Struck Down of Section 377 of Indian Penal Code: An Analysis

Love should not be discriminated on the grounds of race, caste, religion and also not on the ground of gender. Love is a very pure feeling which may be felt for the opposite sex or for the same sex. This topic of homosexuality has been a debatable one since a long time in our country and was a major challenge to the constitution of India. Some has been against and some has been with the LGBT community in our country.

Section 377 of IPC criminalizes a section of people that includes Transgender, Lesbian, Gay, Bisexual and related communities. Before 2009 even if the act is consensual private act it was regarded as a crime. Such attitude towards these people led the LGBT community to start various movements and pride walks to get their human rights which they deserve not being a sexual minority group but being a human and hence having inherent right to privacy, choice and dignity.

LGBT community is an organization that includes Lesbian, Gay, Bisexual and Transgender who are united by common culture and social movements. They believe in diversity, individuality, sexuality and pride.  They fight for their rights in various parts of the world.

Many political leaders were in support of section 377 and whenever this issue was discussed in front of them, they always called it unethical and against our morality. They stated that there was no question of decriminalizing section 377, in fact, there was no need of even considering it as it will spoil our values, ethics and culture. Some of the major supporters of section 377 were Samajvadi Party, Yogi Adityanath and Rajnath Singh.

When many political leaders were supporting section 377 there were also few who understands the concept of individuality. They believed that consensual sex between gay adults should not be criminalized and every individual should be given right and freedom of choice and expression. They should be treated at par with other individuals and their identity should be respected and hence section 377 need to be struck down. They should be awarded right of personal choice. Some of them are Arun Jaitley, Rahul Gandhi and Shivanand Tiwari.

Sexual orientation is a part of privacy. No individual can be discriminated on the ground of their sexual orientation. Fundamental Rights guaranteed to the citizens of our country by the constitution cannot be taken away. Criminalizing homosexuality takes away the rights guaranteed under Article 14, 15, 19 and 21. Right to privacy is a right guaranteed to every citizen under Article 21 and thus section 377 is against this right. Thus privacy, dignity, liberty and freedom are the basic right of an individual that cannot abridged.



In this case Naz foundation was an activist group that filed a Public Interest Litigation in Delhi High Court in 2001 for demanding legalization of homosexual intercourse between consenting adults. After an immense public support and media pressure Delhi High Court after 150 years legalized homosexual intercourse between consenting adults in 2009. But section 377 was not struck down and remained intact.

In 2017 Supreme Court restored the judgement of High Court thus thereby decriminalizing homosexual sex and leaving section 377 as it is.


On 6 September 2018, the five judge bench of Supreme Court consisting of chief justice Dipak Misra, and Justices Dhananjaya Y. Chandrachud, Ajay Manikrao Khanwilkar, Indu Malhotra, and Rohinton Fali Nariman after hearing the petitioner’s plea declared the provision of section 377 as unconstitutional. They stated that consensual acts between the adults can never be a crime. Hence the section was irrational and incomprehensible. Supreme Court thus upheld the privacy and dignity of an individual and also upheld the Articles 14, 15, 19 and 21 by striking down section 377 of the Indian Penal Code.

After the above judgment Section 377 was thus struck down and it was really one of the best decisions till date of the Supreme Court. After a lot of struggles finally the LGBT community got their individuality and freedom but the perception regarding them has still not changed completely but at least legally they have got their recognition and we hope that soon they will be treated by all of us as a normal individual.

This article is authored by Neha Kumari, student of B.Sc LL.B at New Law College, Pune

Law Corner

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