Author: Chhavi Das, Student at ILS Law College
To the Point
The Navtej Singh Johar decision in 2018 served as a powerful reminder that the law has no place in policing consensual intimacy between adults. The Supreme Court of India struck down Section 377 of the Indian Penal Code, which made even consensual same-sex relationships illegal during the colonial era, in a historic and poignant ruling in 2018. In addition to being a court decision, this was a loud affirmation of the LGBTQ+ community’s freedom, dignity, and sense of belonging. The case signified a transition from silence and shame to visibility and acceptance in Indian law.
Use of Legal Jargons
This case involved a number of complicated but important constitutional and legal ideas. The Court approached the reading down of Section 377, so that the law would be interpreted in a more limited sense and would cease to criminalize consensual sex between adults. One of the central themes was constitutional morality or the belief that it is the values in the Constitution and not the feudal traditions of the country, that should inform legal interpretation. The case conjured up several Fundamental Rights under Part III of the Constitution, such as the right to equality, privacy, and expression. The principle of facial neutrality was challenged, as Section 377, by its appearance, neutral in nature, disproportionately impacted the LGBTQIA+ population. Finally, the judgment was welcomed as a fruit of transformative constitutionalism, a progressive strategy of law that employs the Constitution as an instrument for social transformation and justice.
The Proof
Picture having someone tell you that your existence is illegal, the one you love, how you feel and how you choose to express yourself puts you on the wrong side of the law. That was the reality for decades for the LGBTQ+ community in India.
In this historic case, five inspiring individuals, Navtej Singh Johar, Sunil Mehra, Ritu Dalmia, Aman Nath and Ayesha Kaur, came forward not only as petitioners but as chroniclers of courage. They were from different professions, yet all had a shared aspiration: to be free, fearless, and to live with dignity.
They protested against Section 377 of the IPC, a colonial law that criminalized consensual same-sex intimacy as an offence, along with acts of bestiality. Even though not enforced in contemporary times, the section used to be invoked to blackmail, harass and shame queer people. It was not merely about bodies but also about deleting identities.
Their plea was one of the heart and rooted in the Constitution:
• They told us under Article 21, they had a right to live with dignity and privacy that was something Section 377 robbed them of.
• The law put unequal things on an equal footing under Article 14 because it criminalized love and classified it alongside violent or non-consensual acts.
• Article 15, prohibiting discrimination, became worthless when a law penalized someone for what they were.
• Article 19(1)(a), their right of expression, was chilled in fear of prosecution.
Some counterarguments raised by critics of the judgment pointed to traditional Indian values and cultural morality. They argued that same-sex relations are against Indian traditions and family structures. However, this was thoroughly addressed in the Court’s reasoning. Ancient Indian texts and traditions, such as literature, scriptures and temple carvings were cited by the judges and advocates as evidence of a far more inclusive and varied view of gender and sexuality. References that defy rigid heteronormative norms can be found in ancient texts like the Kama Sutra, sculptures at temples like Khajuraho and Konark and even parts of the Manusmriti. Contrary to popular assumption, a Victorian-era law, not Indian culture, was the one that outlawed homosexuality.
The Court listened to them. And finally, saw them. Adopting the forceful K.S. Puttaswamy judgment (2017) in which privacy was held to be a fundamental right, the judges, by an unanimous verdict, came out in support of the petitioners. Justice D.Y. Chandrachud noted that “love that is not expressed openly suffocates the soul.” Justice Indu Malhotra, in a profoundly sympathetic remark, stated: “History owes an apology to this community.” These weren’t merely lines of poetry but also redemptive.
This verdict wasn’t just one on legal doctrines. It was one of recognizing the trauma, the silence and the endless camouflage that had been experienced by queer individuals. It was a long-overdue affirmation that no one is isolated in their identity and that love, in all its forms, is valid and seen. The law stands with you.
Abstract
In addition to being a court victory, Navtej Singh Johar v. Union of India was a moment of healing for millions of people. The Supreme Court upheld the LGBTQIA+ community’s freedom, humanity, and dignity by reading down Section 377 IPC. The verdict adopted privacy, equality, and expression as un-negotiable rights for every Indian. It demonstrated the fundamentals of a modern inclusive constitution that never leaves anyone behind and changes to fit society. Even so, there is still a long way to go before marriage equality, anti-discrimination laws and public acceptance are achieved.
Case Laws
Navtej Singh Johar v. Union of India (2018) 10 SCC 1
The central case under consideration. The Supreme Court decided that criminalizing consenting same-sex acts under Section 377 IPC was unconstitutional. It acknowledged that one’s sexual orientation is intrinsically connected to one’s rights over privacy, dignity, and self-definition. The decision largely depended on the privacy paradigm already set out in the Puttaswamy case (2017).
Justice Indu Malhotra deeply reflected that the LGBTQIA+ community had been historically misjudged by society and the legal establishment and that the country needed to accept and apologize for this injustice. Her statement became symbolic of the progressive ethos in the judgment. The verdict also accepted the concept that the Constitution needs to usher in “transformative constitutionalism”, reengineering society through the law and upholding vulnerable minorities.
Naz Foundation v. Government of NCT of New Delhi (2009) 160 DLT 277
The Delhi High Court, in a landmark judgment, struck down sections of Section 377 as unconstitutional in terms of Articles 14, 15, and 21 of the Constitution, representing an important milestone in the judicial recognition of LGBTQIA+ rights in India. The Court held that the law propagated stigma, discrimination and fear within the LGBTQIA+ community and infringed upon the right to live with dignity and privacy. Although later set aside in Suresh Kumar Koushal, the Naz judgment was the intellectual and moral underpinning of the ultimate success in Navtej Johar. The case also witnessed a turn in judicial empathy, acknowledging the reality of LGBTQIA+ lives in India.
Suresh Kumar Koushal v. Naz Foundation (2014) 1 SCC 1
In a highly criticised judgment, the Supreme Court revived Section 377 after it had been read down by the Delhi High Court. The rationale of the Court was that a “minuscule minority” could not invoke violation of fundamental rights. Such a remark has been severely criticised as being oblivious of the very basic constitutional canon that a single person is due dignity and rights. Ironically, such a judgment served to become the trigger for more LGBTQIA+ activism, legal mobilisation and the ultimate fight won in Navtej Johar. The Koushal decision is currently considered to be Indian constitutional law’s low point, subsequently rectified by Navtej Johar.
K.S. Puttaswamy v. Union of India (2017) 10 SCC 1
In the Puttaswamy judgment, a nine-judge bench of the Supreme Court reaffirmed that the Constitution protects privacy as an inherent, fundamental right. Instead of handling privacy as a general or ancillary principle, the Court infused it in the larger schema of liberty of individuals, equality and human dignity. It stressed that privacy encompasses the liberty to choose intimate matters like one’s sexual identity and orientation, unencumbered by State intervention. This ruling gave firm constitutional basis to Navtej Johar’s Page 1 of 3 arguments, firmly establishing that sexual orientation enjoys protection under the right of privacy and cannot be criminalized. The Court also overruled previous judgments which had dealt with privacy as a non-fundamental or secondary issue.
NALSA v. Union of India, (2014) 5 SCC 438
Yet another landmark in the journey of LGBTQIA+ rights. The Supreme Court in NALSA declared transgender individuals as a “third gender” under the Constitution. The Court stated that gender identity is an integral aspect of the right to dignity, autonomy, and freedom of expression. The judgment instructed the government to extend legal recognition, affirmative action, and protection against discrimination to transgender individuals. Importantly, NALSA expanded the understanding that constitutional rights are not confined to binary gender categories, paving the way for broader LGBTQIA+ inclusivity in Indian law.
Conclusion
The judgment of Navtej Singh Johar is a beam of justice and hope. It was a reminder for India and the world at large that laws are meant to benefit, not annihilate, mankind. The Court’s ruling to make homosexual relationships legal did more than simply override a law; it took millions of individuals out of invisibility. Yet the adventure is not over yet. Besides being recognized, rights have to be protected. Both legality and social legitimacy are needed for love. We need to vow to create a world where all are heard, protected, and free, no matter whom they love, as we celebrate this legal victory.
FAQS
Q1: Is Section 377 fully deleted from Indian law?
No. Section 377 continues to apply to acts such as rape, child abuse, non-consensual sex, and bestiality. But Section 377 can no longer be employed to target or criminalize consensual sex between adults of any gender.
Q2: Which rights did Section 377 violate, according to the Court?
It infringed on a number of basic rights:
Right to equality (Article 14)- It was discriminatory towards LGBTQIA+ individuals. • Right to non-discrimination (Article 15).
Right of privacy and dignity (Article 21)- One’s sexuality is a private and personal issue.
Freedom of expression (Article 19)- Individuals should be able to freely express love and identity without fear.
Q3: What is “constitutional morality,” and why is it relevant here?
It is that while interpreting the laws, judges will have to apply the principles of the Constitution such as equality, dignity and justice not prejudiced or outdated social norms. Even if the society is prejudiced, law has to be for what is just and equitable for all.
Q4: What’s next after this judgment in favor of LGBTQIA+ rights in India?
The struggle goes on. The next big objectives are:
Marriage equality- legal right to marry.
Adoption rights- granting LGBTQIA+ couples the right to adopt children.
Anti-discrimination laws- in employment, accommodation, health, education.
Social acceptance- shifting attitudes so that LGBTQIA+ individuals can be open and safe in every corner of society.
