Last Thursday was the game-changing day for the LGBTQ community. A five-judge constitutional bench of the Supreme Court gave a concurring judgement to legalize same-sex relations between consenting adults. The judge-bench was headed by Chief Justice of India Dipak Misra and comprised Justices R F Nariman, D Y Chandrachud, Indu Malhotra and A M Khanwilkar.


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What is Section 377 of IPC?

Section 377 of the IPC states: “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.” This law is imposed by archaic British back in 1861 and criminalizes any sexual activities against the order of nature.

It all started in 2009 when the Delhi High Court described Section 377 as the infringement of the fundamental rights guaranteed by the Indian Constitution. As the religious groups were not satisfied with the judgement, they further moved to the Supreme Court for appealing direction against the verdict.

In 2013, the Supreme Court, however, overruled the Delhi High Court’s plea and reinforced criminalization of homosexuality. This judgement by the apex body was highly criticised by the LGBTQ community in India and was imposed against the laws of human rights.

In January 2018, the Supreme Court announced that a large group of judges would re-consider the previous judgement and examine the validity of section 377. The verdict was greatly moved by a curative petition by dancer Navtej Johar, chef Ritu Dalmia, journalist Sunil Mehra, hoteliers Aman Nath and Keshav Suri and business executive Ayesha Kapur. The Supreme Court had said back that time: “The section of people who exercise their choice should never remain in a state of fear.”

Thursday’s judgement heralds a new dawn for personal choice and a major victory for LGBTQ community who were fighting hard and want to legalize gay sex. The Supreme Court said, “Consensual sex between adults in a private space, which is not harmful to women or children, cannot be denied as it is a matter of individual choice. Section 377 results in discrimination and is violative of constitutional principles.” “Social morality cannot violate the rights of even one single individual,” says CJI Dipak Misra and Justice Khanwilkar.

Homosexuality is still considered as a taboo for many in India. However, it would take some time for people to accept this massive change. But, this step taken by the Supreme Court validates that no one could take the right to love someone of the same gender and hence would empower the community.

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