Supreet Kaur

Sexual acts without the consent of other partner amounts to sexual offences. For minors, sexual activity performed even with consent is considered as a sexual offence giving regard to their age. Section 375 to 377 of Indian Penal Code, 1860 (hereinafter as IPC) deals with sexual offences. Section 375 and 376 define and provide punishment for rape.

To decide whether any sexual act amounts to rape or not, consent or will is an essential determining factor. But Section 377 which deals with unnatural offences make sexual intercourse against the order of nature as punishable even when consent of two adults is there. This section is a matter of debate since it seeks to punishes homosexuality, which is violation of Article 14, Article 15, and Article 21 of our constitution.

This Section has been challenged before courts and it was finally decided by S.C. in 2018 when the Supreme Court decriminalized consensual homosexuality.

Section 377

“Unnatural offences – Whoever voluntarily has carnal inter­course against the order of nature with any man, woman or animal, shall be punished with 1[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. Explanation- Penetration is sufficient to constitute the carnal intercourse necessary to the offence described in this section.”

What is against the order of nature?

In sexual matters, only vaginal intercourse is considered as in with the order of nature. The reason behind that is the vaginal intercourse leads to reproduction, that is, continuity of life of human life on Earth. So, all other non-procreative sexual acts are considered against the order of nature like anal or oral sex and are made punishable.

The most controversial part is that, going by the interpretation of this section, intercourse of any type between persons of same sex is also a sexual offence. It makes homosexuality an offence even if the partners have full consent. So, the Section punishes:

  • Sodomy: It includes anal or oral sex between two persons.
  • Bestiality: It means intercourse between any human and an animal.
  • Any other non- vaginal intercourse: It includes all non- procreative intercourse
  • Homosexuality: Intercourse between persons of same sex.

Section 377 and rights of LGBT Community

LGBT Community has suffered inequality since ages. The ban on homosexuality is since colonial period. It is considered as unnatural as it is non procreative. Consensual sex is not an offence between heterosexuals, but it is made punishable between homosexuals.

Punishing homosexuality between the consenting partners is against our constitutional norms enshrined under Article 14, which envisages equality before law, Article 15, which prohibits discrimination based on sex and Article 21, which ensures right to life and personal liberty by the Supreme Court in Lata Singh v. State of U.P.[1]

Section 377 was challenged before Delhi High Court in 2009 in Naz Foundation v. Government of NCT of Delhi[2]. The Delhi High Court decriminalized homosexuality by observing that social morality must be in consonance with constitutional morality. The Court observed that Section 377 which punishes homosexuality is against Article 14, 15 and 21.

However Section 377 was not struck down in entirety. The provisions relating to sodomy, bestiality was upheld. The part of Section which criminalizes gay sex was struck down.

The Delhi High Court judgement was overruled by Supreme Court in Suresh Kumar Koushal v. NAZ Foundation [3]. The two judge bench of Supreme Court held that Section 377 does not target any person or identity. It is applicable to all irrespective of their age or consent. The Court opined that such prohibition was necessary to regulate sexual conduct between persons.

Moreover, the court held that amending or repealing Section 377 is the task of Legislature not Judiciary. The court also held that this Section only affect a small portion of our population, that is, LGBT community.

This judgement was highly criticized and there were demands for reconsideration of Suresh Koushal’s case. The matter again came into limelight after nine judge bench decision of Supreme Court in K.S. Puttaswamy v. UOI[4] wherein it was held that the concept of fundamental right to privacy is exempted from the interference by the state. Since sexual orientation is also a part of one’s privacy, some judges of the bench doubted the judgement in Suresh Kaushal’s case.

In 2018, five judges[5] bench of Supreme Court heard a petition challenging the judgement in Supreme Court. This case came to be known as Navtej Singh Johar v. Union of India[6] wherein the Supreme Court overruled the judgement in Suresh Kaushal’s case and partially struck down Section 377.

The petitioner, Navtej Singh, belonged to LGBT community, filed a writ petition before the Supreme Court under Article 32 wherein he challenged Section 377 of IPC, 1860 as being against his community. According to him, Section 377 violates right to privacy guaranteed under Article 21 of Indian Constitution. He contended the Section 377 is too vague since what is natural or unnatural is not defined anywhere.

The Supreme Court observed that:

  • Section 377 is violative of Article 14 since non-consensual sexual acts between two persons are already made punishable under Section 375 and to protect children, POCSO Act is there. So, Section 377 targets LGBT community only even when the sexual acts are consensual. This discrimination is only against a particular community, thus, violative of Article 14.
  • Section 377 is also violative of Article 15 as the discrimination is meted out to LGBT community on basis of their sexuality which is strictly prohibited under Article 15.
  • Section 377 is also violative of Article 19(1)(a) of our constitution. Although there are limitations on our fundamental rights but those limitations of public order, morality, decency, cannot validate Section 377 since sex whether between heterosexuals or homosexuals is a private act, it does not harm public order. It is not immoral or indecent if it is performed privately. Moreover, when consent of two persons is there, it can’t disturb other members of society.
  • Section 377 violates the right of privacy which is guaranteed under Article 21. Right to choose a partner also forms part of Article 21.
  • The term “against the order of nature” is neither defined under IPC or any other statute. To consider non procreative sexual activity against the order of nature makes no sense.

So, the Supreme Court overruled the judgement of two judge bench in Suresh Kaushal’s case and partially decriminalized Section 377 as far as consensual homosexuality is concerned.

Section 377 as such is not struck down, it is still applicable when the unnatural offences like sodomy, bestiality are committed. This historic judgement of Supreme Court protected the rights of LGBT community and equalized their status in the society.


Section 377 undergone many debates and discussions as far as rights of LGBT community are concerned. Since consensual sex between heterosexuals is not an offence but same is made offence for homosexuals. The LGBT community are considered as distinct but it is nature which has made them so but they are human beings and equal citizens of India even though they are in minority.

Our constitution guarantees fundamental rights to every citizen however unique he may be. We have legislations to protect the rights of LGBT community to ensure that they are not discriminated. The judgement in Navtej Singh’s case has paved way for acceptance of homosexual relationship as legal.

When two persons are voluntarily going into homosexual relationship, no one has the right to interfere in that. The portion of Section 377 regarding gay sex was antagonistic, thus it required amendment and the same was done through the judgement. Gay sex is no longer illegal in India.

  1. AIR 2006 S.C. 2522
  2. 2009 111 DRJ 1
  3. 2014 1 S.C.C. 1
  4. 2017 10 SCC
  5. The bench comprised of Justice Deepak Mishra, justice Khanwilkar, justice Nariman, justice D.Y. Chandrachud, Justice Indu Malhotra.
  6. AIR 2018 SC 4321

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