Author: Anshika Bhagat, a student at university of Calcutta
To the Point
The Supreme Court of India, in a major judgment on 6th September 2018, ruled that Section 377 of the Indian Penal Code (IPC), which criminalized consensual same-sex relationships, was unconstitutional. This ruling was a milestone for LGBTQ+ rights in India, establishing that sexual orientation is an essential attribute of privacy, dignity, and identity. The Court declared that all citizens, regardless of their sexual orientation, are entitled to equal protection under the law.
Use of Legal Jargon
1. Constitutional Bench
A Constitutional Bench is a special bench of at least five judges of the Supreme Court set up to decide important questions of constitutional law. In this case, five judges sat together to give the final judgment.
2. Fundamental Rights Involved
- Article 14 – Right to Equality explains that everyone must be treated equally before the law.
- Article 15 – Prohibition of Discrimination: No one can be discriminated against based on sex.
- Article 19 – Freedom of Expression: People have the right to express themselves.
- Article 21 – Right to Life and Personal Liberty: Everyone has the right to live with dignity.
The court said that criminalizing consensual same-sex relationships violated all these rights.
3. Doctrine of Constitutional Morality
This principle means that the Constitution’s values—like equality, dignity, and freedom—are more important than social norms or majority opinions. The Court supported that constitutional morality must prevail over societal morality.
4. Severability
Only the part of Section 377 that dealt with consensual same-sex acts was struck down. Section 377 still applies to non-consensual acts, bestiality, or sex with minors.
The Proof
Who Filed the Petition?
The petition was filed by:
- Navtej Singh Johar was a dancer and LGBTQ+ rights activist.
- Sunil Mehra, a journalist.
- Aman Nath, historian and hotelier.
- Ritu Dalmia, chef and restaurateur.
- Others from the LGBTQ+ community who feared harassment under Section 377.
They argued that Section 377 made them feel criminalized just because of who they were.
What was Section 377?
It was introduced by the British in 1861. It stated that:
“Whoever voluntarily has carnal intercourse against the order of nature with any man, woman or animal, shall be punished with imprisonment for life or with imprisonment of either description for a term which may extend to ten years, and shall also be liable to fine.”
Though it did not mention homosexuality directly, it was widely used to target LGBTQ+ people.
What Was the Problem?
- Section 377 is treated as private acts between consenting adults as crimes.
- LGBTQ+ people lived in fear of arrest, blackmail, and social shame.
- It violated their right to live freely and with dignity.
Abstract
This case wasn’t just about a legal provision—it was about recognizing humanity and dignity. The Supreme Court held that criminalizing consensual same-sex conduct violated the basic rights guaranteed by the Constitution. The verdict restored faith in the legal system and gave LGBTQ+ individuals the right to live without fear.
The Court said that a person’s sexual orientation is innate and not a matter of choice. Denying people the right to express their identity was a denial of their right to exist.
Case Law (Past Cases Leading to This Judgment)
1. Naz Foundation v. Government of NCT of Delhi (2009)
The case challenged the constitutional validity of Section 377 of the Indian Penal Code (IPC), 1860, which criminalized “carnal intercourse against the order of nature.” Naz Foundation argued that Section 377, as applied to consensual sexual acts between adults in private. The Delhi High Court, in a landmark judgment delivered on 2 July 2009, held that: Section 377 IPC, insofar as it criminalizes consensual sexual acts of adults in private which is unconstitutional as it violates Articles 21, 14, and 15 of the Constitution. The court read down Section 377, meaning it would no longer apply to consensual homosexual activities between adults. However, it remained applicable to non-consensual acts, bestiality, and sexual acts involving minors. This was the first major legal victory for LGBTQ+ rights in India. The judgment was a bold affirmation of the right to dignity, privacy, and equality for queer individuals. Though it was later overruled by the Supreme Court in 2013 (Suresh Kumar Koushal case), the 2018 Navtej Singh Johar v. Union of India ruling finally decriminalized consensual same-sex relations, reaffirming Naz Foundation’s stance.
2. Suresh Kumar Koushal v. Naz Foundation (2013)
A two-judge bench of the Supreme Court reversed the Delhi HC judgment. The Delhi High Court in 2009 (Naz Foundation case) had read down Section 377 IPC, decriminalizing consensual homosexual acts between adults in private. Suresh Kumar Koushal, a private citizen, along with other parties, challenged this Delhi HC judgment in the Supreme Court, arguing that Section 377 was not unconstitutional and the High Court has taken control by changing law that comes under the authorisation of the legislature. The Supreme Court reversed the Delhi High Court ruling and upheld the constitutional validity of Section 377 IPC “does not suffer from the vice of unconstitutionality.” The LGBTQ+ community constitutes a “minuscule fraction” of the population, and mere possibility of abuse of the law is not grounds to declare it unconstitutional. Any change to Section 377 must come through legislative process, not the judiciary.
3. Justice K.S. Puttaswamy v. Union of India (2017)
This nine-judge bench of the Supreme Court held that Right to Privacy is a fundamental right under Article 21. The Court said that sexual orientation is an essential aspect of privacy, which laid the groundwork for the Navtej Singh Johar case. The challenge was against the Aadhaar scheme and the government’s collection of biometric data, raising concerns about individual privacy. The central question: Is the Right to Privacy a fundamental right under the Constitution of India? Right to Privacy is a fundamental right, intrinsic to Article 21 (Right to Life and Personal Liberty), and part of Articles 14 and 19. Privacy includes: Bodily autonomy, Informational privacy, Decisional privacy (e.g., choices about marriage, sexuality, reproduction). The earlier decisions in M.P. Sharma (1954) and Khara Singh (1962) were overruled. This judgement Strengthened protection against state surveillance, data misuse, and forced disclosures and became key precedent in later cases like Navtej Singh Johar v. Union of India (LGBTQ+ rights) and Joseph Shine v. Union of India (decriminalization of adultery).
4. Navtej Singh Johar v. Union of India (2018)
Overruled the Suresh Kumar Koushal decision. Reaffirmed the principles of the Naz Foundation case. It made clear that love is not a crime.
The Judgment: What Did the Supreme Court Say?
- The bench gave a unanimous verdict (all judges agreed).
- CJI Dipak Misra and Justice Khanwilkar wrote a joint opinion.
- Justice Nariman, Justice Chandrachud, and Justice Indu Malhotra wrote separate but concurring opinions they all agreed that Section 377 must go.
Highlights from the Judgment:
- “History owes an apology to the members of the LGBTQ+ community.” – Justice Indu Malhotra.
- The law must protect minority rights, not suppress them.
- The state has no place in a citizen’s bedroom.
- Consensual adult relationships are protected under the Constitution.
Impact of the Judgment
- LGBTQ+ people are no longer criminals for their identity.
- They can report crimes and harassment without fear of being arrested themselves.
- It created space for future legal battles on same-sex marriage, adoption rights, and anti-discrimination laws.
- India joined a growing list of countries that respect LGBTQ+ rights.
However, it is important to note that while decriminalization was a big step, social acceptance and full legal equality (like marriage, inheritance, etc.) are still being fought for.
Conclusion
The Navtej Singh Johar case is not just a legal judgment; it’s a symbol of justice, humanity, and progress. It reminds us that the law is meant to protect, not punish people for who they are.
The Supreme Court of India, by striking down Section 377 in this context, restored dignity and freedom to millions. It showed that the Constitution is a living document that must evolve with time to ensure that everyone has the right to love, live, and be free.
The judgment was bold, compassionate, and historic, setting an example for other nations still holding on to outdated laws.
FAQs
Q1: What is Section 377?
It was a law that said any sexual activity that was not “normal” (like gay sex) was a crime, even if it was between two adults who agreed.
Q2: What did the Court decide in this case?
The Court said that consensual sex between two adults of the same gender is not a crime anymore.
Q3: Why is this decision important?
Because it gave freedom and respect to LGBTQ+ people. Before this, they were treated like criminals just for being themselves.
Q4: Can gay people now get married in India?
No, not yet. This case only said that being gay is not a crime. Marriage rights are still being fought for in courts.
Q5: Was Section 377 removed completely?
No. The part that punished non-consensual sex, sex with minors, or animals is still there. Only the part about consensual same-sex acts was removed.
Q6: What did the judges say about LGBTQ+ people?
They said they are equal citizens and deserve respect, privacy, and freedom like everyone else.
Q7: What happens now?
This judgment was a first step. Activists are now fighting for same-sex marriage, adoption rights, and protection from discrimination.
