual acts between adults in private?
2. Whether Section 377 violates the Right to Equality guaranteed under Article 14 of the Constitution of India?
3. Whether Section 377 violates the prohibition against discrimination under Article 15 of the Constitution, particularly on grounds of sex and sexual orientation?
4. Whether Section 377 violates the Right to Freedom of Speech and Expression under Article 19(1)(a) of the Constitution?
5. Whether Section 377 violates the Right to Life and Personal Liberty with dignity under Article 21 of the Constitution, including the rights to privacy, sexual autonomy, and choice of a sexual partner?
6. Whether the criminalization of consensual same-sex relations constitutes a reasonable classification under Article 14 or permissible restriction under Articles 19 and 21?
Brief Facts
On 26 April 2016, Navtej Singh Johar, a renowned classical dancer and choreographer, along with four other petitioners representing diverse voices from the LGBTQ+ community, filed a writ petition under Article 32 of the Constitution of India.[2] The petitioners challenged the constitutional validity of Section 377 of the Indian Penal Code, 1860, which criminalized “carnal intercourse against the order of nature” and had been used to prosecute consensual sexual acts between same-sex adults in private.
The petitioners sought a declaration that the “right to sexuality,” “right to sexual autonomy,” and “right to choice of a sexual partner” form integral components of the right to life guaranteed under Article 21 of the Constitution.[3] They prayed for Section 377 to be declared unconstitutional insofar as it criminalized consensual sexual conduct between adults in private, arguing that the provision violated their fundamental rights to equality, non-discrimination, freedom of expression, and life with dignity.
The petition arose in the context of the Supreme Court’s earlier decision in Suresh Kumar Koushal v. Naz Foundation,[4] which had overturned the Delhi High Court’s progressive judgment in Naz Foundation v. Government of NCT of Delhi[5] that had read down Section 377. The petitioners urged the Court to reconsider the constitutional questions afresh, particularly in light of the nine-judge bench decision in Justice K.S. Puttaswamy (Retd.) v. Union of India,[6] which had recognized the fundamental right to privacy.
Contentions of the Parties
Petitioners’ Contentions
The petitioners advanced comprehensive constitutional arguments challenging Section 377 on multiple grounds:
1. Violation of Article 14 (Right to Equality): The petitioners contended that Section 377 created an arbitrary and unreasonable classification by criminalizing consensual sexual acts between same-sex adults while permitting the same acts between opposite-sex adults. They argued that sexual orientation is not a valid basis for differential treatment and that the provision failed both the intelligible differentia test and the rational nexus test required under Article 14. The classification was manifestly arbitrary, lacked any legitimate state interest, and constituted discrimination without constitutional justification.[7]
2. Violation of Article 15 (Prohibition of Discrimination): The petitioners argued that Section 377 discriminated against LGBTQ+ individuals on grounds of sex and sexual orientation, which are protected categories under Article 15. They contended that sexual orientation is intrinsically linked to sex and constitutes an analogous ground of discrimination prohibited by the Constitution. The criminalization perpetuated systemic discrimination, stigma, and social ostracization of the LGBTQ+ community, denying them equal citizenship rights.[8]
3. Violation of Article 19(1)(a) (Freedom of Speech and Expression): The petitioners submitted that the criminalization of consensual same-sex relations violated their fundamental right to freedom of expression. Sexual orientation and sexual identity are integral aspects of personhood that individuals have the right to express. Section 377 chilled this expression by forcing LGBTQ+ individuals to hide their identities, live in fear of prosecution, and suppress their authentic selves. The right to express one’s sexual orientation is protected speech under Article 19(1)(a).
4. Violation of Article 21 (Right to Life and Personal Liberty): The petitioners argued that Article 21 encompasses multiple dimensions of human dignity and autonomy that Section 377 violated:
• Right to Privacy: Building on the Puttaswamy judgment, they contended that intimate sexual choices between consenting adults in private fall within the protected zone of privacy.
• Right to Dignity: Section 377 reduced LGBTQ+ individuals to criminals based solely on their sexual orientation, fundamentally undermining their human dignity.
• Right to Sexual Autonomy: Individuals possess autonomy over their bodies and intimate choices, free from state interference in consensual private conduct.
• Right to Choice of Sexual Partner: The freedom to choose one’s intimate partner is an essential aspect of personal liberty protected under Article 21.
5. Constitutional Morality Over Social Morality: The petitioners emphasized that constitutional morality—rooted in equality, liberty, and dignity—must prevail over majoritarian social morality. The Constitution protects minorities from the tyranny of the majority, and rights cannot be denied based on popular prejudices or traditional disapproval.
Respondent’s Contentions
The Union of India, representing the respondent, initially opposed the petition but later adopted a neutral stance, leaving the constitutional questions to the Court’s wisdom. However, the following arguments were advanced in support of retaining Section 377:
1. Legislative Competence and Parliamentary Supremacy: It was argued that Section 377 is a validly enacted provision by the competent legislature and represents a policy choice made by Parliament. Courts should exercise judicial restraint in striking down legislation, particularly on matters involving social morality and public order. The wisdom of retaining or amending Section 377 should be left to the democratic process rather than judicial intervention.
2. Public Morality and Order: Supporters of Section 377 contended that the provision serves legitimate state interests in preserving public morality and maintaining social order. Homosexual conduct has historically been considered contrary to Indian cultural values, religious beliefs, and social norms. The state has the authority to regulate conduct that is viewed as immoral or against the “order of nature,” even when consensual.
3. Reasonable Restriction: It was argued that even if certain fundamental rights are engaged, Section 377 constitutes a reasonable restriction under Article 19(2) or the procedure established by law under Article 21. The provision serves compelling state interests in protecting public health, preserving traditional family structures, and preventing the spread of diseases.
4. Minimal Enforcement: The respondent noted that Section 377 is rarely enforced against consenting adults in private, suggesting that the provision does not cause significant practical harm. The existence of the law on the statute books, even if seldom invoked, was presented as insufficient grounds for declaring it unconstitutional.
5. Koushal Precedent: Reference was made to the Supreme Court’s earlier decision in Suresh Kumar Koushal, which had upheld Section 377’s constitutional validity. It was argued that the Court should respect this precedent unless compelling reasons existed to overturn it.
Interveners’ Contentions
Several parties intervened in support of both sides. Interveners supporting the petitioners included mental health professionals, human rights organizations, and LGBTQ+ advocacy groups who highlighted the psychological harm, social stigma, and practical difficulties faced by the community due to criminalization. Religious organizations and traditionalist groups intervening in support of Section 377 emphasized cultural values, religious texts, and concerns about societal impact.
Judgment
On 6 September 2018, the five-judge constitutional bench delivered a unanimous and historic verdict, declaring that Section 377 of the Indian Penal Code, insofar as it criminalized consensual sexual acts between adults in private, was unconstitutional.[7] Each of the five judges authored separate but concurring opinions, collectively spanning over 400 pages, reflecting the depth and complexity of the constitutional issues involved.
The bench unanimously held that the criminalization of consensual sexual acts between adults violated multiple fundamental rights enshrined in the Constitution. Specifically, the Court found violations of:
• Article 14 (Right to Equality) – Section 377 created an unreasonable and arbitrary classification that failed the test of constitutional validity;
• Article 15 (Prohibition of Discrimination) – The provision discriminated on grounds analogous to those prohibited, including sexual orientation;
• Article 19(1)(a) (Freedom of Speech and Expression) – Criminalization chilled the ability of LGBTQ+ individuals to express their identity and sexual orientation;
• Article 21 (Right to Life and Personal Liberty) – The provision infringed upon dignity, autonomy, privacy, and the right to intimate personal choices.
The Court emphasized that sexual orientation is a natural and integral aspect of personal identity, and that constitutional morality must prevail over societal notions of morality. The judgment recognized that LGBTQ+ individuals possess equal citizenship rights and are entitled to the full protection of constitutional guarantees without discrimination. The Court declared that Section 377, in criminalizing consensual same-sex relations, perpetuated stigma, violated human dignity, and reduced LGBTQ+ individuals to second-class citizens.
Importantly, the Court clarified that Section 377 would continue to apply to non-consensual sexual acts and acts involving minors, preserving its role in punishing sexual offenses. The striking down applied only to consensual sexual conduct between adults in private, thereby decriminalizing homosexuality while maintaining legal safeguards against abuse and coercion.
Significance
The Navtej Singh Johar judgment stands as a monumental achievement in India’s constitutional and human rights jurisprudence. It affirmed the transformative vision of the Constitution, recognizing that rights evolve with changing social understandings and that marginalized communities deserve equal protection and dignity. The decision has had profound implications for LGBTQ+ rights in India, catalyzing broader conversations about equality, inclusion, and social justice.
References:
[1] Navtej Singh Johar and Others v. Union of India, AIR 2018 SC 4321; (2018) 10 SCC 1 (India). ↩
[2] The Constitution of India, Art. 32 (providing the right to constitutional remedies through the Supreme Court). ↩
[3] The Constitution of India, Art. 21 (providing that no person shall be deprived of life or personal liberty except according to procedure established by law). ↩
[4] Suresh Kumar Koushal v. Naz Foundation, (2014) 1 SCC 1 (India). ↩
[5] Naz Foundation v. Government of NCT of Delhi, 160 Delhi Law Times 277 (2009) (India). ↩
[6] Justice K.S. Puttaswamy (Retd.) v. Union of India, (2017) 10 SCC 1 (India) (recognizing the fundamental right to privacy). ↩
[7] The Constitution of India, Art. 14 (guaranteeing equality before law and equal protection of laws). ↩
[8] The Constitution of India, Art. 15 (prohibiting discrimination on grounds of religion, race, caste, sex, or place of birth). ↩
[9] The Indian Penal Code, 1860, § 377 (India). ↩
