Author: Siddharth Singh Chaudhary
College: Babu Banarasi Das University
To the Point
On 6 September 2018, a five-judge Constitution Bench of the Supreme Court of India delivered a judgment that had been over a century in the making. In Navtej Singh Johar v. Union of India, the Court unanimously read down Section 377 of the Indian Penal Code, 1860, to the extent that it criminalised consensual sexual conduct between adults of the same sex. A law dating back to British rule, one that could put someone behind bars for life, was at last called out for what it truly was — a tool that fed prejudice rather than one that safeguarded any genuine public interest. The ruling did not create a new right; it simply acknowledged that the right to love, to intimacy, and to sexual autonomy already belonged to every citizen under Articles 14, 15, 19 and 21 of the Constitution, and had been wrongly denied to a section of the population for 158 years.
The case is remembered less for its procedural history and more for the tone it set. Then Chief Justice of India Dipak Misra, penning the lead opinion on behalf of himself and Justice A.M. Khanwilkar, opened the judgment with the now well-known observation that individuals must be allowed to live with dignity, and that constitutional morality must always prevail over social morality. Justice D.Y. Chandrachud went further, offering an explicit apology on behalf of the state for decades of persecution faced by the LGBTQ+ community. Justice Indu Malhotra, the sole woman on the bench, remarked that history owed an apology to the members of this community for the ostracism they had suffered.
Use of Legal Jargon
A reader unfamiliar with constitutional litigation may find several terms scattered through the judgment. A short glossary helps in following the reasoning:
• Reading down: a technique of interpretation where a court narrows the scope of a statute instead of striking it out entirely, so that only the unconstitutional part loses effect while the rest survives.
• Constitutional morality: the principle that governance and law must conform to the values embedded in the Constitution — liberty, equality, fraternity — rather than to prevailing social or majoritarian sentiment.
• Manifest arbitrariness: a ground of review under Article 14 by which a law can be struck down if it is capricious, irrational, or without an adequate determining principle.
• Doctrine of progressive realisation: a principle under which courts read fundamental rights as growing wider over time, so that a guarantee drafted in the language of one era can be applied to protect claims its framers never explicitly imagined, so long as it stays true to the underlying value the provision was meant to serve..
• Chilling effect: a situation where people hold back from exercising a right they legally possess — in this instance, expressing or acting on their sexual identity — simply because a penal law hangs over them and prosecution remains a live possibility.
• Stare decisis: the doctrine that courts should generally stand by earlier decisions; the bench had to explain why it was departing from its own 2013 ruling in Suresh Kumar Koushal.
Understanding these expressions is useful because the judgment leans heavily on them to justify why five judges could overturn a two-judge bench’s earlier decision on the very same section.
The Proof
Section 377 punished ‘carnal intercourse against the order of nature with any man, woman or animal.’ Framed by Lord Macaulay’s drafting committee and enacted in 1860, it was modelled on the English Buggery Act of 1533 and imported Victorian notions of sin into Indian criminal law. For over a century it was used less to prosecute sexual assault, for which other provisions already existed, and more to harass, blackmail and socially exclude gay men and transgender persons.
The path to the 2018 verdict was not a single filing but the culmination of two decades of litigation:
• 2001 — Naz Foundation filed a writ petition in the Delhi High Court challenging Section 377 on the ground that it violated the right to privacy and dignity of homosexual persons.
• 2009 — In Naz Foundation v. Government of NCT of Delhi, the Delhi High Court read down Section 377 insofar as it criminalised consensual sex between adults.
• 2013 — In Suresh Kumar Koushal v. Naz Foundation, a two-judge bench of the Supreme Court reversed this and restored the provision, holding that the legislature alone could amend it and that the number of persons prosecuted was too small to prove the law’s impact.
• 2017 — A nine-judge bench, in K.S. Puttaswamy v. Union of India, held that privacy sits at the core of Article 21 and specifically brought sexual orientation within that protection, pulling the ground out from under the reasoning Koushal had relied on.
• 2016-2018 — A fresh batch of petitions was filed, this time by individuals rather than an NGO: dancer Navtej Singh Johar, chef Ritu Dalmia, hotelier Aman Nath, journalist Sunil Mehra, businesswoman Ayesha Kapur, and academic Keshav Suri, arguing that they personally suffered the law’s chilling effect.
The petitioners’ proof rested on lived testimony, medical opinion that homosexuality is not a disorder, and comparative jurisprudence from jurisdictions that had already decriminalised similar conduct. The Union of India, notably, chose to leave the question of constitutionality ‘to the wisdom of the Court’ rather than defend the provision, a marked departure from its stance in Koushal.
Abstract
This article examines Navtej Singh Johar v. Union of India (2018) 10 SCC 1, in which a Constitution Bench comprising Chief Justice Dipak Misra and Justices R.F. Nariman, A.M. Khanwilkar, D.Y. Chandrachud and Indu Malhotra unanimously held Section 377 of the Indian Penal Code unconstitutional to the extent it criminalised consensual sexual acts between adults, whether homosexual or heterosexual, in private. The Court found the provision violative of the right to equality (Article 14), the prohibition on discrimination (Article 15), freedom of expression (Article 19(1)(a)) and the right to life and personal liberty, including privacy, dignity and sexual autonomy (Article 21). The judgment overruled Suresh Kumar Koushal, relied heavily on the privacy verdict in Puttaswamy, and drew upon the transgender-rights precedent in NALSA v. Union of India. The analysis below traces the doctrinal evolution across these cases, situates the reasoning within comparative constitutional law, and evaluates the judgment’s continuing relevance to marriage equality, adoption and anti-discrimination litigation in India.
Case Laws
Several precedents were either applied, distinguished or overruled in the course of the judgment. The principal ones are set out below.
• Suresh Kumar Koushal v. Naz Foundation, (2014) 1 SCC 1 — the 2013 ruling that had reinstated Section 377; expressly overruled in Navtej Johar for failing to apply the correct constitutional standard and for treating the LGBTQ+ community as a ‘minuscule minority’ unworthy of protection.
• Naz Foundation v. Govt. of NCT of Delhi, 160 (2009) DLT 277 — the Delhi High Court decision that first read down Section 377; its reasoning on privacy and dignity was substantially restored and endorsed.
• K.S. Puttaswamy v. Union of India, (2017) 10 SCC 1 — the nine-judge privacy verdict that held sexual orientation to be an essential attribute of privacy; treated as the doctrinal foundation for Navtej Johar.
• National Legal Services Authority (NALSA) v. Union of India, (2014) 5 SCC 438 — recognised transgender persons’ right to self-identify their gender and held that discrimination on the basis of gender identity violates Articles 14, 15, 19 and 21; cited to support reading Section 377 as discriminatory on the basis of sexual orientation.
• Shakti Vahini v. Union of India, (2018) 7 SCC 192 — invoked for its articulation of choice in matters of intimate association as part of individual liberty.
• Shafin Jahan v. Asokan K.M., (2018) 16 SCC 368 — cited on the autonomy of adults to make personal choices, including intimate ones, free of societal or state interference.
• Lawrence v. Texas, 539 U.S. 558 (2003) — the United States Supreme Court decision striking down anti-sodomy laws, referred to as persuasive comparative authority.
• National Coalition for Gay and Lesbian Equality v. Minister of Justice, 1999 (1) SA 6 (CC) — the South African Constitutional Court’s decision decriminalising sodomy, cited for its equality-based reasoning.
Taken together, these authorities show a court building outward from an established right to privacy toward a broader right to sexual orientation, association and identity — treating Navtej Johar less as an isolated ruling and more as the natural next step after Puttaswamy and NALSA.
Conclusion
Navtej Singh Johar v. Union of India did not grant the LGBTQ+ community a new entitlement; it removed a criminal label that should never have existed. Its significance lies in the method as much as the outcome: the Court refused to let a numerical minority’s rights be subordinated to majoritarian discomfort, and it treated dignity, not popularity, as the test of constitutional protection. The judgment also matters for what it left open. It decriminalised, but did not by itself secure marriage, adoption, inheritance or workplace-protection rights for LGBTQ+ persons — questions that have since reached the courts in the marriage-equality litigation of Supriyo v. Union of India (2023), where the Supreme Court, while declining to grant a right to marry, directed the government to examine socio-economic entitlements for queer couples. Read together, these cases show a judiciary that moved decisively on criminal liability but has left the harder legislative work of equal citizenship substantially to Parliament. Whether that work is completed will determine how the promise made in 2018 is ultimately kept.
FAQ
What exactly did Section 377 punish?
It criminalised ‘carnal intercourse against the order of nature,’ a phrase courts interpreted to cover anal and oral sex, and which in practice was used almost exclusively against homosexual men and transgender persons, with punishment extending up to life imprisonment.
Did the judgment abolish Section 377 entirely?
No. The provision continues to apply to non-consensual acts, sex with minors, and bestiality. Only the part criminalising consensual sexual conduct between adults, regardless of gender, was struck down.
Why did the Supreme Court overrule its own 2013 decision?
Because the 2013 bench in Koushal had applied the wrong test — asking how many people were prosecuted rather than whether the law violated fundamental rights — and because the 2017 privacy judgment in Puttaswamy had already undercut Koushal’s reasoning by recognising sexual orientation as part of the right to privacy.
Which fundamental rights did the Court rely on?
Primarily Article 14 (equality before law), Article 15 (non-discrimination), Article 19(1)(a) (freedom of expression, including expression of sexual identity) and Article 21 (right to life, liberty, privacy and dignity).
Does the judgment legalise same-sex marriage in India?
No. Navtej Johar addressed criminal liability, not civil status. Marriage, adoption and succession rights for same-sex couples were considered separately in Supriyo v. Union of India (2023), where the Court left the question largely to Parliament.
Who were the petitioners in the case?
Five individuals from different professional backgrounds — Navtej Singh Johar, Sunil Mehra, Ritu Dalmia, Ayesha Kapur and Aman Nath, joined later by Keshav Suri — approached the Court directly, arguing that the provision affected their personal dignity and daily life.
