Context Brief


  1. The 2009 Precursor: In Naz Foundation, the Delhi High Court decriminalized homosexuality, anchoring its judgment in dignity and equality.


  1. The 2013 Reversal: In Suresh Kumar Koushal v. Naz Foundation, a two-judge bench of the Supreme Court shocked the nation by overturning the Delhi HC judgment and re-criminalizing homosexuality.


  1. The 2018 Correction: In Navtej Singh Johar v. Union of India, a five-judge Constitution Bench unanimously overruled the Suresh Koushal judgment, striking down Section 377 as it applied to consenting adults.


Jurisprudential PrincipleSuresh Koushal (2013) - The Conservative ViewNavtej Johar (2018) - The Transformative View
Status of Section 377Upheld as Constitutional. Re-criminalized consensual same-sex relations.Struck down (partially). Decriminalized consensual same-sex relations between adults.
View on "Morality"Public/Social Morality: Relied on the traditional, majoritarian moral views of society, which largely disapproved of homosexuality.Constitutional Morality: Declared that societal norms cannot dictate rights. The Constitution's ideals of dignity and liberty must prevail over popular prejudice.
View on Minority RightsThe "Minuscule Fraction" Doctrine: Dismissed the LGBTQ+ community's rights by stating they constituted only a "minuscule fraction" of the country's population.Protection of the Minorities: Held that fundamental rights are not dependent on numbers. Even a single individual's fundamental rights must be protected against the majority.
Judiciary vs. LegislatureJudicial Restraint: Argued that amending or repealing Section 377 was the job of the Parliament, not the Courts.Judicial Activism/Duty: Asserted that the Court cannot wait for the legislature to correct a blatant violation of fundamental rights; it is the Court's duty to strike down unconstitutional laws immediately.
Presumption of ConstitutionalityTreated Section 377 (a pre-constitutional, 1860 colonial law) with the presumption that the legislature intended well.Refused to grant a presumption of constitutionality to a colonial-era law that fundamentally violated the modern Constitutional framework.
Focus of the LawFocused on the Act ("carnal intercourse against the order of nature").Focused on the Identity & Dignity of the individual, recognizing sexual orientation as an innate attribute.