IN THE SUPREME COURT OF INDIA

Name of the Case Navtej Singh Johar & Ors v. Union of India
Citation AIR 2018 SC 4321
Date of the Case September 6, 2018
Petitioner Navtej Singh Johar
Respondent Union of India through Secretary, Ministry of Law and Justice
5 judge bench: CJI Dipak Misra, J. Nariman, J. Chandrachud, J.
Bench/Judges
Khanwilkar, J. Malhotra
Statutes/Constitution Involved Constitution of India; Indian Penal Code, 1860
Articles 14, 15, 16, 19(1)(a), 21 of Indian Constitution and
Important Sections/Articles
Section 377 of Indian Penal Code.
School of Jurisprudence Sociological School of Jurisprudence

I. BACKGROUND
Discrimination against LGBTQIA+ individuals has a long and troubling history, spanning various
cultures and societies. Historically, many societies had laws criminalizing same-sex relationships and
behaviours. These laws often resulted in severe punishment, including imprisonment, fines, and even
death. For example, during the Middle Ages in Europe, sodomy was considered a crime punishable by
death in some regions. LGBTQIA+ individuals faced widespread social stigma and ostracization. They
were often marginalized, bullied, and subjected to violence and harassment. LGBTQIA+ individuals
were denied basic rights and freedoms that heterosexual individuals enjoyed. They were often unable
to openly express their identities, marry, adopt children, or access employment, housing, and
healthcare without fear of discrimination.
In India, the Indian Penal Code, 1860 under Section 377 criminalised carnal intercourse against the
order of nature which also included sexual relationships between two adults of the same gender. Navtej
Singh Johar filed a petition challenging Section 377 of the Penal Code, arguing it violated
constitutional rights to privacy, freedom of expression, equality, human dignity, and protection from
discrimination.

II. FACTS
• The central issue of the case was the constitutional validity of Section 377 of the Indian Penal
Code, 1860 (Section 377) insofar as it applied to the consensual sexual conduct of adults of the
same sex in private. Section 377 was titled ‘Unnatural Offences’ and stated that “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 a fine.”
• The issue in the case originated in 2009 when the Delhi High Court, in the case of Naz Foundation
v. Govt of NCT of Delhi1 held Section 377 to be unconstitutional, in so far as it pertained to
consensual sexual conduct between two adults of the same sex.

• In 2014, a two-judge bench of the Supreme Court, in the case of Suresh Kumar Koushal v. Naz
Foundation2 , 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 decision, a three-
judge bench of the Supreme Court opined that a larger bench must answer the issues raised. As a
result, a five-judge bench heard the matter.

• Navtej Singh Johar, a dancer who identified as part of the LGBT community, filed a Writ Petition
in the Supreme Court in 2016 seeking recognition of the right to sexuality, right to sexual autonomy
and right to choice of a sexual partner to be part of the right to life guaranteed by Art. 21 of the
Constitution of India

• Furthermore, he sought a declaration that Section 377 was unconstitutional. The Petitioner also
argued that Section 377 was violative of Art. 14 of the Constitution (Right to Equality Before the
Law) because it was vague in the sense that it did not define “carnal intercourse against the order
of nature”.

• There was no intelligible differentia or reasonable classification between natural and unnatural
consensual sex.

• Among other things, the Petitioner further argued that:

i. Section 377 was violative of Art. 15 of the Constitution (Protection from Discrimination) since
it discriminated on the basis of the sex of a person’s sexual partner

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 speech and choice of romantic/sexual partner,
and

1
2009 (6) SCC 712.
2
AIR 2014 SC 563.
 iii. Section 377 violated the right to privacy as it subjected LGBT people to the fear that they
would be humiliated or shunned because of “a certain choice or manner of living.”

• The Respondent in the case was the Union of India. Along with the Petitioner and Respondent,
certain non-governmental organizations, religious bodies and other representative bodies also filed
applications to intervene in the case

• The Union of India submitted that it left the question of the constitutional validity of Section 377
(as it applied to consenting adults of the same sex) to the “wisdom of the Court”

• Some interveners argued against the Petitioner, submitting that the right to privacy was not
unbridled, that such acts were derogatory to the “constitutional concept of dignity”, that such acts
would increase the prevalence of HIV/AIDS in society, and that declaring Section 377
unconstitutional would be detrimental to the institution of marriage and that it may violate Art. 25
of the Constitution (Freedom of Conscience and Propagation of Religion).

III. ISSUES RAISED

The Court deliberated on the soundness of the Koushal decision. It also considered whether Section
377 violates:
I. Article 14 as it discriminates against individuals on the basis of their “sexual orientation” and
“gender identity”?
II. The right to autonomy and dignity under Article 21 by penalizing private consensual acts
between same-sex persons?
III. The right to expression under Article 19(1)(a) by criminalizing the gender expression of the
LGBTQIA+ community?

IV. JUDGMENT
• The five-judge bench of the Indian Supreme Court (Court) unanimously held that Section 377 of
the Indian Penal Code, 1860 (Section 377), insofar as it applied to consensual sexual conduct
between adults in private, was unconstitutional. With this, the Court overruled its decision
in Suresh Koushal v. Naz Foundation that had upheld the constitutionality of Section 377.
• The Court relied upon its decision in National Legal Services Authority v. Union of India3 to
reiterate that gender identity is intrinsic to one’s personality and denying the same would be
violative of one’s dignity.

3
(2014) 5 SCC 438.
• The Court relied upon its decision in K.S. Puttaswamy v. Union of India4 and held that denying
the LGBT community its right to privacy on the ground that they form a minority of the population
would be violative of their fundamental rights. It held that Section 377 amounts to an unreasonable
restriction on the right to freedom to expression since consensual carnal intercourse in private
“does not in any way harm public decency or morality” and if it continues to be on the statute
books, it would cause a chilling effect that would “violate the privacy right under Art. 19(1)(a)”
• The Court affirmed that 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 targeting a segment of the population for their sexual orientation.
• Further, the Court also relied upon its decisions in Shafin Jahan v. Asokan K.M.5 and Shakti
Vahini v. Union of India6 to reaffirm that an adult’s right to “choose a life partner of his/her
choice” is a facet of individual liberty.

V. RATIONALE
• Chief Justice Misra (on behalf of himself and J. Khanwilkar) relied on the principles of
transformative constitutionalism and progressive realization of rights to hold that the constitution
must guide the society’s transformation from an archaic to a pragmatic society where fundamental
rights are fiercely guarded. He further stated, “constitutional morality would prevail over social
morality” to ensure that human rights of LGBT individuals are protected, regardless of whether
such rights have the approval of a majoritarian government.
• J. Nariman in his opinion analysed the legislative history of Section 377 to conclude that since the
rationale for Section 377, namely Victorian morality, “has long gone” there was no reason for the
continuance of the law. He concluded his opinion by imposing an obligation on the Union of India
to take all measures to publicize the judgment so as to eliminate the stigma faced by the LGBT
community in society. He also directed government and police officials to be sensitized to the
plight of the community so as to ensure favourable treatment for them.
• J. Chandrachud in his opinion recognized that though Section 377 was facially neutral, its “effect
was to efface identities” of the LGBT community. He stated that, if Section 377 continues to
prevail, the LGBT community will be marginalized from health services and the “prevalence of
HIV will exacerbate”. He stated that not only must the law not discriminate against same-sex

4
(2017) 10 SCC 1.
5
2018 (5) SCALE 422.
6
(2018) 7 SCC 192.
 relationships, it must take positive steps to achieve equal protection and to grant the community
“equal citizenship in all its manifestations”.
• J. Malhotra affirmed that homosexuality is “not an aberration but a variation of sexuality” She
stated that the right to privacy does not only include the right to be left alone but also extends to
“spatial and decisional privacy”. She concluded her opinion by stating that history owes an apology
to members of the LGBT community and their families for the delay in providing redress for the
ignominy and ostracism that they have suffered through the centuries.

VI. SCHOOL OF JURISPRUDENCE

The Sociological School of Jurisprudence posits that law is not merely a set of abstract principles or
rules but is fundamentally shaped by and reflective of the social conditions, values, and needs of a
society. It seeks to analyse how legal rules and institutions influence and are influenced by social
behaviour, attitudes, and relationships.
The salient features of the school include that:
i. It gives more importance to application of law rather than nature of law
ii. It considers social wants and social needs of the people while making the law
iii. It considers law as a social institution as needs of the people are given importance.
iv. It believes that law as a social fact must adopt, mold or change itself according to the needs of
the society.
v. It recognizes the potential of law as a tool for social engineering. It contends that legal rules
and institutions can be used to promote social change, address social inequalities, and achieve
desired social outcomes.
The judgment in question marked a significant departure from outdated legal perspectives regarding
the LGBT community. Justice Nariman highlighted the irrelevance of Victorian morality in
contemporary legal discourse. Justice Chandrachud emphasized the necessity for proactive legal
measures to ensure equal protection and full citizenship rights for the LGBT community. Justice
Malhotra expanded the notion of the right to privacy to encompass not only personal autonomy but
also spatial and decisional privacy. Moreover, other judges underscored the role of the constitution in
guiding societal progress from outdated norms to pragmatic realities.
In the context of the Sociological School of Jurisprudence, this judgment reflects a recognition of the
dynamic interaction between law and society. It acknowledges that legal principles must adapt to
changing social norms and values. The emphasis on achieving equal protection and full citizenship
rights for the LGBT community aligns with the sociological perspective, which views law as a tool for
promoting social justice and addressing societal inequalities. Additionally, the acknowledgment of the
evolving concept of privacy and the role of the constitution in guiding societal transformation
underscores the Sociological School's focus on understanding law within its broader social context and
its potential to shape and reflect societal change.

VII. CONCLUSION
In conclusion, the Navtej Singh Johar case represents a significant milestone in the evolution of Indian
jurisprudence, particularly concerning LGBTQIA+ rights. The Supreme Court's decision to strike
down Section 377 of the Penal Code reflects a departure from outdated legal paradigms and a
recognition of the evolving social attitudes towards sexual orientation and identity. This landmark
judgment aligns closely with the principles of the Sociological School of Jurisprudence, which
emphasizes the dynamic relationship between law and society.

By acknowledging the importance of equal protection, dignity, and privacy for all individuals,
regardless of sexual orientation, the court demonstrated its commitment to addressing social
inequalities and promoting social justice. Furthermore, the court's recognition of the role of the
constitution in guiding societal transformation underscores the Sociological School's emphasis on
understanding law within its broader social context and its potential to shape and reflect societal
change.

The Navtej Singh Johar case serves as a powerful example of how legal principles can evolve to reflect
changing social norms and values, and how law can be used as a tool for promoting equality and
inclusion in society. It highlights the importance of adopting a sociological perspective in legal
analysis, one that recognizes the interconnectedness of law and society and seeks to address social
injustices through legal reform and advocacy.