Author: Vaishnavi.M, The Tamil Nadu Dr. Ambedkar Law University
To the Point
This article examines the landmark 2018 decision of the Supreme Court of India in Navtej Singh Johar v. Union of India, where the Court invalidated the oppressive elements of Section 377 of the Indian Penal Code (IPC) that criminalized consensual same-sex relations between adults. This pivotal ruling represented a transformative moment in Indian constitutional and social history, affirming the rights of LGBTQIA+ individuals to dignity, equality, and personal freedom.
Delivered unanimously by a five-judge Constitution Bench, the verdict emphasized the dynamic nature of the Constitution, underscoring that it must adapt to contemporary societal values. The Court held that Section 377, a remnant of colonial legislation, was not only outdated and exclusionary but also in direct conflict with the fundamental rights guaranteed under Articles 14 (Equality Before Law), 15 (Non-Discrimination), 19 (Freedom of Expression), and 21 (Right to Life and Personal Liberty) of the Indian Constitution.
By striking down the criminalization of private, consensual same-sex acts, the judgment reinstated constitutional morality, asserting that the State has no legitimate authority to interfere in the private lives of consenting adults. The Court further emphasized that constitutional values must prevail over majoritarian morality, and that every individual’s dignity and identity must be upheld irrespective of their sexual orientation.
This decision went beyond mere decriminalization it affirmed the existence, legitimacy, and personhood of LGBTQIA+ individuals across India. It reiterated that sexual autonomy and personal liberty are foundational to individual identity, and that the Constitution must serve as a shield protecting the rights of all citizens. Celebrated for its progressive jurisprudence, the ruling stands out for its empathetic language and unwavering commitment to human rights and inclusivity.
Use of Legal Jargon
The Navtej Singh Johar judgment arose from a writ petition under Article 32 of the Constitution, invoking the Supreme Court’s original jurisdiction to enforce fundamental rights. The petitioners challenged the constitutional validity of Section 377 IPC, arguing that it violated the rights to privacy, equality, and dignity, especially for members of the LGBTQIA+ community.
Applying the doctrine of reading down, the Court narrowly interpreted Section 377 to exclude consensual sexual acts between adults, thereby removing such conduct from the purview of criminal law. Simultaneously, the Court retained the provision’s applicability to non-consensual acts, minors, and bestiality, in line with the doctrine of severability, which permits only the unconstitutional portions of a statute to be invalidated.
A pivotal aspect of the ruling was the assertion of constitutional morality over public morality. The Court held that judicial interpretation must reflect constitutional values, not majoritarian prejudices, especially when fundamental rights are implicated. The judgment was grounded in transformative constitutionalism, which envisions the Constitution as a dynamic and evolving document aimed at promoting social justice and expanding individual freedoms.
The Court also relied on the dignity jurisprudence developed in cases such as K.S. Puttaswamy v. Union of India, reaffirming that the right to privacy includes bodily autonomy, intimacy, and sexual orientation. Furthermore, the Court invoked the principle of manifest arbitrariness to strike down Section 377’s discriminatory application, holding that a law lacking rational justification or legitimate purpose offends Article 14.
The bench addressed the conflict between Section 377’s non obstante clause and overarching constitutional guarantees, ultimately resolving it in favor of individual liberty, autonomy, and equality. This reaffirmed that constitutional rights are not subordinate to societal disapproval, and the State must safeguard personal freedoms regardless of popular opinion.
The Proof
The constitutional validity of Section 377 of the Indian Penal Code (IPC)—which criminalized “carnal intercourse against the order of nature”—was challenged before the Supreme Court of India through a writ petition under Article 32, seeking enforcement of fundamental rights. The petitioners, comprising LGBTQIA+ individuals and civil society actors, argued that the provision was vague, overinclusive, and violated core constitutional guarantees.
They contended that Section 377, by criminalizing consensual same-sex relations, infringed:
Article 14, as it denied equal protection of the law and failed to satisfy the standard of reasonable classification;
Article 15, by facilitating discrimination based on sexual orientation, which falls within the ambit of “sex”;
Article 19(1)(a), as it curtailed freedom of expression, particularly in relation to sexual identity and self-expression;
Article 21, by violating the right to life and personal liberty, which includes bodily autonomy, sexual freedom, and human dignity.
In a unanimous ruling, the five-judge Constitution Bench held Section 377 to be unconstitutional to the extent that it criminalized consensual sexual acts between adults in private. The Court applied the doctrines of reading down and severability—preserving the statute’s application to non-consensual acts, offences involving minors, and bestiality, while severing its unconstitutional application to private, consensual conduct.
At the heart of the decision was the reaffirmation of constitutional morality, which requires that constitutional interpretation be grounded in fundamental rights rather than majoritarian norms or public morality. The Court’s analysis was shaped by transformative constitutionalism, a framework that recognizes the Constitution as a living document, meant to adapt to evolving societal values.
The judgment built upon the privacy jurisprudence established in Justice K.S. Puttaswamy v. Union of India, holding that sexual orientation is a deeply personal and innate attribute. Criminalizing such intimate conduct, the Court held, directly undermines the autonomy, dignity, and liberty protected under Article 21.
By striking down this colonial-era provision, the Supreme Court drew a firm line against State interference in the private lives of consenting adults. The verdict marked a transformative shift in India’s constitutional landscape—elevating individual dignity, sexual identity, and equal citizenship to the forefront of fundamental rights discourse.
Abstract
The case of Navtej Singh Johar v. Union of India [AIR 2018 SC 4321] is a landmark judgment wherein the Supreme Court of India decriminalized consensual same-sex relations among adults. This decision reversed parts of its earlier ruling in Suresh Kumar Koushal v. Naz Foundation (2013) and reaffirmed individual liberty and privacy. The judgment signaled a pivotal moment for LGBTQIA+ rights in India, embodying a shift towards progressive constitutionalism rooted in dignity, non-discrimination, and equality. This article analyzes the legal reasoning, constitutional provisions, and jurisprudential impact of the decision, while also addressing frequently asked questions on its scope and significance.
Case Laws
1. Navtej Singh Johar v. Union of India (2018)
Citation: (2018) 10 SCC 1
Bench: Dipak Misra C.J., R.F. Nariman, A.M. Khanwilkar, D.Y. Chandrachud, and Indu Malhotra, JJ.
Held: Section 377 IPC is unconstitutional to the extent it criminalizes consensual sexual conduct between adults of the same sex.
2. Suresh Kumar Koushal v. Naz Foundation (2013)
Overruled in part. It had previously upheld the validity of Section 377, minimizing the rights of the LGBTQIA+ community.
3. Naz Foundation v. Government of NCT of Delhi (2009)
Delhi High Court: First judgment to read down Section 377; later reversed by Koushal.
4. K.S. Puttaswamy v. Union of India (2017)
Recognized the right to privacy as a fundamental right and laid the foundation for re-examining Koushal.
5. National Legal Services Authority (NALSA) v. Union of India (2014)
Recognized the rights and identity of transgender persons.
6. Maneka Gandhi v. Union of India (1978)
Expanded the interpretation of Article 21 to include dignity and personal liberty.
Conclusion
The Navtej Johar decision is a victory not only for the LGBTQIA+ community but also for constitutional values of dignity, liberty, and equality. It marks a progressive departure from colonial legal norms and affirms the idea that morality must be based on constitutional values, not majority opinion. The Court’s reliance on transformative constitutionalism and constitutional morality has set a new precedent in human rights jurisprudence in India. The ruling also opens the door for further legislative and judicial steps toward the protection of sexual and gender minorities.
FAQS
1. What exactly was decriminalized in Navtej Singh Johar v. Union of India?
The judgment decriminalized consensual sexual acts between adults of the same sex under Section 377 of the IPC.
2 Is homosexuality now legal in all forms in India?
Yes, consensual homosexual relations between adults are legal. However, same-sex marriage and adoption rights are yet to be recognized under Indian law.
3. Did the Court strike down Section 377 entirely?
No. The Court read down Section 377. It remains applicable to non-consensual acts, bestiality, and acts involving minors.
4 What is meant by ‘reading down’ a law?
Reading down is a judicial technique where the Court interprets a provision in a way that aligns it with the Constitution, without completely striking it down.
5. What role did the Right to Privacy judgment play in this case?
In K.S. Puttaswamy (2017), the Supreme Court held that sexual orientation is an essential attribute of privacy. This was crucial in challenging the constitutionality of Section 377.
6. What is the impact of this judgment on future LGBTQIA+ activism?
The judgment has become a foundation for further advocacy on same-sex marriage, anti-discrimination laws, and other civil rights for LGBTQIA+ persons..
