Tuesday, 31 May 2022

Navtej Singh Johar vs Union of India & Ors


Case Study

Navtej Singh Johar vs Union of India & Ors

By: Anjali Tiwari

Facts of the case:

Consensual sex between gays was classified as a "unnatural offence" under Section 377 of the IPC, and thus was made illegal. It discriminates against a minority primarily on the basis of their sexual orientation, which is similar to sex discrimination. In Suresh Kaushal and Anr Vs. NAZ Foundation and Ors, the section was challenged. It is claimed that it is in violation of Articles 14, 15, and 21 of the Constitution. In response, the Supreme Court issued an ambiguous ruling, indicating that the decision to decriminalize homosexuality should have been decided by Parliament rather than the courts. The courts can only do so if the statute is proven to be in violation of constitutional provisions beyond a reasonable doubt.

Furthermore, the court stated that because fewer than 200 cases have emerged in 150 years, there is insufficient evidence to declare that section 377 IPC is ultra vires the provisions of Articles 14, 15, and 21 of the Indian Constitution. Finally, the Supreme Court stated that Section 377 does not suffer from the vice of unconstitutionality, without going into greater detail. The same judgement was challenged in the Navtej Singh case by five members of the LGBTQ community who petitioned for the repeal of Section 377 IPC, which criminalized consensual sex between gays.

Citation: AIR 2018 SC 4321; W.P. (Crl.) No. 76 of 2018 D. No. 14961/2016

  1. Navtej singh Johar

  2. Ritu Dalmia

  3. Ayesha Kapur

  4. Aman Nath

  5. Sunil Mehra

Respondent: Ministry of Health, represented by Tushar Mehta
Bench: CJI Dipak Misra, Justice A.M. Khanwilkar, Justice Rohinton Fali Nariman, Justice
D.Y. Chandrachud and Justice Indu Malhotra. 

Issues: Constitutionality of Section 377 of IPC

Arguments from the side of Petitioner:

1) Homosexuality, bisexuality, and other sexual orientations are all natural and should not be regarded as illnesses. Criminalizing it degrades a person's dignity, causes confusion about gender identification, and infringes on the right to privacy provided by the constitution's Art 21. It also has an impact on personality development, relationship building, forcible affiliation, and other fundamental aspirations protected by Article 19(1)(a) of the Constitution.

2) The LGBT community makes up 7-8 percent of the Indian population and is discriminated against and abused because of their sexual orientation. As a result, they require more protection than other populations in order to reach their full potential and live without fear, apprehension, or dread.

3) Although transgender people have been recognized as a third gender and have been granted certain rights as a result of the NALSA case, their consensual acts are still considered illegal.

4) The petitioners want Section 377 of the IPC repealed inasmuch as it criminalizes gays having consensual sex. They believe that section 377 should be restricted to bestiality and non-consensual actions.

5) Sec 377, according to the petitioner, infringes multiple fundamental rights, including the right to dignity, equality, privacy, liberty, and freedom of expression.

6) The section violates Art 14 of the constitution since there is no discernible difference or fair classification between natural and unnatural sex. The phrases aren't specified anywhere in the regulation or the statute, thus they're ambiguous.

7) The section also violates the constitution's Article 15 since it discriminates against people based on the sex of their sexual partners.

Arguments from the side of Respondent:

1) Sec 377, according to the respondent on behalf of Intervener, comprises organ abuse, and such acts are undignified and disparaging, amounting to constitutional wrong and constitutional immorality.

2) This court has given the community with sufficient rights in NALSA, and the further reliefs sought by petitioners are only an affront to privacy and personal liberty, violating the concept of public morality.

3) Sec 377 criminalization is more significant now since homosexuals who engage in those acts are more likely to contract HIV than heterosexuals, and so the right to privacy should not be granted to them.

4) Apart from utterly destroying the family structure, marital institution, and social culture, declaring Sec 377 unlawful will also destroy the country's political, economic, and cultural history.

5) Sec 377 does not infringe on a person's constitutional rights because it is the state's responsibility to impose reasonable restrictions on some activities, such as carnal intercourse, in order to protect citizens from anything objectionable and harmful.

6) It does not infringe Art 14 because the state has the authority to determine who should be considered a class for the purposes of enacting legislation based on reasonable classification. Furthermore, the Section simply describes an offence and the punishment associated with it.

7) It does not infringe Art 15 because the provision only prohibits discrimination based on sex, not sexual orientation, which is not mentioned anywhere.

8) The Parsi Marriage and Divorce Act, the Special Marriage Act, the Indian Divorce Act, and the Hindu Marriage Act would all be affected.


The Supreme Court overturned a 158-year-old rule on homosexuality that deemed carnal intercourse against nature a crime. The court overturned its prior decision in the Suresh Kaushal case, declaring Sec 377 illegal since it violated the Constitution's Articles 14, 15, 19, and 21.


It was one of the most significant Supreme Court decisions in terms of the LGBTQ community's claim to equality, which had been denied by Victorian-era legislation. Discrimination against an individual based on sexual orientation is extremely offensive to the dignity and self-worth of the individual, and the community deserves equal rights and respect as any other individual.

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