Bench:

• Dipak Mishra, CJI
• Rohinton Fali Nariman, J
• A.M. Khanwilkar, J
• D.Y. Chandrachud. J
• Indu Malhotra, J

Issue:

Whether the provisions under Section 377 of the IPC contradict with the basic fundamental rights that are promised to the citizens of India?

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Facts:

• The court was asked to determine the constitutionality of Section 377 of the Indian Penal Code, a colonial-era law which, among other things, criminalised homosexual acts as an 'unnatural offence'.
• The statute criminalises all anal sex and oral sex, including between opposite-sex couples, it largely affected same-sex relationships.
• The issue in the case originated in 2009 when the Delhi High Court, in the case of Naz Foundation v. Govt. of N.C.T. of Delhi, held Section 377 to be unconstitutional, in so far as it pertained to consensual sexual conduct between two adults of the same sex.
• On 27 April 2016, five people filed a new writ petition in the Supreme Court challenging the constitutionality of Section 377 of the Indian Penal Code.
• The petitioners were dancer Navtej Singh Johar, journalist Sunil Mehra, chef Ritu Dalmia, hoteliers Aman Nath and Keshav Suri, and businesswoman Ayesha Kapur.The Respondent in the case was the Union of India.

Appellant's Contentions:

 The petitioner declared that Section 377 was unconstitutional on the grounds thatSection 377 was violative of Art. 14 of the Constitution (Right to Equality Before the Law) because it was vague in the sense that it did not define “carnal intercourse against the order of nature”.There was no intelligible differentia or reasonable classification between natural and unnatural consensual sex.

Among other things, the Petitioner further argued that (i) Section 377 was violative of Art. 15 of the Constitution (Protection from Discrimination) since it discriminated on the basis of the sex of a person's sexual partner, (ii) Section 377 had a “chilling effect” on Article 19 (Freedom of Expression) since it denied the right to express one's sexual identity through speech and choice of romantic/sexual partner, and (iii) Section 377 violated the right to privacy as it subjected LGBT people to the fear that they would be humiliated or shunned because of “a certain choice or manner of living.”

Respondent's Contentions:

The Union of India submitted that it left the question of the constitutional validity of Section 377 (as it applied to consenting adults of the same sex) to the “wisdom of the Court”. 

Some interveners argued against the Petitioner, submitting that the right to privacy was not unbridled, that such acts were derogatory to the “constitutional concept of dignity”, , that such acts would increase the prevalence of HIV/AIDS in society, and that declaring Section 377 unconstitutional would be detrimental to the institution of marriage and that it may violate Art. 25 of the Constitution (Freedom of Conscience and Propagation of Religion).

Judgement:

On 6 September 2018, the court delivered its unanimous verdict, declaring portions of the law relating to consensual sexual acts between adults unconstitutional.

This decision overturns the 2013 ruling in Suresh Kumar Koushal v. Naz Foundation in which the court upheld the law.

However, other portions of Section 377 relating to sex with minors, non-consensual sexual acts, and bestiality remain in force.