Navtej Singh Johar case

Polity & Governance glossary

Also called: Navtej Singh Johar v. Union of India (2018) · Topic: Fundamental Rights and Constitutional Remedies · NCERT: Beyond NCERT

Meaning

Navtej Singh Johar v. Union of India (6 September 2018) is the five-judge Supreme Court judgment that read down Section 377 of the IPC. "Read down" means the Court narrowed the section instead of striking it out completely. After this judgment, consensual sex between adults of the same sex is no longer a crime.

It matters because it overruled Suresh Kumar Koushal (2013). It also tied together privacy, dignity, equality and constitutional morality to protect LGBTQ persons. It is one of the clearest cases of the Court protecting a minority against majority disapproval.

Explanation

What the Court did to Section 377

  • Read down, not struck down:
  • s.377 stopped applying to consensual sex between adults of the same sex.

  • The section was not removed from the IPC.

  • What s.377 still covered after the judgment:

  • non-consensual acts (acts done without consent);
  • acts involving minors;

  • bestiality.

  • Overruling Koushal:

  • Suresh Kumar Koushal (2013) had brought back s.377 in full.
  • Navtej overruled Koushal. A larger bench of five judges set aside the earlier ruling.

The four grounds of the judgment

  • Dignity (Art. 21):
  • Under Art. 21, "life" means a life with dignity, not just staying alive.

  • Making a person's intimate life a crime takes away that dignity.

  • Privacy (Puttaswamy, 2017):

  • In 2017, nine judges held unanimously that privacy is built into Art. 21.
  • They listed sexual orientation as part of privacy and identity.

  • Navtej applied this directly to s.377.

  • Equality (Arts. 14 and 15):

  • The law singled out one group for its sexual orientation.

  • That breaks equality before the law (Art. 14) and the ban on discrimination (Art. 15).

  • Constitutional morality:

  • This means the values of the Constitution, such as dignity, equality and liberty.
  • The courts must follow these values, not the majority's social morals.
  • Social disapproval of a group cannot justify a criminal law against it.

Limits of the judgment

  • It removed a criminal penalty only. It did not create new rights such as the right to marry.
  • The question of same-sex marriage came up later in Supriyo Chakraborty (2023). There the Court left it to Parliament [1].

In the Constitution and practice

  • Where it sits: Part III (Fundamental Rights), mainly Art. 21 (life and personal liberty), Art. 14 (equality before law) and Art. 15 (no discrimination).
  • The path of cases:
  • NALSA v. Union of India (2014): recognised transgender persons as a "third gender". It held that a person can identify their own gender.
  • Suresh Kumar Koushal (2013): brought back s.377 in full. It was later overruled.
  • K.S. Puttaswamy (24 August 2017, nine judges): held privacy to be a fundamental right covering sexual orientation. Any limit on privacy must pass the legality–necessity–proportionality test.
  • Navtej Singh Johar (6 September 2018, five judges): read down s.377 and overruled Koushal.
  • Joseph Shine (27 September 2018, five judges): struck down adultery (s.497) under Arts. 14, 15 and 21. It used the same reasoning: individual dignity comes before social morals.

  • Supriyo Chakraborty (17 October 2023, five judges): held there is no fundamental right to marry. It left same-sex marriage to Parliament. It rejected civil unions (a legal status for couples with some rights of marriage) by 3:2. It affirmed that queer persons may form relationships and must be protected from harassment by police and family [1].

  • How it has worked in practice:

  • Navtej ended the criminal threat.
  • Legal recognition of queer couples now depends on Parliament and on the committee the Union offered to form on their entitlements, such as ration cards, bank nominations and medical decisions [1].

Don't confuse with

  • Suresh Kumar Koushal (2013): brought back s.377 in full. Navtej (2018) overruled it.
  • Joseph Shine (2018): struck down s.497 (adultery) completely. Navtej only read down s.377, which still applies to non-consensual acts, minors and bestiality.
  • Supriyo Chakraborty (2023): dealt with same-sex marriage. It gave no new rights and left the issue to Parliament [1]. Navtej dealt only with decriminalisation.
  • NALSA (2014): about gender identity (transgender persons as a third gender). Navtej is about sexual orientation and s.377.

Prelims Hooks

  • Navtej Singh Johar: 6 September 2018, five judges. s.377 IPC was read down, not fully struck down.
  • Navtej overruled Suresh Kumar Koushal (2013). Trap: it did not overrule NALSA or Puttaswamy. It relied on both.
  • After Navtej, s.377 still covered non-consensual acts, minors and bestiality.
  • Grounds of the judgment: dignity, privacy (Puttaswamy), equality under Arts. 14 and 15, and constitutional morality.
  • Puttaswamy (2017, nine judges, unanimous) named sexual orientation as part of privacy. Navtej built on this.
  • Trap: Navtej did not give a right to same-sex marriage. Supriyo (17 October 2023) held there is no fundamental right to marry and rejected civil unions 3:2 [1].

Mains Points

  • Constitutional morality against majority morality:
  • Navtej and Joseph Shine (2018) show that courts protect individual dignity even when society disapproves.

  • Critics ask whether judges should decide moral questions. Supporters say fundamental rights exist to protect minorities from the majority.

  • Judicial activism and its limits:

  • Navtej removed a crime, which is a classic job of judicial review.
  • In Supriyo (2023), the Court said that rights needing a new legal status, such as marriage, are for Parliament [1].

  • This contrast is useful in GS-II answers on judicial activism versus judicial restraint.

  • From decriminalisation to equal citizenship:

  • The gaps remain: no legal recognition of queer couples, and harassment by police and family.
  • Reform ideas: a law from Parliament on partnership rights, and action on the Union committee for entitlements such as ration cards, bank nominations and medical decisions [1].

Related concepts

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Sources

  1. 1Supriyo @ Supriya Chakraborty v. Union of India, 2023 INSC 920 (judgment dated 17 October 2023) — Supreme Court of Indiaapi.sci.gov.in · tier 1