Supreme Court decriminalised a portion of Section 377 of the IPC

Supreme Court decriminalised a portion of Section 377 of the IPC

Kamaraj IAS Academy | Supreme Court decriminalised a portion of Section 377 of the IPC
  • September 7, 2018, 11:18 am



On Thursday, September 6, 2018, the Supreme Court decriminalised a portion of Section 377 of the Indian Penal Code, a colonial era provision that criminalises private consensual sexual acts between same sex adults.

What is Section 377 of IPC?

Section 377 of the IPC states: “Whoever voluntarily has carnal inter­course against the order of nature with any man, woman or animal, shall be punished with 1[imprisonment for life], or with imprisonment of either description for a term which may extend to ten years, and shall also be liable to fine.” This archaic British law dates back to 1861 and criminalises sexual activities against the order of nature.


2001: Naz Foundation files petition

Naz Foundation, an NGO that work on HIV/AIDS and sexual health issues, files a petition in the Delhi high court against Section 377.

2009: Delhi High Court on Section 377

In 2009, the Delhi High Court described Section 377 as a violation of the fundamental rights guaranteed by the constitution. Religious groups, however, had appealed against the decision in the Supreme Court.

2013: Supreme Court Re-ciminalises Gay Sex

That Delhi High Court judgement was overturned by the Supreme Court in December 2013. It said that amending or repealing Section 377 should be a matter left to Parliament, not the judiciary.

2016: Curative petition by Naz Foundation, activists heard

In February 2016, the three-member bench headed by then the Chief Justice of India TS Thakur said that all the curative plea of NGO Naz Foundation and some gay rights activists will be reviewed afresh by a five-member constitutional bench.

2017: Supreme Court Upholds Right To Privacy

In August 2017, the Supreme Court held Right to Privacy as a fundamental right. Sexual orientation, the court said, is an "essential component of identity" and the rights of lesbian, gay, bisexual and transgender population are "real rights founded on sound constitutional doctrine".

2018: Supreme Court Hears Petitions on Section 377

In July, the Supreme Court reconsiders its 2013 decision and begins hearing petitions challenging Section 377. In one of the hearings, Chief Justice of India Dipak Misra indicated that the 150-year-old ban on gay sex may soon be gone. "We intend to rule, subject to arguments, that two consenting adults even if engaged in 'unnatural sex' will not be liable for prosecution for any offence," Chief Justice Misra had said. The top court reserved its verdict after hearing the petitions.


Chief Justice of India Dipak Misra:

  1. Societal morality cannot trump constitutional morality. Societal morality cannot overturn the fundamental rights of even a single person.
  2. Section 377 is irrational, indefensible and manifestly arbitrary
  3. Bodily autonomy is individualistic. A matter of choice and is part of dignity.
  4. The LGBTQ community needs the rainbow of hope for the sake of the humanity. They should be allowed to live with dignity and without pretense. This is their journey to dignity, equality and liberty.
  5. It is time to bid adieu to prejudicial perceptions deeply ingrained in social mindset. Time to empower LGBTQ community against discrimination. They should be allowed to make their choices.
  6. Sexual orientation is biological, innate. She or he has no control over who they get attracted to. Any repression will be a violation of free expression.

Justice R.F. Nariman:

  1. The Yogyakarta Principles animates Article 14. Homosexuals have a fundamental right to live with dignity, are entitled to be treated as human beings and imbibe the spirit of fraternity
  2. Government officials, police, to be given periodic sensitisation campaigns

Justice J. Chandrachud:

  1. Tragedy and anguish inflicted by Section 377 should be remedied.
  2. Macaulay's legacy exists 68 years after the coming of a liberal Constitution. Human instinct to love has been constrained. Sexual orientation has become a reason for blackmail on the Internet.
  3. Quoting Leonard Cohen, Justice Chandrachud says, Shadows of a receding past controls the quest of LGBTQ for fulfillment.
  4. What is the 'order of nature'? State cannot decide the boundaries between what is permissible or not. Section 377 is based on deep-rooted gender stereotypes. It persecutes people. It is a majoritarian impulse to subjugate a sexual minority to live in silence,"
  5. Decriminalisation of homosexuality is only the first step.
  6. LGBTQ possess full range of constitutional rights, including sexual orientation and partner choice, LGBTQ has equal citizenship and equal protection of laws.

Justice Indu Malhotra:

  1. Society owes an apology to the LGBTQ community for the years of stigma imposed on them.

Religion and rights

Many religions consider homosexuality a sin, a conduct against the order of nature, and hold that an individual falling in this category be considered a criminal. However, by the end of the 19th century, a strong opinion emerged that it was a pathological condition and that the person should not be blamed for such conduct. Later, a dominant view emerged that homosexuality was inborn and therefore not immoral, and it was not a disease. However, there is still no unanimity on the issue and individuals continue to hold diverse opinions.

We are living in a democratic society governed by our Constitution. And the Constitution gives certain fundamental rights to citizens and one of the rights is the choice to lead the life one wants. Nobody has the right to disturb and intrude into someone’s private life. In the context of rights enshrined in the Constitution nobody should be harassed. At the same time, they should be aware that such activities are private, to be conducted within their homes.

Way forward

The purpose of elevating certain rights to the stature of guaranteed fundamental rights is to insulate their exercise from the disdain of majorities. The right to privacy cannot be denied, even if there is a miniscule fraction of the population which is affected.  Majoritarian concept does not apply to Constitutional rights.

One’s sexual orientation is undoubtedly an attribute of privacy.

As far as the private affair of an individual is concerned, within the four corners of the house, nobody has the right to interfere into it. Everybody has the right to lead the life they want.

Thus the judgement has once again upheld the right to privacy as an inherent feature of democracy.