Author : Vaibhavi Batra


(2018) 10 SCC 1


CJI Dipak Misra, Justice R.F. Nariman, Justice Indu Malhotra, Justice A.M. Khanwilker and Justice D.Y. Chandrachaud


Section 377 of the Indian Penal Code, 1860 (IPC) is a provision that criminalises homosexuality. Homosexuality means, ‘when the people are sexually attracted to the people of same sex and to the people of opposite sex’. It was introduced in 1861 during the British rule in India. The Section 377 reads:

“Unnatural Offences – whoever voluntarily has carnal intercourse against the order of the nature with any man, woman or animal, shall be punished with imprisonment of life, or with imprisonment of either description for a term which may extend to ten years, and shall also be liable to fine.”

The issue in this case was originated for the first time in the year 2009, when the Delhi High Court in the case Naz Foundation vs. Government of N.C.T. of Delhi held Section 377 of IPC unconstitutional, so far if the sexual intercourse between the people of same sex is consensual. In the year 2014, the Supreme Court in Suresh Kumar Kaushal vs. Naz Foundation, overruled the judgement of Delhi High Court and upheld the validity o Secton 377 of IPC.


In the year 2016, Navtej Singh Johar, a dancer and four others filed a petition in the Supreme Court of the country challenging the constitutional validity of the Section 377 of the Indian Penal Code, 1860. They claimed that individuals belonging to the LGBTQ group suffer discrimination and abuse throughout their lives due to the existence of Section 377 of IPC. The petition was filed with a view to seek the recognition of right to sexuality, right to sexual autonomy and right to choice of a sexual partner to be part of the Right to Life guaranteed under Article 21 of the Indian Constitution, of which Right to Privacy is a pivotal facet.


The LGBTQ community cannot avail the fundamental right of freedom of expression of their sexual identity which is provided under Article 19(1)(a), because of prevalence of Section 377 of IPC, 1860.

 It also violates the right to form association of the LGBTQ persons as given under Article 19(1)(c) of the Indian Constitution.

Section 377 is considered to be violative of Article 14 of the Indian Constitution as it is vague, in the sense that carnal intercourse against the order of nature is neither defined in the section nor in IPC or any other law.

It is also violative of Article 15 of the Indian Constitution since it discriminate people on their sexual preference.


The court held that sexual orientation is one of the many biological phenomenons which is natural and inherent in an individual and is controlled by neurological and biological factors. Any discrimination on the basis of it would result in violation of the fundamental right of ‘freedom of expression’.

After the privacy judgement in K.S. Puttaswamy vs. Union of India, the Right to Privacy has been raised to the pedestal of a fundamental right. The existence of Section 377 of IPC abridges the fundamental right of the LGBTQ community.

The Supreme Court accepted that Section 377 is violative of both Article 14 as it subjects LGBQ community as societal outcasts and Article 19(1)(a) it restricts the individual’s right to Freedom of Expression in the public.

Thus, on 6th September 2018, the five – Judge Bench of Supreme Court gave a unanimous judgement and declared Section 377 of Indian Penal Code unconstitutional. The people of same sex are now legally allowed to engage in the consensual intercourse.

The court upheld the provision of Section 377 that criminalises non – consensual acts or sexual acts performed on animals.