Quick answer
In Navtej Singh Johar v. Union of India (2018), a five-judge bench of the Supreme Court unanimously held that Section 377 of the Indian Penal Code, 1860 (old law) was unconstitutional to the extent it criminalised consensual sexual conduct between adults in private. The Court relied on equality, dignity, privacy and freedom of expression under Articles 14, 15, 19 and 21, and overruled Suresh Kumar Koushal v. Naz Foundation. Non-consensual acts and bestiality remained offences.
The case
Navtej Singh Johar v. Union of India, AIR 2018 SC 4321, Supreme Court of India, 6 September 2018, five judges: Dipak Misra, C.J.I. (for himself and A.M. Khanwilkar, J.), R.F. Nariman, D.Y. Chandrachud and Indu Malhotra, JJ., each writing concurring opinions. Section 377 IPC was declared unconstitutional insofar as it penalised consensual sexual acts between adults (homosexual, heterosexual or lesbian) in private. Suresh Kumar Koushal v. Naz Foundation, (2014) 1 SCC 1, a two-judge decision that had upheld Section 377, was overruled.
Grounds of the decision
- Article 14: the classification had no reasonable nexus with any legitimate object, since non-consensual acts were already punished as rape under the IPC and under the POCSO Act. Criminalising consensual acts was held manifestly arbitrary (wholly unreasonable, without an adequate principle).
- Article 15: Indu Malhotra, J. held that "sex" in Article 15 includes sexual orientation, so discrimination on that basis is forbidden.
- Article 19(1)(a): public decency and morality could not justify punishing private choices and expression of identity.
- Article 21: dignity, autonomy and privacy, building on the privacy ruling in Justice K.S. Puttaswamy v. Union of India (2017), protect intimate choices of adults.
- Constitutional morality over social morality: the rights of a minority cannot depend on majority approval; the Court called Koushal's reasoning that LGBT persons were only a "minuscule fraction" of the population fallacious.
What the judgment did and did not do
| Conduct | Position after Navtej (2018) |
|---|---|
| Consensual sexual acts between adults in private | Not a crime; Section 377 read down |
| Acts without the consent of one person | Still punishable |
| Sexual acts involving children | Still punishable (POCSO Act and rape law) |
| Bestiality | Still punishable under Section 377 |
Farhan and Armaan, both adults, live together in a rented flat. A neighbour complains to the police about their relationship. After Navtej, their consensual relationship in private is not an offence, and the police cannot register a case merely because others disapprove. If either of them were forced into a sexual act, the non-consent would bring criminal law into play.
Current law note
The B.N.S. came into force on 1 July 2024 and replaced the IPC. It contains no provision equivalent to Section 377. In State (GNCT of Delhi) v. Khan Mohd. (16 October 2024), the Delhi High Court observed that the B.N.S. has no provision equivalent to Section 377. The Parliamentary Standing Committee on Home Affairs had flagged the same gap in its 246th Report (November 2023). Rape is now defined and punished in Sections 63 and 64 B.N.S., and offences against children remain covered by the POCSO Act. For the related recognition of transgender persons' rights, see NALSA v. Union of India.
Exam point
Navtej Singh Johar (2018, five judges, unanimous) read down Section 377 IPC to decriminalise consensual adult sexual conduct in private under Articles 14, 15, 19 and 21, and overruled Suresh Kumar Koushal; non-consensual acts, acts with children and bestiality stayed criminal.
