JUDGEMENT ANALYSIS ON SEC 377, INDIAN PENAL CODE, 1860

With the case of Navtej Singh Johar vs. UOI, India joined the rank of 125 nations where
homosexuality is legal as the Supreme Court decriminalised gay sex in the case.
Notwithstanding, 72 countries and territories worldwide still keep on criminalise same-sex
relationships. It is pertinent that this section was inserted in IPC in 1867. As per this section,
whoever wilfully has licentious intercourse against the order of nature with any man, woman or
animal, shall be punished. Penetration is adequte to represent the licentious intercourse necessary
to the offence delineate during this section. The punishment extends to imprisonment for life

In Naz foundation vs. Govt. of Delhi (2009), the Delhi High Court held that Section 377 was in
violation of fundamental rights and decriminalized it. But in the case of Suresh Kumar Koushal
vs. Naz foundation (2013), Supreme Court overturned the High Court ruling by dismissing the
issue as concerns of a ‘miniscule fraction of the country’s population’.

Notably, in the case of National Legal Services Authority v. Union of India (2014), Supreme
Court introduced transgender as 3rd gender. Further, in the case of Justice K.S Puttaswamy and
Anr. Vs. India And Ors. (2017), Supreme Court declared right to privacy is a fundamental right
and also said that sexual orientation is an essential component of identity. Finally, In Navtej
Singh Johar vs. Union of India (2018), Supreme Court scrapped the controversial Section 377,
a 158 year old colonial law on consensual gay sex. In this case, the Supreme Court reversed its own
decision declaring Section 377 irrational, indefensible and manifestly arbitrary.

Following are some points of significance that were raised in the judgement:

 Unconstitutional and Violative of Right to privacy:- According to SC, bodily autonomy is

individualistic and choice of a partner is part of the fundamental right to privacy.( It was
decided in K.S Puttaswamy case, 2017)

 Criminalization of private sexual conduct between adult of same sex abridged their
freedom of choice and expression under article 19.

 Discriminated against a minority based solely on their sexual orientation thus violating
the basic fundamental rights of LGBTQ community under article 14 and 15 of the
constitution.

 It is not against the order of nature homosexuality is documented in 1500 species and is
not unique to humans. Sexual attraction for the same is controlled naturally by
nuerological and biological factors.

 Homosexuality is neither mental nor moral depravity. The Mental Healthcare Act, 2017,
already cleared the stigma of mental illness attached to homosexuality.
 International law strictly prohibits any discrimination on the grounds of sexual
orientation or gender equality.

 The constitution is not for just the majority, the fundamental rights are guaranteed to ‘any
person’ and “any citizen” and the sustenance of these rights does not require majoritarian
sanction.

 The destruction of individual identity would tantamount to the crushing of dignity

attitudes and mentalities have to change to accept distinct identities of individuals, who
must be replaced for who they are, and not compelled to become who they are not.

Finally, we can say that it ia progressive judgement because it helped get rid of antiquated
colonial era law and that is the reason this judgement should be lauded.