DECRIMINALISATION OF HOMOSEXUALITY ( SECTION 377 OF IPC)

Section 377 of IPC was introduced in 1864 during British rule. It makes sexual activities against the order of nature, sex with another person of the same gender an illegal and a punishable offence.

On 2nd July 2009, in the case of Naaz Foundation vs Government of NCT of Delhi, the Delhi High Court held that the provisions of section 377 of IPC as Unconstitutional with respect to sex between consenting adults of same sex.

During the period between 2009 to 2013, various religious groups, individuals and organisations kept on protesting against the ruling of Delhi High Court, and filed petitions in the Supreme Court against the order of the Delhi High Court.

Suresh Kumar Koushal v. Naz Foundation (2013) - The Supreme Court on 11 December 2013 overturned the Delhi High Court’s decision, restored the constitutional validity of Section 377 IPC, and held that any change to the law should be made by Parliament.

NALSA v. Union of India (2014) - The Supreme Court recognized the right of transgender persons to self-identify their gender and held that they are entitled to protection under Articles 14, 15, 16, 19, and 21, laying the constitutional foundation for LGBTQIA+ rights.

After the decision of the Supreme Court, various LGBT (Lesbian, Gay, Bisexual and Transgender) groups started demonstrations against the ruling of SC. Congress Parliament member Shashi Tharoor introduced a Private Member Bill to decriminalise homosexuality. Lok Sabha voted against this bill.

Presently in about 25 countries, homosexuality is not an offence but in about 72 countries, homosexuality is a criminal act. In 45 countries homosexuality among women is allowed but among men, it is an offence punishable by law.

In view of growing acceptance of homosexuality worldwide, the Supreme Court on 2nd February 2016 agreed to reconsider its ruling of 11th December 2013 and referred the matter to abolish section 377 of IPC to a five member Constitution bench.

On 24 August 2017 in the case of Justice K.S. Puttaswamy (Retd.) vs Union of India, SC gave the ruling that the right to privacy is a fundamental right which opened the door for fresh pleas to decriminalise homosexuality.

On 6th September 2018 in the case of Navtej Singh Johar vs Union of India, five judge Constitution bench of Supreme Court headed by Chief Justice Dipak Misra termed the part of section 377 Of IPC which criminalises consensual unnatural sex as irrational, indefensible and manifestly arbitrary but section 377 remains in force relating to sex with minors, non-consensual sexual acts and bestiality.

Although, homosexuality has been decriminalised in India, same-sex marriages are not legally recognised and have no legal effect. In Supriyo @ Supriya Chakraborty v. Union of India (2023), the Supreme Court held that there is no fundamental right to marry under the Constitution and that legal recognition of same-sex marriage or civil unions is a matter for Parliament, not the judiciary. Consequently, same-sex couples are not entitled to legal marital rights such as inheritance, adoption, succession, maintenance, or spousal benefits. As of 2026, Parliament has not enacted any law recognising same-sex marriages in India.

The Bharatiya Nyaya Sanhita, 2023 does not contain a provision equivalent to Section 377 IPC. This omission reflects the legal position established in Navtej Singh Johar (2018) that consensual same-sex relations between adults are not criminal offences. Now sex between consenting adults of same sex is not a criminal act and is not punishable.