Constitutional Validity of Section 377 of IPC –

A Debatable Issue

“Why is it that, as a culture, we are more comfortable seeing two men holding
guns than holding hands?”

~ Pulitzer Prize nominated author Ernest Gaines

INTRODUCTION

Sex has always existed as a taboo within India, a hushed theme within the
society begging for attention and acceptance. This extensive blindness to an
integral element of human life resulted in a significant portion of the population
in either suppressing a basic component of their personality or running away
from the public eye, to a place where the law can’t punish them or protect them.
Section 377 was a weapon in the hands of the police to harass those who have
alternative sexual orientations.

Section 377 of the Indian Penal Code came into force more than a century and a
half ago, in 1861, when India was still being ruled by the British. It was
modelled on Britain’s ‘Buggery Act’ of 1533, and criminalised “unnatural
offences”. According to the act, “whoever voluntarily has carnal intercourse
against the order of nature with any man, woman or animal, shall be punished
with 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.” Despite the
fact that the Act did not expressly indicate "gay sex" or some other consensual
intercourse involving the individuals who are not hetero, it depended on the
possibility that something besides standardizing heterosexual sex was “against
the order of nature” and, therefore, criminal. Technically this covers forms of
sex that are not considered “natural” for heterosexuals, like oral or anal sex, as
well as all forms of intercourse between homosexuals1.
1
Sruthisagar Yamunan, Section 377 verdict: What you need to know about SC’s decision to decriminalise
homosexuality, https://scroll.in/article/893406/section-377-verdict-what-you-need-to-know-about-scs-
decision-to-decriminalise-homosexuality (visited on 1st January, 2019, 4:20 PM)
The application of the section had a huge impact on the homosexual class of the
society restricting their development as a human being; mentally, physically,
economically and socially. With the growing population of the LGBTI
community and also because of increased understanding about the community
in society in general, people realised that the section 377 was not only
inconsistent to the current scenario but is also unconstitutional in its nature as
violating the fundamental rights of the minuscule class of the society. It was
contended that Section 377, violated Article 14- Right to Equality, Article 15-
Prohibits discrimination on grounds of Religion, Race, Caste, Sex, Place of
Birth, Article 19 (a)-(d) –Right to Freedom, Article 21- Right to Protection of
Life and Personal Liberty, of the LGBTI community within India2.
Subsequently in September 2018, a five judge constitution bench of Supreme
Court declared Section 377 unconstitutional in so far as it criminalises
consensual sexual conduct between two adults of same sex3. This landmark
judgment restored rights of the LGBTI community. They now have all the
rights of an ordinary citizen. However one must note, that section 377 was not
declared unconstitutional in its entirety, acts such as bestiality are stills offences
covered under this section for “unnatural sex”. In this essay we will explore the
various controversies surrounding section 377 and critically analyse the
constitutional validity of the same.

Natural v. Unnatural

The section 377 is very vague as what is against the order of nature is not
possible to define objectively. What is natural and what is not, is a subject of
debate and has led to much confusion. The Black’s law dictionary defines
natural as (1) “A fundamental quality that distinguishes one thing from another;
the essence of something. (2) Something pure or true as distinguished from
something artificial or contrived. (3) The basic instincts or impulses of someone
or something”. To determine what is natural, a functional basis is cited which
basically means that every instrument or organ of the body has a particular
function to perform, and therefore, using such an organ for a purpose
inconsistent with its principal function is unnatural4. As per this logic, every
form of sex other than penile-vaginal will be considered as unnatural. The

2
Naz Foundation vs Government Of Nct Of Delhi WP(C) No.7455/2001
3
Navtej Singh Johar and Ors vs Union of India WP(C) No. 76/2016
4
Black’s Law Dictionary 750 (9th ed. 2009)
courts in India have interpreted the term “carnal intercourse against the order
of nature” so broadly that it now includes from oral and anal sex to penetration
into artificial orifices such as folded palms or between thighs5. Such a wide
application of section 377 where the language itself is not very clear has led to
the arbitrary application of the law and thus questions were raised regarding the
constitutional validity of this section. Apart from this, section 377 clearly made
homosexuality illegal on the ground that it is against the order of nature. In view
of the arbitrariness of section 377 and violation of basic fundamental rights the
constitutional validity of this section was challenged in the court. Section 377,
since its conception, has been the subject of changing judicial interpretation in
India. Distinctive tests have been recommended from time to time to punish
violations under this Section. The determination of the meaning of the term
'carnal intercourse against the order of nature' has been a matter of substantial
judicial concern. The meaning of Section 377 was restricted to anal sex initially
in 1884; it was extended to incorporate oral sex by 1935, and later was
expanded further to include thigh sex. The absence of a consent based
distinction in the wording of the section equated homosexual sex with rape and
equated homosexuality with sexual perversity. It is now after the 2018 Supreme
Court verdict that consensual sexual conduct between two adults of same sex
has been decriminalised.

DEBATE ABOUT THE CONSTITUTIONAL VALIDTY OF SECTION

377

The relationship between a statute and the Constitution of a country is

symbiotic, while a statute is created to secure the constitutional notions of
Justice, Liberty, Equality and Fraternity, at the same time; it derives its
authority from the supreme law of the land- The Constitution. Hence the
Constitution awards a Legislation with both, purpose and power, with the
precondition, that the word of the law and the word of the constitution must be
in harmony, any conflict would result in stripping the law from its power to
command. Article 13(2) of the Constitution could not make this clearer: “The
State shall not make any law which takes away or abridges the rights conferred
by this Part and any law made in contravention of this clause shall, to the
extent of the contravention, be void.”

5
Khanu v Emperor, AIR 1925 Sind 286
Hence the real issue is does the Constitution—in particular, Articles 14, 15 and
21—prohibit discrimination on the basis of sexual orientation?

RIGHT TO LIVE LIFE WITH DIGNITY

Mahatma Gandhi said that “To believe that what has not occurred in history
will not occur at all, is to argue disbelief in the dignity of man.”

While it’s true that Dignity cannot be given an elaborate legal definition, the
Courts all over the world, have attempted to classify requirements that need to
be fulfilled to, lead a life with Dignity. The Canadian Supreme Court, in Law v.
Canada (Minister of Employment and Immigration) state that “Human dignity
means that an individual or group feels self-respect and self-worth. It is
concerned with physical and psychological integrity and empowerment.
Human dignity is harmed by unfair treatment premised upon personal traits or
circumstances which do not relate to individual needs, capacities, or merits. It
is enhanced by laws which are sensitive to the needs, capacities, and merits of
different individuals, taking into account the context underlying their
differences.”6

Under the purview of the term “carnal intercourse”, the legislation criminalised
sexual acts between consenting homosexual adults, in private. To lead a life
with Dignity is to lead a life where an Individual can satisfy one’s basic
biological and physical needs and live free from arbitrary state created
encumbrances, for example legislations such as Section 377.

RIGHT TO PRIVACY

After years of serious contentions and debates, the Apex Court finally
recognized Right to Privacy as one of the Fundamental Rights under Article 21
of the Constitution. Though the case was initiated challenging the validity of
Aadhar Project, which aims to build a personal identity database of every
citizen based on their biometric information, on the ground that it violates a
person’s Right to Privacy, the judgment has far reaching consequences for the
queer community. In the Section ‘Discordant Note’, Justice Chandrachud

6
Nancy Law v. Minister of Human Resources Development [1999] 1 SCR 497
severely criticized the Koushal Judgment7 and held that one’s right to sexual-
orientation is within a person’s right to life since it is intrinsically related to
one’s identity and facing discrimination based on this can have ‘chilling effect’
on the fundamental rights. The Court made the following observation
“Discrimination against an individual on the basis of sexual orientation is
deeply offensive to the dignity and self-worth of the individual. Equality
demands that the sexual orientation of each individual in society must be
protected on an even platform. The right to privacy and the protection of sexual
orientation lie at the core of the fundamental rights guaranteed by Articles 14,
15 and 21 of the Constitution”8.

It also criticized the approach of the judges calling LGBTQ Rights as ‘so-
called’ rights and held that their rights are genuine rights like any other human
rights. Even though, the Court did not nullify Section 377, but it had asked the
Parliament to adopt the Yogyakarta Principles where it says that the State shall
repeal any law which criminalizes homosexuality between two adult persons.

SECTION 377 AND ARTICLE 14

Article 14 permits class legislation only if there is an intelligible differentia

between the classes, a rational nexus with the objective of the legislation, and
the constitutional validity of the objective itself. The State’s reasons for
retaining the law were health—it would prevent the spread of AIDS—and
enforcing public morality. The Delhi High Court found on fact that there was no
connection between homosexuality and public health (in fact, quite the
opposite), and it held that the only morality that the State was permitted to
enforce and was found within the four corners of the Constitution is
Constitutional morality, derived from the text, the structure and the philosophy
of the Constitution itself9. Pause for a moment and take this in, that there are
two classes of persons—those who engage in sexual intercourse in the “ordinary
course”, and those who don’t. What is ordinary course? Presumably,
heterosexuality. Why is this ordinary course? Perhaps because there are more
heterosexuals than homosexuals around. Well, there are also more black-haired
7
Suresh Kumar Koushal v NAZ Foundation and others, Civil Appeal No. 10972 of 2013
8
7Justice K. S. Puttaswamy (Retd.) and Anr. v Union Of India And Ors., Writ petition (civil) no. 494 of 2012
(Supreme Court, 24/08/2017).
9
Naz Foundation v. Govt. Of NCT of Delhi, 160 Delhi Law Times 277, (Delhi High Court, 02/07/2009)
people in India than brown haired people. Is sex with a brown-haired person
against the order of nature because it happens less often? But forget that. Where
is the rational nexus? What is the legitimate governmental objective? Even if we
accept that there is an intelligible differentia here, on what basis do you
criminalize—and thus deny equal protection of laws—to one class of persons?

Section 377 IPC makes no distinction between acts engaged in the public sphere
and acts engaged in the private sphere. It also made no distinction between the
consensual and non-consensual acts between adults. Consensual sex between
adults in private does not cause any harm to anybody. Thus, it is evident that the
disparate grouping in Section 377 IPC does not take into account relevant
factors such as consent, age and the nature of the act or the absence of harm
caused to anybody. Public animus and disgust towards a particular social group
or vulnerable minority is not a valid ground for classification under Article 14.
And if there is class involved, then the government needs to show rational nexus
and legitimate objective! No rational nexus- there is no rational nexus to the
classification created between procreative and non-procreative act and thus
violative of article 14.

SECTION 377 AND ARTICLE 15

Article 14 gives a general proposition regarding Equality, which is given a

particular application on various grounds in Article 15 of the Constitution.
Article 15 prohibits discrimination on the ground of sex. 'Sex' in Article 15(1)
must be read expansively to include a prohibition of discrimination on the
ground of sexual orientation as the prohibited ground of sex discrimination
cannot be read as applying to gender simpliciter. The purpose underlying the
fundamental right against sex discrimination is to prevent behaviour that treats
people differently for reason of not being in conformity with generalization
concerning “normal” or “natural” gender roles10.

Section 377 is disproportionate and discriminatory in its impact on

homosexuals. The law must not only be assessed on its proposed aims but also
on its implications and effects. Though facially neutral, the section
predominantly outlaw’s sexual activity between men which is by its very nature
penile non-vaginal. While heterosexual persons indulge in oral and anal sex,
10
Naz Foundation v. Govt. Of NCT of Delhi, 160 Delhi Law Times 277, (Delhi High Court, 02/07/2009) Para 90,
Pg 84
their conduct does not attract scrutiny except when the woman is underage or
unwilling. In fact, Courts have even excluded married heterosexual couples
from the ambit of Section 377. When homosexual conduct is made criminal,
this declaration itself is an invitation to perpetuate discrimination. It also
reinforces societal prejudices11. Sec 377 violated article 15 by discriminating on
the ground of sexual orientation as although facially neutral it treats homosexual
men unequally compared to heterosexuals and imposes an unequal burden on
them. The government of India has introduced an option for “others” in the sex
column of the passport application form. This can only be achieved only if the
expression “sex” is read to be broader than the binary norm of biological sex as
a man or a woman. Like gender discrimination, discrimination on the basis of
sexual orientation is directed against an immutable and core characteristic of
human personality. If a law operates to discriminate against some persons only
on the basis of prohibited ground, it must be struck down.12The Case of Naz
foundation the High Court stated that Article 15's prohibition of sex
discrimination implies the right to autonomy and self- determination, which
places emphasis on individual choice. Therefore, a measure that disadvantages a
vulnerable group defined on the basis of a characteristic that relates to personal
autonomy must be subject to strict scrutiny.

RIGHT TO HEALTH

Right to Health and Medical attention has been considered as an essential

element of an individual’s Right to life under Article 21, the same has been
accepted by the Supreme Court in Paschim Banga Khet Mazdoorsamity Vs.
State Of West Bengal13.

11
(Anuj Garg v. Hotel Association of India, Peerless General Finance Investment Co. Ltd. v. Reserve Bank of
India (1992) 2 SCC 343, Grace Jayamani v. EP Peter AIR 1982 Kant. 46, Lawrence v. Texas, National Coalition for
Gay and Lesbian Equality, Dhirendra Nadan v. State–Criminal Case Nos.HAA0085 & 86 of 2005 (Fiji High
Court).
12
(M Nagaraj v. UoI, Anuj Garg v. Hotel Association of India, Toonen v. Australia, Egan v. Canada, Vriend v.
Alberta, Punjab Province v. Daulat Singh AIR 1946 PC 66, State of Bombay v. Bombay Education Society [1955]
SCR 568 )
13
1996 SCC (4)37, JT 1996 (6)43
 Ministry of Health and Family Welfare supported the petition to decriminalise
Section 377, they stated that, it is a hindrance in their HIV intervention efforts
towards Sexual Minorities, such as the MSM (Men who have Sex with Men).
The National Aids Control Organization (NACO), a division of the Ministry of
Health and Family Welfare, submitted in the Naz Foundation Case, that
“Section 377 acts as a serious impediment to successful public health
interventions. According to NACO, those in the High Risk Group are mostly
reluctant to reveal same-sex behaviour due to fear of law enforcement agencies,
keeping a large section invisible and unreachable and thereby pushing the cases
of infection underground making it very difficult for the public health workers
to even access them.”

The NACO is of the opinion, that it is very important that the MSM and gay
community have the right to be safely visible through which HIV/AIDS
prevention can be successfully conducted.

Mental Health is a crucial part of an individual’s health in general, the fear

created by such a statute obstructs personality development in a gay individual,
it creates hatred and lack of self-worth, which eventually leads to depression or
an abnormal mental state.

SECTION 377 AND ARTICLE 21

Article 21has been explained by many cases. It is clear that the scope of this
article is very large. It protects the personal liberty and dignity of an individual,
therefore, ultimately protects the privacy of an individual. In the case of
National Legal Services Authority v. UOI14, it was interpreted that article 21
confirms the right to privacy of every individual by giving the expression such
as individual autonomy, dignity, identity and personal liberty. Explaining the
ambit of article 21 in case of Anuj Garg v. Hotel Association15 court explained
“personal autonomy includes both the negative right of not to be subject to
interference by others and the positive right of individuals to make decisions
about their life, to express themselves and to choose which activities to take part
in. Self-determination of gender is an integral part of personal autonomy and
self-expression and falls within the realm of personal liberty guaranteed under
Article 21 of the Constitution of India.”
14
Writ petition (civil) No. 400 of 2012
15
Case (Civil) 5657 of 2007, 06/12/2007
According to Sanjay Kaul, J. sex orientation is one important aspect of the
dignity that every person under Indian Constitution has right to maintain his sex
relation, it is an essential attribute of privacy. Section 377 thus denies the right
of certain class or group of people which is a fundamental right described in the
constitution not expressly yet implicitly which is interpreted by the judges in the
recent case of Right to Privacy and any fundamental right cannot be taken by
any class even if the class is minuscule. Thus article 377 is in violation of article
21, 19 and as well as article 14 as there no equal protection of rights for the
minuscule fraction of the Indian society that is lesbians, gays, transgender,
bisexuals.

LANDMARK JUDGMENTS ON SECTION 377

NAZ FOUNDATION CASE

The issue started with the Naz foundation case. The Naz Foundation (the
petitioner in the 2009 case) is an NGO that has been working for many years on
HIV/AIDS intervention and prevention. The petitioner argued that Section 377
should be limited for several reasons outlined below.

First, the petitioner argued that the existence of Section 377 of the Indian Penal
Code caused extensive discrimination towards the gay community and
transgendered individuals by state authorities (physical and verbal abuse,
harassment, and assault) under the pretext of enforcing the provision of the IPC,
severely impairing HIV/AIDS prevention efforts.16According to the petitioner,
the existence of Section 377 led to the denial of fundamental rights to these
individuals.

Second, the petitioner contended that legislation criminalizing consensual oral

and anal sex was based on Judeo-Christian moral standards and had no place in
modern society. According to the petitioner, Section 377 was predominantly
used in contemporary India in cases of sexual assault and abuse of minors.
Thus, criminalizing consensual same-sex activity in private served as nothing
more than a weapon for police brutality and abuse.17 The existence of this
16
Naz Foundation v. Government of NCT and Ors. 160 (2009) DLT277.
17
Peoples' Union for Civil Liberties, Human Rights Violations against the Transgender Community: a study of
kothi and hijra sex workers in Bangalore, India (2003).
section perpetuated discrimination, abuse, harassment, arbitrary arrests and
detention amongst other human rights travesties. This in turn adversely affected
HIV/AIDS prevention efforts, since these communities took their activities
underground in fear of persecution and abuse and became largely inaccessible
to AIDS prevention workers. The provision therefore directly resulted in the
marginalization and victimization of a certain class of people for no legitimate
reason.

Third, the petitioner submitted that Section 377 of the IPC infringed upon the
fundamental rights of privacy and dignity that fall within the ambit of Article 21
of the Indian Constitution. The petitioner argued that the fundamental right to
privacy and dignity under Article 21 could only be waived in existence of a
compelling state interest, but that such an interest was notably absent in the
application of Section 377.

Fourth, the petitioner submitted that Section 377 infringed upon the
fundamental right to equality under Article 14 of the Indian Constitution
because there was no rational connection between the legislative objective of
the Section (to penalize 'unnatural sexual acts') and the classification created by
this Section (differentiating between procreative and non-procreative sexual
activities). Because it arbitrarily targeted the gay community, the petitioner
contended that the classification was unreasonable. The petitioner also
submitted that the expression 'sex' in Article 15 of the Indian Constitution could
not be read to include only gender but should also include sexual orientation.
Therefore, since Article 15 outlined the right of non-discrimination, it implied
that discrimination on the basis of sexual orientation (perpetuated by Section
377) violated this fundamental right.

Finally, the petitioner also submitted that Section 377 curtailed the basic
freedoms guaranteed to all citizens under Article 19(1) (a), (b), (c) and (d). The
petitioner argued that the section curtailed an individual's ability to make
personal statements about one's sexual preferences, one's right of
association/assembly, and one's right to move freely to engage in homosexual
conduct.

The Court found the argument of the respondent to be 'completely unfounded

since it is based on incorrect and wrong notions', because there was no evidence
showing the link between decriminalization of homosexuality and the spread of
HIV/AIDS. Responding to the petitioner's final argument regarding Section
377's violation of Article 19(1) of the Indian Constitution, the respondent
contended that Section 377 did not impact the freedoms given under Article
19(1), since it criminalized only a sexual act, leaving people free to express
their opinions on homosexuality and its decriminalization. Therefore, the
respondents maintained that Section 377 was constitutionally valid. However, in
light of the Court's findings on Section 377 of the IPC's infringement on
Articles 14, 15 and 21 of the Indian Constitution, the Court did not find it
necessary to explore infringement of Article 19.

NACO's submission corroborated the petitioner's contention that homosexuals

and other sexual minorities were highly susceptible to HIV/AIDS, and stated
that the increased vulnerability of these particular groups stemmed from a
higher level of unsafe activity as well as impaired decision-making abilities that
hindered HIV/AIDS prevention. In terms of the right to health (recognized as a
part of Article 21 of the Indian Constitution), the Union Ministry of Health and
Family Welfare argued that since homosexuals lived in constant fear of law
enforcement, they were reluctant to reveal same-sex sexual behavior. As a
result, this large section of society carried out its sexual activities in silence,
making it very difficult for public health workers to access them for the purpose
of HIV/AIDS intervention and prevention. NACO submitted that it was
imperative that the gay community had the right to render themselves visible
without fear of persecution by state authorities so that HIV/AIDS prevention
efforts could be effectively conducted. The Law Commission of India, in its
172nd report, recommended the removal of Section 377 before the judgment in
2000. The Law Commission, in reviewing laws relating to sexual offences (in
light of increased incidence of sexual assault of minors as well as custodial
rape), endorsed the deletion of Section 377 along with amendments in Section
375 under 'Sexual Assault', penalizing not only rape but also any non-
consensual, nonpenile-vaginal penetration. On these grounds, the Court was
unable to accept the respondent's argument that Section 377 should be retained
to cover consensual sex between adults in private in the interest of public health
and morality. The Delhi High Court held Sec 377 as violative of the constitution
of India.

SURESH KOUSHAL VERDICT18

18
9 Suresh Kumar Koushal & Ors V Naz Foundation & Ors, Civil Appeal No. 10972 OF 2013, (Supreme Court,
11/12/2013).
After the landmark verdict, PIL was filed in the Apex Court against the
judgment which overruled the judgment and once again held that Section 377 of
IPC is Constitutional since it does not violate any fundamental Right since the
Section does not discriminate against any particular gender or community.
However it failed to recognize the LGBT as a ‘Community’ who are
discriminated by this law for their sexual preferences and orientation. Further
negating all the arguments of Right to Privacy and ‘inclusive society’, the Court
held that Section 377 is a pre-constitutional law and had there been any
violation of fundamental rights then the Parliament would have amended it.19
The Court showed reluctance in reviewing the Act since it felt that legislating is
the task of the Parliament and not the Judiciary which is concerned with
interpreting and adjudicating disputes. However this reasoning is quite absurd
because India, being a Common Law Country, the Court has greater discretion
of Judicial Review and nullifying laws if it violates the Fundamental Rights..
The judges also relied on the de Minimus Rule that the issue is a trivial matter
since only 200 cases has been reported on the concerned section since the
inception of the law and the Court can refuse to adjudicate on it. This reasoning
is quite horrifying since one’s sexual preferences and Right to Sexual
Orientation can be anything but ‘trivial matter’. At last, it also rejected the Delhi
HC’S doctrine of Severability to severe the portion of consensual same-sexual
intercourse from the Section and thus penalizing Bestiality and non-consensual
homosexuality or sexuality with a minor, holding that there is no part that can
be severed without affecting the whole section.

PUTTASWAMY JUDGMENT
After years of serious contentions and debates, the Apex Court finally
recognized Right To Privacy as one of the Fundamental Rights under Article 21
of the Constitution. The Supreme Court, in its judgment on privacy, said that
right to privacy and the protection of sexual orientation lie at the core of the
fundamental rights guaranteed by Articles 14, 15 and 21 of the Constitution.
The court noted that sexual orientation is an essential attribute of privacy, and

19
Doctrine of Eclipse: Any Pre-Constitutional Law, which is inconsistent with the Part 3 of the Constitution,
becomes inoperative from the date of the commencement of the Constitution
discrimination against an individual on the basis of sexual orientation is deeply
offensive to the dignity and self-worth of the individual.

 "That a minuscule fraction of the country's population constitutes

lesbians, gays, bisexuals or transgender is not a sustainable basis to deny
the right to privacy," the Supreme Court said in its judgment.
 "The purpose of elevating certain rights to the stature of guaranteed
fundamental rights is to insulate their exercise from the disdain of
majorities, whether legislative or popular," the nine-judge bench
observed.
 The rights of the lesbian, gay, bisexual and transgender population
cannot be construed to be "so-called rights", the court observed.

Taking the landmark case of K.S. Puttaswamy v. UOI20 decided by nine-

judge bench into the consideration we come up with the opinion that the
article 377 can be challenged for its constitutional validity as according to
judgment given by the SC in case of Right to Privacy which the court
said is a fundamental right mentioned not expressly yet implicitly in the
constitution and can be brought by interpretation.

DECRIMINILIZATION OF SECTION 377 JUDGMENT

The recent judgement by CJI Dipak Mishra in the case of Navjet Singh Johar &
Ors v Union of India21 decimalizes the offence made under section 377 IPC and
held that the free consensual sexual activity between the LGBT persons of the
same sex in private is against the section 14, 15, 19 and 21 of the Indian
Constitution and also said that this judgement will prevail over all the pending
20
7Justice K. S. Puttaswamy (Retd.) and Anr. v Union Of India And Ors., Writ petition (civil) no. 494 of 2012
(Supreme Court, 24/08/2017).
21
Navjet Singh Johar & Ors v Union of India, W. P. (Crl.) No. 76 of 2016, (Supreme Court, 06/09/2018)
cases charged under the same offence. The Court overruled the judgement of
the Suresh Kumar Koushal & Ors V Naz Foundation & Ors and held that the
choice of an LGBT person to have a consensual sexual activity with another
same sex in private is their right of having free choice, a choice of their sexual
activity and judicial determination.

CONCLUTION:
The judgment of 2018 closes the door on a dark chapter of Indian history. It
marks a new era of equality for millions of people in India. It is a remarkable
victory and a milestone in the three decade old struggle by the LGBTI
community and their allies in India. The landmark ruling sends a message of
hope not only to LGBTI people, but to everyone fighting for justice and
equality. “Society owes an apology to the LGBTQ community for the years of
stigma imposed on them”, said Justice Indu Malhotra in her judgment. Section
377 was irrational, indefensible and manifestly arbitrary. However,
decriminalisation of section 377 is only the first step towards the LGBTI
(lesbian, gay, bisexual, transgender and intersex) community’s struggle for their
rights including marriage, adoption and inheritance. But this judgment certainly
gave them a rainbow of hope.