Section 377: An expedition from Criminalization to Decriminalization

The honourable Supreme Court of India in its historic judgement in the case of Navtez Singh Johar v.
UOI decriminalized section 377 of Indian Penal Code, 1872. Section 377 is a century old archaic
provision of IPC which criminalizes consensual sexual intercourse between persons of same sex and
terms it as an unnatural act of the parties to sexual intercourse. Under Indian Penal Code, section
377 is famously known by the name of “Of Unnatural Offences”. Section 377 takes away the
fundamental right of an adult to have consensual sexual intercourse with whomever they want by
the virtue of the law of land. This section of IPC echoes a very archaic sentiment and based on the
age old socio-religious attitude of the masses.

It has been a long fight for the Transgender & LGBT communities of Indian to get their basic and an
important to right have sexual intercourse which has been denied by an unreasonable piece of law.
Government never heard the concerns of these marginalized communities as they were very less in
the number and wasn’t a matter of concern for them and to their vote bank politics. Many social
right groups, NGOs and media houses came in the support of these Transgender & LGBT
communities to support their cause. When government put a blind eye on the issues of section 377,
they knocked the doors of Indian Judiciary to get their justice which they were entitled to. Even the
battle for their rights in court rooms were not a piece of cake and took many years to get the justice
they were seeking.

This research paper will try to put lights on the expedition of Section 377 from criminalization to
decriminalization by tracing the history of Section 377 of Indian Penal Code. It will also provide the
meanings of Transgender and LGBT communities, their concerns and rights. This paper will study in
detail the provisions of Section 377 of Indian Penal Code, 1872 and will do comparative analysis with
other provisions of the same act. This paper will also contain the in depth study of social stigma
attached to this particular section of IPC. The researcher will make a study of the international
provisions regarding rights of Transgender & LGBT communities. Paper will contain the long judicial
history of Section 377 till it gets decriminalized. The paper will also attempt to make harmony
between fundamental rights under Indian Constitution and section 377 of Indian Penal Code.