LOVE IS NOT A CRIME: THE CONSTITUTIONAL JOURNEY OF SECTION 377 IN INDIA

INTRODUCTION

“History owes LGBT people an apology.”[1] With these profound words, Justice Indu Malhotra, alongside a five-judge bench of the Supreme Court of India, declared in 2018 that Section 377 of the Indian Penal Code was unconstitutional in its application to consensual same-sex acts.[2] For over 150 years, this colonial-era law, enacted in 1861 during British rule, had criminalized “carnal intercourse against the order of nature,” effectively branding the LGBTQ community as criminals.[3] While often defended as a safeguard of traditional values, Section 377 was a “Victorian” relic that reflected the moral imagination of the British Empire rather than indigenous Indian culture. Historically, India possessed a far more liberal atmosphere; ancient treatises like the Arthashastra and Kamasutra, and the intricate sculptures of Khajuraho, suggest that diverse sexualities were recognized as a “third nature” rather than an abomination.

The journey toward the 2018 landmark ruling in Navtej Singh Johar v. Union of India was an “arduous” legal struggle spanning nearly two decades. The path was marked by significant judicial oscillations: the progressive 2009 Naz Foundation judgment by the Delhi High Court first decriminalized consensual acts, only to be overturned in 2013 by the Supreme Court in Suresh Kumar Koushal v. Union of India. This article argues that the eventual striking down of the law represents the triumph of “constitutional morality”—a set of protected rights including dignity, privacy, and individual autonomy—over a restrictive “social morality” that seeks to enforce majoritarian norms.

This article provides a comprehensive analysis of the story behind Section 377 by first exploring its colonial origins and the subsequent “import” of homophobia into the Indian legal system. It then examines the landmark case law that led to the eventual “reading down” of the statute, highlighting the role of the judiciary as the “sentinel on qui vive” for minority rights. Finally, the discussion addresses the “road not taken”—the ongoing challenges regarding marriage, adoption, and protection against discrimination—emphasizing that while the criminal stigma has been removed, the quest for full civil equality remains unfulfilled.

COLONIAL ORIGINS AND THE IMPORTED HOMOPHOBIA

The genesis of Section 377 lies not in Indian soil but in 16th-century English law. The provision was modeled after the Buggery Act of 1533, enacted during the reign of Henry VIII, which made sodomy a felony punishable by death. When Lord Macaulay drafted the Indian Penal Code[4] in 1860, he incorporated these Victorian moral standards, introducing the concept of “offences against the order of nature.”

This legal imposition represented a radical departure from India’s historical pluralism. Before the IPC, there were no fixed laws in India prohibiting homosexuality or categorizing sexual activities as “unnatural.” On the contrary, Indian temple architecture and literature illustrated a wide spectrum of sexual conduct. As noted by former Attorney General G.E. Vahanvati, it was “homophobia,” and not “homosexuality,” that was imported into the country by colonial administrators. For 157 years, this imported prejudice functioned as a tool of state-sanctioned harassment, allowing police to intimidate sexual minorities and forcing them to live in the shadows.

THE JUDICIAL SEESAW: FROM NAZ TO KOUSHAL

The legal battle for decriminalization began in earnest with the Naz Foundation v. Govt. of NCT [5]of Delhi case. In 2009, the Delhi High Court took a historic step by “reading down” Section 377, ruling that it violated Articles 14, 15, and 21[6] of the Constitution insofar as it criminalized consensual sex between adults in private. The Court applied the doctrine of severability to protect the fundamental rights of the LGBTQ community while leaving the parts of the law relating to non-consensual acts and bestiality intact. This judgment was hailed as a giant leap for human rights and public health, as it allowed HIV prevention programs to reach vulnerable groups without the fear of criminal prosecution.

However, this progress was short-lived. In 2013, the Supreme Court in Suresh Kumar Koushal v. Naz Foundation[7] overturned the Delhi High Court’s decision. The Court’s reasoning was widely criticized by legal scholars; it relied on a “presumption of constitutionality” for a pre-constitutional colonial law and dismissed the LGBTQ community as a “miniscule minority” whose rights did not warrant judicial intervention. This ruling effectively re-criminalized millions of citizens, returning them to the status of “potential slaves” who could be threatened by state power at any moment. The Koushal judgment was seen as an abdication of the judiciary’s duty to act as the protector of minority rights against the “tyranny of the majority.”

VINDICATION AND CONSTITUTIONAL MORALITY: NAVTEJ SINGH JOHAR (2018)

The turning point came with the 2017 Puttaswamy judgment, where a nine-judge bench recognized the right to privacy as a fundamental right. This set the stage for Navtej Singh Johar v. Union of India in 2018. A five-judge bench unanimously struck down Section 377 to the extent of consensual same-sex acts. The Court held that sexual orientation is an “immutable” and natural part of human identity.

Central to this judgment was the concept of “constitutional morality.” The Court asserted that the Constitution must protect individuals from the “social morality” of the majority. Constitutional morality encompasses the values of dignity, liberty, and equality; it mandates that the law must not be used to marginalize a group simply because their lifestyle is perceived as “unnatural” by the majority. By striking down the law, the Court fulfilled its role as the “sentinel on qui vive,” ensuring that the fundamental rights of every individual—regardless of the size of their community—are sacrosanct.

THE ROAD NOT TAKEN: THE STRUGGLE FOR CIVIL EQUALITY

While the Johar judgment removed the threat of arrest, it did not grant full civil equality. Decriminalization is merely the first step. The LGBTQ community continues to face systemic discrimination in areas such as employment, healthcare, and housing. Crucially, Indian law currently lacks provisions for same-sex marriage, adoption, or inheritance rights.

Current marriage laws, such as the Hindu Marriage Act[8] and the Christian Marriage Act[9], remain heavily heterosexual in their language and application. Some scholars argue that the most viable route for legal recognition is an amendment to the Special Marriage Act (SMA)[10], a secular legislation. A judicial “reading down” of the SMA to permit same-sex unions would be a logical extension of the principles laid down in Naz and Johar, ensuring that same-sex couples enjoy the same legal benefits and dignity as heterosexual couples. Without these civil rights, the apology offered by history remains incomplete.

CONCLUSION

The constitutional journey of Section 377 is a testament to the resilience of the LGBTQ community and the evolving nature of the Indian judiciary. From being a colonial tool of oppression to becoming a symbol of the triumph of constitutional morality, the story of Section 377 reflects India’s struggle to align its legal framework with its democratic ideals.

However, the removal of criminal stigma is not the end of the road. True equality requires structural reparations, including anti-discrimination laws and the legal recognition of same-sex relationships. As India moves forward, the judiciary and legislature must ensure that “Love is not a Crime” is translated into a reality where every citizen can live with full dignity and equal protection under the law.

REFERENCE(S):

Cases

1. Navtej Singh Johar v. Union of India, (2018) 10 SCC 1.
2. Naz Foundation v. Govt. of NCT of Delhi, (2009) 160 DLT 277.
3. Suresh Kumar Koushal v. Naz Foundation, (2014) 1 SCC 1.
4. Justice K.S. Puttaswamy v. Union of India, (2017) 10 SCC 1.

Legislation

5. Indian Penal Code, 1860, § 377.
6. The Special Marriage Act, 1954.
7. Hindu Marriage Act 1955.
8. Indian Christian Marriage Act 1872.

Secondary Sources

9. Durba Mitra, History’s Apology: Sexuality and the 377 Supreme Court Decision in India, Epicenter (Sept. 27, 2018), https://wcfia.harvard.edu/epicenter/historys-apology.
10. Nayantara Ravichandran, Legal Recognition of Same-sex Relationships in India, 5 J. Indian L. & Soc’y 95 (2014).
11. Saujanya Sreejan & Trishna Das, Reading Down Section 377: The Road Not Taken, II(II) Rostrum’s Law Review (2015).
12. LGBTQ Rights in India: Section 377 Case Study & Impact, Vydehi Institute of Law (2026), https://vil.ac.in/.

[1] Navtej Singh Johar v. Union of India, (2018) 10 SCC 1.

[2] Naz Foundation v. Govt. of NCT of Delhi, (2009) 160 DLT 277.

[3] Suresh Kumar Koushal v. Naz Foundation, (2014) 1 SCC 1.

[4] Indian Penal Code 1860, s 377.

[5] Naz Foundation v. Govt. of NCT of Delhi, (2009) 160 DLT 277

[6] Constitution of India, arts 14, 15 and 21.

[7] Suresh Kumar Koushal v. Naz Foundation, (2014) 1 SCC 1

[8] Hindu Marriage Act 1955.

[9] Indian Christian Marriage Act 1872.

[10]Special Marriage Act 1954.