Supreme Court of India Decriminalizes Consensual Same-Sex Relations, Strikes Down Section 377 IPC

Landmark Constitution Bench judgment affirms rights to dignity, privacy, and equality for LGBT community; overrules 2014 Koushal verdict and redefines constitutional morality over social morality

In a historic and progressive decision dated September 6, 2018, a Constitution Bench of the Supreme Court of India delivered a landmark judgment in Navtej Singh Johar & Ors. v. Union of India, overruling the 2014 judgment in Suresh Kumar Koushal v. Naz Foundation and reading down Section 377 of the Indian Penal Code (IPC). The Court declared that Section 377, insofar as it criminalizes consensual sexual acts of adults in private, violates Articles 14, 15, 19, and 21 of the Constitution, which guarantee equality, non-discrimination, freedom of expression, and the right to life and personal liberty respectively.

The bench, comprising Chief Justice Dipak Misra and Justices A.M. Khanwilkar, R.F. Nariman, Dr. D.Y. Chandrachud, and Indu Malhotra, emphasized that the natural identity of an individual, including sexual orientation, is an essential facet of human dignity and privacy. The Court held that sexual orientation is an innate attribute of identity protected under the Constitution, and discrimination on this ground is unconstitutional. It recognized the LGBT community’s right to equal citizenship and the freedom to express their sexual orientation without fear of persecution.

The Court underscored the distinction between consensual and non-consensual acts, clarifying that Section 377 will continue to govern non-consensual sexual acts, acts involving minors, and bestiality. Importantly, the judgment acknowledged the chilling effect of Section 377 on the LGBT community, contributing to social stigma, harassment, and discrimination, and impeding access to healthcare and fundamental rights.

The judgment extensively discussed the constitutional doctrines of progressive realization of rights, constitutional morality versus social morality, and the dynamic nature of fundamental rights. It cited international perspectives, including judgments from the United States Supreme Court, the European Court of Human Rights, the Supreme Courts of South Africa, Canada, and others, that have progressively recognized sexual orientation as a protected class and decriminalized consensual same-sex relations.

The Court also referred to the Mental Healthcare Act, 2017, which explicitly recognizes that sexual orientation is not a mental illness, aligning legislative intent with constitutional values and scientific consensus. It emphasized that laws based on outdated Victorian morality cannot override constitutional guarantees of liberty, dignity, and equality.

The Union of India, through its Additional Solicitor General, left the matter to the wisdom of the Court, while various intervenors presented divergent views. The Court, however, firmly rejected majoritarian morality as a basis for upholding laws that violate fundamental rights of minorities.

Justice R.F. Nariman eloquently stated that persons who are homosexual have a fundamental right to live with dignity and fraternity under the Constitution, and must be treated as human beings without stigma. Justice Dr. D.Y. Chandrachud highlighted the constitutional values of liberty and dignity that cannot accept discrimination rooted in stereotypes or majoritarian social morality. Justice Indu Malhotra, concurring, clarified that the reading down of Section 377 applies only to consensual acts between adults and does not reopen concluded prosecutions.

This judgment marks a watershed moment in India’s constitutional jurisprudence, affirming the rights of sexual minorities and reinforcing the principles of equality, liberty, and fraternity envisaged by the Constitution. It calls for societal acceptance and the eradication of prejudice, and directs the Union of India to take measures to raise awareness and sensitize government officials to the plight of the LGBT community.

Statutory provisions

Indian Penal Code Section 377, Indian Penal Code Section 375, Mental Healthcare Act 2017 Section 3, 18 and 21, Constitution of India Articles 14, 15, 19, 21, 32, 226, 372, 51

Navtej Singh Johar v. Union of India thr. Secretary (SC)(Constitution Bench) : Law Finder Doc Id # 1186732