BENCH: Chief Justice Dipak Misra, Justice Rohington Fali Nariman, Justice A.M. Khanwilkar, Justice D.Y. Chandrachud & Justice Indu Malhotra
FACTS:
This case arose on the controversy around Section 377 gained significant momentum with the 2009 decision of the Delhi High Court in Naz Foundation v. Govt. of NCT of Delhi, which held the provision unconstitutional to the extent that it applied to consensual same-sex relations between adults. The High Court declared that Section 377 violated fundamental rights under Articles 14, 15, and 21 of the Indian Constitution, marking a significant step toward decriminalizing homosexuality in India. However, this progressive ruling was overturned by the Supreme Court in 2013 in Suresh Kumar Koushal v. Naz Foundation, reinstating the criminalization of same-sex relations. The Supreme Court argued that Section 377 did not suffer from constitutional infirmities and that it was up to the legislature to amend or repeal the law. This decision was met with widespread criticism for failing to uphold the rights and freedoms of the LGBTQ+ community.
In 2016, Navtej Singh Johar, a celebrated Bharatnatyam dancer, along with other individuals from the LGBTQ+ community, filed a writ petition in the Supreme Court challenging both the Suresh Kumar Koushal judgment and the constitutionality of Section 377. The petitioners contended that the provision violated their fundamental rights to equality, non-discrimination, freedom of expression, and privacy as guaranteed under Articles 14, 15, 19, and 21 of the Constitution. They emphasized the severe stigma, discrimination, and persecution faced by the LGBTQ+ community due to the continued enforcement of Section 377.
ISSUES:
Whether Section 377 of the Indian Penal Code, 1860 insofar as it applied to consensual sexual conduct between adults was unconstitutional and whether the judgment in Suresh Kumar Koushal should be upheld or set aside.
JUDGEMENT WITH REASONING:
The Bench unanimously held Section 377 to be unconstitutional and read down Section 377 to the extent it criminalised consensual sexual conduct between adults, whether of the same sex or otherwise, in private. However, the Court clarified that consent must be free, voluntary and devoid of any duress or coercion.
The Supreme Court, in revisiting the Suresh Kumar Koushal judgment, criticized its reliance on the "minuscule minority" rationale to deprive the LGBTQ+ community of fundamental rights and its failure to distinguish between consensual and non-consensual sexual acts among adults. The Court emphasized the need to differentiate consensual adult relationships, whether heterosexual or homosexual, from acts like sodomy, bestiality, or non-consensual offenses. Analyzing Section 377's constitutionality, the Court applied principles under Articles 14, 15, 19, and 21 of the Constitution. Drawing from the NALSA and Puttaswamy judgments, it underscored that sexual orientation and privacy are integral to personal autonomy and dignity, concluding that the right to sexual privacy must protect sexual minorities. The Court also referenced international frameworks like the Yogyakarta Principles and the U.K. Wolfenden Committee Report to support its reasoning.
Citing Shakti Vahini and Shafin Jahan, the Court reaffirmed the right to choose a partner as central to liberty and dignity under Articles 19 and 21. It declared Section 377 irrational and arbitrary for criminalizing consensual relationships in private and subjecting LGBTQ+ individuals to discrimination. Using the principle “a man’s house is his castle,” the Court held that the law disproportionately infringed upon freedom of expression and choice without serving public order, decency, or morality. On morality and constitutionality, the Court rejected subjective societal morality that discriminates against LGBTQ+ persons, affirming that restrictions on privacy must meet legality, legitimate state interest, and proportionality. It concluded that sexual orientation is natural and immutable, and the LGBTQ+ community, as a sexual minority, is equally entitled to protection under Part III of the Constitution. Intimacy between consenting adults, the Court held, lies beyond the legitimate interests of the state.
ANALYSIS:
The Supreme Court's decision in Navtej Singh Johar v. Union of India marked a transformative moment for LGBTQ+ rights in India. By decriminalizing consensual same-sex relationships among adults, the Court dismantled a colonial-era law that had perpetuated stigma and discrimination against sexual minorities. Grounded in constitutional principles of equality, dignity, and privacy under Articles 14, 15, 19, and 21, the judgment emphasized that sexual orientation is an innate and immutable characteristic. The Court condemned the subjective morality underlying Section 377, affirming that constitutional morality—anchored in individual rights and freedoms—must prevail over societal prejudice. Furthermore, it acknowledged the profound harm inflicted by the law on the LGBTQ+ community, which had been denied their fundamental right to live with dignity and autonomy.
The judgment also highlighted the intersection of privacy and personal liberty, extending the scope of the right to privacy to include sexual privacy. Drawing from domestic and international precedents, such as the Puttaswamy case and the Yogyakarta Principles, the Court recognized the global movement toward decriminalizing homosexuality and protecting the rights of sexual minorities. By declaring Section 377 unconstitutional to the extent it criminalized consensual same-sex relations, the Court not only advanced the rights of LGBTQ+ individuals but also set a precedent for safeguarding personal freedoms against state overreach. This decision reinforced India’s commitment to constitutional principles and signaled a step toward a more inclusive society.
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