Navtej Singh Johar vs Union of India 2018: Decriminalization of Section 377 IPC

In Navtej Singh Johar vs Union of India 2018, the Supreme Court decriminalized consensual same-sex relations by partially striking down Section 377 IPC, ruling it unconstitutional as it violated rights to equality, dignity, and privacy. The verdict marked a historic step for LGBTQ+ rights in India, limiting Section 377 to non-consensual and minor-related acts, and set a strong precedent for future legal and social recognition of LGBTQ+ individuals. Explore other important Landmark Judgements.

Navtej Singh Johar vs Union of India 2018 Introduction

The case of Navtej Singh Johar vs Union of India 2018 challenged the constitutionality of Section 377 of the Indian Penal Code. This colonial-era provision criminalised consensual same-sex relationships and infringed fundamental rights. The 5-Judge Bench of the Supreme Court on 6th September, 2018 decriminalised consensual adult same-sex conduct. It upheld the rights to equality, privacy and freedom under Article 14, Article 15, Article 19 and Article 21. The historic decision of Navtej Singh Johar vs Union of India marked a significant victory for LGBTQ+ rights and reinforced the individual liberty and constitutional protections.

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Download Navtej Singh Johar vs Union of India Free PDF

The case at hand centres around Section 377 of the Indian Penal Code, 1860. The provision was of a colonial-era which criminalised “unnatural offences.” The provision stated that any carnal intercourse against the order of nature with any man, woman or animal would be punishable by imprisonment or fine. The provision had significantly impacted consensual same-sex relationships as it perpetuated stigma, discrimination and the threat of criminal prosecution for LGBTQ+ individuals in India. The following are the brief facts of the case of Navtej Singh Johar vs Union of India -

The Naz Foundation Case 2009

In 2001 an NGO namely, the Naz Foundation filed a Public Interest Litigation in the Delhi High Court advocating for the rights of LGBTQ+ and challenged the constitutionality of Section 377 of IPC. The Delhi High Court in 2009 ruled in Naz Foundation vs Government of NCT of Delhi that Section 377 was unconstitutional as it criminalized consensual sexual acts between adults. It also stated that it violated fundamental rights under Article 14, Article 15 and Article 21 of the Indian Constitution.

Reversal by Supreme Court in Suresh Kumar Koushal 2013

The Supreme Court reversed the decision of Delhi High Court in Suresh Kumar Koushal vs Naz Foundation. The Court upheld the constitutionality of Section 377 of the Indian Penal Code. The Court stated that the LGBTQ+ population was a minuscule fraction of the population and that intervention of the judiciary was unnecessary. The decision faced widespread criticism for undermining the rights and dignity of LGBTQ+ individuals and for not addressing fundamental issues related to privacy, equality and non-discrimination.

Navtej Singh Johar Petition 2016

In the case of Navtej Singh Johar vs Union of India, the Petitioner Navtej Singh Johar who was a renowned dancer and LGBTQ+ rights advocate filed a writ petition in the Supreme Court and challenged the decision in Suresh Kumar Koushal. The Petitioner contended that Section 377 of the Indian Penal Code, 1860 as interpreted by that decision violated the rights to dignity, privacy and equality mentioned in the Constitution.

The Petition (Navtej Singh Johar vs Union of India) was supported by other members of the LGBTQ+ community, activists and advocates who highlighted the adverse impact of law on their lives including fear of harassment, blackmail and discrimination.

Arguments by the Petitioners in Navtej Singh Johar Case

The Petitioners in Navtej Singh Johar versus Union of India 2018 contended that homosexuality, bisexuality and other sexual orientations are natural expressions and based on consensual relationships, not constituting any physical or mental illness. They asserted that criminalizing such orientations violated individual dignity and decisional autonomy, which are intrinsic aspects of a person's personality protected under the right to privacy guaranteed by Article 21 of the Constitution.

They also contended that the LGBT community, comprising approximately 7-8 percent of India’s population, deserved recognition and protection of their rights. Relying heavily on the Supreme Court's decision in the Puttaswamy case, the Petitioners in Navtej Singh Johar v. Union of India highlighted that Section 377 was unconstitutional, as it discriminated on the basis of sexual orientation — a core aspect of privacy and human dignity. They urged the Court to recognize that the right to sexuality, sexual autonomy, and the choice of a sexual partner are integral components of the right to life under Article 21, and also closely tied to Articles 14 and 19.

Arguments by the Respondents

The Respondents in Navtej Singh Johar vs. Union of India (2018) took a neutral stance, submitting that the constitutional validity of Section 377 in the context of consensual same-sex relations between adults in private should be left to the Court’s discretion.

Arguments by the Intervenors

Some Intervenors in Navtej Singh Johar vs UOI defended the retention of Section 377, arguing that it served a “compelling state interest in upholding public morals.” They contended that fundamental rights are not absolute and can be subjected to reasonable restrictions. According to them, Section 377 did not discriminate on the basis of sexual orientation, as it criminalized specific acts of unnatural intercourse, regardless of whether they were committed by heterosexual or homosexual individuals. They highlighted that the law targeted acts, not individual identities.

Referral to the Constitutional Bench

A 3-Judge Bench of the Supreme Court recognized the importance of the matter and the profound implications for constitutional rights referred the case of Navtej Singh Johar vs Union of India 2018 to a 5-Judge Constitutional Bench for a comprehensive review. The decision recognized the critical impact of the case on constitutional rights and individual freedoms and was reinforced by the Puttaswamy vs Union of India privacy judgement.

The following issues were addressed in Navtej Singh Johar vs Union of India -

Constitutionality of Section 377 IPC

The main issue before the Supreme Court in Navtej Singh Johar versus Union of India was whether criminalizing consensual sex between adults of the same gender under Section 377 violates constitutional rights. The provision was challenged as being archaic and incompatible with modern constitutional values.
Issue: Whether Section 377 of IPC violates the fundamental rights guaranteed under Part III of the Constitution?

Reconsideration of Suresh Kumar Koushal vs Naz Foundation (2013)

The Court needed to determine in Navtej Singh Johar vs Union of India whether its previous decision in Suresh Kumar Koushal which upheld Section 377 was correctly decided or needed to be overruled.
Issue: Whether the Suresh Kumar Koushal judgment correctly interpreted constitutional protections or required reconsideration?

Protection of Sexual Orientation under the Right to Privacy

Following the landmark Puttaswamy judgment, the right to privacy was held to include intimate personal choices. The Supreme Court in Navtej Singh Johar case had to decide if sexual orientation is an intrinsic part of this right.
Issue: Whether sexual orientation is protected under the right to privacy guaranteed by Article 21?

Violation of Equality and Non-Discrimination Principles

Section 377 of Indian Penal Code was criticized for treating LGBTQIA+ individuals differently based on their sexual orientation. The Apex Court also examined whether this discrimination was arbitrary and unconstitutional in Navtej Singh Johar vs Union of India.
Issue: Whether Section 377 of Indian Penal Code leads to arbitrary and discriminatory classification, violating Articles 14 and 15?

Navtej Singh Johar vs Union of India 2018 Legal Provisions

Article 14, Article 15, Article 19 and Article 21 of the Constitution played a significant role in Navtej Singh Johar vs Union of India. The following are the analysis of these provisions -

Article 14 of the Constitution of India: Equality before Law

Article 14 deals with equality before law. It states that the State shall not deny to any person equality before the law or the equal protection of the laws within the territory of India.

Article 15 of the Constitution of India: Prohibition of Discrimination

Article 15 provides that the State shall not discriminate against any citizen on grounds only of religion, race, caste, sex, place of birth or any of them. No citizen shall on grounds only of religion, race, caste, sex, place of birth or any of them, be subject to any disability, liability, restriction or condition with regard to-

1. access to shops, public restaurants, hotels and places of public entertainment
2. the use of wells, tanks, bathing ghats, roads and places of public resort maintained wholly or partly out of State funds or dedicated to the use of the general public.

Article 19 of the Constitution of India: Right to Freedom

According to Article 19 of the Constitution all citizens have the right to freely express their opinions and ideas. It provides-

1. a) Freedom of speech and Expression
2. b) Freedom of Assembly
3. c) Freedom to form Association or Unions or Co-operative Societies
4. d) Freedom of Movement
5. e) Freedom to reside and settle 
6. g) Freedom of Profession, occupation, trade or business

Article 21 of the Constitution of India: Protection of Life and Personal Liberty

Article 21 deals with protection of life and personal liberty. It states that no person shall be deprived of his life or personal liberty except according to procedure established by law.

Navtej Singh Johar vs Union of India 2018 Judgment and Impact

On 6th September, 2018, In Navtej Singh Johar vs Union of India the Supreme Court noted that the decision in Suresh Kumar Koushal had justified denying the LGBTQ+ community their fundamental rights by using the rationale of a “minuscule minority.” The Court noted that it has also failed to differentiate between consensual and non-consensual acts among adults. The Court highlighted the necessity of recognition of the difference between consensual adult relationships in private, whether heterosexual or homosexual and acts such as sodomy, bestiality and non-consensual conduct.

Constitutional Analysis of Section 377 of IPC

In Navtej Singh Johar vs Union of India the constitutional validity of Section 377 of IPC was examined based on Article 14, Article 15, Article 19 and Article 21 of the Indian Constitution. Drawing on the NALSA judgement which upheld the equal legal protection for transgender persons. The Court in this case highlighted that sexual orientation and gender identity are essential parts of an individual personality. 

The Supreme Court in Navtej Singh Johar versus Union of India also referred to the KS Puttaswamy vs Union of India and Maneka Gandhi vs Union of India decision which linked privacy and autonomy and personal liberty. The Court concluded that the right to sexual orientation is an inherent aspect of the right to privacy. The Court also incorporated international references like the Yogyakarta Principles and the U.K. Wolfenden Committee Report of 1957. It decriminalised same-sex acts among consensual adults.

Reinforcement of Individual Liberty

The principles from Shayara Bano vs Union of India were used in Navtej Singh Johar vs Union of India case to contend that Section 377 was irrational and arbitrary and violated Article 14 by criminalising consensual adult relationships and subjected LGBTQ+ individuals to unequal treatment and discrimination.

Protection of Privacy and Expression

The Supreme Court in Navtej Singh Johar vs Union of India invoked the legal maxim “et domus sua cuique est tutissimum refugium” which means a man’s house is his castle. It held that Section 377 was disproportionate and unjust in restricting LGBTQ+ individuals rights to freedom of expression and personal choice. These restrictions were deemed not to serve public order, decency or morality.

Navtej Singh Johar vs Union of India Final Judgement and Recognition of Rights

The 5-Judge Bench of the Supreme Court comprising former CJ Dipak Misra, Justice D.Y. Chandrachud, Justice Indu Malhotra, Justice R.F. Nariman and Justice A.M Khanwilkar in Navtej Singh Johar vs Union of India concluded that sexual orientation is natural, inherent and unchangeable. It ruled that LGBTQ+ individuals have the right to engage in consensual intimate relationships as an expression of personal choice and autonomy. The community despite being a sexual minority is protected under Part III of Constitution. 

The 5-Judge Bench in Navtej Singh Johar vs Union of India unanimously declared Section 377 of Indian Penal Code as unconstitutional. It also clarified that such consent must be free, voluntary and without coercion.

Conclusion

In Navtej Singh Johar vs Union of India 2018, the Supreme Court on 6th September, 2018, held that Section 377 IPC was unconstitutional as it criminalized consensual sexual acts between adults. The Court also ruled that it was in violation of fundamental rights under Article 14, Article 15, Article 19 and Article 21. The Court ruled that LGBTQ+ individuals are entitled to the same constitutional protections as others. The landmark decision of Navtej Singh Johar vs Union of India decriminalised same-sex relationships and was an important step toward the protection of LGBTQ+ rights in India.