Navtej Singh Johar v. Union of India: A Landmark Verdict on LGBTQ+ Rights and Constitutional Morality in India

Author: Deepak Kumar Gupta, United University, Prayagraj.

To the Point

On 6th September 2018, the Supreme Court of India delivered a historic judgment in Navtej Singh Johar v. Union of India, striking down parts of Section 377 of the Indian Penal Code (IPC) that criminalised consensual sexual acts between adults of the same sex. The Court unanimously held that criminalising such acts violated the fundamental rights to equality, privacy, dignity, and freedom of expression. The decision marked a major victory for LGBTQ+ rights in India and signaled progress toward a more inclusive and constitutionally just country.

Abstract

In Navtej Singh Johar v. Union of India (W.P. (Criminal) No. 76 of 2016), the Supreme Court reconsidered its 2013 judgment in Suresh Kumar Koushal v. Naz Foundation, which had reinstated Sec. 377 IPC. That earlier ruling had caused a significant setback to LGBTQ+ rights in India. The 2018 verdict reversed that stance and held that sexual orientation is an essential component of identity, deserving protection under the Constitution.
The bench of five judges, which includes CJI Dipak Misra and Justice A.M. Khanwilkar, Justice Rohinton Nariman, Justice D.Y. Chandrachud, and Justice Indu Malhotra, delivered separate but concurring opinions. The judges unanimously ruled that Section 377, to the extent that it criminalized consensual relations among adults, is unconstitutional.
This decision was not just legal but symbolic—it finally recognised the dignity and humanity of the LGBTQ+ community in India.

Use of Legal Jargon

 Section 377 IPC: A colonial-era provision that penalised “carnal intercourse against the order of nature,” interpreted to criminalise homosexual acts.
 Reading Down: A technique used by courts to interpret a provision in a way that makes it constitutional without striking it down entirely.
 Constitutional Morality: The idea that principles enshrined in the Constitution should prevail over social, cultural, or religious morality.
 Fundamental Rights: Rights guaranteed under Part III of the Constitution, including Articles 14, 15, 19, and 21.
 Autonomy and Dignity: Core components of Article 21, as reaffirmed in K.S. Puttaswamy v. Union of India (2017).


The Proof

The Petitioners
Navtej Singh Johar, a renowned Bharatnatyam dancer, along with five other LGBTQ+ individuals, challenged Section 377 in 2016. They argued that the law violated their fundamental rights under the Constitution.
Core Legal Challenges
Violation of Article 14 – Section 377 was vague and arbitrary, thereby denying equal protection of the law.
Violation of Article 15 – Though Article 15 doesn’t explicitly mention sexual orientation, the petitioners argued for an expansive interpretation.
Violation of Article 19(1)(a) – Criminalisation curtailed the freedom of expression, especially in matters of intimate identity.
Violation of Article 21 – Privacy, dignity, and autonomy of LGBTQ+ persons were under constant threat.
State’s Argument
The Union of India left the decision to the “wisdom of the Court” on the issue of consensual sex but urged that non-consensual acts, acts involving minors, or bestiality remain criminal.


Case Laws

1. Naz Foundation v. Govt. of NCT of Delhi (2009)
The Delhi High Court read down Section 377, stating it violated Articles 21, 14, and 15. This marked the initial occasion that Indian courts acknowledged the rights of homosexual persons.

2. Suresh Kumar Koushal v. Naz Foundation (2013)
The Supreme Court overturned Naz Foundation, reinstating Section 377, stating that the “LGBT population is a minuscule minority” and that legislative remedy was required. This verdict was widely criticised.

3. K.S. Puttaswamy v. Union of India (2017)
This landmark judgment reaffirmed the fundamental right to privacy under Article 21 and stated that privacy includes sexual orientation.

4. NALSA v. Union of India (2014)
The Court held that the right to self-identify one’s gender is part of the right to life and personal liberty under Article 21.

5. Shafin Jahan v. Asokan (2018)
Emphasized the person’s right to select a partner as a fundamental aspect of autonomy per Article 21.

Key Judicial Observations

Chief Justice Dipak Misra & Justice A.M. Khanwilkar (Plurality Opinion)
Stressed on constitutional morality over societal morality.
Quoting Goethe: “I am what I am, so take me as I am.”
Justice Nariman
Focused on Article 14, ruling Section 377 as manifestly arbitrary.
Suggested parliamentary amendments to other laws like adoption, inheritance, etc., to align with this judgment.
Justice D.Y. Chandrachud
Strongly condemned the reasoning in Suresh Koushal.
Emphasised on how the law criminalised intimacy and identity, turning private citizens into criminals.
Asserted that the right to love is an essential component of the right to life and freedom.
Justice Indu Malhotra
Acknowledged, “This community and their families deserve an apology from history.”
Argued that prejudice, not legal reasoning, led to past criminalisation.

Social and Legal Impact
The judgment decriminalised same-sex relationships but did not grant full civil rights like marriage, adoption, or inheritance to LGBTQ+ individuals.
Opened doors for future legal reforms and set the stage for a broader rights-based movement in India.
Has been cited in lower courts and legislative debates regarding transgender rights, same-sex marriage, and anti-discrimination laws.
Encouraged open dialogues in media, cinema, education, and public policy about gender and sexual identity.

Conclusion

The Navtej Singh Johar ruling represents a pivotal point in the history of the Indian constitution. By decriminalising consensual homosexual conduct, the Supreme Court upheld the inviolable rights of personal liberty, privacy, dignity, and equality. The decision corrected a long-standing historical injustice inflicted by colonial-era laws and prejudices.
While the verdict did not legalise same-sex marriage or guarantee other socio-legal rights, it laid a solid constitutional foundation for further progress.
The message from the Court was clear: individual autonomy, sexual orientation, and the right to love are not privileges granted by society but are fundamental, inalienable rights protected by the Constitution.

FAQS

Q1. Did the Court strike down Section 377 completely?
A: No. The Court only decriminalised consensual sexual acts between adults. Section 377 continues to apply to non-consensual acts, acts involving minors, and bestiality.

Q2. Is homosexuality now legal in India?
A: Yes. After this judgment, consensual sexual relations between same-sex adults are no longer criminalised.


Q3. Can LGBTQ+ individuals marry after this verdict?
A: No. The judgment only dealt with decriminalisation. Marriage rights, adoption, inheritance, and other civil rights are not covered under this ruling and remain legally undefined.

Q4. What is the meaning of “constitutional morality” in this context?
A: It refers to the principles and values enshrined in the Constitution (like dignity, liberty, and equality) that must prevail over traditional or majoritarian moral views.

Q5. How did K.S. Puttaswamy influence this judgment?
A: K.S. Puttaswamy v. UOI, (2017) acknowledged the right to privacy as a basic right under Article 21. The Navtej bench used this to argue that sexual orientation and privacy in matters of intimacy fall under the scope of protected fundamental rights.

Q6. What is the significance of the phrase “minuscule minority”?
A: The Suresh Koushal judgment used this term to downplay the rights of the LGBTQ+ community. The Navtej bench strongly rejected this reasoning, affirming that fundamental rights cannot be denied based on numbers.

Q7. What legal reforms are still pending post this decision?
A: Recognition of same-sex marriage, adoption rights, inheritance rights, anti-discrimination protections in employment and education, and gender-affirming healthcare policies are still lacking.

Q8. Can this judgment be overturned in the future?
A: Technically, a Constitutional Bench judgment can only be overturned by a larger bench. However, given the strong reasoning and public support, it is highly unlikely that Navtej Singh Johar would be reversed.

Q9. How has the judgment impacted LGBTQ+ rights in practice?
A: It has encouraged greater visibility and dialogue, but discrimination persists in employment, housing, and healthcare. Legal protections against such discrimination are still evolving.

Q10. Are there laws that protect LGBTQ+ individuals from discrimination in India post this judgment?
A: No specific anti-discrimination legislation exists yet. However, constitutional provisions can be invoked in cases of violation, and the judiciary has begun interpreting existing laws more inclusively.

Q11. Did religious groups oppose the verdict?
A: Some religious groups and leaders expressed concern, citing cultural and religious values. However, the Court clarified that constitutional morality takes precedence over social or religious morality in a secular democratic republic.

Q12. What was the response of the international community to the ruling?
A: The verdict was widely celebrated globally. Human rights organisations hailed it as a progressive step, aligning India with international human rights standards like those in the Universal Declaration of Human Rights.

Q13. Has this case been cited in other judgments?
A: Yes. It has been cited in High Court and Supreme Court rulings on transgender rights, gender identity, and ongoing petitions for same-sex marriage recognition.

Q14. What is the next step for LGBTQ+ legal reform in India?
A: Major next steps include:
Enacting anti-discrimination laws,
Legalising same-sex marriages or civil unions,
Recognising adoption and parenting rights, and
Implementing gender-affirming healthcare policies and workplace protections.