Libertatem Magazine

Analysing the Constitutionality of Section 377 IPC: Navtej Singh Johar Case

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Navtej Singh Johar v. India’s Union is the landmark judgment of Supreme court of India. It is the first case, where fundamental steps were taken to strengthen the legal status of the LGBTQ+ persons in India.

India’s Supreme Court in September 2018, read down the Indian Penal Code section 377 thus reversing the previous decision of the court in the Suresh Kumar Koushal case. The Bench of the Five Judges, Court acknowledged the constitutional rights of the Homosexual and LGBTQ+ groups. The verdict has come as a moment of Celebration for a variety of individuals and organizations that have been campaigning Fair rights for gays have been around for a long time now.

The Court, though reading Section 377, excluded it from its reach consensual, private sexual intercourse between adults. Much of the three significant concepts that formed and constituted the reasoning of the Court, were the conception of Transformative constitutionalism, federal ethics, and the newly developed Right to Privacy guaranteed


The core issue of the case was the statutory validity of Section 377 of the Indian Penal Code, 1860 (Section 377), in so far as it referred to the consensual sexual activity of adults of the same sex in private.

Section 377 was entitled Unnatural Offenses and specified that anyone who willingly has carnal intercourse with any man, woman or animal against the order of nature shall be punished with life imprisonment or imprisonment of either description for a period of up to ten years, and shall also be liable to a fine.

The question in the case was presented in 2009 by the High Court of Delhi, in the case of the Naz Foundation v. Government. N.C.T. of Delhi found Section 377 to be unconstitutional in so far as it concerned consensual sexual activity between two adults of the same sex.

In 2014, the Supreme Court, in the case of Suresh Kumar Koushal v. Naz Foundation, overturned the Delhi HC decision and granted Section 377 the stamp of approval when the petition in the present case was filed in 2016 challenging the 2014 ruling, the Supreme Court’s three-pronged bench argued that a larger bench had to respond to the issues posed. As a result, a five-judgment bench heard the matter.

Petitioner’s Arguments

The petitioner in the present case, Navtej Singh Johar, a dancer known as part of the LGBT community, filed a petition to the Supreme Court in 2016 seeking recognition of the right to sexuality, the right to sexual integrity and the right to choose a sexual partner as part of the right to life guaranteed by Article 21 of the Indian Constitution (Constitution). In addition, he demanded a declaration that Section 377 was unconstitutional. The petitioner also claimed that Section 377 violated Art. 14 of the Constitution (Right to Equality Before the Law) because it was ambiguous in the sense that it did not describe carnal intercourse against the order of nature.

There was no intelligible distinction between normal and unnatural consensual sex or rational classification. The petitioner further argued, inter alia, that Section 377 was in violation of Article 15 of the Constitution (Protection from Discrimination) because it discriminated against the sex of the sexual partner of a person; (ii) Section 377 had a chilling effect’ on Article 19 (Freedom of Expression) since it denied the right to express one’s sexual identity through romantic/sexual partner speech and choice, and (iii) Section 377 violated the right to privacy as it subjected LGBTQ+ individuals to the fear that they would be embarrassed or shunned because of a certain choice or way of life.

Respondent’s Arguments

The Union of India was the respondent in the case. Some non-governmental organizations, religious bodies and other representative bodies have also sent, along with the petitioner and the respondent, requests to intervene in the case.

The Union of India argued that the issue of the constitutional validity of Section 377 (as it relates to the consent of adults of the same sex) had been left to the wisdom of the Court. Some interveners, claiming that the right to privacy was not unbridled, protested against the applicant that such actions were derogatory to the constitutional concept of dignity That such actions would increase the prevalence of HIV/AIDS in society and that it would be harmful to the institution of marriage to declare Section 377 unconstitutional and that it may infringe Article 25 of the Constitution (Freedom of Conscience and Propagation of Religion).

Judgement and Reasoning of the Court

The Indian Supreme Court five-judge’s bench unanimously held that Section 377 of the Indian Penal Code, 1860 (Section 377) was unconstitutional in so far as it referred to consensual sexual behavior between adults privately.

Thus, in Suresh Koushal v. Naz Foundation, which upheld the constitutionality of Section 377, the Court overruled its judgement. In its decision in National Legal Services Authority v. Union of India the Court reiterated that gender identity is fundamental to one’s personality and that it will compromise one’s dignity by refusing it.

The Court relied on its ruling in K.S. Puttaswamy v. Union of India, and held that it would be violative of their basic rights to deny the LGBTQ+ community its right to privacy on the ground that they constitute a minority of the population. It held that Section 377 constitutes an undue restriction on the right to freedom of expression, since consensual carnal intercourse in private does not in any way harm public dignity or morality and, if it appears to be in the books of the law, it will have a chilling impact that would violate the right to privacy under Art. 19(1)(a).

The Court affirmed that intimacy between consenting adults of the same sex is beyond the legitimate interests of the State and sodomy laws violate the right to equality under Art. 14 and Art. 15 of the Constitution by punishing groups of the population for their sexual orientation. The Court also relied on its judgments in Shafin Jahan v. Asokan K.M. and Shakti Vahini v. Union of India to reaffirm that an adult has the right to choose a life partner of his/her choice is a facet of human rights.

Chief Justice Misra relied on the concepts of transformative constitutionalism and progressive realization of rights to argue that the constitution must direct the transformation of society from an archaic to a pragmatic society where fundamental rights are strongly secured. He further claimed that “constitutional morality would prevail over social morality to ensure that the civil rights of LGBTQ+ people are secured, irrespective of whether the majority government approves those rights.”

In his view, J. Nariman studied the legislative history of Section 377 in order to conclude that the reason for Section 377, namely Victorian morality, has long since gone. There was no justification for the continuation of the statute. He concluded his opinion by placing a duty on the Union of India to take all steps appropriate to publicize the judgement in order to eradicate the stigma faced by the LGBTQ+ community in society. He also ordered the government and the police to be made aware of the community’s plight in order to ensure favorable treatment for them.

In his view, J. Chandrachud recognized that while Section 377 was physically neutral, its “effect was to erase identities of the LGBTQ+ community.” He said that if Section 377 continues to prevail, the LGBTQ+ community will be marginalized from health care and the prevalence of HIV will worsen. He stressed that not only must the law not discriminate against same-sex marriages, it must take positive action to ensure equal rights and to give equal citizenship to the group in all its forms.

J. Malhotra argued that homosexuality is not an aberration, but a variation of sexuality as well. She claimed that the right to privacy does not only include the right to be left alone, but also applies to space and decision-making privacy. She concluded her opinion by claiming that history owes an apology to LGBTQ+ community members and their families for the delay in providing redress for the ignominy and ostracism they have suffered over the years.


The judgement in the case of Navtej Johar is certainly a historic one. As a result of this decision, homosexuals can now live in a more dignified atmosphere and can openly express themselves. The judgement also emphasized the radical realization of human rights. But is that the end of the problem? The response is ‘no’ because there is still prejudice against homosexuals because there is no proper legislation to resolve this issue. The court directed the government to take certain steps to protect the rights of homosexuals, but no concrete action has been taken. The need for an hour is an underlying law that provides for equality for all individuals on the basis of sexual orientation, gender identity and other grounds. The law should enforce duties of equality and non-discrimination on all individuals. is now on Telegram. Follow us for regular legal updates and judgments from the court. Follow us on Google News, InstagramLinkedInFacebook & Twitter. You can also subscribe to our Weekly Email Updates. You can also contribute stories like this and help us spread awareness for a better society. Submit Your Post Now.

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