Section 377 of the Indian Penal Code was a section of the
Indian Penal Code introduced in 1861 during the
British rule of India. Modeled on the
Buggery Act 1533, it made sexual activities "against the order of nature" illegal. On 6 September 2018, the
Supreme Court of India ruled that the application of Section 377 to consensual
homosexual sex between adults was unconstitutional, "irrational, indefensible and manifestly arbitrary", but that Section 377 remained in force relating to sex with
minors,
non-consensual sexual acts, and
bestiality. Section 377 was fully replaced along with the rest of the Indian Penal Code by the
Bharatiya Nyaya Sanhita (BNS) on 1 July 2024. Portions of the section were first struck down as unconstitutional with respect to
gay sex by the
Delhi High Court in July 2009. That judgement was overturned by the
Supreme Court of India (SC) on 11 December 2013 in
Suresh Kumar Koushal vs. Naz Foundation. The Court held that amending or repealing section 377 should be a matter left to Parliament, not the judiciary. On 6 February 2016, a three-member bench of the Court reviewed curative petitions submitted by the
Naz Foundation and others, and decided that they would be reviewed by a five-member constitutional bench. On 24 August 2017, the Supreme Court upheld the right to privacy as a fundamental right under the Constitution in the landmark
Puttaswamy judgement. The Court also called for equality and condemned discrimination, stated that the protection of sexual orientation lies at the core of the
fundamental rights and that the rights of the
LGBT population are real and founded on constitutional doctrine. This judgement was believed to imply the unconstitutionality of section 377. In January 2018, the
Supreme Court of India agreed to hear a petition to revisit the 2013
Naz Foundation judgment. On 6 September 2018, the Court ruled unanimously in
Navtej Singh Johar v. Union of India that Section 377 was unconstitutional "in so far as it criminalises consensual sexual conduct between adults of the same sex". The judgment was given by a five-judge bench comprising the then Chief Justice of India
Dipak Misra, Justices
R. F. Nariman,
D. Y. Chandrachud,
A. M. Khanwilkar and
Indu Malhotra.
Text Public perception Pride Parade
Support In 2008 Additional
Solicitor General PP Malhotra said: "
Homosexuality is a social vice and the state has the power to contain it. [Decriminalising homosexuality] may create [a] breach of peace. If it is allowed then [the] evil of AIDS and HIV would further spread and harm the people. It would lead to a big health hazard and degrade moral values of society." This view was shared by the Home Ministry. 11 December 2013 judgement of the Supreme Court, upholding Section 377 was met with support from religious leaders. The Daily News and Analysis called it "the univocal unity of religious leaders in expressing their homophobic attitude. Usually divisive and almost always seen tearing down each other's religious beliefs, leaders across sections came forward in decrying homosexuality and expressing their solidarity with the judgment" The
Daily News and Analysis article added that Baba
Ramdev, India's well-known yoga guru, after praying that journalists not "turn homosexual", stated he could "cure" homosexuality through yoga and called it "a bad addiction".
Opposition and criticism The
Ministry of Health and Family Welfare opposed the upholding of Section 377, stating that it would hinder anti-
HIV/AIDS efforts. According to the
NCRB, in 2015, 1,491 people were arrested under Section 377, including 207 minors (14%) and 16 women.
Human Rights Watch also argued that the law had been used to harass
HIV/AIDS prevention efforts, as well as
sex workers,
homosexuals, and other groups at risk of the disease, even though those found guilty of extortion in relation to accusations that relate to Section 377 may face a life sentence under a special provision of Section 389 of the IPC. The
People's Union for Civil Liberties has published two reports on the rights violations faced by sexual minorities and, in particular,
transsexuals in India. In 2006, Section 377 came under criticism from 100 Indian literary figures, most prominently
Vikram Seth. The law subsequently drew even more criticism from several ministers, most prominently
Anbumani Ramadoss and
Oscar Fernandes. In 2008, a judge of the
Bombay High Court also called for the scrapping of the law. The
United Nations also said that the ban violated international law.
United Nations human rights chief
Navi Pillay stated that "Criminalising private, consensual same-sex sexual conduct violates the rights to privacy and to non-discrimination enshrined in the International Covenant on Civil and Political Rights, which India has ratified", and that the decision "represents a significant step backwards for India and a blow for human rights.", voicing hope that the Court might exercise its review procedure.
View of political parties Opposition to repeal Rajnath Singh, a member of the ruling party
BJP and the Home Minister, is on record shortly after the law was re-instated in 2013, claiming that his party is "unambiguously" in favour of the law, also claiming that "We will state (at an all-party meeting if it is called) that we support Section 377 because we believe that homosexuality is an unnatural act and cannot be supported."
Yogi Adityanath, BJP
MP, welcomed the 2013 verdict and will "oppose any move to decriminalise homosexuality." The
Samajwadi Party made it clear that it will oppose any amendments to the section if it comes in Parliament for discussion, calling homosexuality "unethical and immoral".
Ram Gopal Yadav stated that they support the Supreme Court decision as "It is completely against the culture of our nation."
Bharatiya Janata Party leader
Subramanian Swamy said that homosexuality was not a normal thing and was against
Hindutva. He went on to say that it was "a danger to our national security" and that the government should invest in medical research to see if homosexuality can be cured. He added that "there is a lot of money behind it. The Americans want to open gay bars, and it'll be a cover for
pedophiles and a huge rise in HIV cases." After the 2018 verdict by the Supreme Court, the
Indian Union Muslim League continued to oppose decriminalisation, saying 'homosexuality is against Indian culture'.
Support of repeal Former Finance Minister and BJP member
Arun Jaitley said that "Supreme Court should not have reversed the Delhi High Court order which de-criminalized consensual sex between gay adults" and "When millions of people the world over are having alternative sexual preferences, it is too late in the day to propound the view that they should be jailed." BJP spokesperson
Shaina NC said her party supports decriminalisation of homosexuality. "We are for decriminalising homosexuality. That is the progressive way forward." In December 2013,
Indian National Congress President
Rahul Gandhi came out in support of LGBT rights and said that "every individual had the right to choose". He also said "These are personal choices. This country is known for its freedom, freedom of expression. So let that be. I hope that Parliament will address the issue and uphold the constitutional guarantee of life and liberty to all citizens of India, including those directly affected by the judgement", he said. The LGBT rights movement in India was also part of the election manifesto of the Congress for the 2014 general elections. Senior Congress leader and former Finance Minister
P. Chidambaram stated that the 2013
Suresh Kumar Koushal vs. Naz Foundation judgement must be quickly reversed. The
RSS revised its position, the leader
Dattatreya Hosabale reportedly saying, "no criminalisation, but no glorification either." RSS chief
Mohan Bhagwat also came out in support of the LGBTQIA+ community stating that they should be accepted as an integral part of society. After the 2013 verdict, the
Aam Aadmi Party put on their website:
Brinda Karat of the
Communist Party said the SC order was retrograde and that criminalising alternative sexuality is wrong.
Shivanand Tiwari, leader of
Janata Dal United, did not support the
Supreme Court decision, calling
homosexuality practical and constitutional. He added that "This happens in society and if people believe it is natural for them, why is the Supreme Court trying to stop them?" For his part, Tharoor expressed surprise at the bill's rejection at this early stage. He said that he did not have time to rally support and that he will attempt to reintroduce the bill.
Judicial action 2009 Naz Foundation V. Govt. of NCT of Delhi of 2 July 2009 declared portions of section 377 unconstitutional w.r.t consensual sex among adults The movement to repeal Section 377 was initiated by
AIDS Bhedbhav Virodhi Andolan in 1991. Their historic publication ''Less than Gay: A Citizen's Report'', spelt out the problems with 377 and asked for its repeal. A 1996 article in Economic and Political Weekly by Vimal Balasubrahmanyan titled 'Gay Rights In India' chronicles this early history. As the case prolonged over the years, it was revived in the next decade, led by the
Naz Foundation (India) Trust, an activist group, which filed a
public interest litigation in the
Delhi High Court in 2001, seeking the legalisation of homosexual intercourse between consenting adults. The
Naz Foundation worked with a legal team from the
Lawyers Collective to engage in court. In 2003, the
Delhi High Court refused to consider a petition regarding the legality of the law, saying that the petitioners, had no
locus standi in the matter. Since nobody had been prosecuted in the recent past under this section it seemed unlikely that the section would be struck down as illegal by the
Delhi High Court in the absence of a petitioner with standing.
Naz Foundation appealed to the Supreme Court against the decision of the
High Court to dismiss the petition on technical grounds. The Supreme Court decided that Naz Foundation had the standing to file a PIL in this case and sent the case back to the Delhi High Court to reconsider it on merit. Subsequently, there was a significant intervention in the case by a Delhi-based coalition of LGBT, women's and human rights activists called 'Voices Against 377', which supported the demand to 'read down' section 377 to exclude adult consensual sex from within its purview. There was support from others like Sunil Mehra, a notable journalist. He was in a committed relationship with
Navtej Singh Johar and drew from his personal experiences while protesting.
Ritu Dalmia also demonstrated keen activism.
Aman Nath, a writer, historian, and hotelier, also fought for the decriminalisation of Section 377. He had a relationship with Francis Wacziarg for 23 years until Wacziarg died. Ayesha Kapur became successful within a decade of working in a nascent e-commerce sector. However, she left her job because she was afraid of people finding out about her sexuality. Over time, she gained the courage to come out and challenge Section 377. In May 2008, the case came up for hearing in the
Delhi High Court, but the Government was undecided on its position, with The
Ministry of Home Affairs maintaining a contradictory position to that of the Ministry of Health on the issue of enforcement of Section 377 with respect to
homosexuality. On 7 November 2008, the seven-year-old petition finished hearings. The Indian Health Ministry supported this petition, while the Home Ministry opposed such a move. On 12 June 2009, India's new law minister
Veerappa Moily agreed that Section 377 might be outdated. Eventually, in a historic judgement delivered on 2 July 2009, Delhi High Court overturned the 150-year-old section, legalising consensual homosexual activities between adults. The essence of the section goes against the fundamental right of human citizens, stated the high court while striking it down. In a 105-page judgement, a bench of Chief Justice
Ajit Prakash Shah and Justice
S. Muralidhar said that if not amended, section 377 of the IPC would violate Article 14 of the Indian constitution, which states that every citizen has equal opportunity of life and is equal before law. The two-judge bench went on to hold that: The court stated that the judgement would hold until Parliament chose to amend the law. However, the judgement keeps intact the provisions of Section 377 insofar as it applies to non-consensual non-vaginal intercourse and intercourse with minors. After initially opposing the judgement, the
Attorney General G. E. Vahanvati decided not to file any appeal against the
Delhi High Court's verdict, stating, "insofar as [Section 377 of the Indian Penal Code] criminalises consensual sexual acts of adults in private [before it was struck down by the High Court] was imposed upon Indian society due to the moral views of the British rulers." The mental health professionals noted that they frequently see LGBT or queer clients who suffer significant psychological distress—depression, anxiety, and more—due to the threat and social censure posed by IPC 377. These mental health professionals argued that IPC 377 causes LGBT and queer individuals to feel that they are "criminals", and that this status is a significant part of their psychological distress. The United Nations human rights chief Navi Pillay voiced her disappointment at the re-criminalization of consensual same-sex relationships in India, calling it "a significant step backwards" for the country. In the wake of
Indian Supreme Court's ruling that gay sex is illegal, UN chief
Ban Ki-moon stressed on the need for equality and opposed any discrimination against lesbians, gays and bisexuals. Soon after the judgement,
Sonia Gandhi, President of the then ruling
Congress party, asked Parliament to do away with section 377. Her son and Congress Party vice-president,
Rahul Gandhi also wanted section-377 to go and supported gay rights. In July 2014, Minister of State for Home Kiren Rijiju in the
BJP led
Central government told the Lok Sabha in a written reply that a decision regarding Section 377 of IPC can be taken only after pronouncement of judgement by the Supreme Court. However, on 13 January 2015, BJP spokesperson Shaina NC, appearing on NDTV, stated, "We [BJP] are for decriminalizing homosexuality. That is the progressive way forward."
2016 Naz Foundation Curative Petition On 2 February 2016, the final hearing of the curative petition submitted by the
Naz Foundation and others came for hearing in the
Supreme Court. The three-member bench headed by the
Chief Justice of India T. S. Thakur said that all the 8 curative petitions submitted will be reviewed afresh by a five-member constitutional bench.
2018 Navtej Singh Johar v. Union of India In 2018, after decades of
grassroots activism, the application of
section 377 of the Indian Penal Code to private consensual sex between men was ruled unconstitutional by India's
Supreme Court, effectively
decriminalizing homosexual activity. The five-judge constitutional bench of the Supreme Court consisting of chief justice
Dipak Misra and justices
Dhananjaya Y. Chandrachud,
Ajay Manikrao Khanwilkar,
Indu Malhotra, and
Rohinton Fali Nariman started hearing the challenge to constitutionality of Section 377. The
Union Government did not take a position on the issue and left it to the "wisdom of the court" to decide on Section 377. The petitioners invoked the right to
sexual privacy,
dignity, right against discrimination and freedom of expression to argue against the constitutionality of Section 377. After hearing the petitioners' plea for four days, the court reserved its verdict on 17 July 2018. The bench pronounced its verdict on 6 September 2018. Announcing the verdict, the court reversed its own 2013 judgement of restoring Section 377 by stating that using the section of the
IPC to victimize homosexuals was unconstitutional, and henceforth, a criminal act. In its ruling, the Supreme Court stated that consensual sexual acts between adults cannot be a crime, deeming the prior law "irrational, arbitrary and incomprehensible."
The Wire drew parallels between the supreme court's judgement and
Privy Council's 1929 verdict in
Edwards vs Canada (AG) that allowed for Women to sit in the
Senate of Canada. It compared the petitioners to the Canadian
Famous Five.
Documentary In 2011, Italian film maker Adele Tulli, made
365 Without 377 which followed the landmarking ruling in 2009, and the Indian LGBTQ community in
Bombay celebrations. It won the
Turin LGBT Film Fest award in 2011. ==See also==