Case Summary: Navtej Singh Johar v. Union of India (2018)

• Case Name: Navtej Singh Johar and Ors. v. Union of India & Ors.
• Citation: (2018) 10 SCC 1
• Court: Supreme Court of India (Constitution Bench) 
• Bench: Chief Justice Dipak Misra, Justice A.M. Khanwilkar, Justice R.F. Nariman,  Justice D.Y. Chandrachud, Justice Indu Malhotra 
• Date of Judgment: September 6, 2018 
• Relevant Statutory/ Key Provisions:  

1. Article 14 – Right to Equality before Law: Article 14 of the Indian Constitution ensures the right to equality for all persons within  India, stating that the State shall not deny any person “equality before the law” or “equal  protection of the laws” 
2. Article 15 – Prohibition of Discrimination: Article 15 of the Indian constitution prohibits the state from discriminating against any  citizen on the ground of religion ,race, caste , sex , or the place of birth. 
3. Article 19(1)(a) – Freedom of Expression: Article 19(1)(a) of the Indian Constitution grants all citizens the fundamental right to  freedom of speech and expression. This right allows individuals to express their opinions  and ideas freely through various means, including words, writings, pictures, or any other  form of communication. However, this freedom is not absolute and can be subject to  reasonable restrictions imposed by the state on specific grounds, such as national  security, public order, morality, defamation, or incitement to an offense
4. Article 21 – Right to Life and Personal Liberty: Article 21 of the Indian constitution protects the right to life and personal liberty , stating  that no person shall be deprived of these rights except by procedure established by law.
5. Section 377, Indian Penal Code, 1860: Whoever voluntarily has carnal intercourse against the order of nature with any man,  woman or animal, shall be punished with imprisonment for life, or with imprisonment of  either description for a term which may extend to ten years, and shall also be liable to  fine. 

INTRODUCTION 

This petition sought recognition of the right to sexuality, the right to sexual autonomy and the  right to choice of a sexual partner as part of the right to life guaranteed under Article 21 of  the Constitution of India. The petition further sought declaration that Section 377 of the  Indian Penal Code, 1860 (IPC), which criminalised consensual sexual conduct between  adults, was unconstitutional. The Petitioners contended that homosexuality, bisexuality and  other sexual orientations were natural variations of expression, and to criminalise these  sexual orientations would have the effect of violating the Constitution’s guarantees relating  to dignity and privacy. 

Accepting these contentions, the Supreme Court found Section 377 to be discriminatory  towards the Lesbian, Gay, Bisexual and Transgender (LGBT) community and noted that  sexual orientation was an inherent part of their identity, dignity and autonomy. On this basis,  the Court decided that Section 377 constituted a violation of the right to dignity, privacy and  sexual autonomy under Article 21, freedom of expression under Article 19, the right to  equality under Article 14, and nondiscrimination under Article 15 of the Constitution. 

FACTS OF THE CASE 

• That the primary issue in this case related to the constitutional validity of Section 377 of  the IPC, which dealt with “unnatural offences” and criminalised “carnal intercourse  against the order of nature”, insofar as it impacted consensual same-sex relationships. 
• That in 2009, Section 377 was held to be unconstitutional by the High Court of Delhi in  the Naz Foundation case, which was overruled by the Supreme Court in Suresh Kumar  Koushal. 
• That in Suresh Kumar Koushal v. Naz Foundation (2013), the Supreme Court reversed  this, reinstating criminalization. The Court infamously stated that the LGBTQ+  community comprised only a “minuscule fraction of the population,” implying that their  rights were not significant enough to warrant constitutional protection. 
•  That the Petitioner, Navtej Singh Johar filed a writ petition before a three Judge Bench of  the Supreme Court in 2016 challenging its decision in Suresh Kumar Koushal and the  constitutionality of Section 377. The matter was referred to the five Judge Bench  considering the importance of the issue. 

KEY LEGAL ISSUES 

1. Whether Section 377 IPC, insofar as it criminalizes consensual sexual relations between  adults, violates Articles 14, 15, 19, and 21 of the Constitution of India. 
2. Whether sexual orientation is an intrinsic part of the right to privacy, dignity, and  autonomy under Article 21. 
3. Whether it was rational of the Supreme court’s judgment in the Suresh Kaushal case  sound in its understanding of morality as social morality? 
4. Whether criminalizing consensual same-sex conduct perpetuates stigma, discrimination,  and marginalization, thus conflicting with constitutional morality. 

CONTENTIONS OF THE PETITIONERS

Issue 1: Whether Section 377 IPC, insofar as it criminalizes consensual sexual relations  between adults, violates Articles 14, 15, 19, and 21 of the Constitution of India. 

• Article 14 (Equality): Petitioners argued that Section 377 treated unlike situations alike by criminalizing  consensual adult intimacy along with non-consensual acts and bestiality. Such an  arbitrary and overbroad classification violated equality before law. 
• Article 15 (Non-discrimination): They contended that “sex” under Article 15 must include sexual orientation, and  criminalization of same-sex intimacy amounted to direct discrimination based solely on  orientation. 
• Article 19(1)(a) (Expression): Section 377 suppressed the ability of LGBTQ+ persons to express their identity, love,  and companionship, creating a chilling effect on speech and association.
• Article 21 (Life and Liberty): Petitioners emphasized that Section 377 deprived LGBTQ+ individuals of privacy,  dignity, and autonomy, thus violating their right to life under Article 21. 

Issue 2: Whether sexual orientation is an intrinsic part of the right to privacy, dignity,  and autonomy under Article 21. 

• Petitioners relied heavily on the Puttaswamy judgment (2017), which recognized  privacy as a fundamental right. 
• They argued that sexual orientation is an innate and immutable characteristic, central  to individual identity. 
• The State, by criminalizing consensual intimacy, intruded into the private sphere of  individuals and destroyed their dignity and self-worth. 
• Petitioners maintained that autonomy over personal relationships is an essential  component of liberty and cannot be restricted by outdated moral codes.

Issue 3: Whether it was rational of the Supreme court’s judgment in the Suresh  Kaushal case sound in its understanding of morality as social morality? 

• Petitioners argued that Koushal’s reliance on social morality was unconstitutional,  because fundamental rights must be guided by constitutional morality, not shifting public  opinions. 
• They submitted that the Constitution is meant to protect minorities against the tyranny  of the majority, and therefore social disapproval cannot justify the curtailment of  fundamental rights. 

Issue 4: Whether criminalizing consensual same-sex conduct perpetuates stigma,  discrimination, and marginalization, thus conflicting with constitutional morality. 

• Petitioners stressed that the Constitution embodies constitutional morality, which  requires protection of rights even against majoritarian disapproval. 
• Section 377 legitimized social stigma and police harassment, pushing LGBTQ+  persons into invisibility and fear. 
• Criminalization reinforced societal prejudice, denying LGBTQ+ people equal citizenship. ∙ Petitioners urged the Court to adopt the principle of transformative constitutionalism,  meaning the Constitution must be interpreted progressively to uplift marginalized groups. 

CONTENTIONS OF THE RESPONDENTS  

Union of India’s Stance

• The Union government, interestingly, took a neutral stance. 
• It stated that the matter should be left to the wisdom of the Court but urged that the  judgment be limited to consensual sexual relations between adults, without extending  to issues like marriage, adoption, or inheritance.

Opposing Intervenors’ Arguments 

• Several religious and social groups opposed the decriminalization of Section 377. Their  main arguments were: 
• Preservation of Social Morality: They argued that homosexuality is unnatural,  immoral, and contrary to Indian culture.
• Threat to Family System: Decriminalization would allegedly undermine  marriage, procreation, and the traditional family structure. 
• Risk of Opening the Floodgates: It was argued that striking down Section 377  could pave the way for the legalization of other non-heterosexual relationships,  leading to “social anarchy.” 
• Parliamentary Domain: Some argued that amending or repealing Section 377  was within the domain of Parliament, not the judiciary. 
• The respondents thus sought to confine the case strictly to consensual acts between adults in  private, without touching upon the broader civil rights of LGBTQ+ persons. 

JUDGEMENT

The Supreme Court delivered a decisive judgment invalidating the constitutionality of  Section 377 of the Indian Penal Code to the extent that it criminalized consensual sexual  conduct between adults in private. The ruling was grounded in an exhaustive analysis of the  principles enshrined in Articles 14, 15, 19, and 21 of the Constitution. 

Overruling the Suresh Kumar Koushal Precedent 

The Court explicitly noted that the earlier judgment in Suresh Kumar Koushal was flawed for  relying on the “miniscule minority rationale” to deny fundamental rights to the LGBT  community. Critically, the Court established that a necessary distinction must be drawn  between consensual relationships of adults in private (whether heterosexual or homosexual) and offenses involving non-consensual acts, bestiality, or sodomy. The classification of  consensual private conduct alongside these offenses was deemed irrational and untenable 

Affirmation of Privacy and Autonomy (Article 21): 

• Citing the Puttaswamy judgment, the Court established that the right to sexual orientation is an  intrinsic part of the right to privacy. 
• The judgment recognized the necessity to incorporate a ‘right to sexual privacy’ to protect  sexual minorities, echoing the principles of autonomy and self-determination 
• The use of the maxim “et domus sua cuique est tutissimum refugium” underscored that  criminalizing private, consensual activity was a disproportionate restriction on personal liberty. 

Equality and Non-Discrimination (Articles 14 & 15): 

Section 377 was deemed arbitrary and violative of Article 14 as it made private consensual  relationships a crime, subjecting the LGBT community to discriminatory and unequal treatment  (Shayara Bano principles were referenced). 

Freedom of Expression and Choice (Article 19): 

Relying on Shakti Vahini and Shafin Jahan, the Court reaffirmed that the right to choose an  intimate partner is integral to dignity and liberty, concluding that the restrictions imposed by  Section 377 were unreasonable and disproportionate. 

Constitutional Morality 

The Court decisively prioritized Constitutional Morality over subjective notions of public or  societal morality. It held that any state restriction on privacy must satisfy the tests of legality,  legitimate state interest, and proportionality. The ruling concluded that the state has no  legitimate interest in regulating intimacy between consenting adults of the same-sex.

The five-judge Bench unanimously held that sexual orientation is natural, innate, and  immutable. Section 377 was read down to the extent it criminalized consensual sexual  conduct between adults in private, while maintaining the caveat that consent must be free,  voluntary, and devoid of duress or coercion. 

RATIO DECENDI

The core binding principle is that Section 377 of the Indian Penal Code, 1860, is  unconstitutional to the extent that it criminalizes consensual sexual conduct between adults  of the same gender (and all consensual sexual acts between adults in private). 

This conclusion was reached unanimously by the five-judge bench primarily on the grounds that  this part of Section 377 violated the fundamental rights guaranteed under the Constitution of  India, specifically: 

• Article 14 (Right to Equality): It created an arbitrary and irrational classification by  penalizing a section of the community solely based on their sexual orientation, without  any reasonable objective. 
• Article 15 (Prohibition of Discrimination): It discriminated against individuals on the  basis of their sexual orientation (a ground analogous to ‘sex’). 
• Article 19(1)(a) (Right to Freedom of Expression): It stifled the right to express one’s  sexual identity and choice of partner. 
• Article 21 (Right to Life and Personal Liberty): It infringed upon the fundamental  rights to dignity, sexual autonomy, and privacy, as it criminalized intimate, private,  consensual acts between adults.
• The Court held that Constitutional Morality must prevail over Social Morality, and that the  LGBTQI+ community is entitled to full equality and constitutional protection.

OBITER DICTA 

• Recognition of Historical Injustice and the Need for an Apology: Justice Indu  Malhotra’s memorable remark that “History owes an apology to the members of this  community and their families, for the delay in providing redressal for the ignominy  and ostracism that they have suffered through the centuries.” This is a powerful,  non-binding statement on the emotional and historical context of the ruling. 
• Philosophical Discussion on Constitutional Morality: Extensive discussion on the  concept of “Transformative Constitutionalism” (the idea that the Constitution must be  a tool for social change) and the priority of Constitutional Morality over popular or  social morality. 
• The Nature of Sexual Orientation: Observations that sexual orientation is natural,  innate, and an integral part of identity and that the distinction between “natural” and  “unnatural” acts in Section 377 was legally unsustainable. 
• Positive Steps for the Future: Remarks advocating for the state to take positive steps to  create a conducive atmosphere for the LGBTQI+ community and to prevent  discrimination and harassment. 

CONCLUSION

• Navtej Singh Johar v. Union of India stands as a watershed moment in Indian constitutional  history. By striking down Section 377, the Supreme Court not only remedied a historical  injustice but also expanded the meaning of equality, dignity, and liberty. 
• The judgment is a triumph of transformative constitutionalism—affirming that the  Constitution is not frozen in time but evolves to safeguard the rights of marginalized  communities. However, the struggle for full equality remains unfinished. The Court left issues of  marriage, family, and adoption rights unresolved, thereby shifting the battle to Parliament and  civil society. 
• In sum, the case redefined constitutional morality in India, placing human dignity at the center of  constitutional interpretation. It will remain a guiding precedent for future struggles to achieve  substantive equality for LG