Originally published 2018-09-14.
On 6 September 2018, a five-judge bench of India's Supreme Court ruled unanimously that Section 377 of the Indian Penal Code was unconstitutional as far as it criminalised consensual sex between adults of the same sex. The case, Navtej Singh Johar v. Union of India, ended a colonial-era ban that had been on the books for more than 150 years and overturned the court's own 2013 decision upholding it.
Celebrations broke out outside the court in New Delhi and in cities across the country. Below is what the law said, how the long legal fight unfolded, what the judgment changed and what it left untouched.
What Section 377 said
Section 377 punished "carnal intercourse against the order of nature" with any man, woman or animal. The penalty was imprisonment for life, or up to ten years, plus a fine. It did not mention homosexuality by name, but in practice it made gay sex a crime and was used against gay men and transgender people.
The code was drafted under British rule, enacted in 1860 and brought into force in 1862. Similar clauses were copied into the penal codes of many other British colonies, which is why versions of the same law survive in several countries today.
Prosecutions were not common, but the law's reach went far beyond the courtroom. Activists documented its use to harass, extort and blackmail LGBT people, and official crime data recorded 1,491 arrests under the section in 2015 alone. A survey by the Humsafar Trust, reported by Al Jazeera, found that two in five gay people said they had faced blackmail after the 2013 ruling.
A fight through the courts: 2001 to 2018
The legal challenge took almost two decades:
- 2001: the Naz Foundation, a charity working on HIV/AIDS, filed a public-interest case in the Delhi High Court, arguing the law drove people away from health services.
- 2009: the Delhi High Court agreed, holding that criminalising consensual sex between adults violated the constitution's guarantees of equality, liberty and dignity.
- 2013: in Suresh Kumar Koushal v. Naz Foundation, the Supreme Court reversed that decision. It held that changing the law was a matter for Parliament and noted that only a small number of people had been prosecuted under it.
- 2016: a three-judge bench referred curative petitions to a larger constitutional bench, and five prominent individuals filed a fresh petition.
- August 2017: in the Puttaswamy case, a nine-judge bench recognised privacy as a fundamental right and said sexual orientation was an essential part of it, openly questioning the reasoning of 2013.
- July 2018: a five-judge bench began hearing the challenge, and the central government said it would leave the question to the wisdom of the court.
The people behind the petition
The 2016 petition was brought by five well-known Indians who said the law affected them directly: the dancer Navtej Singh Johar, the journalist Sunil Mehra, the chef and restaurateur Ritu Dalmia, the hotelier Aman Nath and the businesswoman Ayesha Kapur. Their public profiles helped show that the law touched people in every walk of life, not an abstract group.
Many other petitions were heard alongside theirs, including from students, mental-health professionals and LGBT activists who had spent years campaigning.
What the judges decided, and why
The bench was led by Chief Justice Dipak Misra and included Justices Rohinton Nariman, A. M. Khanwilkar, D. Y. Chandrachud and Indu Malhotra. In four concurring judgments, they found that criminalising consensual same-sex relations violated the rights to equality (Article 14), freedom from discrimination (Article 15), free expression (Article 19) and life and personal liberty (Article 21).
Chief Justice Misra described the criminalisation as "irrational, arbitrary and manifestly unconstitutional." Justice Malhotra wrote that history owed an apology to LGBT people and their families for the delay in providing redress.
The ruling did not erase Section 377 entirely. It remained in force for non-consensual acts, sex involving minors and bestiality.
Jubilant scenes across India as the country's top court legalises gay sex, scrapping a colonial-era ban known as "Section 377" - Read the full story here: https://t.co/OpQjqkRRwV #Section377 #LGBT pic.twitter.com/7coOih4Fg3
— Openly (@Openly) September 6, 2018
Celebration on the streets and online
Rainbow flags appeared outside the court within minutes of the verdict, and people embraced and cried in the streets of Delhi, Mumbai, Bengaluru and other cities. Social media filled with messages of joy, jokes and personal stories. The United Nations and the Congress party welcomed the decision, and Human Rights Watch and Amnesty International praised it, while most leaders of the governing BJP stayed quiet.
Bold and courageous decision by our honourable supreme court!! Simply amazing..Homosexuality is no longer a crime.. Love is blind, so now we can ignore 377, equality for all.. #Section377 #prideindia #Equality 👏🇮🇳❤️ pic.twitter.com/nfEuRHiy0D
— Sekhar m a (@ma_sekhar) September 6, 2018
(This post is no longer available on X.)
She : Hi
— MeWaRi (@Ankit_Gurjargou) September 6, 2018
He : I have a bf 😊
#Section377
A beautiful DAY!!! 🏳️🌈The smile, happiness and freedom that I saw on my friends' faces as soon as the verdict was out was priceless. Decriminalising homosexuality and abolishing section 377 is a new step for India’s development. LOVE WINS❤️🎊👍🏼#PrideIndia #Section377 pic.twitter.com/tVG1GGpr4j
— Harshitha (@Jamadagni_2000) September 6, 2018
(This post is no longer available on X.)
Activists were careful, though, to say that a court ruling does not end prejudice overnight. They called for anti-discrimination protections and for work to tackle violence and family pressure that LGBT people still face.
What changed after 2018, including marriage
Decriminalisation was a turning point, but it did not settle every question. In 2022 the Supreme Court recognised that "atypical" families, including queer relationships, deserve legal protection. On 17 October 2023, however, in Supriyo Chakraborty v. Union of India, a five-judge bench unanimously held that it could not legalise same-sex marriage itself and left that to Parliament. It directed a committee chaired by the cabinet secretary to examine the benefits that queer couples should be able to access.
In July 2024 the Indian Penal Code, including Section 377, was replaced by a new criminal code, the Bharatiya Nyaya Sanhita.
India and its neighbours
The 2018 judgment made India, the world's most populous democracy, a significant example for other former British colonies with similar laws. Several of its neighbours, including Pakistan, Bangladesh and Sri Lanka, still have colonial-era bans on gay sex in their penal codes, although enforcement varies. Singapore repealed its version, Section 377A, in 2022.
For many Indians, 6 September is now remembered as the day the state stopped treating love between adults of the same sex as a crime.
Sources: Wikipedia: Navtej Singh Johar v. Union of India; Wikipedia: Section 377 of the Indian Penal Code; Al Jazeera, 6 September 2018; Global Citizen; Law Gazette: Chakraborty v Union of India.
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