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  • Writer's pictureLawcian


Updated: Aug 19, 2020








A five-judge Bench unanimously overturned Section 377 of the Indian Penal Code on 6 September 2018 to the degree that it criminalized the same-sex relationships between consenting adults. LGBT people now have the legal right to engage in sexual intercourse. The Court upheld Section 377 provisions that criminalize on animals non-consensual acts or sexual acts. Naz Foundation (India) Trust challenged before the Delhi High Court the constitutionality of Article 377 contrary to Articles 14, 15, 19 and 21. The Foundation argued that Section 377 represents an outdated view of the function of sex as a means of procreation and has no place in a democratic society. The respondent is the ministry of law justice and the union of India.


The core question of the litigation was the moral relevance of Section 377 of the Indian Penal Code, 1860 (Article 377) insofar as it related in private to the voluntary sexual acts between same-sex couples. Area 377 was entitled 'Unnatural Offenses' and expressed that The individual who wilfully has animalistic contact with any man, lady or creature will be rebuffed with life detainment or detainment of any portrayal for a term of as long as ten years and will likewise be at risk to fine. The issue originated in the Delhi High Court in 2009, in the Naz Foundation v. Govt. case of N.C.T. in Delhi, states that section 377 ruled that it was illegal to the degree that it referred to the sexual conduct of two people of the same sex. In 2014, in the case of Suresh Kumar Koushal v. Naz Foundation, AIR 2014 SC 563, a Supreme Court bench of two judges reversed the Delhi HC verdict and gave "the seal of approval" to Section 377.

When the petition was filed in the present case in 2016 challenging the 2014 decision, the Supreme Court's three-judge bench was of the opinion that a larger bench must respond to the issues raised. Consequently, the case was considered by a five-judge panel.

In the present case, the plaintiff, Navtej Singh Johar, a dancer who has registered as part of the LGBT community, filed a Writ Petition to the Supreme Court in 2016 requesting protection of the right to identity, the right to sexual liberty and the right to choose a sexual partner as part of the right to life secured by Article 21 of the Constitution of India. In fact, he has requested a notice that Section 377 is unconstitutional. The Petitioner further pleaded that Section 377 violated Art. 14 of the Constitution (Right to Justice), since it was ambiguous in the way that it did not describe "carnal sex against the order of nature." There was no intelligible distinction or rational differentiation between marital sex normal and abnormal.

The Petitioner argued, among other items, that Section 377 is in violation of Art. 15 of the Constitution because it discriminates on the grounds of the identity of the sexual partner of a person; Section 377 had a "chilling effect" on Article 19 that is Freedom of Expression because it restricted the right to convey one's sexual orientation by expressing and choosing a romantic / sexual partner; and Section 377 violated the right to privacy because it entitled LGBT people to fear that they would be embarrassed or shunned because of "a certain preference or way of life."

The respondent was the Union of India. Several non-governmental organisations, religious groups and other official bodies, along with the complainant and the respondent, have lodged petitions to participate in the trial. The Union of India requested that it left to the "wisdom of the Court" the issue of the substantive legitimacy of Section 377. Any interveners pleaded against the petitioner, claiming that there was no unbridled right to secrecy, because these actions were detrimental to the "judicial principle of dignity" that these actions would increase the prevalence of HIV / AIDS in society and that it would be harmful to the institution of marriage to declare Section 377 illegal and could breach Art. 25 of the Constitution (Freedom of Religion).


1. Whether Section 377, by criminalizing the gender identity of people belonging to the LGBTQI+ community, violates the constitutional right to speech under Article 19(1) (a)?

2. Whether the Supreme Court judgment reasoning strong in the Suresh Kaushal case in its interpretation of morality as a social morality?

3. Whether Section 377 breaches Article 14 and 15 of Indian constitution by enabling "sexual orientation" and "gender identity" discrimination?

4. Whether Section 377 infringes the right to liberty and dignity under Article 21 by penalizing consenting sexual acts between members of the same sex?


1. Homosexuality, bisexuality and other sexual orientations are similarly common to all people and are based on the consent of two legally eligible individuals; the orientations are neither a medical disorder nor a mental illness;

2. To criminalize a person's sexual orientations was disrespectful to well-established values of human integrity and autonomy; sexual preference is an integral feature of one's privacy;

3. Lesbian , gay , bisexual and transgender ( LGBT) populations form 7-8 percent of India's population and need to be accepted regardless of their minority, and legal security is required;

4. Section 377 infringes Article 14 because it is ambiguous with respect to the word "carnal intercourse against order of nature" and as long as sex is voluntary, there is no intelligible distinction or fair classification;

5. Article 377 is contradictory to Article 15 and has a chilling effect on Article 19(1)(a) because LGBT people are unable to openly express their sexual identity and orientation;

6. Personal liberty and the freedom to select a spouse of one's choosing are included in Article 21 of the Constitution; Section 377, which is a facet of Article 21, also excludes the freedom of an individual to reputation;

7. Section 377 hinders the willingness of LGBTs to recognize their civil right to housing; LGBTs receive help from private providers such as Gay Housing Assistance Resources (GHAR) to obtain safe accommodation, showing that members of this population are in desperate need of direct government and judicial treatment and protection.


1. No one has any right to assault one's organs and that the offensive actions are performed by abusing one's organs as stated in Section 377;

2. The acts referred to in Section 377 are undignified and derogatory to the constitutional concept of 'dignity' and thus it would be wrong and constitutionally immoral to de-criminalize the Section;

3. Section 377 very rightly renders the actions mentioned therein illegal as the Section was inserted after taking care of the law structures and values that existed in ancient India and now, in 2018, the said Provision is technically, morally and constitutionally more relevant;

4. If Section 377 is ruled unconstitutional otherwise the structure of the family would be in shambles and marriage organization would be affected;

5. Despite the de-criminalization of numerous sexual activities of adults in other parts of the world, due to their distinct political, economic and cultural structure they cannot be de-criminalized in India;

6. If consenting acts between two same-sex adults are removed from the jurisdiction of Section 377, then a married woman will be remedied against her bi-sexual spouse and his consenting male partner which would have a cascading effect on personal laws and laws such as the Special Marriage Act;

7. Manifest arbitrariness doctrine is not applicable because the law is not explicitly or expressly arbitrary, as Section 377 applies irrespective of gender or sexual orientation;

8. Consent can also be gained by misunderstanding, mental illness, addiction or coercion;

9. Article 14 is not infringed by Section 377, because it merely describes a specific crime and its punishment, and it is within the ability of the State to decide who should be considered a class for the purposes of a rule, and that is a fair classification.


The petitioners counsel relied on the ratio for case K. S. Puttaswamy v. Union of India,who stipulated that "sexual orientation is also an important privacy attribute. Protecting a person's sexual orientation as well as his right to privacy is therefore extremely significant, since without enjoying these civil and civil freedoms, individual identity may lose meaning, a sense of trepidation may take over and their life will be reduced to mere survival. "The right to privacy therefore extends to LGBTs who are entitled to exercise their preferences.

The Supreme Court is the protector of the Constitution, and it is this SC that is "the ultimate arbiter of constitutional freedoms," which will uphold constitutional integrity and eradicate social disregard. In support of their claims, the petitioner’s counsel sought referral from the cases, Francis Coralie Mullin v. Governor, Union Territory of Delhi and others and Common Cause A Registered Society v. Union of India and others, where the bench held that Article 21 guarantees the right to life and equality, and it is meaningless if it cannot grant human dignity to all inclusive parties.

The petitioners drew the Court's attention to the Committee on Amendments to Criminal Law, J.S.Verma, which found that sex arising from Article 15 involves sexual orientation and, according to the petitioners, Section 377 also infringed Article 15 of the Constitution on this count. LGBT do seek support from parents, teachers, and non-governmental organizations, to speak on their behalf.


The counsel argued that Article 15 of the Constitution was not infringed as it only forbids discrimination on the basis of religion, ethnicity, caste, age, birthplace or any of them but not sexual orientation.

They put emphasis on the case of Fazal Rab Choudhary v. State of Bihar, AIR 1983 SC 323, in which it was found that the provision implied sexual perversity or sexual bestiality which was contrary to the order of nature and it was very well within the jurisdiction of the State to impose 'fair limits' on acts between a man and a woman which were offensive, perverse or contrary to nature.

In relying on the decision in Gujarat v. Mirzapur Moti Kureshi Kassab Jamat State and others, the counsel argued that the interests of society, nation or culture as a whole are superior to the interests of an individual person, regardless of how important the interests of the person are. Firstly, the Court has no authority to amend, add or delete wording from a statutory provision. Secondly, if the section is decriminalized to the degree that it penalizes intercourse between two people with the same sexual orientation, it will influence the family structure and the institution of a marriage, generally assumed to take place between a male and a female, it will give rise to a range of social problems that the legislature is unable to resolve at this point in time, and these problems will pose a threat.


The Indian Supreme Court (Court)'s five-judge bench unanimously held that Section 377 of the Indian Penal Code, 1860 (Section 377) was unconstitutional insofar as it related to consenting sexual acts among adults in private. The Court thus overruled its decision of the Suresh Koushal v. Naz Foundation, which upheld the constitutionality of Section 377. The Court relied on its decision in the National Legal Services Authority v. Union of India (National Legal Services Authority v. Union of India, (2014) 5 SCC 438) to reiterate that gender identity is intrinsic to one's personality and to deny the same would violate one's dignity. The Court relied on its judgment in K.S. Puttaswamy v. Union of India (K.S. Puttaswamy v. Union of India, (2017) 10 SCC 1) stated that deny of the LGBT community its right to privacy on the grounds that it is a minority of the population would infringe its constitutional rights. It states that Section 377 constituted an arbitrary limitation on the right to freedom of speech as consensual carnal sex in private "does not in any manner damage public dignity or morality" and if it persists in the statute books, it will have a crippling impact which will "violate the right to privacy under Art. 19(1) (a)."

The Court held that "Intimacy between consenting same-sex partners is beyond the state's legitimate interests" and sodomy law breached the right to privacy under Articles 14 and 15 of the Constitution by prosecuting a portion of the population for its sexual orientation. In fact, the Court also relied on Shafin Jahan v. Asokan K.M. in its judgments and Shakti Vahini v. Union of India reaffirm the right of a person to 'choose a life partner of his or her choosing. This is a facet of human rights.

Chief Justice Mishra relied on the principles of democratic constitutionalism and the universal protection of freedoms to argue that the constitution should steer society’s transformation from a patriarchal state to a liberal one in which human rights are firmly protected. He further stated that "constitutional morality would prevail over social morality" to ensure that LGBT people's human rights are protected, irrespective of whether such rights have a majority government 's approval.

In his opinion of, J. Nariman analyzed Section 377's legislative history to conclude that since Section 377 's rationale, namely Victorian morality, was "long gone," there was no reason for the law's continuance. He ended his opinion by placing on the Union of India a duty to take appropriate steps to publicize the decision in order to eradicate the stigma that the LGBT community faces in society. He also directed government and police officials to be sensitized to the community's plight to ensure that they receive favourable treatment.

J. Chandrachud in his opinion, acknowledged that while Section 377 was facially neutral, the LGBT community's "effect was to erase identities." He added that if Section 377 fails to exist, the LGBT people would be excluded from health care and 'the incidence of HIV would increase.' Not only must the law not discriminate against same-sex relationships, he said, it must take positive steps to achieve equal protection and give the community "equal citizenship in all its manifestations"

J. Malhotra asserted that homosexuality is "a mutation in orientation, not an aberration". Since she claimed that the right to privacy requires not only the right to be left alone but also "spatial and decisional protection". She summed up her point of view by saying that history owes an apology to LGBT group leaders and their families for the delay in redressing the ignominy and ostracism they have experienced over the years.


The decision has adopted a rather reformist position by claiming that, like all other people, the representatives of the LGBT community are entitled to the maximum spectrum of human protections and constitutionally guaranteed freedoms. This may also be a relieving trend for LGBT people because it declares that they are entitled to full rights, without bigotry, and fair rule by law. The Court ruled that discrimination on the grounds of sexual orientation violated the right to freedom, that criminalizing marital sex between adults in private violated the right to privacy, that sexual orientation is an intrinsic part of self-identity and that refusing it would violate the right to life and that basic rights on the ground cannot be refused. The judgment has succeeded to a very large degree in fostering popular trust that no matter how limited or insignificant the number of representatives of a society might be, this country's judiciary will stand by them and uphold their interests.

Nevertheless, the decision may have been more remarkable if it had also sought to create recommendations or guidelines for the social and economic integration and advancement of the Group in addition to acknowledging the LGBT People's civil freedoms. It was explained that any consent must be free consent, and is completely voluntary in essence, and independent of any force or intimidation.

It was also reported that the reading down of Sec 377 would not lead to the reopening of any cases terminated, but may surely be counted on in all matters pending.


[DISCLAIMER: This article is for general information only. We have tried to include as much information as possible but there are chances that some important information may have been missed .It is NOT to be substituted for legal advice or taken as legal advice. The publishers of the this article shall not be liable for any act or omission based on this note].

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