Published on: 10th February 2026
Authored By: Laxita Raju Hawelikar
ILS Law College, Pune
Citation: AIR 2018 SC 4321; (2018) 10 SCC 1; Writ Petition (Criminal) No. 76 of 2016
Decided on: 6 September 2018
Bench: Chief Justice Dipak Misra, Justice A.M. Khanwilkar, Justice Rohinton Fali Nariman, Justice D.Y. Chandrachud, and Justice Indu Malhotra (Five-Judge Constitution Bench)
INTRODUCTION
Navtej Singh Johar v. Union of India stands as one of the most transformative judgments in Indian constitutional history. The Supreme Court, through this landmark decision, read down Section 377 of the Indian Penal Code, 1860, thereby decriminalizing consensual sexual relations between adults of the same sex. This judgment overruled the Court’s previous decision in Suresh Kumar Koushal v. Naz Foundation (2013) and reaffirmed constitutional values of equality, dignity, privacy, and individual autonomy. The case demonstrates the judiciary’s role as guardian of fundamental rights, particularly for marginalized communities whose voices are often drowned in majoritarian discourse.
FACTUAL BACKGROUND
Section 377 of the Indian Penal Code was enacted in 1861 during British colonial rule, criminalizing “carnal intercourse against the order of nature with any man, woman or animal.” The provision prescribed imprisonment for life or up to ten years with fine. For over a century and a half, Section 377 served as a tool for harassment, blackmail, and systematic discrimination against members of the LGBTQ+ community.
The first significant challenge emerged when the Delhi High Court in Naz Foundation v. Government of NCT of Delhi (2009) held that Section 377, insofar as it criminalized consensual sexual acts between adults in private, was unconstitutional. However, this progressive decision was overturned by the Supreme Court in Suresh Kumar Koushal v. Naz Foundation (2013), which held that Section 377 did not suffer from constitutional infirmities and affected only a “minuscule fraction of the country’s population.”
On 27 April 2016, five individuals from the LGBTQ+ community—dancer Navtej Singh Johar, journalist Sunil Mehra, chef Ritu Dalmia, hoteliers Aman Nath and Keshav Suri, and businesswoman Ayesha Kapur—filed a fresh writ petition challenging Section 377’s
constitutionality. The matter was referred to a five-judge Constitution Bench, which heard arguments in July 2018 and delivered judgment on 6 September 2018.
ISSUES BEFORE THE COURT
The Constitution Bench framed the following principal issues:
1.Whether Suresh Kumar Koushal v. Naz Foundation (2013) should be reconsidered or overruled.
2.Whether Section 377, insofar as it criminalizes consensual sexual conduct between adults of the same sex, violates Articles 14, 15, 19, and 21 of the Constitution.
3.Whether constitutional morality should prevail over social morality in determining the validity of penal legislation affecting minority groups.
CONTENTIONS OF THE PARTIES
Arguments by the Petitioners
The petitioners mounted a comprehensive constitutional challenge, contending that Section 377 was manifestly arbitrary and violated Article 14 by failing to provide intelligible differentia between “natural” and “unnatural” sexual acts. They argued that the provision discriminated on the basis of sexual orientation, which is intrinsically linked to sex and gender identity, thereby violating Article 15.
Drawing from the Justice K.S. Puttaswamy (Retd.) v. Union of India (2017) judgment, the petitioners contended that the right to privacy encompasses decisional autonomy, including freedom to make intimate choices regarding sexual partners. Section 377 violated human dignity by treating LGBTQ+ individuals as criminals for expressing their identity and denied them the right to live with dignity. They emphasized that constitutional morality must prevail over social morality and that the Constitution protects minority rights against majoritarian prejudice.
Arguments by the Respondents
The Union of India adopted a neutral stance, leaving the constitutional validity question to the Court’s wisdom. Religious and social organizations intervening in opposition argued that Section 377 targeted acts, not identities, and that the right to privacy could be restricted in the interest of public morality. They contended that declaring Section 377 unconstitutional would undermine marriage and family structures and that constitutional morality cannot be divorced from Indian cultural values.
JUDGMENT AND REASONING
The Supreme Court delivered a unanimous judgment through four separate but concurring opinions.
Chief Justice Dipak Misra’s Opinion
Chief Justice Misra emphasized transformative constitutionalism and held that constitutional morality must prevail over social morality. He recognized that dignity lies at the core of all fundamental rights and that individual autonomy—the right to make intimate choices about one’s life, identity, and relationships—is intrinsic to human dignity. Section 377 destroyed individual identity by criminalizing an essential aspect of personality, thereby crushing the intrinsic dignity that encompasses privacy, choice, and freedom of expression. The judgment extensively referenced international human rights jurisprudence, demonstrating global consensus on LGBTQ+ rights.
Justice Rohinton Fali Nariman’s Opinion
Justice Nariman traced Section 377’s origins to Victorian morality and English criminal law, demonstrating that it was imported into India without consideration of indigenous cultural contexts. He held that Section 377 was manifestly arbitrary under Article 14 as it criminalized consensual sexual acts without rational basis, failing to distinguish between consensual and non-consensual acts. He rejected the argument that public morality could justify restricting fundamental rights, holding that consensual sexual acts between adults in private neither disturbed public order nor injured public decency. Significantly, Justice Nariman imposed a positive obligation on the Union of India to publicize the judgment widely and take affirmative measures to eliminate stigma against the LGBTQ+ community.
Justice D.Y. Chandrachud’s Opinion
Justice Chandrachud provided the most extensive philosophical analysis, holding that privacy includes both spatial privacy and decisional privacy—the right to make intimate personal choices. He recognized sexual orientation as an essential attribute of identity and integral component of human personality, stating that criminalizing same-sex relationships denies LGBTQ+ individuals the ability to fully realize their identity and live authentically. Section 377 perpetuated stereotypes and prejudice, violating both formal equality and substantive equality. In powerful language, Justice Chandrachud stated that history owes an apology to members of the LGBTQ+ community for centuries of persecution and acknowledged the judiciary’s own role in perpetuating injustice through the Koushal judgment.
Justice Indu Malhotra’s Opinion
Justice Malhotra unequivocally stated that members of the LGBTQ+ community were subjected to discrimination because Section 377 lent legitimacy to such treatment. She acknowledged that history owes the community an apology for the delay in providing justice and held that the reasoning in Koushal—that constitutional rights could be denied because they affect only a minority—was fundamentally flawed and contrary to constitutional values.
Unanimous Conclusions
All five judges unanimously agreed that:
1.Section 377, insofar as it criminalizes consensual sexual conduct between adults in private, is unconstitutional and violative of Articles 14, 15, 19, and 21.
2.Suresh Kumar Koushal v. Naz Foundation (2013) is overruled as constitutionally unsustainable.
3.Section 377 continues to remain valid for non-consensual sexual acts, sexual acts with minors, and bestiality.
4.LGBTQ+ individuals possess the same fundamental rights as other citizens, and discrimination based on sexual orientation is unconstitutional.
RATIO DECIDENDI
The essential legal principles established are:
1.Sexual orientation is a fundamental aspect of identity and privacy: The right to sexual orientation, sexual autonomy, and choice of sexual partner are integral components of the right to life and personal liberty under Article 21.
2.Discrimination based on sexual orientation violates Articles 14 and 15: Section 377 discriminated against individuals based on sexual orientation, violating equality before law and equal protection of laws.
3.Consensual sexual acts between adults cannot be criminalized: The State has no legitimate interest in regulating consensual intimate conduct between adults in private. Such criminalization violates rights to privacy, dignity, and autonomy.
4.Constitutional morality prevails over social morality: Fundamental rights cannot be denied merely because a majority disapproves of how a minority exercises those rights.
5.Manifest arbitrariness renders legislation unconstitutional: Section 377 lacked rational nexus with any legitimate state objective.
LEGAL SIGNIFICANCE AND IMPACT
Constitutional Jurisprudence
The judgment significantly expanded Article 21’s scope, firmly establishing sexual orientation and intimate choice as protected facets of life and personal liberty. It moved beyond formal equality to embrace substantive equality, recognizing that true equality requires equal concern and respect for all individuals regardless of sexual orientation. The concept of constitutional morality was robustly articulated, providing a powerful tool for protecting minority rights.
Criminal Law Reform
By reading down Section 377, the Court removed the threat of criminal prosecution that had hung over millions for over a century. The judgment clarified that victims of sexual assault can invoke Section 377 for protection without fear of self-incrimination and mandated sensitization of police forces to ensure LGBTQ+ individuals are not subjected to harassment or discrimination.
Social Impact
The judgment helped reduce social stigma and legitimized LGBTQ+ identities in public discourse. It empowered millions to live authentically without fear, encouraged greater visibility of sexual and gender diversity, and facilitated better access to healthcare services, particularly HIV/AIDS prevention and treatment.
Limitations
While historic, the judgment did not extend to recognition of same-sex marriages or civil unions, leaving questions regarding adoption rights, surrogacy access, and parenting rights unresolved. Comprehensive anti-discrimination legislation protecting LGBTQ+ individuals in employment, housing, education, and public services remains absent. Despite legal victory, societal attitudes change slowly, and many LGBTQ+ individuals continue facing discrimination in practice.
CRITICAL ANALYSIS
Strengths
The four separate opinions collectively provided extensive reasoning covering constitutional, philosophical, historical, and comparative perspectives, making the judgment intellectually robust. Unlike typical judicial pronouncements, the judgment demonstrated remarkable empathy and understanding of LGBTQ+ individuals’ lived experiences. By aligning Indian jurisprudence with international human rights standards, the judgment positioned India among progressive democracies recognizing LGBTQ+ rights and exemplified purposive constitutional interpretation.
Limitations
Critics argue that by limiting the decision to decriminalization without addressing marriage equality and other rights, the Court adopted an excessively cautious approach. Some scholars contend that basing the judgment primarily on privacy rights may inadvertently reinforce the notion that same-sex relationships should remain private rather than being publicly celebrated and normalized. The judgment did not provide detailed implementation guidelines, leading to continued discrimination in practice.
CONCLUSION
Navtej Singh Johar v. Union of India represents a defining moment in India’s constitutional journey and the global struggle for LGBTQ+ rights. By reading down Section 377, the Supreme Court not only removed a colonial relic but also reaffirmed the Constitution’s
transformative promise of equality, dignity, and liberty for all citizens, regardless of sexual orientation or gender identity.
The judgment’s significance extends beyond its immediate legal effect. It represents a powerful assertion of constitutional morality over social prejudice, individual rights over majoritarian sentiment, and human dignity over archaic moral codes. However, the journey toward full equality remains incomplete, as structural discrimination, social stigma, and legal inequality persist in areas such as marriage, adoption, and inheritance.
The Navtej Singh Johar judgment stands as testament to the Constitution’s enduring capacity to protect the most vulnerable sections of society. It demonstrates that constitutional values of justice, liberty, equality, and fraternity are living principles that must be made meaningful for every citizen. As Justice Chandrachud eloquently stated, the Constitution exists not merely to
reflect popular opinion but to transform society by protecting fundamental rights even when it requires standing against majoritarian prejudice.
This judgment will be remembered not merely for what it struck down but for what it affirmed: the inherent worth and dignity of every human being, the inviolability of individual autonomy, and the Constitution’s unwavering commitment to creating a more just, equal, and compassionate society.
