Gender Justice and Constitutional Morality

3.1 Decriminalisation of Section 377 — Navtej Singh Johar (2018)

Section 377 of the IPC (1860) criminalised "carnal intercourse against the order of nature" — historically used to prosecute consensual homosexual relations. The 5-judge constitutional bench (CJI Dipak Misra, Justices Rohinton Nariman, A.M. Khanwilkar, D.Y. Chandrachud, Indu Malhotra) unanimously struck it down, overruling the 2-judge bench in Suresh Kumar Koushal (2013) which had upheld Section 377.

Key Holdings

• Sexual orientation is an inherent aspect of one's identity and a facet of Article 21 (dignity)
• Discrimination based on sexual orientation is analogous to sex-based discrimination under Article 15
• Constitutional morality must prevail over popular morality
• The LGBTQ+ community has the same constitutional rights as any other citizen

Post-Judgment Development

In Supriyo v. Union of India (2023) (5-judge bench, 3:2), the Court held that same-sex couples do not have a constitutional right to marriage — marriage law is a matter for Parliament. The minority (Justices Chandrachud and Kaul) dissented, finding a fundamental right to marry.

3.2 Sabarimala — Indian Young Lawyers Association v. State of Kerala (2018)

The Sabarimala case concerned a centuries-old practice of prohibiting women aged 10–50 from entering the Sabarimala temple in Kerala. The 4:1 majority (Justices Misra, Khanwilkar, Chandrachud — Malhotra dissenting) struck down the exclusion.

Key Holdings

• Violated Articles 14 (equality), 15 (no sex-based discrimination), 17 (analogous to untouchability), and 25 (freedom of religion subject to public order, morality, and health)
• A woman's physiological condition (menstruation) cannot be the basis for treating her as "impure"
• Constitutional morality must guide the interpretation of religious freedom

Post-Judgment Controversy

The Kerala government attempted to enforce the ruling; widespread protests ensued. In Kantaru Rajeevaru (2019), the 9-judge bench reference was made to settle broader questions: whether a particular religious denomination can exclude women; interface between religious freedom and gender equality. This remains pending.

3.3 Instant Triple Talaq — Shayara Bano (2017)

The 3:2 majority in Shayara Bano struck down talaq-e-biddat as manifestly arbitrary under Article 14. This practice allowed a Muslim husband to dissolve marriage by pronouncing "talaq" three times simultaneously — even through SMS or WhatsApp. The dissent (Justices Nazeer and Kurian Joseph) held that the matter should be referred to Parliament.

Parliament's Response — Muslim Women (Protection of Rights on Marriage) Act 2019

• Instant triple talaq declared void and illegal
• Criminal offence — imprisonment up to 3 years + fine
• Wife entitled to allowance for herself and children
• Cognizable, non-bailable, compoundable offence (with wife's permission)

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