Navtej Singh Johar v. Union of India

Section 377 of the Indian Penal Code criminalised 'carnal intercourse against the order of nature', a colonial-era provision that had been used to criminalise consensual sexual conduct between adults of the same sex. The provision's constitutionality had already reached the Supreme Court once, in Suresh Kumar Koushal v. Naz Foundation (2013), which had upheld it and reversed a Delhi High Court judgment reading it down. Navtej Singh Johar was a fresh constitutional challenge, brought partly on the strength of an intervening development: Puttaswamy's recognition of privacy as a fundamental right.

Facts

Dancer Navtej Singh Johar and four other petitioners from the LGBTQ+ community filed a fresh writ petition challenging Section 377, arguing that the 2013 Koushal decision had failed to adequately weigh the provision's impact on dignity, privacy and equality, and that Puttaswamy's subsequent recognition of sexual orientation as protected under the right to privacy had undercut the basis of that earlier ruling.

Legal issues

• Whether Section 377, insofar as it criminalised consensual sexual conduct between adults, violated the rights to equality, non-discrimination, privacy and dignity under Articles 14, 15, 19 and 21.
• Whether Koushal's 2013 reasoning — that the persons affected constituted only a 'minuscule minority' — was a constitutionally sound basis for denying rights protection.
• What weight the intervening decision in Puttaswamy should carry on the question of criminalising private, consensual conduct.

Decision

A five-judge bench unanimously read down Section 377 to decriminalise consensual sexual conduct between adults, holding that the provision, to that extent, was unconstitutional. Section 377 remained in force for non-consensual acts and acts involving minors.

Sexual orientation is an essential attribute of privacy. Discrimination against an individual on the basis of sexual orientation is deeply offensive to the dignity and self-worth of the individual.Navtej Singh Johar v. Union of India, (2018) 10 SCC 1

Reasoning

The Court held that constitutional morality, not popular or majoritarian morality, is the standard against which a law restricting fundamental rights must be tested — the size of the group affected by a rights violation cannot be a reason to deny the violation matters. It found Section 377 failed the proportionality standard Puttaswamy had established for restrictions on privacy, since criminalising private, consensual, adult conduct served no legitimate state interest capable of justifying that intrusion. The bench also explicitly acknowledged that Koushal had been wrongly decided.

Significance

Navtej Singh Johar is a rare instance of the Supreme Court expressly correcting its own recent precedent, and it demonstrates how directly Puttaswamy's privacy framework has reshaped later constitutional litigation — the proportionality standard set in that case did the decisive work here. It remains the foundational judgment for LGBTQ+ rights litigation in India, though it addressed criminalisation specifically and left broader questions, including marriage equality, for later cases.