Navtej Singh Johar v. Union of India (2018): How Section 377 IPC Was Struck Down and What It Means for Constitutional Morality

Citation: AIR 2018 SC 4321 | (2018) 10 SCC 1 | 2018 INSC 746

Case No.: W.P. (Crl.) No. 76 of 2016 (along with connected writ petitions)

Decided: 6 September 2018

 Bench: Five-judge Constitution Bench — CJI Dipak Misra, Justice A.M. Khanwilkar, Justice R.F. Nariman, Justice D.Y. Chandrachud, and Justice Indu Malhotra Nature of Judgment: Unanimous — delivered through four separate concurring opinions

Introduction

Can a 158-year-old colonial law criminalise who you are? Can the State reach into the most intimate spaces of a person's life and punish them for their identity?

On 6 September 2018, the Supreme Court of India said no. In Navtej Singh Johar v. Union of India, a five-judge Constitution Bench unanimously struck down Section 377 of the Indian Penal Code in so far as it criminalised consensual sexual acts between adults. The Court declared it unconstitutional, violating Articles 14, 15, 19, and 21 of the Constitution.

In doing so, the Court also delivered its most comprehensive statement on the doctrine of constitutional morality, holding that what society may morally disapprove of is not the same as what the Constitution prohibits. The Constitution's morality, not the majority's morality, is the standard by which laws are judged.

For Civil Judge Exam and PCS J Exam aspirants, this case is essential. It connects constitutional law, fundamental rights, the doctrine of transformative constitutionalism, and the evolution of dignity as a constitutional value in one landmark judgment.

Background: What Was Section 377 IPC?

Section 377 of the Indian Penal Code, 1860 read:

"Whoever voluntarily has carnal intercourse against the order of nature with any man, woman or animal, shall be punished with imprisonment for life, or with imprisonment of either description for a term which may extend to ten years, and shall also be liable to fine."

This provision was introduced in the IPC by the British colonial administration in 1861. It was based on Victorian-era English law, itself rooted in notions of sexual conduct derived from Judeo-Christian morality. The phrase "against the order of nature" was interpreted over time by courts to include all anal and oral sexual acts, including consensual same-sex relations between adults.

In practice, Section 377 became a weapon. It was used to harass, blackmail, arrest, and prosecute LGBTQ individuals. It cast an entire community as criminals, living under constant fear of exposure and prosecution. The stigma it created was as harmful as its direct criminal application.

Note on BNS, 2023: The Bharatiya Nyaya Sanhita (BNS), 2023, which replaced the IPC from 1 July 2024, did not reinstate Section 377 in any form for consensual acts between adults. The Navtej Johar judgment remains the operative constitutional position. Section 377-type provisions in the BNS apply only to non-consensual acts and acts against minors and animals, consistent with the Supreme Court's ruling.

The Journey to This Judgment: A Two-Decade Arc

Naz Foundation v. Govt. of NCT of Delhi (2009)

The first major legal challenge came from the Naz Foundation, an NGO working in HIV/AIDS prevention. The Delhi High Court in 2009 held that Section 377, insofar as it criminalised consensual same-sex acts between adults, violated Articles 14, 15, and 21 of the Constitution. The Court read Section 377 down, decriminalising consensual adult same-sex conduct.

This was a historic ruling. But it did not survive appeal.

Suresh Kumar Koushal v. Naz Foundation (2013)

A two-judge bench of the Supreme Court overturned the Delhi High Court's decision. Justice G.S. Singhvi and Justice S.J. Mukhopadhaya held that the LGBTQ community was only a "minuscule fraction" of India's population and that Parliament, not courts, should decide whether to amend Section 377. The Court reinstated Section 377 in full.

This judgment was widely criticised as a regressive step that denied fundamental rights to a section of citizens on the ground of their small numbers.

The Navtej Johar Petition (2016)

On 27 April 2016, five individuals from the LGBTQ community filed a fresh writ petition directly before the Supreme Court challenging Section 377. The petitioners were:

• Navtej Singh Johar (classical dancer)
• Sunil Mehra (journalist)
• Ritu Dalmia (chef)
• Aman Nath and Keshav Suri (hoteliers)

They were joined by other petitioners including Ayesha Kapur and several connected writ petitions.

The matter was referred to a five-judge Constitution Bench. Hearings were held from 10 to 17 July 2018. The verdict was delivered on 6 September 2018.

The Five-Judge Bench and Four Separate Opinions

The judgment is unusual in that all five judges agreed on the outcome — Section 377, insofar as it applied to consensual adult conduct, was unconstitutional — but each judge wrote a separate concurring opinion elaborating different constitutional dimensions.

CJI Dipak Misra (for himself and Justice A.M. Khanwilkar): Transformative Constitutionalism and Dignity

CJI Misra's opinion is anchored in the concept of transformative constitutionalism. He held that the Constitution is not a static document. It is a living, transformative instrument designed to bring about progressive social change.

He held that constitutional morality must prevail over social morality. Social morality is what the majority currently believes. Constitutional morality is what the Constitution's text and values demand, regardless of what the majority thinks at any given moment.

Section 377, in criminalising consensual same-sex acts, destroyed individual identity and violated the core of every fundamental right. CJI Misra held that dignity lies at the heart of all fundamental rights and that individual autonomy, the right to make intimate choices about one's life and relationships, is intrinsic to dignity.

Key quotes from CJI Misra's opinion:

"Section 377 IPC... becomes a weapon in the hands of the majority to seclude, exploit and harass the LGBT community. It shrouds the lives of the LGBT community in criminality and constant fear mars their joy of life."

Justice R.F. Nariman: Article 14 and the Test of Manifest Arbitrariness

Justice Nariman held that Section 377 was manifestly arbitrary. A law is manifestly arbitrary when it is capricious, excessive, or disproportionate to any legitimate state purpose.

Section 377 failed this test on multiple grounds. It made no distinction between consensual and non-consensual acts. It criminalised private conduct between adults who had harmed no one. There was no rational nexus between the provision's stated purpose (protecting women and children from unnatural offences) and its actual operation (criminalising consenting adult same-sex relations, which neither targeted nor harmed women or children).

Justice Nariman also expressly held that discrimination on the ground of "sex" in Articles 15 and 16 includes discrimination on the ground of "sexual orientation." This was a significant step in reading the Constitution's non-discrimination provisions broadly.

Justice D.Y. Chandrachud: Equality, Privacy, and the Colonial Legacy

Justice Chandrachud's opinion is the most philosophically comprehensive of the four. He located the problem of Section 377 at multiple levels.

First, he traced the colonial origins of the provision and held that the Constitution's post-independence framework cannot be interpreted through the lens of Victorian morality that the colonial legislature had imported.

Second, he held that Section 377 violated privacy — following directly from the K.S. Puttaswamy judgment (2017), which had declared privacy a fundamental right. Intimate choices about sexual conduct in private are at the core of informational and decisional privacy. The State has no legitimate interest in regulating consensual adult private conduct.

Third, Justice Chandrachud held that sexual orientation is an inherent, immutable characteristic. Criminalising a person for who they are, rather than what they choose to do harmfully, is the most fundamental violation of equality and dignity.

He also addressed the "constitutional morality vs. social morality" tension directly, holding that courts are the guardians of constitutional morality and that their role is to protect minority rights from majoritarian impulses, not to defer to the majority.

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Justice Indu Malhotra: Sexual Orientation as a Protected Right

Justice Malhotra's opinion, though the shortest, contains some of the most quoted passages in the judgment.

She held that sexual orientation is a natural variant of human sexuality. The LGBT community possesses the same human, fundamental, and constitutional rights as any other citizen because these rights inhere in individuals as natural rights.

She held that Section 377 violated the personal liberty of LGBT persons to engage in voluntary, consensual sexual relationships with partners of their choice, in a safe and dignified environment. This violated Article 21.

She also held that history owed an apology to the LGBT community for the years of suffering caused by Section 377.

"Section 377 has consigned a group of citizens to the margins. It has been destructive of their identities. By imposing the sanctions of the law on consenting adults involved in a sexual relationship, it has lent the authority of the state to perpetuate social stereotypes and encourage discrimination."

Constitutional Morality vs. Social Morality: The Core Doctrine

The most important conceptual contribution of the Navtej Johar judgment is its elaboration of the distinction between constitutional morality and social morality. This distinction is directly exam-relevant and appears frequently in Mains and Viva questions.

Social morality refers to the moral views prevalent in society at a given time. A majority of people in a given society may believe that certain conduct is immoral. But the law cannot criminalise conduct simply because the majority disapproves of it.

Constitutional morality refers to the values embedded in the Constitution itself: equality, dignity, liberty, fraternity, and non-discrimination. These values are the lens through which all laws must be assessed.

The Court held that when social morality conflicts with constitutional morality, constitutional morality must prevail. The judiciary's function is to uphold constitutional morality even in the face of majority disapproval. This is the very reason courts exist: to protect individuals and minorities from the tyranny of the majority.

This doctrine has far-reaching implications beyond Section 377. It sets the standard for assessing any law that discriminates against a minority on the basis of majoritarian values.

What Survives of Section 377

The court was careful to clarify that Section 377 was not struck down entirely. It continues to apply to:

• Non-consensual sexual acts between adults
• Sexual acts with minors
• Bestiality

What was struck down was only the application of Section 377 to consensual sexual acts between adults of the same sex or otherwise.

The BNS, 2023 carries forward this position: non-consensual acts and acts involving minors or animals remain criminally punishable.

The Overruling of Suresh Kumar Koushal

The five-judge bench unanimously overruled Suresh Kumar Koushal v. Naz Foundation (2013). The Koushal bench had held that Section 377 was not unconstitutional because it affected only a "minuscule fraction" of the population.

The Navtej Johar bench rejected this reasoning at its root. The Court held that fundamental rights do not depend on the size of the affected group. A constitutional right cannot be denied to any person or group on the ground that they are a minority. This principle connects directly to the Puttaswamy judgment's observation on sexual orientation: "The majority must not be used as a yardstick to determine the validity of fundamental rights."

Constitutional Provisions Directly Involved

Why This Judgment Matters

It Ended a Colonial Injustice

Section 377 was a product of Victorian-era English morality imposed by the colonial State on India. The Constitution of 1950 promised equality and dignity to all citizens. Navtej Johar brought the law into alignment with that promise, 68 years after independence.

It Established Constitutional Morality as a Working Doctrine

The judgment gave concrete content to the phrase "constitutional morality," which had appeared in B.R. Ambedkar's constituent assembly speeches but had not been fully developed as a judicial doctrine before this case.

It Built on the Puttaswamy Privacy Judgment

Navtej Johar is part of a trilogy of landmark constitutional judgments delivered between 2017 and 2018: Puttaswamy on privacy, Navtej Johar on sexual orientation, and Joseph Shine on adultery. All three expanded the meaning of dignity and autonomy under Article 21.

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It Applies to All Citizens, Not Only the LGBTQ Community

The judgment applies to all adults. Section 377 had criminalised all anal and oral sexual acts, regardless of the gender of the participants. The reading-down of the provision benefits all consenting adults in private relationships, not just same-sex couples.

POV Section: What This Means for Judiciary Aspirants

Prelims

Expect direct questions on the case name (Navtej Singh Johar v. Union of India), citation (AIR 2018 SC 4321 / (2018) 10 SCC 1), bench (five-judge Constitution Bench, CJI Dipak Misra), date (6 September 2018), and the core holding (Section 377 unconstitutional for consensual adult acts). Know the four opinion-writers and their distinct contributions. Know which earlier case was overruled (Suresh Kumar Koushal, 2013). The phrase "constitutional morality vs. social morality" is a very high-frequency exam topic in Civil Judge Exam and PCS J Exam.

Mains

Your written answer must cover the historical background of Section 377 and the Naz Foundation-Koushal-Navtej arc; the four concurring opinions with their distinct constitutional emphases; the constitutional morality doctrine and its implications; all five Articles violated (14, 15, 19, 21 with specific sub-rights for each); what survives of Section 377; and the BNS/IPC transition note. A strong answer will also connect Navtej Johar to the Puttaswamy trilogy and discuss the doctrine of transformative constitutionalism as the unifying thread.

Interview (Viva)

Panels often ask: "What is constitutional morality?" "Can the majority's moral views be used to restrict fundamental rights?" "What did the Supreme Court decide in the Section 377 case?" Be ready to explain the constitutional morality doctrine clearly, including why courts protect minority rights even when a majority disapproves. You can also discuss whether the judgment goes far enough (marriage equality, anti-discrimination legislation) as a mark of analytical maturity.

Conclusion

Navtej Singh Johar v. Union of India is the Constitution's promise, finally kept. It tells every citizen of India — regardless of their sexual orientation, gender identity, or the intimacy of their private life — that they belong in this republic equally, and that no law rooted in colonial morality or majoritarian disapproval can take that equality away.

For your Civil Judge Exam, PCS J Exam, or any judiciary exam, this case is essential constitutional law. It covers Articles 14, 15, 19, 21, the doctrine of constitutional morality, transformative constitutionalism, and the overruling of Koushal — all in a single, historic judgment.

At Aashayein Judiciary, Nitesh Sir covers the Navtej Johar judgment in full constitutional depth, connecting the four separate opinions to the unified constitutional framework and linking the case to Puttaswamy, Joseph Shine, and the ongoing evolution of dignity jurisprudence in India. The Judiciary Notes, PYQ series, and Mock Test series at Aashayein Judiciary prepare you to answer every dimension of this case at every level of your examination.

Frequently Asked Questions

Q1. What did the Supreme Court decide in the Navtej Singh Johar case?

 A five-judge Constitution Bench unanimously held that Section 377 of the IPC, in so far as it criminalised consensual sexual acts between adults, was unconstitutional, violating Articles 14, 15, 19, and 21 of the Constitution. The judgment was delivered on 6 September 2018, overruling the 2013 decision in Suresh Kumar Koushal v. Naz Foundation.

Q2. What is constitutional morality and how was it applied in this case?

Constitutional morality refers to the values embedded in the Constitution, such as equality, dignity, liberty, and non-discrimination, as opposed to social morality, which reflects the majority's current moral views. The Court held that when social morality conflicts with constitutional morality, constitutional morality must prevail. Section 377 was upheld by social morality but violated constitutional morality, and therefore had to fall.

Q3. Does Section 377 IPC still exist in any form?

Section 377 continues to apply to non-consensual sexual acts between adults, sexual acts against minors, and bestiality. What was struck down is only its application to consensual sexual acts between adults. The Bharatiya Nyaya Sanhita (BNS), 2023, which replaced the IPC from 1 July 2024, does not reinstate Section 377 for consensual adult conduct.

Q4. How many opinions were written in the Navtej Johar judgment?

Four separate concurring opinions were written: one by CJI Dipak Misra (also for Justice A.M. Khanwilkar), one by Justice R.F. Nariman, one by Justice D.Y. Chandrachud, and one by Justice Indu Malhotra. All four opinions agreed on the unconstitutionality of Section 377 but emphasised different constitutional principles.

Q5. What is the relationship between Navtej Johar and the K.S. Puttaswamy (2017) judgment?

The Puttaswamy judgment (2017) declared the right to privacy a fundamental right under Article 21, and had expressly stated that sexual orientation is an essential attribute of privacy. Navtej Johar built directly on this foundation, holding that Section 377 violated the right to privacy (specifically decisional privacy, the right to make intimate personal choices without state interference) established in Puttaswamy.