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Striking Down of Section 377- A Brief Analysis

Updated: Jan 22

Section 377 has always been a nightmare for the LGBTQ community. After years of strenuous struggles and protests by this group to repeal the Section, finally, the Supreme Court ruled in the case Navtej Singh Johar .v. Union of India. , Unanimously held that Section 377 unconstitutional "in so far as it criminalizes consensual sexual conduct between adults of the same sex. However, the Section was struck down partially as it remains in force regarding sex with minors, non-consensual sexual acts, and bestiality.

Section 377 was introduced in 1861 during the British regime and derived the concept from the Buggery Act of 1533, which criminalizes any sexual activities "against the order of nature". The Section was explained in IPC as "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. Explanation.—Penetration is sufficient to constitute the carnal intercourse necessary to the offense described in this section". This section makes even consensual sexual acts - both homosexual and heterosexual – a crime if they are against the order of nature.

Portions of the section were first struck down as unconstitutional concerning gay sex by the Delhi High Court in July 2009. That judgment was overturned by the Supreme Court of India (SC) on 11 December 2013 in Suresh Kumar Koushal .v.Naz Foundation. The Court held that amending or repealing section 377 should be a matter left to Parliament, not the judiciary. On 6 February 2016, a three-member bench of the Court reviewed curative petitions submitted by the Naz Foundation and others and decided that they would be reviewed by a five-member constitutional bench. Finally, 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 criminalizes consensual sexual conduct between adults of the same sex".

The critics against the dilution of Section 377 argued that the dilution of such laws would challenge the very spirit and culture of the country, citing out the morality, religious and cultural Ethos of India. They have argued that decriminalizing the section will result in, demoralizing various religions, which would further aggravate the moral and ethical values of the further Generation. However, Those in favor of diluting the law to decriminalize all consensual sexual behavior have argued that majoritarian morality must make way for constitutional morality which makes it mandatory for the state to provide equality to all.

This exceptional judgment has thus helped the community claim equal constitutional status as other citizens. Further, it would finally relieve them from the social ostracisation they were facing in Centuries. Before the Decriminalisation of Section 377, this community was facing crucial problems such as arresting a gay or lesbian couple and charging them with the offense under section 377. Their relation was never recognized like other citizens, denying them from their basic fundamental right to live with dignity. Thus, the community now possesses the other rights enjoyed by normal prudent citizens such as the right to adopt, marry, and have a family.

Despite the congruous Act of Decriminalising this Section, the laws for the adoption as well as the marriage among the LGBTQ community is defiant. The Authorities are in obligation to provide the adoption and marriage status to these communities legally in par with the repealing of Section 377. The other countries who had already approved the Same-sex Marriage have already stepped miles to ensure the dignified living for the LGBTQ community by legalizing adoption and same-sex marriages. India still needs to be ahead to ensure these citizens a valued and dignified living. Being the citizens of India, they also enjoy the Fundamental right guaranteed by the constitution under Article 21, and keeping this in mind, the respective authorities should take immediate action to provide them appropriate amendments in personal laws, regarding the adoption and marriage. This could be done by including a provision for inclusion of this category into the personal laws. As the community has every chance of getting discriminated against and ostracized, it would be quite appreciable if this category is given special consideration and provide them all available opportunities in Job as well as other fields of empowerment.


Swathi. Ashok. Nair is currently pursuing Law at School of Legal Studies, CUSAT, Kerala.

You can contact them at swathiashoknair555@gmail.com


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