Author:  Md.Sameer Ul Ain, a student at Damodaram Sanjivayya National Law University (DSNLU)                                                                                                    


This article addresses the legal beginnings of Indian Penal Code Section 377, a law from the Victorian era that made consenting to same-sex partnerships illegal. The Naz Foundation questioned its constitutionality on the grounds that it was obsolete. The Delhi High Court declared in 2009 that Section 377 was unconstitutional because to its infringement on the rights to privacy, and personal liberty. But in 2013, the Supreme Court reversed this finding, claiming that Parliament should have the jurisdiction to decriminalise not the Court.

Following the filing of several curative petitions, a Constitution Bench in 2018 to comprehensively investigated the Section 377 challenge. On September 6, 2018, the bench, which included Chief Justice Dipak Misra and Justices Khanwilkar, Chandrachud, Nariman, and Malhotra, essentially repealed Section 377. This important verdict identified abuses of fundamental rights and decriminalised adult consensual same-sex partnerships. The court reaffirmed the laws that render non-consensual and animal-related acts illegal.

The Constitution Bench’s majority findings showed how discrimination based on gender identity and sexual orientation breaches Articles 14 and 15 of the constitution. They also underlined how Article 21’s guarantees of life, dignity, and autonomy are breached. The court agreed that Section 377 hampered LGBTQ+ people’s capacity to truly embrace who they are. The legal dispute over Section 377 is mainly a reflection of the shift away from the conventional view of sexuality and towards the recognition of basic rights. 

The Supreme Court’s 2018 verdict, which maintained LGBTQ+ people’s freedom to participate in consensual partnerships without fear of criminal prosecution, was a huge step towards equality.


Facts of the case

A dancer from the LGBT community named Navtej singh Johar filed a writ suit on April 26, 2016, to challenge the constitutionality of section 377 of the IPC, which prevents same-sex adults from having consenting sexual activity in a private space. The petitioner stated that the right to life, as defined in Article 21 of the Indian Constitution, should be enlarged to embrace the right to sexuality, the right to sexual autonomy, and the freedom to choose one’s sexual partner. Additionally, the petitioner demanded that section 377 of the Indian Penal Code be ruled illegal. 

The union of India served as the respondent in this lawsuit. Several non-governmental organizations and religious groups also submitted their applications to intervene in the case along side petitioner and respondent. Some religious institutions argued against petitioner that their right to privacy was not limitless and that such behaviours are insulting to the constitutional concept of dignity. That such behaviours make HIV/AIDS more widespread in the society hence declaring section 377 invalid would be damaging to the institution of marriage and that it may violate article 25 of constitution (freedom of conscience and propagation of religion). 

Issues Raised:

The primary question was whether Section 377, as it pertained to voluntary sexual conduct between adults, was unlawful. 

Argument of plaintiff:

 The petitioners stated that sexual orientations such as homosexuality and bisexuality were natural expressions, protected by the right to privacy and dignity under Article 21. They maintained that criminalizing these orientations infringed individual autonomy and decisional freedom. The petitioners relied on the Puttuswamy case, arguing that Section 377 discriminated against the LGBT community and infringed on basic rights provided by Articles 14, 19, and 21.

Argument of defendant:

The respondents left the constitutional validity of Section 377 addressing voluntary conduct of same-sex adults in private to the court’s discretion. Some supporters favoured keeping Section 377, stating it served a state interest in developing moral standards in public life. They maintained that the clause criminalized acts, not people, and applied equally to all unnatural sexual conduct, regardless of sexual orientation.

Judgment of the court

The court determined that section 377 violates article 14 and 15 of the constitution by discriminating against people based on their sexual orientation and gender identity additionally the court determined section 377 contravenes article 21’s guarantee to right to life, dignity and freedom of choice. Finally they said that by infringing article 19(1) protection of freedom of expression it inhibits LGBT persons from identifying their actual potential. All of them made reference of court’s latest verdicts in NALSA VS UNION OF INDIA which recognized transgender identity and it relied on constitutional principles from Articles 14, 15, 19, and 21 and  cases such as justice k.v. puttaswamy vs union of india which recognized the basic right to privacy. 

The highest court said that the fundamental rights of every people are guaranteed by the constitution regardless of their sexual or gender identity. The judges care more about safeguarding constitutional morality than popular morality. Therefore section 377 of Indian penal code 1860 in so far as it relates to consenting sexual activity between individuals in private was found unconstitutional by the five-judge panel of the Indian supreme court. The court held that sexual orientation was natural, innate, and protected under constitutional rights. It recognized the right to sexual privacy and autonomy, stating that the choice of LGBT individuals to engage in intimate relations with persons of the same sex was an exercise of personal choice, autonomy, and self-determination. The court concluded that Section 377 violated the rights to dignity, privacy, equality, and freedom of expression. It read down the section to exclude consensual adult relationships in private, emphasizing the necessity of free and voluntary consent.

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