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This article was written by Raj Krishna, a student of CNLU.


On 24th August, 2017 a nine-judge bench of the Supreme Court, while deciding the extent to which government can have access to personal information of its citizens available with UIDAI (AADHAR), unanimously held that right to privacy is a fundamental right guaranteed under Article 21 of the Constitution. This judgment will also have an impact upon the pending petitions around the criminalization of homosexuality and the constitutionality of section 377 of the Indian Penal Code. The court while deciding the case held that privacy and protection of sexual orientation lie at the core of the fundamental rights under Articles 14, 15 and 21 of the Constitution. Justice Chandrachud in his judgment has extensively referred to the Naz foundation case[1] and Suresh Kaushal case[2]. Justice Chandrachud’s judgment makes it clear that in a democracy, the rights of minorities (Even the discrete and insular ones) are as sacred as those conferred on other citizens to protect their freedoms and liberties.[3]  However the judges have made it clear that the ruling does not deal with the matter of decriminalizing homosexuality directly as a separate bench is dealing that very particular case.


Sexuality involves biological, erotic, physical, emotional, social, or spiritual feelings and behaviors of human beings. Since it’s a very broad term, hence it lacks a precise definition.[4] Merriam Webster dictionary defines sexuality as:

The quality or state of being sexual:

A: the condition of having sex

B: sexual activity

C: expression of sexual receptivity or interest especially when excessive.[5]

The biological and physical aspects of sexuality include the human reproductive functions. Social aspects of sexuality deal with the impact of human society on an individual’s sexuality, whereas the spiritual aspect of sexuality is concerned with an individual’s spiritual connection with others. Sexuality often affects and is also affected by cultural, political, legal, philosophical, moral, ethical, and religious aspects of life.[6]


Section 377 of the Indian Penal Code, 1860, criminalizes sexual activity against the order of nature. The very Section 377 reads as follows:

“Whoever voluntarily has carnal intercourse against the order of nature with any man, woman or animal shall be punished with imprisonment for life, or with imprisonment of either description for 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 offense described in this section.”[7]

This section even criminalizes consensual homosexual activities.  However, this section was decriminalized with respect to sex between consenting adults by the High Court of Delhi on July 2009 in Naz Foundation case.[8] But, this judgment was overturned by the Supreme Court of India on 11 December 2013 in Suresh Kaushal Case.[9] While deciding the case the court held that amending or repealing Section 377 should be a matter left to Parliament and not the judiciary. On 6 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 then 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.[10]

On 18 December 2015, Lok Sabha member Shashi Tharoor, introduced a private member’s bill to replace Section 377 in the Indian Penal Code and decriminalize consensual same-sex relations. However, the bill was rejected at the first reading itself. In March 2016, Tharoor tried once again to reintroduce the private member’s bill to decriminalize homosexuality, but was voted down for the second time.[11]


Netherlands became the first country in the world to legalize same sex marriages in 2001. In Belgium and Spain, such unions got legal recognition in the years 2003 and 2005, respectively. Canada legalized same sex unions in 2005, South Africa in 2006, and Norway in 2009. The year 2010 saw Portugal, Iceland and Mexico legalizing gay marriages. Since 2013, Denmark, United Kingdom, United States, New Zealand, France, Brazil and Uruguay have also legalized same sex unions.  Same-sex marriage is likely to soon become legal in Taiwan, after a constitutional court ruling in May 2017. Two other Asian countries, namely Israel and Armenia recognize same-sex marriages performed outside the country in certain cases.[12]



Every human being has a right to live their life in the way they want to live. Article 21 of the Constitution of India entitles every citizen with the right to life and personal liberty.  This right also includes the right to privacy and dignity. Choosing one’s life partner is a private subject in which no state or societal interference is required. If any such interference happens then it would amount to violation of Article 21 of the constitution. In its recent judgment, the SC said that: “It is an individual’s choice as to who enters his house, how he lives and in what relationship. The privacy of the home must protect the family, marriage, procreation and sexual orientation which are all important aspects of dignity.”[13] Apart from that Article 14 of the Constitution of India provides for equality before the law & equal protection within the territory of India and prohibits discrimination on grounds of religion, race, caste, sex or place of birth, or any of them.[14]  Further if a person’s fundamental right is violated then he/she can move into court under Article 32 of the constitution (Supreme Court) as well as under Article 226 of the constitution (High Court).  Thus, the members of LGBT community have the right that they can also move to the court if their fundamental right of right to life is violated and the court is bound to hear their plea and stop the violation of their fundamental right.

For long homosexuality has been considered as a taboo in the Indian society because of religious and moral reasons. Homosexual relationships have been widely questioned by many religious leaders and associations. Thus, their followers interpret homosexual relations as a sin. However, there is no such religion which teaches us to humiliate and discriminate others because of sexual grounds. Every religion teaches us that love is the greatest of all emotions. It is an expression of divinity, and the purest feeling. [15]

The most disturbing thing is that homosexuals (or Members of the LGBT Community) face immense humiliation and discrimination by the society. They are ostracized from the community, once their identity is revealed. This forces many such couples to hide their sexual orientations, causing frustration, dissatisfaction and self- hatred among themselves. In 2010, a gay professor of Aligarh Muslim University died mysteriously after facing discrimination. His death depicts us the trauma faced by homosexuals in our society. We need to understand that the only thing which makes us different from them is the different sexual need, or else they are just like us.[16]

Thus, it is now time that the parliament passes legislation for legalizing same sex marriages in India.  Homosexuals often feel like an outcast in the society. The best way they can integrate completely into our society would be by legalizing their relationships. If same-sex marriage is legalized in India then it will help in eliminating the stigma attached with being a homosexual. This will also help them in getting social acceptance. Further there are many benefits a married couple enjoys in India like social security, property inheritance, right of raising a child, health care facilities, etc. [17] Hence if their relationship is legalized then the members of LGBT community will also be able to avail these facilities.

Apart from that forcing an individual to marry out of their choice and against their sexual inclination not only disturbs their life but also destroys the life of their partner. Therefore, an individual should not be forced in the matters of marriage and relationship.  After all it is a private matter of an individual which would not affect the life of others. However, this very thing is absent in modern day India. But, the condition of our Indian society can be improved if the Supreme Court declares Section 377 of Indian Penal Code unconstitutional and the Parliament passes legislation for legalizing same sex marriage in India. This would be a step in a right direction and therefore the court and parliament should not hesitate in taking this very step.

[1] Naz Foundation v. Govt. of NCT of Delhi, 160 Delhi Law Times 277.

[2] Suresh Kumar Kaushal vs. Naz Foundation, Civil Appeal No. 10972 of 2013.

[3] Siddharth Narrain, From Aadhaar to the Closet: Impact of Supreme Court’s Privacy Judgment on Section 377 Litigation, The Wire (Nov. 12, 2017, 7:00 a.m.),

[4] Jerrold S. Greenberg, Clint E. Bruess, Sara B. Oswalt, Exploring the Dimensions of Human Sexuality (2016), Jones & Bartlett Publishers. pp. 4–10.

[5] Sexuality, Merriam Webster (Nov. 13, 2017, 6:00 a.m.),

[6] Anne Bolin & Patricia Whelehan, Human Sexuality: Biological, Psychological, and Cultural Perspectives, Taylor & Francis. pp. 32–42.

[7] Indian Penal Code, 1860, Sec. 377.

[8] Naz Foundation v. Govt. of NCT of Delhi, 160 Delhi Law Times 277.

[9] Suresh Kumar Kaushal vs. Naz Foundation, Civil Appeal No. 10972 of 2013.

[10] Utkarsh Anand, Supreme Court agrees to revisit law criminalizing homosexuality, Indian Express (Nov. 10, 2017, 11:30 a.m.),

[11] BJP thwarting Bill on gays: Tharoor, The Hindu (Nov. 11, 2017, 1:00 p.m.), .

[12] Ananya Khanna, Same-sex Marriages in India, Academike (Nov. 13, 2017, 04:30 p.m.),

[13] K.S Puttaswamy vs Union of India, Writ Petition (Civil) No. 494 of 2012.

[14] Constitution of India, Art. 14.

[15] Khanna, Supra note 13.

[16] Id.

[17] Id.

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