Supreme Court of India
2018
Fundamental Rights
Navtej Singh Johar v. Union of India (2018)
Section 377 was limited: consensual adult same-sex intimacy in private is not a crime. The judgment centred on dignity, privacy, equality, and constitutional morality.
Citation: (2018) Constitution Bench (popularly known as the Section 377 judgment)
Location: India
Table of Contents
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Quick Summary
This case changed the meaning of Section 377 in India. The Supreme Court said: the State cannot treat consensual intimacy between adults as a crime just because it does not match old social ideas.
The Court protected choice, privacy, dignity, and equality. It also said a minority’s rights cannot be defeated by majority morality.
Bottom line: Section 377 stays for harmful acts (non-consent, minors, bestiality), but it cannot punish consenting adults in private.
Case Snapshot
- Court: Supreme Court of India
- Bench: 5 Judges (Constitution Bench)
- Law: Section 377 IPC
- Rights: 14, 15, 19, 21
- Theme: Constitutional Morality
Issues
Was the 2013 approach correct?
Did Suresh Kumar Koushal (2013) rightly uphold Section 377 against consenting adults?
Can consent be criminalised?
Does Section 377 violate the Constitution when it punishes consensual sexual acts between adults in private?
The real question was not “what society likes.” The real question was: what the Constitution protects.
Rules
Section 377 in simple words
Section 377 punished “carnal intercourse against the order of nature.” The problem was that the phrase was unclear and was used to criminalise even private, consensual relationships.
The Court in 2018 said: the law cannot use vague morality to punish intimacy between consenting adults.
Constitutional rules used
- Article 14: equality and non-arbitrariness
- Article 15: no discrimination (sex includes sexual orientation in effect)
- Article 19: expression includes identity and choice
- Article 21: life includes dignity, privacy, autonomy
Privacy (Puttaswamy idea)
Consent matters
Minority rights
Constitutional morality
Facts (Timeline Style)
Memory-friendly-
Colonial law in placeSection 377 existed for decades and was used broadly, including against consenting same-sex relationships.
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2009: Naz Foundation (Delhi High Court)The Delhi High Court read down Section 377 for consenting LGBT adults, treating privacy and equality seriously.
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2013: Suresh Kumar Koushal (Supreme Court)The Supreme Court reversed the 2009 position, bringing back criminalisation in practice for consenting same-sex acts.
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2016: Petition filedNavtej Singh Johar and other petitioners approached the Supreme Court, saying sexuality and partner choice are protected under Article 21.
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2017: Privacy becomes a clear fundamental rightAfter the privacy judgment approach, the Court treated intimate choice as part of constitutional protection.
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2018: 5-judge Constitution Bench decidesThe Court unanimously limited Section 377 and decriminalised consensual adult same-sex intimacy in private.
Optional timeline visual (auto path)
Arguments (Appellant vs Respondent)
Petitioners / Appellants
Rights-based
- Sexual orientation is natural. It is not a disease and not a crime.
- Consent between adults in private is part of autonomy and privacy (Article 21).
- Criminalising identity creates fear, harassment, and discrimination in daily life.
- Section 377 violates Articles 14, 15, 19, and 21 because it targets a minority unfairly.
- At most, Section 377 should remain for harmful conduct (non-consent, minors, bestiality), not for consenting adults.
Respondents / Government side
Morality/Public policy
- Section 377 is an old provision aimed at “unnatural” acts and still has moral relevance.
- Public health concerns were raised (for example, risks of HIV/AIDS).
- It was argued that decriminalisation may disturb family and marriage systems.
- Culture, religion, and social morality were used to justify restriction.
- It was claimed that “sexual orientation” is not explicitly written in the Constitution.
The Court answered this clash with one clear idea: constitutional morality beats social morality when fundamental rights are at stake.
Judgment
Final holding (in one line)
Section 377 is unconstitutional to the extent it criminalises consensual sexual acts between adults in private.
What stays criminal?
- Non-consensual sexual acts (lack of consent)
- Acts involving minors
- Bestiality (sex with animals)
What happened to the 2013 view?
The earlier Supreme Court approach in Suresh Kumar Koushal (2013) was overruled. The Court accepted that criminal law cannot treat a minority’s identity as a wrong.
Famous line (easy meaning)
“History owes an apology to the LGBT community” means: the law and society caused long injustice, and the Constitution must correct it.
Core reasons (simple)
- Dignity is part of life under Article 21.
- Privacy protects intimate choice and partner choice.
- Equality protects minorities from unfair targeting.
- “Order of nature” cannot be a loose moral label to punish adults.
Wider message
- Majority opinion cannot cancel minority rights.
- The Constitution is a living document and must evolve with human freedom.
- The State should reduce stigma through awareness and sensitisation.
Ratio (Core Legal Principle)
Consent changes everything. When two adults consent in private, the criminal law cannot enter just because the act does not match traditional morality.
Section 377 can survive only for harm (non-consent, minors, bestiality). Using it against consenting adults violates Articles 14, 15, 19, and 21 and breaks the idea of constitutional morality.
Autonomy
Privacy
Dignity
Equality
Why It Matters
Freedom from the “criminal tag”
People could live openly without fear that their identity itself makes them criminals.
Minority rights become real
The judgment taught that the Constitution protects minorities even when society is uncomfortable.
Constitutional morality wins
Courts must follow constitutional values, not crowd morality.
Practical impact
It pushed the State to reduce stigma, train officials, and stop misuse and harassment.
Easy memory line: Not morality, but dignity is the Constitution’s starting point.
Key Takeaways
What changed
- Consensual adult same-sex intimacy in private is not criminal.
- Suresh Koushal (2013) was overruled.
- Section 377 is read narrowly, not deleted completely.
What the Court protected
- Dignity is non-negotiable.
- Privacy includes intimate choice and partner choice.
- Equality means no unfair targeting of minorities.
Exam tip
Always write the “limited survival” line: 377 survives for non-consent, minors, bestiality — and fails for consenting adults in private.
Mnemonic + 3-Step Hook
Mnemonic: D.P.E.C
- D = Dignity
- P = Privacy
- E = Equality
- C = Choice
Use DP-E-C to write a clean paragraph under Article 21 + Article 14.
3-Step Hook (Fast Recall)
- Identify: “Two adults, consent, private.”
- Apply: “Then 377 cannot punish.”
- Limit: “But it stays for harm: non-consent/minors/bestiality.”
One-line memory punch
Constitutional morality protects private consent. Social morality cannot send consenting adults to jail.
IRAC Outline (Exam-Ready)
I — Issue
Whether Section 377 can criminalise consensual sexual acts between adults in private, and whether the 2013 view was correct.
R — Rule
Articles 14, 15, 19, 21 protect equality, non-discrimination, expression, dignity, privacy, and autonomy. Criminal law must be reasonable and non-arbitrary.
A — Application
Section 377, as used against consenting adults, was vague and morality-driven. It harmed dignity and privacy, and targeted a minority unfairly. Constitutional morality required protection of intimate choice.
C — Conclusion
The part criminalising consensual adult acts in private is unconstitutional. Section 377 remains only for non-consent, minors, and bestiality. The 2013 view was overruled.
Write 1 line holding
Add 3 limits (harm)
Add DP-E-C keywords
Glossary (Easy Meanings)
Read down
To limit a law so it works in a constitutional way, instead of deleting it fully.
Consent
A clear, voluntary “yes.” Without consent, the act is harmful and criminal.
Constitutional morality
The Constitution’s values must guide decisions, even if society disagrees.
Sexual orientation
A person’s natural attraction pattern; it is part of identity and dignity.
“Order of nature” (why it was risky)
The phrase was not clearly defined. The Court refused to let vague wording become a tool for moral policing.
FAQs (Student-Friendly)
Consensual sexual acts between two adults in private are not a crime. This includes same-sex relationships.
Yes, but it is limited. It still applies to non-consensual acts, acts involving minors, and bestiality.
Because fundamental rights protect individuals. The Court said constitutional morality (values of the Constitution) is stronger than social morality when rights are violated.
Write: “The Court read down Section 377. Consensual adult same-sex intimacy in private is not criminal (Arts. 14, 15, 19, 21). 377 remains for harm: non-consent, minors, bestiality. Suresh Koushal overruled.”
These FAQs match the embedded FAQPage schema for rich results.
Structured Quick Notes (One Screen)
What to write in 5 lines
- Case about Section 377 and consenting adults.
- Issue: can consent be criminalised?
- Held: consensual adult acts in private are not crime.
- Reason: dignity, privacy, equality, choice; constitutional morality.
- Limit: 377 stays for non-consent, minors, bestiality; Koushal overruled.
Keywords to sprinkle
dignity
privacy
autonomy
equal citizenship
non-arbitrariness
constitutional morality
read down
minority rights
Tip: Keep words simple; repeat the same core words for exam clarity.
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