India's Government Wants the Court to Rethink the Logic That Freed Gay Indians

There’s a quieter kind of rights rollback that doesn’t grab headlines the way a ban does, and India is living through an example of it right now. The country’s Supreme Court is expected to hand down a closely watched constitutional ruling that, on its surface, is about a piece of legal philosophy. Underneath, it’s about whether the reasoning that decriminalized gay sex in India — and could one day deliver marriage, adoption, and workplace protections — still stands.

The doctrine at the center

For years, India’s Supreme Court has leaned on something called the constitutional morality doctrine. The idea is that the Constitution is a living document: its promises of justice, liberty, equality, and fraternity have to be applied to the realities of a changing society, not frozen in the world of the 1950s in which it was written. It’s the interpretive engine behind some of India’s most consequential progressive judgments.

Two of those judgments are now in the government’s crosshairs. In April 2026, the Indian government asked the Supreme Court to revisit the constitutional reasoning behind Navtej Singh Johar — the 2018 decision that struck down Section 377 and decriminalized consensual same-sex relations — and Joseph Shine, which struck down the country’s adultery law. The government’s argument is that both rulings relied on a “subjective” invocation of constitutional morality and should no longer be treated as good law.

Notably, Solicitor General Tushar Mehta reached across the ocean to make his case, quoting extensively from the late U.S. Justice Antonin Scalia’s dissent in Lawrence v. Texas, the 2003 American ruling that decriminalized gay sex there. He pressed the bench with a striking question: whether judges like Navtej Johar would have surprised or shocked the framers of India’s Constitution — suggesting, in his telling, that the founders “did not want this to happen.”

How India got here

To understand the stakes, it helps to remember how hard-won the current status quo is. Section 377 was a colonial-era provision that criminalized consensual same-sex relations as “against the order of nature.” A public-interest challenge filed by the Naz Foundation in 2001 led the Delhi High Court, in 2009, to hold that the law violated the rights to equality (Article 14), non-discrimination (Article 15), and life and liberty (Article 21).

That victory was short-lived. In 2013, the Supreme Court reinstated Section 377 in Suresh Kumar Koushal, recriminalizing homosexuality overnight. It took until 2018 — and the Navtej Singh Johar judgment — for the court to strike the law down for good. That is the ruling now being asked to justify its own foundations.

”The floor, but not the staircase”

Here’s the crucial nuance: almost no one, including the activists most alarmed by the government’s move, expects the Supreme Court to actually recriminalize gay sex. Legal observers note the court would be unlikely to take a step so plainly contrary to its own institutional standing, and decriminalization itself is broadly seen as settled.

The danger is subtler, and arguably more insidious. If the court narrows or weakens the constitutional morality doctrine, it doesn’t just touch one ruling — it removes the interpretive tool that future LGBTQ+ claims would rely on. India has no marriage equality, no adoption rights for same-sex couples, and fragmented protections in employment; every one of those fights, in a country where legislative progress has stalled, would have to run through the courts.

The activist Ankit Bhupatani put it in terms that are hard to shake. “The community keeps the floor and loses the staircase,” he said. “Nobody is criminalized, but nobody moves up.” As he framed it, the practical path forward for LGBTQ+ rights in India is the judiciary — and if the government’s argument succeeds, the next gay Indian who walks into a court seeking marriage, adoption, inheritance, or relief from being fired for who they are would find that door harder to open.

Why it matters beyond India

India is the world’s most populous democracy and home to a vast LGBTQ+ population, so what its Supreme Court does with these doctrines echoes far past its borders. It also fits a pattern we’ve been tracking across Asia this year: the most significant queer-rights gains — and now the most significant threats — are unfolding in courtrooms rather than parliaments. Nepal’s Supreme Court delivered binding marriage equality just weeks ago; Japan’s top court is weighing the same question. India shows the flip side of court-driven progress: what the judiciary grants, a government can ask the judiciary to quietly walk back.

There’s a broader worry embedded here too. Asking the court to treat a landmark rights judgment as “not good law” raises questions that reach beyond LGBTQ+ people, touching how robustly India’s constitutional democracy protects any minority. For now, the community waits on a ruling — hoping, at minimum, to keep the floor, and holding its breath about the staircase.

This piece covers ongoing legal proceedings; outcomes may shift as the court rules. Sources: Los Angeles Blade, Supreme Court of India transcripts, Indian Kanoon — Naz Foundation.