Case Study: Navtej Singh Johar v. Union of India 2018
In short
Five-judge constitution bench (CJI Misra, Khanwilkar, Nariman, Chandrachud, Malhotra JJ) unanimously held on 6 September 2018 that §377 IPC, to the extent it criminalised consensual same-sex acts between adults, was unconstitutional — violating Arts 14, 15, 19 and 21. Overruled Suresh Kumar Koushal (2013). Four separate but converging opinions. §377 was omitted entirely from BNS 2023 (in force 1 Jul 2024). Same-sex marriage: denied by a five-judge bench in Supriyo v. Union of India (2023) — Parliament must legislate.
In this brief
Overview
Navtej Singh Johar v. Union of India, AIR 2018 SC 4321, is the Supreme Court judgment that decriminalised consensual same-sex relations in India by partially striking down Section 377 of the Indian Penal Code. Delivered unanimously by a five-judge constitution bench on 6 September 2018, the decision held that §377 — to the extent it criminalised consensual acts between adults — was unconstitutional as a violation of Articles 14, 15, 19 and 21 of the Constitution. The Court overruled its own 2013 decision in Suresh Kumar Koushal v. Naz Foundation and restored the 2009 Delhi High Court reading-down of §377.
Key Facts at a Glance
| Aspect | Detail |
|---|---|
| Citation | AIR 2018 SC 4321; 2018 (10) SCALE 386 |
| Date of judgment | 6 September 2018 |
| Bench | CJI Dipak Misra, Khanwilkar J, Nariman J, Chandrachud J, Malhotra J |
| Provision challenged | §377 IPC — "unnatural offences" / carnal intercourse against the order of nature |
| Result | §377 struck down to the extent it criminalises consensual adult same-sex acts; non-consensual acts and acts with minors remain criminal |
| Overruled | Suresh Kumar Koushal v. Naz Foundation (2013) 1 SCC 1 |
Background and the Legal Journey
Section 377 IPC, enacted under British colonial rule in 1860, penalised "carnal intercourse against the order of nature" with up to life imprisonment. Though facially neutral, it was used primarily to criminalise same-sex relations and to harass LGBTQ+ individuals.
| Year | Development |
|---|---|
| 2001 | Naz Foundation filed petition in Delhi HC challenging §377 |
| 2009 | Naz Foundation v. Govt. of NCT of Delhi — Delhi HC read down §377, decriminalising consensual adult same-sex acts (landmark HC ruling) |
| 2013 | Suresh Kumar Koushal v. Naz Foundation — Supreme Court (2-judge bench) reversed the Delhi HC; upheld §377 saying LGBTQ+ persons are a "minuscule minority" and Parliament must act |
| 2017 | K.S. Puttaswamy v. Union of India — nine-judge bench unanimously held the right to privacy is a fundamental right under Art 21; expressly cast doubt on Koushal |
| 6 Sep 2018 | Navtej Singh Johar — five-judge bench unanimously overruled Koushal and struck down §377 as applied to consensual adults |
| 2023 | Supriyo v. Union of India — five-judge bench declined to recognise a constitutional right to same-sex marriage; held the issue is for Parliament |
| 1 Jul 2024 | BNS 2023 comes into force; §377 IPC omitted entirely from the new code |
The Petitioners
The petitions were filed by Navtej Singh Johar (Bharatanatyam dancer), Sunil Mehra (journalist), Ritu Dalmia (chef), Aman Nath and Keshav Suri (hoteliers), and Ayesha Kapur (businesswoman). They argued that §377 violated their rights to privacy, dignity, autonomy, and equality as LGBTQ+ persons.
The Four Opinions
Each of the five judges wrote separately. All four opinions reached the same result — §377 unconstitutional as applied to consensual adults — but with differing emphases:
| Opinion | Core reasoning |
|---|---|
| CJI Misra + Khanwilkar J (joint) | §377 violates Arts 14, 19, 21. Sexual orientation and gender identity are intrinsic to personality; criminalising them violates the constitutional promise of equal citizenship. "Constitutional morality must prevail over social morality." |
| Nariman J | §377 is manifestly arbitrary under Art 14 (post-Shayara Bano doctrine) — it criminalises a natural biological phenomenon without rational basis. Also violates Art 19(1)(a) (expression of identity). |
| Chandrachud J | Most expansive opinion. §377 is a facet of colonial rule that denied equal citizenship to LGBTQ+ persons. Privacy includes the right to sexual autonomy. The State cannot use criminal law to enforce majoritarian morality. Intersectionality: LGBTQ+ persons face multiple, layered disadvantages. |
| Malhotra J | Concise but significant: "History owes an apology to the members of this community." §377 is irrational and arbitrary. Dissenting expressions of sexuality that do not harm others cannot be criminalised. No religious or societal objections can override fundamental rights. |
What Remains of §377
The Court struck down §377 only to the extent it criminalised consensual sexual acts between adults. The provision continues to apply to:
- Non-consensual sexual acts (regardless of sexual orientation)
- Sexual acts with minors
- Bestiality
BNS 2023 — §377 Omitted
The Bharatiya Nyaya Sanhita 2023 (in force from 1 July 2024) replaced the IPC in its entirety and omitted §377 completely. The key consequences:
- Consensual adult same-sex acts — not an offence under any BNS provision (confirming Navtej).
- Non-consensual same-sex sexual assault — a legal gap exists. BNS §63 (rape) uses heteronormative language (penetration of vagina); male and transgender survivors of non-consensual penetration may need to rely on BNS §74 (assault to outrage modesty) or §115 (grievous hurt) — a matter of ongoing debate among legislators and activists.
- Sexual acts with minors — covered by POCSO Act 2012 (gender-neutral) and BNS §94 (sexual acts with persons under 18).
After Navtej — Supriyo (2023) and Same-Sex Marriage
In Supriyo @ Supriya Chakraborty v. Union of India (October 2023), a five-judge constitution bench (3:2) declined to read a constitutional right to same-sex marriage into the Special Marriage Act or to direct the State to extend marriage rights to same-sex couples. The majority held that recognition of same-sex unions is a legislative choice, not a constitutional mandate. Three judges (Chandrachud CJI, Kaul J, and Bhat J) would have gone further, but the majority (Bhat J + Narasimha J dissenting on the outcome) found no judicially enforceable right. The issue now awaits Parliamentary action.
Significance
- Overruling Koushal: A two-judge bench had reversed a High Court judgment decriminalising homosexuality in 2013; a five-judge bench corrected that error in 2018 — a rare instance of the Court explicitly overruling a constitutional bench.
- Constitutional morality over social morality: The judgment established that the Court must protect minority rights even when a numerical majority of society disapproves.
- Puttaswamy applied: The 2017 privacy ruling directly enabled Navtej; the two cases together form the foundational pillars of personal liberty and dignity jurisprudence in India.
Conclusion
Navtej Singh Johar v. Union of India (AIR 2018 SC 4321) is the judgment that ended over 150 years of criminalisation of consensual same-sex relations in India. The five-judge bench, through four separate and converging opinions, held that §377 IPC was unconstitutional as applied to consenting adults — violating privacy, dignity, autonomy, and equal citizenship. Section 377 has since been omitted from the BNS 2023 (in force 1 July 2024). The remaining questions of equal recognition — same-sex marriage, adoption, and inheritance — await legislative action after the Supreme Court's restraint in Supriyo (2023).