Quick answer
No. In Navtej Singh Johar v. Union of India (6 September 2018), a five-judge Constitution Bench of the Supreme Court held that Section 377 of the Indian Penal Code (old law) was unconstitutional so far as it punished consensual sexual conduct between adults in private, whether same-sex or opposite-sex. The Court held that constitutional morality, not social or majority morality, decides fundamental rights. Sexual acts without consent, acts involving children and bestiality remained offences.
The case
Navtej Singh Johar v. Union of India, Writ Petition (Criminal) No. 76 of 2016, Supreme Court of India, 6 September 2018, reported as AIR 2018 SC 4321 and (2018) 10 SCC 1. Bench: Dipak Misra, C.J.I. (for himself and A.M. Khanwilkar, J.), R.F. Nariman, D.Y. Chandrachud and Indu Malhotra, JJ., all concurring. The Court read down Section 377 IPC and overruled Suresh Kumar Koushal v. Naz Foundation, the two-judge decision that had upheld the provision.
Why majority disapproval is not enough
- Constitutional morality: the leading opinion said that constitutional morality "cannot be martyred at the altar of social morality". The State, including the courts, must stop a majority from taking away the rights of a smaller section of society.
- Numbers do not decide rights: the Court rejected Koushal's reasoning that LGBT persons were only a "minuscule fraction" of the population; a fundamental right does not depend on how many people claim it.
- Privacy and dignity (Article 21): in Justice K.S. Puttaswamy (Retd.) v. Union of India (24 August 2017), the nine-judge bench held privacy to be a fundamental right, and the leading opinion said that sexual orientation is an essential attribute of privacy whose protection lies at the core of Articles 14, 15 and 21. It also called Koushal's "minuscule fraction" reasoning an unsustainable basis for denying privacy. Navtej built on this.
- Autonomy: an adult has sovereignty over their own body, and intimacy in private is a matter of their own choice.
- Equality (Article 14): Section 377 drew no line based on consent. Since non-consensual acts were already punished under the rape law and the POCSO Act, criminalising consensual acts had no reasonable nexus (rational link) with any legitimate object.
- Expression (Article 19(1)(a)): consensual acts between adults in private do not harm public decency or morality.
What the judgment did and did not decide
| Issue | Position after Navtej (2018), under the IPC |
|---|---|
| Consensual sexual conduct between adults in private | Not an offence |
| Sexual acts without the consent of either person | Still punishable |
| Sexual acts involving children | Still punishable, including under the POCSO Act |
| Bestiality | Section 377 remained valid for this |
| Right to marry a same-sex partner | Not decided; the case concerned criminal liability only |
Example
Armaan and Aadil are adults in a private, consensual relationship. Their neighbours disapprove and ask the police to act. After Navtej, social disapproval cannot make their consensual intimacy a crime, because fundamental rights do not depend on majority approval. Navtej protected consensual conduct only: while Section 377 IPC was in force, it continued to punish non-consensual acts.
Current-law note
The B.N.S. replaced the IPC from 1 July 2024. It contains no provision equivalent to Section 377 IPC: the words "carnal intercourse against the order of nature" do not appear in it, and the Delhi High Court noted in State (GNCT of Delhi) v. Khan Mohd. (16 October 2024) that "there is no equivalent provision to Section 377 under the B.N.S.". Rape and sexual offences against children are dealt with under the B.N.S. and the POCSO Act. The omission has been questioned: in Gantavya Gulati v. Union of India (2024), a public interest petition seeking protection against non-consensual sexual acts equal to the old Section 377, the Delhi High Court directed the Union to treat the petition as a representation and decide it. For the full case, see Navtej Singh Johar v. Union of India. For the history of the old provision, see Homosexuality under the Indian Penal Code.
Exam point
Navtej Singh Johar (2018, five judges): Section 377 IPC read down for consensual adult conduct, Koushal overruled. Constitutional morality prevails over social morality, and rights do not depend on majority approval.
