Decriminalization of Homosexuality and Sodomy Laws: The Supreme Court of India.

The Supreme Court of India passed a landmark judgment on the 6th of September, 2018 in which it struck down the 158-year-old law on homosexuality that made carnal intercourse against the order of nature a criminal offense. This was seen in the case of Navtej Singh Johar Vs Union Of India (AIR 2018 SC 4321) which was presided over by CJI Dipak Misra, Justice A.M. Khanwilkar, Justice Rohinton Fali Nariman, Justice D.Y. Chandrachud and Justice Indu Malhotra.


Section 377 of the IPC defines consensual sexual intercourse between people of the same sex as a “unnatural offence” that is “against the order of nature.” It called for a ten-year sentence of incarceration. The provision is a Victorian-era statute that has lasted until the twenty-first century. Surprisingly, about 123 countries worldwide have never prosecuted or decriminalised homosexuality. At the moment, 57 countries actively outlaw same-sex relationships.

The Naz Foundation (India) Trust challenged the legality of Article 377 in the Delhi High Court under Articles 14, 15, 19, and 21. Section 377, according to the Naz Foundation (India), shows an archaic notion of the purpose of sex, namely procreation, and has no place in modern society. The Delhi High Court held in 2009 that Section 377 cannot be used to punish sex between two consenting adults because it violates Article 21’s right to privacy and personal liberty. The Court ruled that categorizing and targeting gays breaches Article 14’s equal protection principle. As a result, Section 377 violates human dignity, which is at the heart of the Indian Constitution.

The Delhi High Court verdict was challenged in the Supreme Court by a number of organizations and individuals. They contended that: the right to privacy does not include the freedom to commit any crime; decriminalizing homosexuality will harm the institution of marriage and encourage young people to engage in homosexual practices. In Suresh Koushal, the Supreme Court overruled the Delhi High Court’s judgment in 2013 and held that the decision to decriminalize homosexuality can only be made by Parliament, not the Court. It also held that Section 377 criminalizes specific acts rather than a certain group of people. It also alluded to the low number of LGBTI people and the fact that only a small percentage of them had been convicted under Section 377. Several curative petitions were filed in response to the Supreme Court’s decision. On January 5, 2018, the Supreme Court convened a Constitution Bench to hear the challenge to Section 377 in its entirety, despite the fact that curative petitions were pending before the Court and formed the following issues:

  1. Whether Section 377 infringes the fundamental right to expression under Article 19(1)(a) by criminalizing the gender expression of LGBTQI+ people?
  2. Was the Supreme Court’s reasoning in the Suresh Kaushal case sound in terms of morality as social morality?
  3. Is Section 377 infringing on Articles 14 and 15 by enabling discrimination based on “sexual orientation” and “gender identity”?
  4. Is Section 377 a violation of Article 21’s right to autonomy and dignity by criminalizing private consensual acts between same-sex people?


The five-judge Bench partially overturned Section 377 of the Indian Penal Code, which decriminalized same-sex relationships between consenting adults. The Court has upheld Section 377 rules that make non-consensual or sexual activities on animals illegal. In reading down Section 377, the four judgments uniformly noted fundamental rights violations. They discovered that Section 377 discriminates against people based on their sexual orientation and/or gender identity, which violates Articles 14 and 15 of the Constitution. Furthermore, they decided that Section 377 infringes Article 21’s rights to life, dignity, and personal autonomy. Finally, they discovered that it impedes an LGBT person’s capacity to fully realize their identity by infringing Article 19(1)(a) right to freedom of expression.

In the case of Suresh Koushal, the Supreme Court ruled in 2013 that the decision to decriminalize homosexuality could only be made by Parliament, not the Court. The judgment was overruled by the Bench in partially striking down Section 377. The Supreme Court maintained the constitutionality of Section 377 in Suresh Koushal. The Bench found that Suresh Koushal not only failed to comprehend how Section 377 undermines fundamental rights but also relied on a legally invalid rationale. Suresh Koushal invoked the minuscule minority logic, which maintains that because Section 377 affects only a small number of citizens, the Court need not step in. The Constitution guarantees all citizens fundamental rights, regardless of sexual orientation or gender identity. The Court is concerned with “constitutional morality,” not “popular morality.”


“PRIME LEGAL is a full-service law firm that has won a National Award and has more than 20 years of experience in an array of sectors and practice areas. Prime legal fall into a category of best law firm, best lawyer, best family lawyer, best divorce lawyer, best divorce law firm, best criminal lawyer, best criminal law firm, best consumer lawyer, best civil lawyer.”


Click here to view judgement.


Leave a Reply

Your email address will not be published. Required fields are marked *