- CJI Dipak MisraFavored (Authored lead opinion)
- Justice R.F. NarimanFavored (Authored concurring)
- Justice A.M. KhanwilkarFavored (Concurred with Misra)
- Justice D.Y. ChandrachudFavored (Authored concurring)
- Justice Indu MalhotraFavored (Authored concurring)
- Indian Penal Code, 1860 (Section 377 - Unnatural offences)
- Constitution of India (Articles 14, 15, 19(1)(a), 21)
- Suresh Kumar Koushal v. Naz Foundation (2013) (Overruled by this judgment)
- NALSA v. Union of India (2014) (Relied upon for gender identity)
- K.S. Puttaswamy v. Union of India (2017) (Relied upon for privacy)
This landmark case was filed by a group of prominent LGBTQ+ individuals challenging the constitutionality of Section 377 of the Indian Penal Code, 1860. Section 377 was a colonial-era law that criminalized "carnal intercourse against the order of nature," effectively criminalizing all homosexual acts, even between consenting adults in private.
The petition was filed after the Supreme Court's 2013 judgment in Suresh Kumar Koushal v. Naz Foundation, which had overturned a 2009 Delhi High Court decision and recriminalized consensual homosexuality. The petitioners argued that the Koushal judgment was wrong and that Section 377 violated the fundamental rights of LGBTQ+ citizens, particularly after the Right to Privacy was affirmed as fundamental in the Puttaswamy case.
ARGUMENTS
Petitioners' Case (Navtej Singh Johar & Others)
- Section 377 violates Article 14 (Equality) as it is arbitrary and classifies citizens based on their sexual orientation without any reasonable basis.
- It violates Article 15 (Non-discrimination) as it discriminates on the basis of "sex," which includes sexual orientation.
- It violates Article 19(1)(a) (Freedom of Expression) by preventing LGBTQ+ individuals from expressing their gender identity and sexual orientation.
- It violates Article 21 (Right to Life) by denying the right to dignity, personal autonomy, and, crucially, the right to privacy (as established in Puttaswamy).
- The judgment in Suresh Kumar Koushal was incorrect and based on flawed reasoning.
Respondents' Case (Union of India)
- The government chose not to contest the petition regarding the constitutionality of Section 377 as it applied to consensual adult acts in private.
- It stated it would leave the decision on this aspect to the "wisdom of the Supreme Court."
- However, the government argued that the Court should not strike down the entire section, as it was still needed to deal with non-consensual acts (like bestiality or child abuse).
Case Progression Timeline
Naz Foundation Judgment
Delhi High Court decriminalizes consensual adult homosexual acts by reading down Section 377.
July 2, 2009Suresh Kumar Koushal Judgment
Supreme Court overturns the Delhi HC, recriminalizing consensual adult homosexual acts, stating it's for Parliament to legislate.
December 11, 2013NALSA v. Union of India
SC recognizes "third gender" and affirms the right to gender identity, strengthening LGBTQ+ rights.
April 15, 2014New Petitions Filed
Navtej Singh Johar and others file new writ petitions challenging Section 377 post-Koushal.
2016Puttaswamy (Privacy) Judgment
9-judge bench declares Right to Privacy is a fundamental right, specifically noting that sexual orientation is a core part of privacy.
August 24, 2017Referral to 5-Judge Bench
A 3-judge bench refers the Section 377 matter to a larger 5-judge Constitution Bench, citing the Puttaswamy judgment.
January 8, 2018Supreme Court Judgment
The 5-judge bench delivers a unanimous 5-0 verdict, striking down Section 377 as it applies to consensual adult acts.
September 6, 2018In a historic, unanimous 5-0 decision, the Supreme Court overruled its 2013 decision in Suresh Kumar Koushal. The Court declared that Section 377 of the IPC, insofar as it criminalized consensual sexual conduct between adults of the same sex (or any adults) in private, was unconstitutional and void.
The Court held that this aspect of Section 377 was arbitrary, irrational, and violated the fundamental rights of LGBTQ+ citizens. The judgment was celebrated as a major victory for human rights, affirming the right of every individual to love whomever they choose. The Court, however, clarified that other parts of Section 377 (dealing with non-consensual acts, bestiality, and acts with minors) would remain in force.
COURT'S ANALYSIS
The four separate but concurring judgments were deeply rooted in the principles of dignity, privacy, and equality. CJI Misra's opinion spoke of "constitutional morality" trumping "social morality." Justice Nariman focused on the "manifest arbitrariness" of the law. Justice Chandrachud's powerful opinion linked the case to the Puttaswamy privacy judgment, stating that "it is difficult to right a wrong by history, but we can set the course for the future," and apologized to the LGBTQ+ community for the years of persecution. Justice Indu Malhotra, the sole woman on the bench, poignantly noted that "history owes an apology to the members of this community... for the delay in providing redressal." The judgment collectively used the Basic Structure doctrine, the 'golden triangle' (Articles 14, 19, 21), and the NALSA and Puttaswamy precedents to dismantle the 158-year-old law.
FINAL VERDICT
- Section 377 of the IPC was declared unconstitutional to the extent that it criminalizes consensual sexual conduct between adults (of any sexual orientation) in private.
- The Supreme Court's 2013 judgment in Suresh Kumar Koushal v. Naz Foundation was overruled.
- Criminalizing consensual homosexual acts violates the Right to Equality (Article 14), Right to Non-Discrimination (Article 15), Right to Freedom of Expression (Article 19(1)(a)), and Right to Life, Dignity, and Privacy (Article 21).
- The Court held that sexual orientation is a natural and innate part of identity, and discrimination based on it is unconstitutional.
- Other parts of Section 377 (relating to non-consensual acts, minors, and bestiality) remain in force.
RATIO DECIDENDI
Consensual sexual acts between adults in private are a core aspect of personal autonomy, dignity, and privacy, protected under Article 21 of the Constitution (as affirmed in K.S. Puttaswamy). Criminalizing such acts based on the sexual orientation of the individuals involved is a form of discrimination based on "sex" (in its expanded meaning, including sexual orientation) under Article 15 and is arbitrary, violating Article 14. Sexual orientation is an intrinsic part of self-identity and its expression is protected under Article 19(1)(a).