Y/AUT

NAVTEJ SINGH JOHAR

OM O & ORS. VS.
N

N
UNION OF INDIA
O

OM
Y/AUT

Y/ AUT
OM

AIR 2018 SC 4321, (2018) 10 SCC 1

O
N

N
OM O
Y/AUT

2018
Case Status NOT In relation to a legislation criminalising acts
OVERRULED against the order of nature, it was noted that
within privacy, autonomy occupies a
significant space and this would include
Case Type WRIT self-determination of one's sexual identity.
PETITION

Additional
Aspect(s)
of Privacy
DIGNITY

Constitutional ARTICLES
Provision(s)
14,15,19,21 *

Bench
Strength
5
JUDGES
1 opinion by
Chief Justice D. Misra on behalf of
Justice A. M. Khanwilkar and himself,
3 concurring opinions by
Number of
Opinion(s)
4/0
OPINIONS DISSENT
Justice R. F. Nariman,
Justice D.Y. Chandrachud and
Justice I. Malhotra.
“Given our judgment in Puttaswamy, in particular, the
right of every citizen of India to live with dignity and
the right to privacy including the right to make intimate
choices regarding the manner in which such individual
wishes to live being protected by Articles 14, 19 and 21,
it is clear that Section 377, insofar as it applies to same-sex
consenting adults, demeans them by having them
prosecuted instead of understanding their sexual
orientation and attempting to correct centuries of the
stigma associated with such persons.”

T
his petition sought recognition of the right
to sexuality, the right to sexual autonomy
and the right to choice of a sexual partner
as part of the right to life guaranteed under Article
21 of the Constitution of India. The petition
further sought declaration that Section 377 of the
Indian Penal Code, 1860 (IPC), which criminalised
consensual sexual conduct between adults, was
unconstitutional. The Petitioners contended that
homosexuality, bisexuality and other sexual orien-
tations were natural variations of expression, and
to criminalise these sexual orientations would
have the effect of violating the Constitution’s
guarantees relating to dignity and privacy.
Accepting these contentions, the Supreme Court
found Section 377 to be discriminatory towards
the Lesbian, Gay, Bisexual and Transgender
(LGBT) community and noted that sexual orienta-
tion was an inherent part of their identity, dignity
and autonomy. On this basis, the Court decided
that Section 377 constituted a violation of the right
to dignity, privacy and sexual autonomy under
Article 21, freedom of expression under Article 19,
the right to equality under Article 14, and nondis-
crimination under Article 15 of the Constitution.

1
 While the Supreme Court had previously consid-
ered the question of the constitutionality of
Section 377 in the case of Suresh Kumar Koushal &
Anr. vs. Naz Foundation & Ors. ((2014) 1 SCC 1)
(which overturned the Delhi High Court’s judge-
ment in Naz Foundation vs. Government of NCT of
Delhi & Ors. ((2009) 111 DRJ 1), in light of several
factors including the progressive development of
the right to privacy and its intrinsic link to dignity
and personal autonomy in the cases of NALSA vs.
Union of India & Ors. ((2014) 5 SCC 438) and K.S.
Puttaswamy & Anr. vs. Union of India & Ors. ((2017)
10 SCC 1), a three Judge Bench of the Supreme
Court referred the petition to a larger bench for
final adjudication.
Facts
The primary issue in this case related to the consti-
tutional validity of Section 377 of the IPC, which
dealt with “unnatural offences” and criminalised
“carnal intercourse against the order of nature”,
insofar as it impacted consensual same-sex
relationships. In 2009, Section 377 was held to be
unconstitutional by the High Court of Delhi in the
Naz Foundation case, which was overruled by the
Supreme Court in Suresh Kumar Koushal. The
Petitioner, Navtej Singh Johar filed a writ petition
before a three Judge Bench of the Supreme Court
in 2016 challenging its decision in Suresh Kumar
Koushal and the constitutionality of Section 377.
The matter was referred to the five Judge Bench
considering the importance of the issue.
Issue
A) Whether Section 377 of the Indian Penal Code,
1860 insofar as it applied to consensual sexual
conduct between adults was unconstitutional
and whether the judgment in Suresh Kumar
Koushal should be upheld or set aside.
Arguments
The Petitioners contended that homosexuality,
bisexuality and other sexual orientations were
natural and based on lawful consent and were
neither a physical nor a mental illness. The
Petitioners further contended that criminalising
sexual orientations violated the concept of
individual dignity and decisional autonomy
inherent in the personality of a person, and the
right to privacy under Article 21.
The Petitioners submitted that the rights of the
LGBT community, who form 7-8 percent of the
Indian population need to be recognised and
protected. They relied on the Puttaswamy case to
argue that Section 377 was unconstitutional
because it discriminated against the LGBT
community on the basis of sexual orientation,
which was an essential attribute of privacy, and
that the sexual orientation and privacy lay at the
core of fundamental rights guaranteed under
Articles 14, 19 and 21. The Petitioners sought
recognition of the right to sexuality, the right to
sexual autonomy and the right to choice of a
sexual part-ner as part of the right to life guaran-
teed under Article 21.
The Respondents submitted that insofar the
constitutional validity of Section 377 was
concerned with the 'consensual acts of same sex
adults in private', they would leave it to the
wisdom of the Court. Some Intervenors argued in
2
 favour of retention of Section 377 as it furthered “a
compelling state interest to reinforce morals in
public life”. Arguing that fundamental rights
were not absolute, the Intervenors submitted that
Section 377 was not discriminatory as it “criminal-
ises acts and not people” and applied equally to
all unnatural sexual conduct, irrespective of
sexual orientation and criminalised some forms of
carnal intercourse by both heterosexual and
homosexual couples.
Decision
The Supreme Court, while observing the judg-
ment in Suresh Kumar Koushal, noted that it relied
on the miniscule minority rationale to deprive the
LGBT community of their fundamental rights and
did not differentiate between consensual and
non-consensual sexual acts between adults. The
Court noted in this regard that a “distinction has
to be made between consensual relationships of
adults in private, whether they are heterosexual or
homosexual in nature.” Moreover, consensual
relationships between adults could not be classi-
fied along with offences of sodomy, bestiality and
non-consensual relationships.
Further, the Court analysed the constitutionality
of Section 377 on the bedrock of the principles
enunciated in Articles 14, 15, 19 and 21. The Court
relied on the NALSA judgment, which granted
equal protection of laws to transgender persons,
to reiterate that sexual orientation and gender
identity was an integral part of a person’s person-
ality, and the Puttaswamy judgment, which recog-
nised the interrelationship between privacy and
autonomy and that the right to sexual orientation
was an intrinsic part of the right to privacy, to
conclude that “it is imperative to widen the scope
of the right to privacy to incorporate a right to
3
'sexual privacy' to protect the rights of sexual
minorities”. The Court further discussed the
Yogyakarta Principles on Gender Identity and
Sexual Orientation and the U.K Wolfenden Com-
mittee Report, 1957, which abolished penal offenc-
es involving same-sex consenting adults amongst
many other international comparative references.
The Court also relied on its judgment in Shakti
Vahini vs. Union of India & Ors. ((2018) 7 SCC 192),
and Shafin Jahan vs. Asokan K.M (AIR 2018 SC 1933)
to reaffirm that the right to choose a life partner
was a feature of individual liberty and dignity
protected under Article 19 and 21 and referred to
principles stated in Shayara Bano vs. Union of India
and Ors. ((2017) 9 SCC 1) to hold that Section 377
was irrational, arbitrary and violative of Article 14
as it made consensual relationships in private
spaces a crime and subjected the LGBT communi-
ty to discrimination and unequal treatment. More-
over, the Court used the maxim “et domus sua
cuique est tutissimum refugium” which translates to
“a man's house is his castle” to hold that Section 377
was disproportionate and unreasonable for
restricting LGBT persons’ right to freedom of
expression and choice as the restrictions did not
protect public order, decency or morality.
On the interplay of morality and constitutionality,
the Court noted that a “subjective notion of public
or societal morality which discriminates against
LGBT persons, and subjects them to criminal sanc-
tion, simply on the basis of an innate characteristic
runs counter to the concept of Constitutional
morality, and cannot form the basis of a legitimate
State interest”. The Court reiterated that “any
restriction on the right to privacy must adhere to
the requirements of legality, existence of a legiti-
mate state interest, and proportionality”. Further,
one of the principles that emerged out of compar-
 ative jurisprudence analysis was that “(i)ntimacy
between consenting adults of the same-sex is
beyond the legitimate interests of the state”.

The Court concluded that sexual orientation was

natural, innate and immutable. It held that the
“choice of LGBT person to enter into intimate
sexual relations with persons of the same sex is an
exercise of their personal choice, and an expres-
sion of their autonomy and self determination”.
Further, although the LGBT community constitut-
ed a sexual minority, they were equally protected
under Part III of the Constitution.

The five Judge Bench unanimously held Section

377 to be unconstitutional and read down Section
377 to the extent it criminalised consensual sexual
conduct between adults, whether of the same sex
or otherwise, in private. However, the Court clari-
fied that consent must be free, voluntary and
devoid of any duress or coercion.