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Section 377

“I Am What I Am. Take Me as I Am”

Confused about what today’s landmark judgment to scrap Section 377 means? We picked out the most important bits from the 493-page verdict to give you a lowdown.
Pallavi Pundir
Jakarta, ID
“Emanating from the inalienable right to privacy, the right to sexual privacy must be granted the sanctity of a natural right, and be protected under the Constitution as fundamental to liberty and as a soulmate of dignity.” Image: Wikimedia Commons

When the five-judge Constitution bench of the Supreme Court gave their groundbreaking verdict on Navtej Singh Johar & Ors. v. Union of India earlier today, they did so by not just evoking extreme emotions and quoting Goethe, Shakespeare and Cohen, but also by proving that the section is violative of Articles 14, 15, 19, and 21 of the Constitution. To understand how this affects us all, we perused the verdict to give you the highlights.


Sexual Identity Is a Fundamental Right

“Sexual orientation is one of the many biological phenomena which is natural and inherent in an individual and is controlled by neurological and biological factors. The science of sexuality has theorized that an individual exerts little or no control over who he/she gets attracted to. Any discrimination on the basis of one‘s sexual orientation would entail a violation of the fundamental right of freedom of expression.”

The Terms ‘Natural’ and ‘Unnatural’ Sex Are Colonial

“The indeterminacy and vagueness of the terms ‘carnal intercourse’ and ‘order of nature’ renders Section 377 constitutionally infirm as violating the equality clause in Article 14.”

Transgenders to Enjoy Rights That All Citizens Do

“…The Supreme Court delivered an important judgment reported as National Legal Services Authority v. Union of India (“NALSA”), (2014) 5 SCC 438, which construed Articles 15 and 21 of the Constitution of India as including the right to gender identity and sexual orientation, and held that just like men and women, transgenders could enjoy all the fundamental rights that other citizens of India could enjoy.”

Homosexuality Is Not a Mental Disorder

“Under Section 3(3), mental illness shall not be determined on the basis of social status or membership of a cultural group or for any other reason not directly relevant to the mental health of 70 the person. More importantly, mental illness shall not be determined on the basis of non-conformity with moral, social, cultural, work or political values or religious beliefs prevailing in a person’s community. It is thus clear that Parliament has unequivocally declared that the earlier stigma attached to same-sex couples, as persons who are regarded as mentally ill, has gone for good.”


“The repercussions of prejudice, stigma and discrimination continue to impact the psychological well-being of individuals impacted by Section 377. Mental health professionals can take this change in the law as an opportunity to reexamine their own views of homosexuality.”

Reduce Risks of Suicide Among the Sexual Minorities

“…The Government has an affirmative duty to provide care, treatment and rehabilitation to such a person [of sexual minority] to reduce the risk of recurrence of that person’s attempt to commit suicide. This parliamentary declaration under Section 115 again is in keeping with the present constitutional values, making it clear that humane measures are to be taken by the Government in respect of a person who attempts to commit suicide instead of prosecuting him for the offence of attempt to commit suicide.”

The Rights Shall Hold Despite the Outcome of Elections

“The very purpose of the fundamental rights chapter in the Constitution of India is to withdraw the subject of liberty and dignity of the individual and place such subject beyond the reach of majoritarian governments so that constitutional morality can be applied by this Court to give effect to the rights, among others, of ‘discrete and insular’ minorities. One such minority has knocked on the doors of this Court as this Court is the custodian of the fundamental rights of citizens. These fundamental rights do not depend upon the outcome of elections. And, it is not left to majoritarian governments to prescribe what shall be orthodox in matters concerning social morality.”


The Police Force Is to Be Given Sensitization Training

“We are also of the view that…all government officials, including and in particular police officials, and other officers of the Union of India and the States, be given periodic sensitization and awareness training of the plight of such persons in the light of the observations contained in this judgment.”

The Right to Sexual Privacy Is a Natural Right

“Emanating from the inalienable right to privacy, the right to sexual privacy must be granted the sanctity of a natural right, and be protected under the Constitution as fundamental to liberty and as a soulmate of dignity.”

No More Stigma Around Sexual Health

“Laws that criminalize same-sex intercourse create social barriers to accessing healthcare, and curb the effective prevention and treatment of HIV/AIDS. Criminal laws are the strongest expression of the State’s power to punish certain acts and behaviour, and it is therefore incumbent upon the State to ensure full protection for all persons, including the specific needs of sexual minorities.”

BUT The Verdict Does Not Change This

“The declaration of the aforesaid reading down of Section 377 shall not, however, lead to the reopening of any concluded prosecutions, but can certainly be relied upon in all pending matters whether they are at the trial, appellate, or revisional stages.”

“The provisions of Section 377 will continue to govern non-consensual sexual acts against adults, all acts of carnal intercouse against minors, and acts of beastiality.”