Navtej Singh Johar v. Union of India
Supreme Court of India · 6 September 2018 · 5 judges
Section 377 IPC, insofar as it criminalises consensual sexual acts between adults in private, violates Articles 14, 15, 19 and 21 and is read down; Suresh Kumar Koushal v. Naz Foundation is overruled.
Facts
Writ Petition (Criminal) No. 76 of 2016 sought a declaration that the right to sexuality, sexual autonomy and choice of a sexual partner are part of Article 21, and that Section 377 IPC is unconstitutional. In Suresh Kumar Koushal, a two-Judge Bench had upheld Section 377 and overturned the Delhi High Court's decision in Naz Foundation. On 08.01.2018 a three-Judge Bench, after hearing submissions that relied on NALSA and the nine-Judge privacy decision in Puttaswamy, held that Koushal required reconsideration and referred the matter to a larger Bench. The petitioners did not challenge the part of Section 377 relating to animals and confined their challenge to consenting acts between adults. The Union of India left the validity of Section 377, as applied to consensual acts of adults in private, to the wisdom of the Court.
Questions before the Court
- Whether Section 377 IPC, insofar as it criminalises consensual sexual acts between adults in private, violates Articles 14, 15, 19 and 21 of the Constitution.
- Whether Suresh Kumar Koushal v. Naz Foundation, which upheld Section 377, was correctly decided.
What the Court held
- Section 377 IPC, so far as it criminalises consensual sexual acts between adults in private, is unconstitutional. The declaration is confined to consenting adults: sexual acts done without the consent of either party, and sexual acts with animals, remain offences under Section 377.
- The provision fails Article 14: its classification has no reasonable nexus with its object, since other penal provisions already punish non-consensual acts, and it is manifestly arbitrary in targeting the LGBT community.
- Sexual orientation is natural and integral to identity, dignity, autonomy and privacy. Penalising consensual intimacy violates Articles 15, 19(1)(a) and 21; public decency and morality cannot justify the restriction.
- Constitutional morality, not social or majoritarian morality, governs. The reasoning in Koushal that LGBT persons are a minuscule fraction of the population is fallacious, since fundamental rights protect even a single individual.
- Suresh Kumar Koushal v. Naz Foundation is overruled.
Why it matters
A five-Judge Bench partly struck down a pre-constitutional penal provision and overruled a two-Judge decision that had upheld it. The opinions apply the right to privacy recognised in Puttaswamy and the manifest arbitrariness test from Shayara Bano, and treat constitutional morality as the measure of a law against fundamental rights, rejecting popular or majoritarian morality as a ground for curtailing the rights of a minority.
In the Court's words
Copied from the official judgment; each passage links to its page.
“Ergo, Section 377 IPC, so far as it penalizes any consensual sexual relationship between two adults, be it homosexuals (man and a man), heterosexuals (man and a woman) or lesbians (woman and a woman), cannot be regarded as constitutional. However, if anyone, by which we mean both a man and a woman, engages in any kind of sexual activity with an animal, the said aspect of Section 377 is constitutional and it shall remain a penal offence under Section 377 IPC.”
“Constitutional morality cannot be martyred at the altar of social morality and it is only constitutional morality that can be allowed to permeate into the Rule of Law. The veil of social morality cannot be used to violate fundamental rights of even a single individual, for the foundation of constitutional morality rests upon the recognition of diversity that pervades the society.”
“We further declare that such groups are entitled to the protection of equal laws, and are entitled to be treated in society as human beings without any stigma being attached to any of them. We further declare that Section 377 insofar as it criminalises homosexual sex and transgender sex between consenting adults is unconstitutional.”
“Sexual orientation is integral to the identity of the members of the LGBT communities. It is intrinsic to their dignity, inseparable from their autonomy and at the heart of their privacy. Section 377 is founded on moral notions which are an anathema to a constitutional order in which liberty must trump over stereotypes and prevail over the mainstreaming of culture.”
Provisions interpreted
Related judgments
- Overrules Suresh Kumar Koushal v. Naz Foundation (2013)“The decision in Suresh Koushal (supra), not being in consonance with what we have stated hereinabove, is overruled.” (page 166)
- Follows Shayara Bano v. Union of India (2017)“in view of the law laid down in Shayara Bano (supra), Section 377 IPC is liable to be partially struck down for being violative of Article 14 of the Constitution.” (page 164)
- Follows Justice K.S. Puttaswamy v. Union of India (2017)“After the privacy judgment in Puttaswamy (supra), the right to privacy has been raised to the pedestal of a fundamental right.” (page 160)
- Explained in Supriyo @ Supriya Chakraborty v. Union of India (2023)
Case and bench
- Parties
- Navtej Singh Johar v. Union of India Thr. Secretary Ministry of Law and Justice
- Case
- Writ Petition (Criminal) No. 76 of 2016
- Decided
- 6 September 2018
- Bench
- Dipak Misra, CJI, R.F. Nariman, J., A.M. Khanwilkar, J., Dr Dhananjaya Y Chandrachud, J., Indu Malhotra, J.
- Opinions
- Unanimous. Four concurring opinions: Dipak Misra, CJI (for himself and A.M. Khanwilkar, J.), R.F. Nariman, J., Dr Dhananjaya Y Chandrachud, J. and Indu Malhotra, J.
Questions on this case
10 questions in live Law Maker papers mention this case. A few from free papers:
Question 1 · Legal Maxims & Jurisprudence Practice Set 1
What was the Supreme Court's decision in the Navtej Singh Johar case about Section 377 of the IPC?
- A. Decriminalized consensual homosexual relations
- B. Upheld the criminalization of homosexual relations
- C. Partially decriminalized Section 377
- D. Ruling deferred to a later date
Show the answer
A. Decriminalized consensual homosexual relations
In Navtej Singh Johar v. Union of India (2018) the Constitution Bench read down Section 377 IPC to decriminalise consensual sexual acts between adults, holding the provision violative of Articles 14, 15, 19 and 21 to that extent.
Question 2 · Landmark Judgments Practice Set 1
Navtej Singh Johar v. Union of India (2018), which held Section 377 IPC unconstitutional in so far as it criminalised consensual sexual conduct between adults, expressly overruled:
- A. E.V. Chinnaiah v. State of Andhra Pradesh
- B. Suresh Kumar Koushal v. Naz Foundation
- C. P. Rathinam v. Union of India
- D. Sowmithri Vishnu v. Union of India
Show the answer
B. Suresh Kumar Koushal v. Naz Foundation
The Constitution Bench in Navtej Singh Johar held that Suresh Kumar Koushal v. Naz Foundation ((2014) 1 SCC 1), which had upheld Section 377 IPC in full, 'needs to be, and is hereby, overruled'. Sowmithri Vishnu was overruled in Joseph Shine (2018), P. Rathinam in Gian Kaur (1996) and E.V. Chinnaiah in State of Punjab v. Davinder Singh (2024).