Why this matters now
Navtej Johar is the milestone LGBTQ rights case in Indian law. Tested for: the Section 377 timeline (1860 → Naz 2009 → Koushal 2013 → Navtej Johar 2018), the constitutional grounds, and the relationship to the Supriyo Chakraborty (2023) marriage equality case (which the SC has refused to decide judicially).
Section 377 — 1860 to 2018
| Year | Event |
|---|---|
| 1860 | Macaulay’s Indian Penal Code — Section 377: “Whoever voluntarily has carnal intercourse against the order of nature with any man, woman or animal… imprisonment for life or imprisonment up to 10 years and fine.” |
| 2001 | Naz Foundation files writ challenging §377 in Delhi HC. |
| 2 Jul 2009 | Naz Foundation v. NCT of Delhi (Delhi HC) — reads down §377 to exclude consensual same-sex acts. |
| 11 Dec 2013 | Suresh Kumar Koushal v. Naz Foundation (SC) — overrules Naz, restores §377 in full. Said LGBTQ persons are a “minuscule minority” not entitled to FR protection. |
| Feb 2016 | Curative petition filed; referred to 5-judge bench. |
| Apr 2018 | Navtej Singh Johar (Bharatanatyam dancer) + Sunil Mehra, Aman Nath, Ritu Dalmia, Ayesha Kapur, Keshav Suri PIL. |
| 6 Sept 2018 | Navtej Singh Johar v. Union of India — §377 read down unanimously. |
The unanimous verdict
The 5-judge bench (CJI Dipak Misra + Justices Khanwilkar, Chandrachud, Nariman, Indu Malhotra) on 6 September 2018 read down Section 377:
- Consensual sexual acts between adults of the same sex are NO LONGER a criminal offence.
- Section 377 continues to apply to bestiality and non-consensual acts.
- Suresh Kumar Koushal (2013) is overruled.
- §377 as it stood violated Articles 14 (equality — manifestly arbitrary), 15 (non-discrimination on sex; the SC held sexual orientation is part of sex), 19 (freedom of expression), and 21 (dignity, autonomy, privacy — building on Puttaswamy 2017).
- The doctrine of “transformative constitutionalism” was emphasised — the Constitution must adapt to changing social understanding.
- Justice Indu Malhotra: “History owes an apology to the members of this community and their families for the delay in providing redressal for the ignominy and ostracism that they have suffered through the centuries.”
Aftermath: BNS 2023 + Supriyo 2023
The new Bharatiya Nyaya Sanhita 2023, replacing the IPC, dropped Section 377 altogether (along with the bestiality provision) — subject to critique that it leaves gaps.
In Supriyo Chakraborty v. Union of India (17 Oct 2023), the SC declined to recognise same-sex marriage through judicial route, holding it was for Parliament to enact. A 3:2 split on key issues; CJI Chandrachud and Justice Kaul wrote separate concurring opinions on civil unions while not granting the marriage status.
UPSC angle
Know Navtej Singh Johar v. Union of India 6 Sept 2018 — 5-judge bench unanimous (CJI Dipak Misra + Khanwilkar + Chandrachud + Nariman + Indu Malhotra); read down Section 377 IPC to exclude consensual same-sex acts between adults (bestiality + non-consensual remain criminal); OVERRULED Suresh Kumar Koushal v. Naz Foundation 11 Dec 2013 which had restored §377 against Delhi HC’s Naz Foundation v. NCT of Delhi 2 July 2009; reasoning Articles 14 manifest arbitrariness, 15 sexual orientation as part of sex, 19 expression, 21 dignity autonomy privacy (building on Puttaswamy 2017); transformative constitutionalism; Justice Indu Malhotra historic apology dictum; Bharatiya Nyaya Sanhita 2023 drops §377; Supriyo Chakraborty 17 Oct 2023 declined same-sex marriage recognition.
Frequently asked questions
What is Section 377?
A 1860 IPC section that criminalised “carnal intercourse against the order of nature” — historically used to prosecute consensual same-sex relations.
Was Section 377 fully struck down?
It was “read down” — it no longer applies to consensual same-sex relations between adults, but continues to apply to bestiality and non-consensual acts.
Which case did Navtej Johar overrule?
Suresh Kumar Koushal v. Naz Foundation (2013), which had restored Section 377 in full after the Delhi HC had read it down in 2009.
Is same-sex marriage legal in India after Navtej Johar?
No — the SC declined to extend Navtej Johar to marriage equality in Supriyo Chakraborty (Oct 2023), holding that recognition is a matter for Parliament.