Insights

In what remains the most consequential constitutional case in Indian legal history, a thirteen-judge bench of the Supreme Court — the largest ever assembled — delivered the historic judgment that established the Basic Structure Doctrine. His Holiness Kesavananda Bharati, the head of the Edneer Mutt in Kerala, challenged the Kerala Land Reforms Act as violating his fundamental rights under Articles 25, 26, and 31. The central constitutional question, however, was whether Parliament's power to amend the Constitution under Article 368 was unlimited. By a narrow 7-6 majority, the Court held that while Parliament has wide powers to amend the Constitution, it cannot alter or destroy the "basic structure" or "essential features" of the Constitution. The basic structure includes the supremacy of the Constitution, republican and democratic form of government, secular character, separation of powers, federal character, sovereignty and integrity of India, and the dignity of the individual secured by fundamental rights. This doctrine has since been invoked in numerous cases to strike down constitutional amendments and remains the bedrock of Indian constitutional jurisprudence, ensuring that no parliamentary majority — however large — can subvert the foundational values of the Constitution.

The Vishaka case arose from the horrific gang-rape of Bhanwari Devi, a social worker employed under the Women's Development Programme in Rajasthan, who was assaulted in retaliation for her efforts to prevent a child marriage in a community in Rajasthan. When the trial court acquitted all the accused, women's rights organisations including Vishaka, a Rajasthan-based NGO, filed a public interest litigation before the Supreme Court seeking enforceable guidelines against sexual harassment at the workplace. The Court, noting the absence of any domestic legislation on the subject and exercising its power under Article 32, laid down comprehensive guidelines — known as the Vishaka Guidelines — that had the force of law. The Guidelines defined sexual harassment at the workplace, mandated the establishment of Complaints Committees in every workplace, required employers to take preventive steps, and stipulated a complaint and inquiry mechanism. The Court grounded these guidelines in Articles 14 (equality), 15 (non-discrimination), 19(1)(g) (right to practise any profession), and 21 (right to life with dignity), and also drew upon the Convention on the Elimination of All Forms of Discrimination Against Women (CEDAW). These guidelines remained the governing law for sixteen years until Parliament enacted the POSH Act, 2013, which drew heavily from the Vishaka framework.

In a unanimous decision that was hailed as a triumph of constitutional morality, a five-judge Constitution Bench of the Supreme Court struck down Section 377 of the Indian Penal Code insofar as it criminalised consensual sexual conduct between adults. Section 377, a colonial-era provision dating to 1861, had penalised "carnal intercourse against the order of nature" with imprisonment up to life. The Court held that Section 377, to the extent it penalised consensual acts between adults, violated Articles 14 (equality — by targeting a class of citizens based on an intrinsic characteristic), 15 (non-discrimination — by discriminating on the basis of sex, which includes sexual orientation), 19(1)(a) (freedom of expression — including the right to express one's sexual identity), and 21 (right to life and dignity — including the right to privacy, autonomy, and intimacy as recognised in K.S. Puttaswamy). Justice Chandrachud's concurring opinion explicitly acknowledged the historical injustice suffered by the LGBTQ+ community and stated that constitutional morality requires the Court to protect the rights of minorities against majoritarian impulses. Justice Indu Malhotra observed that "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." This judgment overruled the earlier Suresh Kumar Koushal v. Naz Foundation (2014) decision that had re-criminalised homosexuality. While Section 377 continues to apply to non-consensual acts and acts involving minors, the decriminalisation of consensual same-sex relations marked a watershed moment for LGBTQ+ rights in India.

In a unanimous landmark judgment delivered by a nine-judge bench — the largest since the Kesavananda Bharati case — the Supreme Court conclusively held that the right to privacy is a constitutionally protected fundamental right, intrinsic to Article 21 (right to life and personal liberty) and also emanating from the freedoms guaranteed under Part III of the Constitution. The case arose when the constitutionality of the Aadhaar biometric identification programme was challenged, and a three-judge bench referred the threshold question of whether privacy is a fundamental right to a larger bench. The nine-judge bench overruled the earlier decisions in M.P. Sharma v. Satish Chandra (1954) and Kharak Singh v. State of U.P. (1963) that had held that the right to privacy was not guaranteed by the Constitution. Justice D.Y. Chandrachud, writing for himself and three other judges, held that privacy includes the preservation of personal intimacies, the sanctity of family life, marriage, procreation, the home, and sexual orientation. The right to privacy, however, is not absolute and is subject to reasonable restrictions that satisfy the test of legality (the existence of a law), necessity (a legitimate state aim), and proportionality (the restriction must be proportionate to the need). This judgment laid the constitutional foundation for the subsequent decision in Navtej Singh Johar (decriminalising Section 377) and also informed the debate surrounding the Digital Personal Data Protection Act, 2023. It is regarded as one of the most significant privacy judgments globally and has been cited by courts in multiple jurisdictions.

In a pathbreaking judgment that brought the rights of one of India's most marginalised communities into the constitutional mainstream, the Supreme Court recognised the fundamental rights of transgender persons and directed the State to take affirmative steps for their inclusion. The National Legal Services Authority filed the original petition highlighting the discrimination, violence, and social exclusion faced by transgender persons (including hijras, kinnars, aravanis, and other gender non-conforming communities) in India. The Court held that the right to choose one's gender identity is integral to the right to life and dignity under Article 21, and that discrimination on the basis of gender identity violates Articles 14, 15, and 16. Crucially, the Court directed that transgender persons have the right to self-identify their gender as male, female, or third gender without being required to undergo sex reassignment surgery. The Court declared transgender persons to be the "third gender" and directed the Central and State Governments to treat them as socially and educationally backward classes and to extend all reservations in educational institutions and for public appointments. The Court further directed the government to provide medical care, take steps against discrimination in healthcare, provide separate public toilets, frame social welfare schemes, create public awareness to address the stigma, and take measures to address the sexual abuse and violence faced by transgender persons. While the subsequent Transgender Persons (Protection of Rights) Act, 2019 has been criticised by activists for not fully implementing the spirit of the NALSA judgment — particularly regarding the requirement of a medical certificate for legal gender recognition — the judgment remains a landmark in Indian human rights law.

The Shreya Singhal case is the most important judgment on internet free speech delivered by the Indian judiciary. The case arose after two young women in Mumbai were arrested in November 2012 under Section 66A of the Information Technology Act for posting a Facebook comment questioning the shutdown of Mumbai following the death of Shiv Sena leader Bal Thackeray. The arrests triggered national outrage and prompted Shreya Singhal, a twenty-one-year-old law student, to file a public interest litigation challenging the constitutional validity of Section 66A. The Supreme Court, in a unanimous judgment delivered by Justice R.F. Nariman, struck down Section 66A in its entirety as unconstitutional, holding that it violated Article 19(1)(a) (freedom of speech and expression). The Court found that the terms used in Section 66A — "grossly offensive," "menacing," "annoyance," "inconvenience," "danger," "obstruction," "insult," "injury," "criminal intimidation," "enmity," "hatred," and "ill will" — were vague, overbroad, and not saved by the reasonable restrictions permissible under Article 19(2). The Court drew an important three-part distinction between "discussion," "advocacy," and "incitement," holding that only the third — speech that constitutes incitement to imminent lawless action — can be constitutionally restricted. The Court also struck down Section 118(d) of the Kerala Police Act, which similarly punished causing "annoyance" through communication. However, the Court upheld Section 69A (power to block websites) and Section 79 (intermediary liability safe harbour) as constitutionally valid, subject to procedural safeguards. This judgment established the foundational framework for online free speech jurisprudence in India and has been cited globally as a model for balancing state interests with digital expression rights.