Navtej Singh Johar v. Union of India
Bench: Constitution Bench — 5 Judges (Dipak Misra CJ, R.F. Nariman, A.M. Khanwilkar, D.Y. Chandrachud & Indu Malhotra JJ)
Parties
Facts of the Case
Section 377 of the Indian Penal Code, 1860 — a colonial-era provision inherited from British rule — criminalised 'carnal intercourse against the order of nature', which courts had consistently interpreted to include consensual same-sex relations between adults. In 2009, the Delhi High Court in Naz Foundation v. Govt. of NCT of Delhi held Section 377 unconstitutional insofar as it criminalised consensual same-sex conduct between adults. However, in 2013 the Supreme Court in Suresh Kumar Koushal v. Naz Foundation overturned the Delhi HC judgment and reinstated Section 377 in full, holding that the LGBT community was a 'minuscule minority' and Parliament — not courts — was the appropriate forum for law reform. Navtej Singh Johar, a Kathak dancer, along with four other petitioners (a hotelier, a journalist, a chef and a businessperson) — filed writ petitions challenging the Koushal decision and the constitutionality of Section 377. The matter was referred to a 5-judge Constitution Bench.
Legal Issues Before the Court
- 1Is Section 377 IPC unconstitutional to the extent it criminalises consensual same-sex conduct between adults, as violating the right to dignity, privacy, equality and non-discrimination under Articles 14, 15, 19 and 21?
- 2Does the Supreme Court's 2013 decision in Suresh Kumar Koushal v. Naz Foundation need to be overruled?
- 3Does the right to privacy under Article 21 (K.S. Puttaswamy, 2017) include the right to sexual orientation and identity?
- 4Can statutes criminalising conduct based solely on a person's sexual orientation be saved by numerical minority — i.e., does the fact that LGBT persons are a 'minuscule minority' reduce their constitutional protection?
The Judgment
A unanimous 5-judge Constitution Bench read down Section 377 IPC and held that, to the extent it criminalised consensual same-sex conduct between adults in private, it was unconstitutional. All five judges wrote separate concurring opinions — the first time in Indian constitutional history that each judge on a Constitution Bench wrote individually on such a landmark question. The Court expressly overruled Koushal (2013). Chief Justice Misra and Justice Khanwilkar held that Section 377 violated Articles 14, 19 and 21. Justice Nariman and Justice Chandrachud located the violation additionally in Article 15 (non-discrimination on grounds of sex). Justice Indu Malhotra wrote a powerful concurrence holding that LGBT persons were owed an apology by history. Section 377 was NOT struck down entirely — it continues to apply to non-consensual acts and acts with minors.
Key Principles Laid Down
CONSTITUTIONAL MORALITY OVER POPULAR MORALITY: The Court held that constitutional courts must uphold constitutional morality — not popular morality or majoritarianism. A law cannot be saved merely because the majority finds certain conduct morally offensive.
SEXUAL ORIENTATION IS AN IMMUTABLE CHARACTERISTIC: Sexual orientation is not a choice — it is an intrinsic part of human identity. A person's dignity cannot be separated from their sexual orientation. Criminalising it violates the core of Article 21.
ARTICLE 15 BARS DISCRIMINATION BASED ON SEX AND SEXUAL ORIENTATION: Justice Nariman and Justice Chandrachud held that 'sex' in Article 15 includes 'sexual orientation' — criminalising conduct solely because of the identity of the persons involved is direct discrimination under Article 15.
RIGHT TO PRIVACY INCLUDES SEXUAL AUTONOMY: Building on K.S. Puttaswamy (2017), the Court held that the right to privacy under Article 21 encompasses the right to make choices about one's sexual partner and to freely express one's sexual identity in private.
MINUSCULE MINORITY ARGUMENT REJECTED: The Court overruled Koushal's reasoning that the LGBT community's small size reduced their right to equality. Constitutional protection does not depend on headcount — even one person's rights cannot be abrogated.
OVERRULED KOUSHAL (2013): Suresh Kumar Koushal v. Naz Foundation was expressly and unequivocally overruled. The 2013 decision reinstating Section 377 was held to be incorrectly decided.
SECTION 377 PARTIALLY READ DOWN, NOT STRUCK DOWN: Section 377 continues to operate and criminalise non-consensual carnal intercourse and acts with minors. Only its application to consensual adult same-sex conduct in private is unconstitutional.
Impact on Indian Law
Navtej Johar is the single most transformative rights judgment of 21st century India. It ended 158 years of criminal liability for consensual same-sex relations — a legacy of Lord Macaulay's 1860 IPC drafted to impose Victorian morality. The judgment set the framework for India's evolving LGBT rights jurisprudence: subsequent litigation has raised questions on same-sex marriage (Supriyo v. Union of India, 2023 — where the Supreme Court declined to recognise same-sex marriage but left the issue to Parliament), adoption rights, and inheritance. The BNS 2023 retained a version of Section 377 — BNS does not have a direct equivalent as the BNS 2023 simply omitted the corresponding Section 377 for consensual adult conduct, but retained criminalisation for non-consensual acts under Section 63 read with other provisions. The Navtej Johar framework — constitutional morality, dignity, privacy and non-discrimination — has been cited in subsequent cases on transgender rights (NALSA), privacy (Puttaswamy), and Section 66A (Shreya Singhal).
Frequently Asked Questions
What did the Navtej Johar judgment do to Section 377 IPC?
The Supreme Court's 5-judge Constitution Bench in Navtej Singh Johar v. Union of India (2018) read down Section 377 IPC and held it unconstitutional to the extent it criminalised consensual same-sex conduct between adults in private. Section 377 was NOT struck down entirely — it continues to apply to non-consensual sexual acts and acts with minors. The judgment decriminalised homosexuality in India for the first time since the IPC's enactment in 1860.
What was overruled in Navtej Johar?
Navtej Johar expressly overruled Suresh Kumar Koushal v. Naz Foundation (2013) — the Supreme Court decision that had reinstated Section 377 after the Delhi High Court struck it down in 2009. Koushal had held that LGBT persons were a 'minuscule minority' who couldn't claim special rights and that Parliament was the appropriate forum. Navtej Johar rejected both propositions, holding that constitutional protection cannot depend on numerical strength and that courts have a duty to uphold fundamental rights regardless of majoritarian sentiment.
What is 'constitutional morality' as explained in Navtej Johar?
Constitutional morality, as explained by the Court in Navtej Johar (drawing from Dr. B.R. Ambedkar), refers to the morality embedded in the Constitution itself — values of dignity, equality, liberty and non-discrimination. The Court held that constitutional courts must uphold constitutional morality over popular or social morality. A law cannot be saved merely because a majority of citizens find certain conduct morally objectionable. This principle has been cited in multiple subsequent judgments as a check on majoritarian legislation that abridges fundamental rights.
Does the Navtej Johar judgment recognise same-sex marriage in India?
No. Navtej Johar only decriminalised consensual same-sex conduct under Section 377 — it did not grant any civil rights such as marriage, adoption or inheritance to same-sex couples. The Supreme Court addressed same-sex marriage separately in Supriyo v. Union of India (2023), where a 5-judge bench (3:2 majority) held that the Constitution does not recognise a fundamental right to same-sex marriage, leaving the issue to Parliament to legislate.
What happened to Section 377 under the Bharatiya Nyaya Sanhita (BNS) 2023?
The BNS 2023 (which replaced the IPC with effect from 1 July 2024) did not include a direct replacement for Section 377. Non-consensual acts that were covered by Section 377 — such as rape (now Section 63–70 BNS) and sexual assault — are now dealt with under other provisions of the BNS. The practical effect is that consensual same-sex conduct between adults in private is not criminalised under the BNS — consistent with the Navtej Johar ruling.
Who were the five judges in Navtej Johar and did they all agree?
The Constitution Bench comprised Chief Justice Dipak Misra, Justice R.F. Nariman, Justice A.M. Khanwilkar, Justice D.Y. Chandrachud, and Justice Indu Malhotra. All five concurred in the result — Section 377 was unconstitutional for consensual adult acts — but each wrote a separate opinion. This was historically notable as the first time five judges in a Constitution Bench all wrote separately. Justice Malhotra's concurrence is particularly remembered for saying that history owes an apology to the LGBT community.
How does Navtej Johar relate to the K.S. Puttaswamy (Right to Privacy) judgment?
The 9-judge Constitution Bench in K.S. Puttaswamy v. Union of India (2017) recognised the right to privacy as a fundamental right under Article 21 — and specifically noted that sexual orientation is an essential component of identity protected under the right to privacy. Navtej Johar (2018) built directly on Puttaswamy, holding that the right to privacy includes the right of every person to freely express their sexual identity and make choices about intimate relationships without criminal sanction. Puttaswamy effectively set the stage for Navtej Johar.