Evolution of Section 377 and its current stance


A five-judge Bench unanimously dismissed Section 377 of the Indian Penal Code on 6 September 2018 to the extent that it criminalized same-sex relationships between consenting adults. Now it is legally permissible for LGBT people to engage in consensual intercourse. In Section 377, the Court upheld provisions that criminalize on animals’ non-consensual acts or sexual acts.

Homosexuality refers to the interaction between persons of the same sex. In many societies, homosexuality has been widely insulted as freak or corrupt conduct, frames of view derived from philosophical and religious emotions about what practices are in keeping with nature and normal law. Moreover, several cultures have explicit jobs from the beginning of time for sensual love and sexual articulation between same-sex people

In ancient India, homosexuality has never been a crime, or punishable. Several situations demonstrate this point. Below are some of the situations:

  • Khajuraho Temple- The famous temple located in Madhya Pradesh is decorated in ancient India with many sculptures that represent sexuality. It was built by rulers of the Rajput Chandela Dynasty during the 10th century. In India, one may not find any other temple depicting all of human nature’s emotions. Some of these carvings also exhibit homosexual activity which proves that homosexuality exists in ancient India.
  • Manusmriti- it is one of the notable code of law that was followed at the time by a majority of the people. It recommends punishment for either man or woman performing homosexual acts. Although this script doesn’t quite approve of homosexual acts at that time it does prove the existence of homosexuality.

Procedural History

The British Colonial Rulers encircled the Indian Penal Code during the nineteenth century. The entire code depended on the then existing British laws and was full of inconveniences, one of which was sec-377. Segment 377 IPC was surrounded by the Buggery Act of the sixteenth century which was law.

The question of Section 377 was first brought up by an NGO Naaz Foundation based in Delhi, which in 2001 had approached the Delhi High Court seeking to legalize homosexual intercourse between consensual adults. Then, in 2009, the Delhi apex court decriminalized sex between consenting adults of the same sex by making the criminal provision “illegal.”

Soon, this judgment was challenged by various religious groups and individuals, and in 2013 the Delhi High Court was overturned by the Indian Supreme Court in Suresh Kumar Koushal v. Naz Foundation,[1] outlining that this issue must be left to the Parliament. Section 377 matter was introduced at Parliament in 2015, where it was rejected. In the case of Suresh Koushal, five individuals from the LGBT community, dancer Navtej Singh Johar, journalist Sunil Mehra, businesswoman Ayesha Kapur, hoteliers Aman Nath and Keshav Suri and chef Ritu Dalmia filed a written petition before the Supreme Court challenging the constitutional validity of Section 377 of the IPC and the ruling of the two-judge bank. They challenged the section “punishing adults with sexual intercourse and making it an act against nature’s order.”

In the Supreme Court, several organizations and individuals contested the Delhi High Court judgment. They claimed that: the right to privacy does not include the right to commit any offense; it would also be harmful to the institution of marriage to decriminalize homosexuality and it would attract young adults into homosexual acts.

Then, in 2018, the Supreme Court announced it would reconsider its decision in Suresh Kumar Koushal v. Naz Foundation. Finally, by its judgment in Navtej Singh Johar & Ors[2], in September 2018. Indian Union v. Thr. Secretary Ministry of Law and Justice, Section 377, which criminalized consensual intercourse between same-sex couples, was struck down by the Supreme Court

Issues raised in the case

  1. By engaging in unreasonable classification, does Section 377 infringe the right to equality under Article 14 of the Constitution?
  2. Does Section 377 infringe freedom of speech and expression according to Article 19 of the Constitution?
  3. Does Section 377 violate the right to privacy under Article 21 of the Constitution and the right to life with dignity under it?
  4. Is Section 377 prohibited by Article 15 of the Constitution in respect of discrimination?

Analysis of the Issues raised

  1. By engaging in unreasonable classification, does Section 377 infringe the right to equality under Article 14 of the Constitution?

As indicated by Article 14 of the Indian Constitution the privilege to equity expresses that all people are equivalent under the watchful eye of the law. On the off chance that a resolution treats a class of individuals inconsistent relying upon order of people of intrigue, it will be dependent upon legal investigation. A resolution made order is suspicious on the off chance that it focuses on a discrete, separate minority.

Under these two constitutional requirements the Court tested Section 377 in its judgment here:

The reasonableness of its classification is discussed by the court as to how Section 377 was historically intended to classify and penalize those engaged in homosexual acts by prohibiting “intercourse against nature.” To be upheld as constitutional, Section 377 requires the Government to explain the contrast between specification and “nature-related intercourse”. The government could not formulate any uniform test in Suresh Kumar Koushal v. Naz Foundation to identify which acts were ordinary intercourse and which were “intercourse against the order of nature.”

By comparing Section 375 to Section 377, the Court concludes that Section 375 merely defines and discourages nonconsensual sex. Section 375 claims that it is not criminal to have consensual sex between competent consenting adults. That makes Section 377 unusual and untenable. Accordingly, the Court concludes that Section 377 is unconstitutional since it generates and arbitrarily classifies LGBTQ individuals and violates the right to equality

  1. Does Section 377 infringe freedom of speech and expression according to Article 19 of the Constitution?

Under Article 19 of the Constitution, freedom of speech and expression protects the right to freely express one’s thoughts and opinions.

Section 377 here seeks to restrict the consenting adults to private actsThese private deeds do not prevent public distress or damage to human decency and morality. In so far as LGBTQ individual people participate in displays of affection, such acts could not be punished unless they result in public indecency and have the potential to destroy the social order. The Constitution states the protection of freedom of expression against such authoritarian majority opinions that are forced upon marginalized groups.

The Court in the National Legal Services Authority v. Union of India (“NALSA”) recently established that transgender individuals have the right to freely express their identity. Section 377 is thus in violation of Article 19 of the Constitution.

  1. Does Section 377 violate the right to privacy under Article 21 of the Constitution and the right to life with dignity under it?

The right to privacy, implied in Article 21 of the Constitution’s right to life and liberty, protects individual autonomy. Under the principle of independence, individual people have independence over their bodies, as well as the freedom to engage their bodies in sexual activities with others in private spaces This “sexual preference is at the heart of privacy” and such freedom is an essential part of the dignity and identity of an individual. Section 377 here infringes this autonomy by criminalizing the sexual acts of competent adults by consensus, thus infringing the right to privacy and dignity provided for in Article 21.

The Court clarifies that such a claim does not constitute a sustainable basis for denying constitutional rights. The right to privacy has been considered a fundamental right because it is not limited to the majority population and its exercise does not prejudice its favourability among the majority of the population. So Section 377 is unconstitutional, the court concludes.

  1. Is Section 377 prohibited by Article 15 of the Constitution in respect of discrimination?

Article 15 of the Constitution bans oppression on grounds of religion, race, caste, sex or birthplace and ensures equal treatment for all citizens. The court clarified that sexual preference is also an implicit part of the identity of an individual, and should be protected under the law. The Constitution will not hold underneath the “discrimination against such a politically disenfranchised minority based on majority prejudices.

Section 377 here prohibits discrimination based on sexual orientation since it prohibits nonconsensual acts between responsible adults of the same sex.

The court explained that Section 377 enforcement targeted and convicted same-sex couples as criminals because they did not conform to the majority conception of sexual relations. Section 377 persecutes members of the LGBTQ community through its violators and drives them into darkness. Section 377 is thus in violation of the Constitution by discriminating based on sexual orientation.


The judgment order of 6 September 2018 reads-

Section 377 was unanimously declared unconstitutional in so far as it criminalized two adults of the same sexual orientation having consensual sexual intercourse and this is a matter of utmost privacy. .The Court depended on its ruling in the National Legal Services Authority v. Union of India where it reiterated that “gender identity is intrinsic to one’s personality and denying the same would violate one’s pride.”

If we segregate between the LGBT dependent on the ground that they structure a minority of the population, their crucial right to security would be violated. Something that two people with a place with the LGBT people group choose to do in private does not in any way hurt the “open tolerability or ethical quality.” “The affection between consenting like-minded adults is beyond the accurate interests of the state.”


The Chief Justice relied on the “norms of transformative constitutionalism and vibrant recognition of rights, and held that the constitution must guide the change of society from an antiquated society to a sober-minded society where major rights are protected mercilessly.”

He further claimed that “constitutional morality over social morality would prevail.” They also asserted that homosexuality was “not an abnormality but variability in an individual’s sexual orientation.”


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