Legal Article

Section 377 IPC: Controversy, Homosexuality, and the Unconstitutionality Verdict by the Supreme Court

Shivendra Pratap Singh


High Court Lucknow


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Published on: 3 Aug, 2023

Introduction: Section 377 of the Indian Penal Code (IPC) was a controversial provision that criminalized “carnal intercourse against the order of nature,” which effectively criminalized homosexual acts between consenting adults. The legacy of this colonial-era law has been contentious, leading to a long-fought battle in Indian courts.

Historical Background:

  • Introduced in 1861 during British colonial rule, Section 377 drew inspiration from the British Buggery Act of 1533. Its language was broad enough to include any form of non-procreative sexual activity, effectively targeting and criminalizing homosexual acts.

The Controversy:

  1. Human Rights vs. Tradition: The law became a central point of contention between human rights activists advocating for personal freedoms and conservative groups who believed Section 377 protected Indian traditions and morality.
  2. Impact on the LGBTQ+ Community: Due to this law, members of the LGBTQ+ community lived under constant fear of prosecution and persecution. The provision perpetuated stigma, discrimination, and systemic violence against the community.
  3. Question of Privacy: The debate also centered on the idea of individual privacy. Should the state have the right to dictate or intervene in the consensual sexual acts of adults in private?

Legal Battle:

  1. Naz Foundation v. Govt. of NCT of Delhi (2009): The Delhi High Court in this landmark decision read down Section 377 to exclude consensual sexual acts between adults in private, effectively decriminalizing homosexuality in the Delhi jurisdiction. The court held that the law was in violation of Articles 14 (Right to Equality), 15 (Prohibition of Discrimination), and 21 (Right to Life and Personal Liberty) of the Constitution.
  2. Suresh Kumar Koushal v. Naz Foundation (2013): In a surprising turn of events, the Supreme Court overturned the Delhi High Court’s verdict, stating that the decision to decriminalize homosexuality should be left to the legislature. This reinstated Section 377, leading to a significant backlash from human rights activists, the LGBTQ+ community, and allies.
  3. Justice K.S. Puttaswamy (Retd) v. Union of India (2017): Although this case was primarily about the right to privacy, it played an instrumental role in the battle against Section 377. The Supreme Court recognized the right to privacy as a fundamental right, and Justice Chandrachud, in his judgment, explicitly mentioned that sexual orientation falls within the ambit of privacy.
  4. Navtej Singh Johar v. Union of India (2018): In this landmark judgment, the Supreme Court decriminalized homosexuality by reading down Section 377. A five-judge constitutional bench unanimously held that Section 377 was irrational, arbitrary, and incomprehensible as it fettered the right to equality for the LGBTQ+ community.


The journey of Section 377, from its inception to its eventual reading down, is emblematic of the broader struggle for LGBTQ+ rights in India. The legal battle against this provision wasn’t just about decriminalizing homosexual acts; it was about recognizing the inherent dignity, equality, and rights of the LGBTQ+ community. The Supreme Court’s final verdict on Section 377 stands as a testament to India’s evolving understanding of human rights, personal liberty, and inclusivity.


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