Right to equality and section 377


Author: Santoshi karasi


Equality is about equal rights, equal tasks along with equal opportunities and the same should be available to every individual as a basic human right, and the purpose of equality is to protect the people living in society from differentiation. Equality is one of the magnificent corner stone’s of Indian Democracy[1]; every individual has equal rights for which they can fight in case of infringement of the same. Equality is about getting off all rights at equal footing, in addition, it includes equality of sexes which called “Gender Equality”.  Nevertheless, there is one gender popularly known as LGBT, who faces unreasonable discrimination from society as a whole. But on 27th august 2018 Section 377 of IPC has been scrap down by the Hon’ble Supreme Court of India[2].  Now let’s focus some light on the availability of the Right to equality in relation to Section 377.


The right to equality is one of the fundamental rights under Article 14 in the constitution of India. The makers of the constitution have provided this proviso in order to safeguard the equality rights of people, this Article includes two important expressions that ‘equality before the law’ and ‘equal protection of laws’. Further, Article 7 of Universal Declaration of Human Rights also says “all are equal before the law and entitled to without any discrimination to equal protection of the law”[3] it simply provides that the states shall treat everyone to be same, this right can be avail by a citizen as well as by all the people living within the territory of India.

Equality before Law

The expression ‘Equality before law’ is an English law concept with a negative approach because it prohibits the state from granting any special privilege to any person before the law. According to Dicey, equality before the law is the rule of law. It means that no man is above the law and that every person, whatever be his rank or conditions, is subject to the jurisdiction of ordinary courts. Equality before law provides that law cannot segregate on the ground of religion, race, sex, creed, etc, basically, this imposes an obligation on the state to forbid unequal treatment.

Equal protection of Laws

The provision of equal protection of laws have been taken from the American constitution which says “nor shall any state-deny to any person the equal protection of laws” [4]  this is a positive concept, provides for equality of treatment in equal circumstances which means all persons who are in same circumstances shall be given the equal treatment by the same set of rules. This proviso primarily focused that like should be treated alike and not unlike should be treated alike, which pointed those who are already in different circumstances how can be the similar laws apply to them and if so applied then that would amount to inequality.

The objective of Article 14 Permits Classification but Prohibits Class Legislation: The equal protection of laws guaranteed by Article 14 does not mean that laws must be common in character and must universally applicable, in fact, the varying needs different classes of person often require separate treatment[5].  So the classification is necessary for the best interest of the people of the state as a whole. However, the classification must be reasonable and not arbitrary in nature and always based upon something real achieved by the legislature. On the other side, the state forbids class legislation because this makes discrimination by providing privilege to a specific class.


Section 377 refers to ‘unnatural offences’ and says 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 a term which may extend to 10 years, and shall also be liable to pay a fine.


Section 377 of IPC severely discriminates between homosexual and heterosexual, this section clearly deprives the rights of Lesbian, gay, bisexual and transgender (LGBT) to live in a normal capacity, the LGBT community by virtue of being a citizen has the right to get equality before the law and equal protection of laws. They only want equal rights, not any other specific rights. However, in many states, discrimination based on sex and gender identity is still legal. But this has been changing in India now as Section 377 is no longer criminalized act, although the change in orthodox thinking of society will take more time to accept the same.

The struggle for equality and freedom has started in 2001 with Naz foundation case, public interest litigation (PIL) was filed by foundation challenging the constitutionality of Section 377 in the Delhi High Court. The Naz Foundation was working actively with the gay community and in 2004, the Delhi High Court declined to consider the petition, stating that the petitioners lacked standing. Thereafter, the petitioners appealed to the Supreme Court but in 2006 the Supreme Court allowed the Petitioner to take up the PIL and sent it back to the Delhi High Court to decide the case. Finally, in 2009 the Delhi High Court with a landmark judgment in Naz Foundation v, Govt. of NCT of New Delhi and Others [6] held that treating consensual homosexual sex between adults as a crime is a violation of fundamental rights protected by India’s Constitution. However, this case does not lead to the end of battle against Section 377. Afterward, in Souresh Koushal and another v. Naz Foundation and other [7] case the Supreme Court has overruled the judgment given by Delhi High court and held that that “a minuscule fraction of the country’s population constitutes lesbians, gays, bisexuals or transgender” and that the High Court had erroneously relied upon international precedents “in its anxiety to protect the so-called rights of LGBT persons”. The Hon’ble court has stated that judicial intervention was not required in this issue and also recriminalized sexual intercourse “against the order of nature”. This decision made the LGBT people hopeless and resulted in a major outcry in a particular community.

Later, the Supreme Court in National Legal Services Authority v. Union of India[8] has recognized the Transgender as a ‘third gender’, affirmed that the fundamental rights granted under the constitution of India will be equally applicable to transgender people. Thereafter, another big judgment delivered by the Supreme Court on the right to privacy in Puttuswamy v. Union of India[9], the Court went on to hold that the right to privacy specifically includes the right to have intimate relations of one’s choice and includes the right to sexual orientation and gender identity. Thus, these above two judgments majorly supported the LGBT community and gave them a new basis and new hope to fight against Section 377 and also established the strong rights for the third gender.

Finally, the tussle for fundamental rights came to end in the Navtej Singh Johar & Ors. v. Union of India[10], where the apex court overruled the Koushal’s judgment and has concluded that LGBT Indians are entitled to equal citizenship and full constitutional protection. Further, the also court held that:

  • Section 377 is unconstitutional to the extent that it criminalizes consensual relationships of any kind between adults.
  • ‘Sex’ under Articles 15 includes discrimination on the ground of gender identity and sexual orientation.
  • Discrimination on the grounds of ‘sex’ would also include discrimination due to sexual orientation or sex stereotypes.
  • LGBT community is entitled to equal citizenship and protection under the law, without discrimination.
  • Sec 377 is in Violation of Art 14 as the section is vague and does not define ‘carnal intercourse against the order of nature. And also there is no intelligible differentia or reasonable classification between the natural and unnatural sex as long as it is consensual
  • Sec 377 is in Violation of Article 15, Article 19 and Article 21 of the constitution of India.


Thus, this landmark judgment has led a great transformation in the state and now the Trans people have equal rights and opportunities which they can access at any time, in addition, neither one can suppress their voice and nor deprived them of using the fundamental rights. Before this they faced a lot of discrimination and harassment and verbal assault from society at the workplace or at home, with this they also seen very nervous to register for the benefits of sexual minorities because of fear of social stigma. But now they have succeeded in the battle of Equality, therefore, they are free to choose and also entitled to the “full range of constitutional rights. This new paradigm needs to be sustained for the sake of a minor community and with this, the state also has an obligation to protect the rights of the “LGBT” Community.

[1] Indra sawhney v. Union of India

[2] Navtej Johar vs. Union of India,(2018) 10 SCC 1

[3] Universal Declaration of Human Rights

[4] The 14th Amendment to American Constitution

[5] Chiranjit Lal v. UOI, AIR 1951 SC 41

[6] (2009) 111 DRJ 1.

[7] Civil Appeal No. 10972 OF 2013. 

[8] AIR 2014 SC 1863

[9] 2017,10 SCC 1.                                                                    

[10] W. P. (Crl.) No. 76 of 2016 D. No. 14961/2016

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