Author: Ahana Banerjee, St Xaviers University Kolkata
To the point
For decades, Section 377 of the Indian Penal Code cast a shadow over millions of lives, criminalizing private, consensual same-sex relationships under the vague label of “unnatural offences.” This outdated colonial-era law not only denied LGBTQ+ individuals their basic rights but also legitimized discrimination, social stigma, and violence. The case of Navtej Singh Johar v. Union of India became a turning point in Indian legal history. Filed by five individuals from diverse creative and professional backgrounds, the case challenged the constitutionality of Section 377 and demanded the recognition of the LGBTQ+ community as equal citizens under the Indian Constitution. In a 2018 judgment the part of Section 377 that criminalized consensual same-sex relations between adults was struck down. This wasn’t just a legal win—it was a moment of liberation and dignity for an entire community. The court emphasized that constitutional morality must triumph over societal prejudice, and that every individual has the right to live with freedom, privacy, and self-respect. In 2016, five brave individuals—dancers, journalists, hoteliers, and artists—stepped forward to challenge this injustice. Their petition didn’t just ask for a law to be struck down; it asked for recognition, respect, and equal constitutional protection for people whose only “difference” was who they loved.
Use of Legal Jargon
The Navtej Singh Johar case brought several crucial legal doctrines to life, each playing a key role in how the court interpreted the rights of LGBTQ+ individuals under the Indian Constitution. Understanding these concepts helps us grasp why this judgment is such a turning point—not just for LGBTQ+ rights, but for constitutional law as a whole. One of the most powerful terms in this case was “constitutional morality.” Unlike “social morality,” which is shaped by culture, religion, or majority opinion, constitutional morality is rooted in the values of justice, liberty, equality, and dignity enshrined in the Constitution. The court emphasized that when society’s outdated and orthodox views clash with these values, it is constitutional morality that must prevail. Next is Article 14, which guarantees equality . The court held that criminalizing same-sex relations under Section 377 created an arbitrary distinction between heterosexual and homosexual individuals, violating the principle of equality and creating sense of biasness between individuals and people being mistreated. The judgment also heavily relied on Article 15, which prohibits discrimination on grounds only of aspects like caste, sex religion etc which every individual has its own perspective and beleifs . The court interpreted “sex” to include sexual orientation, making it unconstitutional to discriminate against LGBTQ+ persons. Another vital term was Article 21, which protects the right to life and personal liberty. Over the years, this article has come to include dignity, autonomy, privacy, and self-expression. The court made it clear that one’s sexual orientation is intrinsic to their identity and must be protected under Article 21. Finally, the court referred to “progressive realization of rights,” a principle often used in international human rights law, which supports the idea that societies—and their legal systems—must evolve over time to protect emerging or previously neglected rights. It’s a living document meant to evolve with society, and its protection must extend to every citizen, without exception. In grounding its decision in these legal principles, the court didn’t just strike down a section of the Penal Code—it elevated the lived experiences of millions into the framework of constitutional protection. And that is what law, at its best, is meant to do.
Abstract
The Supreme Court’s decision in Navtej Singh Johar v. Union of India wasn’t just a legal judgment—it was a moment of reckoning for Indian democracy. For over a century, Section 377 of the Indian Penal Code criminalized consensual same-sex relationships, branding millions of LGBTQ+ individuals as criminals for simply loving who they loved. In 2018, five ordinary citizens—dancers, journalists, artists—stood up to challenge this colonial relic, asking not just for legal protection, but for something deeper: the right to live with dignity, without shame or fear. This article examines the journey and impact of the Navtej Singh Johar case, focusing on how the Supreme Court interpreted Articles 14, 15, and 21 of the Constitution to strike down part of Section 377. It highlights the use of key constitutional concepts such as equality, privacy, dignity, and constitutional morality, and explains how the judgment gave new life to the idea of justice in India. Through this analysis, the article also reflects on the broader meaning of freedom in a modern democracy, and how the Constitution must continue to evolve to protect voices that have long been silenced. The verdict marked more than the end of a law—it was the beginning of India finally listening to its LGBTQ+ citizens, not with judgment, but with justice. Ultimately, this case reaffirmed that the Constitution is a living document, capable of embracing change, protecting minorities, and redefining justice in the light of modern human rights values.
The proof
To understand why Navtej Singh Johar v. Union of India became a defining moment in India’s legal history, we have to rewind to a time when identity itself was criminalized. Though vaguely worded, it was widely used to target LGBTQ+ individuals, casting a cloud of illegality over consensual same-sex relationships. For decades, the law stood as a silent weapon—used not only by police but by society at large—to justify harassment, blackmail, and exclusion. The first major legal blow to Section 377 came in 2009, when the Delhi High Court in Naz Foundation v. Government of NCT of Delhi was held. But in a stunning reversal, the Supreme Court in 2013 (Suresh Kumar Koushal v. Naz Foundation) overturned that decision, calling the LGBTQ+ population a “minuscule minority” unworthy of special legal attention. The setback was not just legal—it was emotional. It told an entire community that their pain was too small to matter. But silence didn’t last long. In 2016, a fresh petition was filed—not by lawyers or NGOs, but by five individuals from creative fields: Navtej Singh Johar, a dancer; Sunil Mehra, a journalist; Ritu Dalmia, and Ayesha Kapur. They didn’t speak the language of legalese—they spoke from their lives, their fears, their hope for dignity.The petition argued that Section 377 violated their right to equality (Article 14), protection against discrimination (Article 15), and most importantly, the right to life and personal liberty (Article 21)—which includes dignity, privacy, and identity. The 2017 Puttaswamy judgment, which recognized privacy as a fundamental right, gave their case even stronger footing. In September 2018, the Supreme Court delivered a historic verdict: the part of Section 377 that criminalized consensual same-sex acts between adults was declared unconstitutional. The court not only struck down the law—it apologized for the years of silence, shame, and invisibility that the LGBTQ+ community had endured. The proof of this case’s importance lies not just in the judgment, but in the journey. From colonial repression to constitutional recognition, Navtej Singh Johar became the moment when India, through its highest court, finally said: you matter, you belong, and the law will stand with you.
Case law Analysis
The Navtej Singh Johar judgment wasn’t just a case about striking down a law—it was about restoring dignity, identity, and freedom to a community that had been silenced for generations. Section 377 of the Indian Penal Code, introduced during British rule, had criminalized “unnatural sex,” which in practice was used to target LGBTQ+ individuals. The petitioners—five respected professionals from the arts and business sectors—challenged this colonial law not just as outdated, but as unconstitutional. The Supreme Court, in a unanimous verdict, ruled that criminalizing consensual same-sex relationships violated the right to equality under Article 14. It also infringed Article 15, where the court broadened the term “sex” to include sexual orientation, meaning discrimination against LGBTQ+ individuals had no place in a just legal system. But it was Article 21—right to life and personal liberty—that gave the case its emotional core, as the court affirmed that dignity, privacy, and the right to love are fundamental to one’s identity. The judges emphasized that constitutional morality must rise above social morality, stating that the rights of even a single individual must be protected, regardless of majority opinion.. The judgment not only overturned earlier regressive decisions like Suresh Kumar Koushal, but also drew strength from the 2017 Puttaswamy ruling that had enshrined the right to privacy as a fundamental right. With this ruling, the Supreme Court didn’t just change a law—it shifted the moral and legal fabric of the country, reminding us all that love is not a crime, and that the Constitution must protect the freedom to be who we are.
Conclusion
The Navtej Singh Johar judgment stands as one of the most powerful reminders that the Indian Constitution is not a relic of the past—it is a living, breathing promise to every citizen, especially those who have long remained unheard. By striking down Section 377 in its application to consensual same-sex relationships, the Supreme Court didn’t just remove a law—it restored human dignity, personal freedom, and the right to love without fear. This case was not about special rights for a minority; it was about equal rights for every Indian, no matter their gender, orientation, or identity. The judgment also set a strong precedent for how courts must interpret the Constitution—not in the shadow of outdated social prejudices, but in the light of constitutional morality. It affirmed that our laws must evolve to reflect the values of justice, equality, and liberty. But the journey doesn’t end here. While the verdict was a major victory, true equality goes beyond legal recognition—it lies in societal acceptance, inclusive policies, and continued advocacy. This case opened the door, but it’s up to all of us—lawmakers, citizens, and communities—to walk through it together and build a nation where everyone can live freely, safely, and with pride in who they are. In that sense, Navtej Singh Johar wasn’t just a legal triumph—it was a turning point in India’s march toward a more just and compassionate future.
FAQS
1. What was Section 377 and why was it controversial?
Section 377 of the Indian Penal Code was a colonial-era law introduced in 1861 that criminalized “carnal intercourse against the order of nature.” While it was vaguely worded, it was primarily used to target LGBTQ+ individuals, making consensual same-sex relationships punishable by law. For decades, it created fear, invisibility, and legal discrimination, which is why its removal was so important. Police often used it to intimidate people, blackmail them, or deny them basic rights. Even though actual prosecutions were rare, the mere existence of the law created a climate of fear and shame. It sent a message that same-sex love was not only socially unacceptable—but also illegal. This is why Section 377 was widely criticized by human rights activists, legal scholars, and civil society. It represented a direct violation of personal liberty, dignity, and equality, which made its removal a major step toward justice.
2. What did the Supreme Court decide in Navtej Singh Johar v. Union of India (2018)?
In this landmark judgment, the Supreme Court struck down the part of Section 377 that criminalized consensual same-sex relations between adults. The court declared that such laws were unconstitutional as they violated the rights to equality (Article 14), non-discrimination (Article 15), and life and personal liberty (Article 21), including dignity and privacy. The Court emphasized that sexual orientation is an essential attribute of one’s identity, and denying someone the right to express love simply because of who they are attracted to goes against the principles of equality and dignity. It held that criminalizing consensual love between adults serves no legitimate public interest and only deepens the marginalization of the LGBTQ+ community.What made the verdict even more significant was the tone of compassion in the Court’s language. It didn’t just stop at legal reasoning—it acknowledged the pain and injustice suffered by LGBTQ+ individuals over decades. One of the judges, Justice Indu Malhotra, even stated that “history owes an apology to the members of this community.” In essence, the verdict wasn’t just about removing a law—it was about reclaiming humanity, recognizing dignity, and reinforcing the idea that the Constitution protects every Indian equally.
3. What is constitutional morality, and why was it important in this case?
Constitutional morality refers to the principles and values enshrined in the Constitution—such as justice, liberty, equality, and dignity—that guide how laws should be interpreted. In this case, the court said that laws cannot be based on outdated social or religious morality. The Constitution must protect even unpopular minorities from majoritarian beliefs. This idea was central to the case because many people argued that homosexuality was against Indian culture or religious values. The Court rejected that reasoning, stating that majoritarian views or public opinion cannot justify discrimination. Just because a section of society disapproves of same-sex relationships does not mean the law can criminalize them.By invoking constitutional morality, the Court reminded us that the Constitution exists to protect the rights of all, especially minorities who may not be supported by public sentiment. It emphasized that the role of the judiciary is not to mirror societal biases but to uphold the ideals that form the foundation of the Republic. This principle is what allowed the Court to strike down Section 377—not.
4. Does this judgment give special rights to the LGBTQ+ community?
No, the judgment does not create new or special rights. It simply affirms that LGBTQ+ individuals are entitled to the same fundamental rights as every other citizen. It decriminalized their existence and protected their right to privacy, love, and dignity—basic human rights that were long denied. Before this ruling, LGBTQ+ individuals were denied these basic protections simply because of their sexual orientation. The judgment corrected that injustice by stating clearly that no one should be treated as a criminal for who they are or whom they love, as long as it involves consenting adults. The Court emphasized that being LGBTQ+ is not a behavior to be punished—it is a natural variation of human identity. In fact, what the Court did was bring the LGBTQ+ community into the fold of equal citizenship, which had been long overdue. So rather than granting any “special” privilege, the ruling ensured that the same legal protections apply to everyone, regardless of sexual orientation. This is equality in its truest sense—not about giving more, but about denying no one the rights they already deserve.
5. What has changed after the judgment, and what challenges remain?
Legally, LGBTQ+ individuals are no longer criminals for their sexual orientation, which is a massive shift. However, challenges remain in areas like same-sex marriage, adoption rights, workplace inclusion, and societal acceptance. The judgment laid the foundation, but building a truly inclusive society will require continuous effort. while the legal battle was won, the social and institutional challenges still remain. For example, same-sex marriages are not yet legally recognized in India, which means LGBTQ+ couples still lack rights related to inheritance, adoption, joint property, or even hospital visitation as partners. Workplace discrimination, bullying in schools, and lack of inclusive education continue to affect many queer individuals across the country. In rural areas or conservative families, fear of rejection, violence, or forced marriages remains a harsh reality. Moreover, while the judgment removed criminal liability, it did not automatically bring acceptance or policy-level protections. India still lacks a comprehensive anti-discrimination law that protects individuals based on sexual orientation and gender identity in areas like housing, healthcare, or employment. So, while the Navtej ruling marked a brave and historic beginning, it’s clear that the journey toward true equality and inclusion is ongoing. Laws can change overnight, but changing mindsets takes time, education, and continued advocacy—and that work is far from over.
