Author- Priyam Malik, student at sister Nivedita University
To The Point
India is one of 28 Asian nations that have officially recognized the rights of homosexual individuals and the LGBTQ+ community. This shift came through the landmark Supreme Court ruling in Navtej Singh Johar v. Union of India, a case that changed the legal and social status of millions across the country.
Before this verdict, same-sex relationships were criminalized under Section 377 of the Indian Penal Code—a colonial-era law that labelled consensual sexual acts between adults of the same sex as “against the order of nature.” This outdated provision not only criminalized LGBTQ+ individuals but also reinforced social stigma and denied them basic human rights.
The Naz Foundation, filed a petition in the Delhi High Court challenging Section 377 in 2009. They argued that the law violated fundamental rights guaranteed under Articles 14, 15, 19, and 21 of the Constitution.
However, in 2013, this progress was undone when the Supreme Court reversed the Delhi High Court’s decision in Suresh Kumar Koushal v. Naz Foundation, stating that only Parliament had the authority to change the law. This re-criminalization triggered widespread protests and criticism both nationally and internationally.
In response, five individuals from the LGBTQ+ community—Navtej Singh Johar, Ritu Dalmia, Ayesha Kapur, Aman Nath, and Sunil Mehra—filed a fresh petition in the Supreme Court, arguing that Section 377 continued to violate their fundamental rights.
Their efforts cultivated in a historic ruling in 2018, when the Supreme Court struck down the part of Section 377 that criminalized consensual same-sex relations. The Court declared that the Constitution guarantees dignity, privacy, and equality to every individual, regardless of their sexual orientation.
This judgment was more than a legal victory—it marked a turning point in India’s journey toward equality and inclusion, reaffirming the fundamental rights of LGBTQ+ citizens and inspiring hope for future reforms.
Abstract
The Navtej Singh Johar v. Union of India judgment was a landmark case in India’s legal history. By decriminalizing consensual same-sex relationships, the Supreme Court took a bold step toward equality and justice. It held that Section 377 of the IPC violated key constitutional rights—equality (Article 14), non-discrimination (Article 15), freedom of expression (Article 19), and the right to life and dignity (Article 21). The Court embraced principles like transformative constitutionalism and constitutional morality, rejecting outdated social norms in favor of individual freedom. Drawing strength from earlier rulings like Puttaswamy, NALSA, and Maneka Gandhi, the judgment affirmed that the Constitution must grow with society and protect every citizen’s right to live with dignity—regardless of their identity.
Use of legal Jargon
1. Constitutionality
At the heart of the case was a question of whether Section 377 of the Indian Penal Code—criminalizing same-sex relations—was in line with the Indian Constitution. The Court examined whether the section stood up to constitutional scrutiny, especially in relation to individual rights.
2. Fundamental Rights
The petitioners contended that Section 377 infringed upon several fundamental rights:
Article 14: which guarantees equality before the law.
Article 15: which prohibits discrimination, including on the basis of sex.
Article 19: which protects freedom of speech and expression, encompassing one’s right to express their sexual identity.
Article 21: Right to life and personal liberty.
3. Doctrine of Progressive Realization of Rights
The Court acknowledged that constitutional rights should evolve with society. This principle suggests that as society progresses, interpretations of rights must also expand to ensure greater freedom and equality.
4. Transformative Constitutionalism
A key theme in the judgment was that the Indian Constitution is a living document meant to bring about social change. The Court stressed that it should be used as a tool to correct historic injustices and promote values like liberty, dignity, and inclusion.
5. Manifest Arbitrariness
The Court found that Section 377 was manifestly arbitrary—meaning it had no sound legal reasoning and was unreasonable. Because of this, it violated Article 14, which prohibits arbitrary state action.
6. Doctrine of Severability
Rather than scrapping the entire law, the Court used this doctrine to “read down” Section 377. This means it struck down only the part criminalizing consensual adult same-sex relationships, while keeping intact the provisions that deal with non-consensual acts and offenses involving minors or animals.
7. Right to Privacy (Puttaswamy Judgment)
Referring to the landmark Justice K.S. Puttaswamy v. Union of India case, the Court highlighted that sexual orientation is a private and personal matter protected under the right to privacy—a fundamental right under Article 21.
8. Reasonable Classification Test
A law can differentiate between people only if there is a reasonable basis for doing so. The Court ruled that Section 377 failed this test, as it unfairly targeted same-sex individuals without any logical or fair justification, making it discriminatory and unconstitutional.
9. Autonomy and Dignity
The judges highlighted that personal liberty includes the freedom to make Personal choices. Respect for an individual’s autonomy and dignity is central to the Constitution, and laws that diminish these values are unconstitutional.
10. Non-Retrogression
Once a right is recognized by the Constitution, it cannot be taken back arbitrarily. The Court stated that LGBTQ+ individuals’ rights to dignity and privacy must be upheld and cannot be reversed due to shifting social or political opinions.
11. Stare Decisis and Overruling Precedent
Although courts generally respect previous decisions (stare decisis), the Supreme Court acknowledged that past rulings can be overturned if they are unjust or unconstitutional. It therefore overruled the 2013 decision in Suresh Kumar Koushal v. Naz Foundation, restoring justice and constitutional values.
12. Public Morality vs. Constitutional Morality
The Court drew a clear line between public morality (what the majority of society believes) and constitutional morality (the values enshrined in the Constitution). It held that the judiciary must uphold constitutional principles, even if they go against prevailing social norms.
The proof
1. Constitutionality
The Supreme Court closely examined whether Section 377 of the Indian Penal Code stood in harmony with the Indian Constitution. It concluded that criminalizing consensual same-sex relationships among adults violated core constitutional values like liberty, equality, and dignity, making the section unconstitutional in that regard.
2. Fundamental Rights
Those challenging Section 377 argued that it infringed upon basic rights granted by the Constitution. Specifically, it violated the right to equality (Article 14), the right against discrimination (Article 15), freedom of expression (Article 19), and the right to life and personal liberty (Article 21). The Court agreed, stating the law unfairly punished people for who they are.
3. Doctrine of Progressive Realization of Rights
The Court emphasized that the Constitution must be interpreted in a way that reflects the changing times. As society becomes more inclusive, our understanding of rights should also expand. The judgment recognized that equality and freedom must evolve to meet the needs of every generation.
4. Transformative Constitutionalism
This principle guided the entire verdict. The Court stressed that the Constitution isn’t just a legal document—it’s a tool for societal transformation. It must help correct long-standing injustices and build a more inclusive, equal, and just society.
5. Manifest Arbitrariness
The Court found Section 377 to be irrational and lacking in logic. Since it criminalized certain individuals without a valid reason, it was considered arbitrary. Such unfair laws go against Article 14, which protects people from unreasonable government action.
6. Doctrine of Severability
Rather than eliminating Section 377 in its entirety, the Court applied this doctrine to remove only the unconstitutional parts. It struck down the portion that punished consensual relationships between adults of the same sex, while keeping parts that dealt with non-consensual acts or those involving minors.
7. Right to Privacy (Puttaswamy Case)
Drawing from the landmark 2017 privacy judgment, the Court reaffirmed that a person’s sexual orientation is a deeply private matter. It held that this privacy is protected under Article 21, making it a fundamental right.
8. Reasonable Classification Test
Under Article 14, the law can classify people into groups only if it’s done fairly and logically. Section 377 failed this test because it singled out LGBTQ+ individuals without any justifiable reason, making the law discriminatory.
9. Autonomy and Dignity
The Court strongly upheld that personal freedom includes the right to make intimate decisions about one’s life. Every person deserves respect and autonomy. Laws that diminish a person’s dignity or control their private choices violate the very heart of the Constitution.
10. Non-Retrogression
Once a right is granted by the Constitution, it cannot be taken away simply because public opinions shift. The judgment firmly stated that rights, especially those related to privacy and dignity, must move forward—not backward.
11. Stare Decisis and Overruling Precedent
Courts usually follow past decisions to ensure consistency. However, the Supreme Court made it clear that when a previous ruling is unjust or violates constitutional principles, it must be corrected. Hence, the 2013 decision in Suresh Kumar Koushal v. Naz Foundation was overturned.
12. Public Morality vs. Constitutional Morality
The Court drew a clear line between what society may consider moral and what the Constitution demands. It emphasized that constitutional values—like equality, justice, and liberty—must take priority over social prejudices or majoritarian views.
Case laws
1. K.S. Puttaswamy v. Union of India (2017)
It affirmed that sexual orientation is a private and protected aspect of identity, laying the groundwork for decriminalizing homosexuality. The ruling also introduced the idea that once rights are granted, they cannot be taken back arbitrarily (non-retrogression).
2. NALSA v. Union of India (2014)
This case recognized the right of transgender individuals to self-identify their gender. The Court emphasized equality, dignity, and inclusion, marking a key moment in advancing LGBTQ+ rights through transformative constitutionalism.
3. Suresh Kumar Koushal v. Naz Foundation (2013)
The Court reinstated Section 377, ignoring the rights of LGBTQ+ individuals. Widely criticized, it was later overruled in Navtej, where the Court clarified that flawed precedents can be set aside in favor of constitutional justice.
4. Naz Foundation v. Govt. of NCT of Delhi (2009)
The Delhi High Court first read down Section 377, ruling it violated Articles 14, 15, and 21. It recognized the dignity and equality of LGBTQ+ persons, influencing future rulings.
5. Maneka Gandhi v. Union of India (1978)
This ruling broadened Article 21 to include personal liberty, dignity, and fairness, influencing how later courts—including in Navtej—viewed individual freedoms and choices.
6. Anuj Garg v. Hotel Association of India (2008)
The Court struck down gender-biased laws, insisting laws must adapt to modern understandings of equality and autonomy—principles echoed in Navtej Singh Johar.
7. Shayara Bano v. Union of India (2017)
Triple talaq was struck down for violating fundamental rights. The judgment promoted constitutional morality over religious norms, a principle later central to Navtej.
8. Sabarimala Case (2019)
The Court allowed women entry into the Sabarimala temple, reinforcing that tradition cannot override equality.
Conclusions
The Navtej Singh Johar v. Union of India verdict was a historic step toward equality and justice in India. By striking down parts of Section 377, the Supreme Court ended the criminalization of consensual same-sex relationships, restoring dignity and rights to the LGBTQ+ community.
This case showed how the Constitution can be a living tool for progress. The Court used key principles like constitutional morality, transformative constitutionalism, and non-retrogression to affirm that personal freedom and identity cannot be held back by outdated laws or societal prejudice.
More than just a legal victory, it marked a shift in India’s social fabric—where love, dignity, and privacy are protected for all. It reinforced that in a true democracy, every person deserves respect, no matter who they are or whom they love.
FAQs
1. What is the content of Section 377 of the IPC?
Section 377 was a colonial-era provision introduced in 1860, which criminalized certain sexual acts described as “against the order of nature.” While vague in wording, the law came to be used mainly against the LGBTQ+ community, particularly to penalize consensual same-sex relationships. Its presence not only led to legal consequences but also reinforced stigma, fear, and social exclusion for those with non-heteronormative sexual orientations.
2. What did the Supreme Court’s decision in the case Navtej Singh Johar v. Union of India (2018)?
The Court struck down the part of Section 377 that criminalized consensual same-sex relations between adults. It held that this section violated key constitutional rights like equality, dignity, and privacy.
3. Which fundamental rights were found to be violated by Section 377?
Article 14 – Right to Equality
Article 15 – Protection from discrimination
Article 19 – Freedom of expression
Article 21 – Right to life and personal liberty, which includes privacy and dignity
4. How did the Puttaswamy judgment impact LGBTQ+ rights?
This 2017 case recognized the right to privacy as a fundamental right. It confirmed that sexual orientation is a deeply personal matter, setting a strong legal foundation for LGBTQ+ rights and helping to decriminalize homosexuality.
5. What is the doctrine of transformative constitutionalism?
This principle sees the Constitution as a living, evolving document. It calls for interpreting the law in a way that pushes society toward greater justice, especially for marginalized groups like LGBTQ+ people.
6. What does “constitutional morality” mean in this context?
It refers to the core values of the Constitution—like justice, dignity, equality, and freedom. In Navtej, the Court made it clear that these values must be upheld even if they go against majority opinion or cultural norms.
7. What is meant by the doctrine of non-retrogression?
It means that once a fundamental right is recognized by the courts, it can’t be taken away arbitrarily. The recognition of LGBTQ+ rights under Article 21 is now permanent and irreversible.
8. Why was the Suresh Kumar Koushal judgment overruled?
The 2013 decision in Koushal had upheld Section 377, ignoring the fundamental rights of LGBTQ+ individuals. It was overruled in Navtej for failing to protect minorities and relying on outdated moral views rather than cnstitutional values.
9. What was the importance of NALSA v. Union of India (2014)?
This case affirmed that transgender individuals have the right to self-identify their gender. It was a major step forward in securing dignity, equality, and legal recognition for the transgender community.
Reference
K.S. Puttaswamy v. Union of India, (2017) 10 S.C.C. 1 (India).
National Legal Services Authority v. Union of India (NALSA), (2014) 5 S.C.C. 438 (India).
Suresh Kumar Koushal v. Naz Foundation, (2013) 1 S.C.C. 747 (India).
Naz Foundation v. Government of NCT of Delhi, 2009 SCC OnLine Del 1762 (India H.C.).
Maneka Gandhi v. Union of India, (1978) 1 S.C.C. 248 (India).
Anuj Garg v. Hotel Association of India, (2008) 3 S.C.C. 1 (India).
Shayara Bano v. Union of India, (2017) 9 S.C.C. 1 (India).
Indian Young Lawyers Ass’n v. State of Kerala (Sabarimala Case), (2019) 11 S.C.C. 1 (India).
