BY: Garvita Garg & Mohammad Sayem Mohatadi

NAME OF THE JUDGES1. Chief Justice Dipak Misra
2.  Justice A.N. Khanwilkar
3. Justice D.Y Chandrachud
4.  Justice Rohinton Fali Nariman
5. Justice Indu Malhotra


The provision was introduced by the British colonial authorities in the British Raj in 1860 as section 377 of the Indian Penal Code , it imposes criminal liability on the consenting adults having sexual intercourse and rendering it is an act against the order of nature[1] . The constitutionality of the particular section was questioned in the Supreme Court , the Court decided to decriminalize the certain acts as prescribed in the following analysis . The Supreme Court’s judgement has placed reliance on the concept of transformative constitutionalism which has paved a way for very essentials amendments and reformative in the legal field .


The issue of the case was originated in 2009 when first time the petition was filed in the High Court of Delhi , in the case of Naz  Foundation v. Government of National Capital Territory of India[2]and the Delhi high Court struck down the section 377 considering it to be unconstitutional, in so far as it is pertained to consensual sexual conduct between two adults of the same sex .

Then in 2013 a petitioner Suresh Kumar Koushal challenged the decision of the Delhi High Court in the above-mentioned case . Then in 2014, a two – judge bench of the Supreme Court, in the case of Suresh Kumar Koushal vs. Naz Foundation[3] overruled the decision of the High Court and reinstated section 377 based on the reasoning that only the parliament has the power to debate and declare the section unconstitutional .

Then five individuals from the LGBTQ Community , Dancer Navtej Singh Johar , Journalist Sunil Mehra , Businesswoman Ayesha Kapur , Hoteliers Aman Nath and Keshav Suri and Chef Ritu Dalmia filed the writ petition before the Supreme Court , challenging the constitutional validity of Section 377 of IPC and the decision of two judge bench in Suresh Koushal case .

The petitioner argued that:

  1. Section 377 of IPC violates Article 14 of the constitution ( Right to equality before the law ) because it was vague in the sense that it did not define “carnal intercourse against the order of nature” that is all forms of consensual  sex between the adults is natural under Article 14[4] .
  2. Section 377 violated Article 15of the constitution ( Protection from Discrimination ) since it discriminates on the basis of the sex of a person’s sexual partner[5].
  3. Section 377 violates the Article 19 of the constitution ( Freedom of Expression ) which includes freedom to express oneself sexually with a consenting partner regardless of sexual orientation[6].
  4. Section 377 violates the Article 21 of the constitution ( Right to Life )[7] which includes to Right to privacy as its subjected LGBT people to fear that they would be humiliated or shunned because of certain choice or manner of living and the Right to choose sexual partner of choice as decided in Lata Singh vs. State of UP[8] . So, they can exercise this right in public and private and subject to the same laws which apply to the non-LGBT persons .

The Respondent in this case was the Union of India . Along with the Petitioner and the Respondent , certain non – governmental organisations , religious bodies and other representative bodies also filed applications to intervene in the case . The Union of India submitted that is left the question of the constitutional validity of Section 377 to the wisdom of the Court .

Some interveners argued against the Petitioner , submitting that the Right to privacy was not unbridled , that such acts were derogatory to the “constitutional concept of dignity” that such acts would increase the prevalence of HIV/AIDS  in society , and that declaring Section 377 unconstitutional would be detrimental to the institution of marriage and that it may violate Article 25 of the Constitution ( Freedom of Conscience and Propagation of Religion )[9] .

Considering the petition and examining the same through various aspects , the learned five judge bench of the Apex Court gave its judgement in favour of the Petitioner and unanimously held that the section 377 was unconstitutional  as far as it criminalised consensual sex between two adults of same or different sex but the bestiality under the section 377 is still criminalised. As the judgement was given by a five – judge , bench it is a binding precedent on all courts in India .


First looking at the chronological legal events that land us to the present case. The issue was first raised in 2009 when the Delhi High Court in Naz Foundation vs. Government of National Capital Territory of Delhi & Ors[10]. observed that Article 15 prohibits discrimination on various grounds including – sex[11]. Thus, the Court declared Section 377 as unconstitutional on the basis of violation of Articles 14, 15 and 21 of the Constitution of India. The following judgement was overruled in Suresh Kumar Koushal  & Anr vs. Naz Foundation & Orsby the Supreme Court where it was held that only the Parliament had the power to debate and declare the section unconstitutional with the way of an amendment[12].

Now having the look at the Constitutional Jurisprudence ,in the present case  the constitutional validity of the Article 14, 15 , 19 and 21 was questioned . Article 14 which lays down the provision that is Equality before Law that itself implies that each and every individual will be treated equal in the eyes of  that law so that questions why there is discrimination on the part of the LGBT community ? Why aren’t they allow to leave the life like others do ? So, this was the matter of concern . With regards to violation of Article 15 where it lays down no discrimination on various grounds including – sex  . So , why are LGBT community are questioned or why are they penalised for something which is no wrong , this all because of the stereotypical thought process of the society which have characterised the gender into two one is male and the other is female that is only heterosexuals are covered and not homosexuals . In respect of Article 19 , Justice Dipak Misra and Justice Khanwilkar  specifically pointed out that Freedom of Expression also includes Freedom of Expressing oneself sexually does not violate decency or morality , because this concept is not majoritarian in character . The section also violated Article 21 because Right to Life also includes Rights to privacy of consensual acts and rights to choose a sexual partner , irrespective of the sex the individuals acquire . The Supreme Court in Puttaswamy judgement held that one cannot be deny Right to privacy on the ground of that they form a minority because it is a violation of Article 21 of the Fundamental Rights[13] . Then the judgement of Shafin Jahan vs. Ashok K.M [14]and Shakti Vahini vs. Union of India[15] were also to be referred where it was held that each and every individual has the Right to Choose their Life Partner that is Right to choose one’s Sexual partner . Then recalling the precedent set by the NALSA judgment that gender identity was intrinsic to one’s personality and denying same would be violative of one’s dignity[16] , the Section must have de-criminalised  much sooner.

The Chief Justice relied on the principle of  “ transformative constitutionalism and progressive realization of rights and held that the constitution must guide society’s transformation from an archaic to a pragmatic society where Fundamental Rights are fiercely guarded” . He further stated that “ Constitutional Morality must prevail over Social morality” . they also affirmed that homosexuality was “ not an aberration but a variation in the sexual orientation of an individual”[17].


The final decision of the Supreme Court overturned the Judgement of Suresh Kumar Koushal’s case that is decriminalising the section 377 but the court has retained bestiality ( sex with the animals ) , sex with minors and non- consensual sexual activity in the ambit of the section 377 and it is penalised [18]. It has been the “ LANDMARK JUDGEMENT” in the history of the country because not only recognises the identity of the individuals belonging to the LGBT Community but also confers upon them global acceptance by the society .


[2]160 Delhi Law Times 277.

[3]Civil Appeal No. 10972 Of 2013.

[4]INDIA CONST. art. 14 .

[5]INDIA CONST. art 15 , cl 1.

[6]INDIA CONST. art 19 , cl 1.

[7]INDIA CONST . art 21.

[8]AIR 2006 SC 2522.

[9]INDIAN CONST . art 25 .

[10]160 Delhi Law Times 277.

[11]INDIAN CONST . art 15 , cl 1.

[12]AIR 2018 SC 4321.

[13]Justice K.S. Puttaswamy( Retd.) and Anr vs. Union of India and Ors . WRIT PETITION ( CIVIL ) NO. 494 OF 2012 ( INDIA ).

[14]AIR 2018 SC 357 .

[15]AIR 2018 SC 1601.

[16]NALSA vs. UNION OF INDIA AIR 2014 SC 1868 .



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