Judgement Briefs

Criminal Law

Navtej Singh Johar v. Union of India

(2018) 10 SCC 1

Citation
(2018) 10 SCC 1
Court
Supreme Court of India
Date
2018

Facts

  • LGBTQ+ petitioners challenged Section 377 IPC.
  • They argued that criminalisation of consensual same-sex intimacy:
  • branded their identity as criminal;
  • exposed them to harassment;
  • forced concealment;
  • violated dignity, privacy and equality.
  • The challenge followed:
  • the Delhi High Court’s decision in Naz Foundation;
  • the reversal in Suresh Kumar Koushal;
  • later constitutional recognition of privacy and autonomy.
  • A five-judge Constitution Bench reconsidered the validity of Section 377 as applied to consenting adults.

Issues

  • Whether criminalising consensual same-sex conduct between adults violated Articles 14, 15, 19 and 21.
  • Whether sexual orientation is constitutionally protected.
  • Whether social morality or legislative inaction justified continued criminalisation.
  • Whether Koushal should be overruled.

Rule

  • Constitutional morality prevails over popular or social morality.
  • Article 14 protects against arbitrary criminal classification.
  • Article 15’s prohibition of sex discrimination includes discrimination linked to sexual orientation and sex stereotypes.
  • Article 19 protects expression of identity and intimate choice.
  • Article 21 protects:
  • dignity;
  • privacy;
  • autonomy;
  • consensual sexual choice.
  • Fundamental rights do not depend on the number of persons affected.
  • The State cannot criminalise private consensual adult intimacy merely because the majority disapproves of it.

Application

  • Section 377 did not operate as a neutral provision in social reality.
  • Its existence marked LGBTQ+ persons as:
  • unnatural;
  • immoral;
  • potential criminals.
  • Even where prosecutions were rare, the law enabled:
  • blackmail;
  • police harassment;
  • family coercion;
  • denial of healthcare;
  • suppression of identity.
  • Consensual intimacy between adults in private does not cause legally cognisable harm to others.
  • Criminal punishment was therefore disproportionate and arbitrary.
  • Sexual orientation is not a voluntary criminal tendency but an intrinsic aspect of identity.
  • The Constitution protects unpopular minorities precisely when social prejudice is strongest.
  • The Court rejected Koushal’s “minuscule fraction” reasoning.
  • One person’s fundamental right is as constitutionally significant as the right of millions.
  • The Court limited the invalidity carefully:
  • consensual adult conduct was protected;
  • non-consensual acts and acts involving minors remained punishable under the then-existing provision.
  • The judges also recognised the historical wrong caused by criminalisation and called for equal citizenship beyond mere decriminalisation.

Held

  • The Constitution Bench unanimously held Section 377 unconstitutional insofar as it criminalised consensual sexual conduct between adults.
  • Suresh Kumar Koushal was overruled on that point.
  • Sexual orientation, dignity, privacy and intimate autonomy were affirmed as fundamental constitutional interests.
  • Use this case for: the decriminalisation of consensual same-sex intimacy and the principle that constitutional morality protects individual identity against majoritarian prejudice.