Navtej Singh Johar Case (2018)

– Decriminalisation of Homosexuality

Background of the Case

Section 377 of the Indian Penal Code, a colonial-era provision, criminalised “carnal intercourse against the order of nature”.

Although rarely enforced, it had devastating consequences:

• LGBT persons lived under constant fear
• Harassment, blackmail, and social exclusion were rampant
• In Suresh Kumar Koushal Case (2013), the Supreme Court had upheld Section 377, pushing reform back

The matter was reopened after the Puttaswamy (2017) judgement recognised privacy, dignity, and autonomy as Fundamental Rights.

Core Constitutional Questions

1. Can consensual sexual acts between adults of the same sex be criminalised?
2. Does Section 377 violate equality, dignity, and privacy?
3. Can popular morality override constitutional morality?

Supreme Court’s Judgement

A five-judge Constitution Bench, unanimously, delivered a rights-affirming verdict.

(a) Partial Striking Down of Section 377

The Court held that:

• Section 377 is unconstitutional insofar as it criminalises consensual sexual acts between adults of the same sex
• Criminal law cannot intrude into private, consensual relationships

However:

• Section 377 continues to apply to:
  • Non-consensual acts
  • Sexual acts involving minors
  • Bestiality

(b) Violation of Article 14 – Equality

The Court held that:

• Section 377 created:
  • An unreasonable classification
  • Targeting a minuscule and vulnerable minority
• Such discrimination lacks any rational nexus

Hence, criminalising identity-based conduct violates Article 14.

(c) Violation of Article 15 – Non-Discrimination

The Court interpreted “sex” under Article 15 expansively to include Sexual orientation

Therefore, discrimination on the basis of sexual orientation is constitutionally prohibite

(d) Violation of Article 19 – Freedom of Expression

The Court held that:

• Sexual orientation is an intrinsic part of expression
• Criminalisation:
  • Silences identity
  • Suppresses self-expression

Thus, Section 377 violated Article 19(1)(a).

(e) Violation of Article 21 – Dignity, Privacy, and Autonomy

Relying heavily on Puttaswamy (2017) and NALSA (2014), the Court held that:

• Sexual orientation is an essential attribute of → Identity, Autonomy, Human dignity

Criminalisation forces individuals to:

• Live in secrecy
• Deny their true selves

This violates Article 21.

Constitutional Morality vs Social Morality

One of the most important principles reaffirmed was:
Constitutional morality must prevail over social or popular morality

The Court emphasised that:

• Fundamental Rights exist precisely to protect minorities against majoritarian prejudice

Overruling of Suresh Kumar Koushal (2013)

The Court expressly overruled:

• Suresh Kumar Koushal Case (2013)

It held that:

• Fundamental Rights cannot depend on:
  • Numbers
  • Popular acceptance

Constitutional Significance

This judgment:

• Completed the Article 21 dignity trilogy:
  • NALSA (2014) – Gender identity
  • Puttaswamy (2017) – Privacy
  • Navtej Johar (2018) – Sexual orientation
• Affirmed transformative constitutionalism
• Shifted Indian law from:
  • Moral policing → Rights protection

Impact of the Judgement

• LGBT persons are now:
  • Free from criminal prosecution for consensual relationships
  • Entitled to equal Fundamental Rights
• The judgment laid the groundwork for:
  • Anti-discrimination discourse
  • Marriage, adoption, and partnership debates (ongoing)

What the Judgment Did Not Do

• It did not legalise:
  • Same-sex marriage
  • Civil unions
• It addressed criminalisation, not family law

Summary

The Navtej Singh Johar Case (2018) decriminalised consensual homosexual relations, partially struck down Section 377 IPC, and held that sexual orientation is protected under Articles 14, 15, 19, and 21, reaffirming dignity, privacy, and constitutional morality.