The Supreme Court of India in the year 2018 decriminalised Section 377 and held it as unconstitutional which stated that consensual homosexuality in private between consulting adults was a criminal and punishable offence. This law was introduced in India in the colonial-era that was at odds with modern notions of justice and equality of all humankind. Even some heterosexual acts considered “against the order of nature” are offences under this Section. In 2018 judgement of the Supreme Court held that the use of Section 377 against consenting homosexual adult was arbitrary, irrational and not justified. After the judgement given by the court, Section 377 is now only applicable to sex with minor, bestiality, and non-consensual sexual act. This section was criticism from child rights activists that the decriminalizing of this section would be a problem for addressing child abuse cases.

In January 2018, the Supreme Court agreed to hear a petition to revisit the 2013 Naz Foundation judgment. On 6 September 2018, the Court ruled unanimously in Navtej Singh Johar v. Union of India that Section 377 was unconstitutional “in so far as it criminalises consensual sexual conduct between adults of the same sex” The judgment was given by a five judges bench comprising the then Chief Justice of India Dipak Misra, Justices R. F. Nariman, D. Y. Chandrachud, A. M. Khanwilkar and Indu Malhotra.

Key Words- homosexuality, heterosexual, consensual, unanimously, unconstitutional.


The Constitution of India makes it their prime responsibility and duty to guarantee the fundamental rights to its citizen that are an essential feature of democracy. Enforcement of laws in our country that restricted the sexual choices of people, which is purely personal in its own nature, and a crucial part of one’s freedom over their body and freedom of expression, was a violation of the fundamental rights of Indian citizens. Penalising consensual intercourse among two people belonging to the same sex was an infringement of the rights under Articles 14, 15, 19, and 21 of the Indian Constitution. 

Section 377 subjected the LGBTQ committee to discrimination but this section also denied them equality in law and restricted their freedom of expression which is a violation of Article 19 of the constitution. Additionally, it also violated the right of a person to his or her body, given under Article 21 of the Indian Constitution. Consequently, a series of judgments have been passed by the Supreme Court of India with regard to the constitutionality of Section 377. The four major landmark judgments that have assigned the constitutionality of this section have been discussed in this research paper.

This research paper will discuss in detail about the provisions of Section 377 of the Indian Penal Code, 1860 and how they violate the fundamental rights of citizens of India. Further, the landmark judgments that ever given that led to the decriminalisation of this section have also been presented to give the readers an in-depth understanding of how the rights of LGBT evolve in India and what were people’s reaction to the amendment.


The research is primarily based on descriptive and analytical method of research. The study is based on secondary sources like books, journals, research paper and articles have been used. The articles mostly taken for research is from “Indian Kanoon” and “SCC”. Major case laws that played a vital role in decriminalizing of the Section 377 has also been mention in this research paper.


  1. Section 377 in The Indian Penal Code, 1860 (Indian Kanoon)

This article reviewed how Section 377 was stated in the constitution and was the exact meaning of Section 377, and it analyses all the judgement given by the High Court and the Supreme Court and give a brief understanding of what where the true facts of the case and what and in what context the Supreme Court gave the judgement.

  1. What is Section 377 of IPC? (The Times of India), Dec 31, 2018

It gives an understanding of what Section 377 is and why it was a criminal offence back in 2018, before the historic judgement of the Supreme Court came where this section was decriminalized. It provides with the past and the present views of the section.

  1. What is Section 377, and why does it matter? (The Hindu), July 21, 2018

It provides with the simple yet very comprehension understanding of what is exactly Section 377 and why was it a concern in our Indian society. It takes into picture the thoughts and reaction of people, their mixed emotions. It focuses on the changes that decriminalization of Section 377 will have and have had on the LGBTQ committee.


This research paper is a non-doctrinal paper. The data collected or this research paper is primarily journal and articles based. The analysis of different articles and journal and extracting the common ideas and facts they had regarding the topic. Different blog pages were also referred for the over view of the understanding of the topic. The blog website that was used in this research paper were “iPleaders” and “Legal Service India”. 


Section 377 Unnatural Offences –

As stated in the IPC “Whoever voluntarily has canal intercourse against the order of nature with any man, women or animal, shall be punish with imprisonment for life, or with imprisonment of either description for a term which may extent to ten years, and shall be liable to fine”. 

It is an act that criminalises homosexuality and was introduced by the British in the year 1860 in India. It clearly stated that whoever indulge into unnatural sex (canal intercourse) with a   men, women, or animal, will be punish with lifelong imprisonment or with a prison of not less than ten years. Section 377 of IPC is a cognizable offence and hence is non-bailable in nature. It can be tried in the court of a magistrate of first class. 


  1. GOVERNMENT OF NCT OF DELHI v. NAZ FOUNDATION (INDIA) TRUST (2009)- This case was the stepping stone in the long war of decriminalizing of Section 377 of IPC. This case was the first ever case to recognize that there exits a problem that no one not even our constitution really cared about or talked about and that was about the rights of the homosexual people in India. Naz foundation recognizes this flaw in the constitution. 


Naz foundation filed a writ petition in the year 2003 which was rejected by the Delhi High Court stating that they lack locus standi (the capacity to bring a motion). The foundation then moved to the Supreme Court of India and filed an appeal, in regard to which the Supreme Court upheld the Delhi High Court judgement and said that they have the right to bring a motion as PIL (Public Interest Litigation), and directed the High Court to scrutinize the case. 

Naz foundation argued before the court that the Section 377 of IPC violated the fundamental rights of Indian Citizens under Article 14, 15, 19, and 21 of the Indian Constitution. They claim that Section 377 of IPC is unconstitutional and prayed the court to decriminalised the same on grounds of being violative of human rights. 


The judgement given by the Delhi High court was ground-breaking yet the approach was liberal. The court took note that Section 377 infringes the right to privacy of the two consulting adults, was a violation of Article 21 of the Indian Constitution.  The Court also stated that this section is a violation of Article 14 of the Constitution, which states that ‘everyone, simply by virtue of human, have the same human rights and equal access to them’ as it categorises people based on their sex. The Court struck down Section 377 but not the entire section only few parts of this section was struck down. The Court noted in this case the non-consensual non-vaginal sex still remains illegal until the parliament pass any amendment on it. 



After the historic liberal win that Naz foundation had for the homosexual section of the country it received a wide range of rage and criticism and a petition was filed to overturn the judgement that was given in the previous case.

Suresh Kumar Koushal the appellant along with the other organisation who claim an interest in conserving the society moral, religious, and cultural values. The appellants also complacent that courts, by definition, should not undertake the task of legislating, that task should be left to Parliament. The High Court was not clear if it was amputating the law or reading it as it was, and there is a constitutional presumption in favour of the law as long as it is on the statute book. The question of whether a law is constitutional or unconstitutional should be given by the Parliament.


The Supreme Court of India reversed the judgement given by the High Court of Delhi in the case of Government of NCT of Delhi (2009) and turned down the verdict making homosexuality a criminal offence under Section 377 of the IPC and further said that the judgement given by the constitutional bench of the Delhi High Court was unsustainable and stated that Section 377 of IPC does not permit from the vice of unconstitutionality.


             FACTS OF THE CASE 

The transgender community comprising of Kothis, Hijras, Jogappas, Shiv-Shakthis etc. has got a historical place in our Hindu scripts and other religious text. They had a significant in the royal courts and were also said to have the power to give blessing. The transgender community asked for the legal declaration for their community beyond the context of men and female on conveyance of birth. 

As a direct consequence of the Criminal Tribes Act, 1871, there was an attrition of the status of the TG community as the legislation deemed the entire community as innately criminal. Though there has been marginal improvement in the condition of the TGs, especially after the repeal of the said ‘notorious’ Act, their condition is not far from dismal. There is a need for affirmative action for the upliftment of the community and for the improvement of their social status.

The atrocities faced by TG community, from the citizens as well as the state authorities, in turn, is a violation of their many fundamental rights including those under Articles 14 and 21 of the Constitution.


The Court also decided that Hijras and eunuchs should be considered ‘third genders.’ The ‘right to decide their self-identified gender’ was maintained for the transgender community, and the State is required to protect their gender identity by providing it legal recognition under ‘third gender.’ The Court also issued various orders and directions to the centre and state governments, including the establishment of separate HIV Zero-Surveillance Centres, the provision of separate public toilets and appropriate medical care in hospitals for transgender people, the development of various social welfare awareness schemes to improve the conditions of the transgender community, raising public awareness about atrocities committed against them, and restoring public trust in their community.



The main proceeding that this case holds, like all other cases, was the constitutionality of Section 377. A writ petition was files in the Supreme Court of India in 2016 by Navtej Singh Johar. His petition included declaring Section 377 unconstitutional, and seeks identification of right to sexuality, the right to choose a sexual partner under Article 21 as right to life, and right to sexual freedom, it was also stated by the petitioner in the writ petition that Section 377 is in violation of Right to Equality Before the Law that is given under Article 14 of the Indian Constitution, as it was failing to define “carnal intercourse against the order of nature.” There was no clear difference given in the constitution regarding what is considered as natural and unnatural consensual sex. 

Section 377 also discriminated against lesbians, gays, and others from the community for their choice relating to the sex of their partner which is a violation of Article 15 of the Indian Constitution. Section 377 violated Article 19 as it restricted expression of sexual identity.

It was also stated in the writ petition that this section also violates the privacy of the LGBTQ community by forcing them to live in humiliation and exclusion from the society.

Certain non-governmental organisations, religious bodies, and other representative bodies also filed applications to intervene in the case. The Union of India asserted that it left the question of constitutionality of Section 377 to the ‘wisdom of the Court.’ Some argued against the petitioner, claiming that the right to privacy was not unrestricted, that such acts were only but an insult and abuse to the ‘constitutional concept of dignity,’ that such acts would lead to the prevalence of HIV/AIDS in society, and that declaring Section 377 unconstitutional would be harmful to the institution of marriage and may violate Article 25 of the Constitution, which provides for freedom of conscience and propagation of religion. 


On 6th September, 2018 the Supreme Court of India delivered its landmark judgment which decriminalised Section 377 “homosexuality”. The Court held that the law was arbitrary in nature, it was irrational and indefensible. The apex Court held Section 377 of the IPC as unconstitutional. The Court recognizes the “right to equal citizenship for all members of the LGBTQ community in India”. Thus, it read down Section 377 to exclude consensual sexual relationships between adults, whether between same-sex individuals or otherwise. The Court stated that Section 377 violated privacy and sexual autonomy and right to dignity under Article 21, it violates Article 19 that is the freedom of expression, Under Article 14 it violated right to equality, and non-discrimination under Article 15 of the Constitution. It was also said by the court that Section 377 will continue to apply to non-consensual sexual activity against sexual acts against minors, non-consensual sexual activity in adults, and bestiality. The then setting bench of the Supreme Court repealed the judgement given in the Suresh Kumar Koushal case. The bench unitedly read down Section 377 and decriminalised same-sex relations among consenting adults. The verdict given applies to all citizens, and not just to the LGBT community.


With the verdict given in the case Navtej Singh Johar case, one half of the society considered the judgment as justice has been rightly done and the verdict was welcomed by the LGBT community putting an end to all their scuffle and the bias faced by them throughout their life while the other half of the society who expressed a view which was different from that of the LGBT community considered the judgement in contrast against the very practice of Hindutva, or against their religious practices. Suresh Kaushal in his interview to The Hindu said that the matter was taken on the first place because it was a ‘religious matter’ and as stated by him homosexuality is unnatural in its very place and once Section 377 is decriminalised a wide number of homosexual people will start approaching temple and, gurudwaras for marriage. They have to put a ban on this in future as every religion has certain sacred rituals for marriage.


Section 377 is often used as a tool by the married women in order to highlight the ‘unnatural’ abuse which they have. The another important strand found out by the Kerala government was that Section 377 of IPC was also used by the POCSO Act that is “Protection of Children from Sexual Offence Act”, and with the abolition of Section 377 of IPC it reduces the rigidity of the law on matters of unnatural offences committed against the children.

Although Section 377 applies to minors in cases of bestiality, it is uncertain whether this section is also pertinent to married women. The major concerns here are regarding the rights of married women and the actions taken to criminalise marital rape. Redirecting the attention towards the protection of child rights there is a need to bring some amendments in the constitution in regard of the unnatural offences that is been committed against the children and now that Section 377 is decriminalised there is a need of amendments in the POCSO Act to provide protection to the minor girls from the unnatural offences.


Taking into account the changes that are evolving from the verdict given by the Supreme Court on the matter of decriminalising homosexuality, it can be noted that it has open a new path to different communities like the LGBTQ communities to stand out with their actual identity without the fear of biasness and agony from the society and this has put an end to the discrimination which they had faced throughout their life. There were different sets of opinions that was put forward by several people in the society, especially those who were in link with any kind of religious activities and a part of this comprises of the prominent political figures who claimed themselves to be the protector of Hindutva.

Amongst all the difference of opinion and disapprobation put forth during the judgment of homosexuality, marking it on a broader perspective it is viewed as a victory for the LGBTQ community and moreover it sustains the ideology that with the advancement of time making the colonial practices unconstitutional which no further fall in line with the advancing situation.


We still have a long way to go before the LGBT community in India’s fundamental rights are developed and protected; the Navtej Singh Johar case and the NALSA ruling were merely stepping stones in that direction. It is a crime in and of itself to treat these people as if they are abnormal; no one should be made to feel that way, certainly not because of their sexual preferences. India is making steady progress in a number of areas, and its technological prowess and innovations are gaining recognition. Why not receive acknowledgment for our diversity? We were all taught in school that India’s greatest democratic attribute is its “unity in diversity.” It’s time for us to put it into practice. Our monuments, history, and society all embrace same-sex relationships.