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Right to Privacy and section 377 of IPC

Written by Shobika Kannan, SASTRA Deemed to be University


Part III of the Constitution mainly deals with the common theme of human rights. The International conventions and the principles of natural justice also focus on the aspect of the right to life with full dignity and freedom. Fundamental rights are basic human rights. They are seen as the fundamental right to live a perfect life. The Indian Supreme Court unanimously held that Section 377 of the Indian Penal Code, which criminalized 'carnal intercourse against the order of nature’, was unconstitutional as it criminalized consensual sexual behavior among adults of the same sex. It prescribed a 10-year imprisonment interestingly; about 123 countries around the world have never penalized homosexuality, or decriminalized it. 57 countries are currently systematically criminalizing same-sex marriages.

Section 377 of the Indian Penal Code violated the fundamental rights of privacy, freedom of expression, equality, human dignity and protection from discrimination. The discrimination on the grounds of sexual orientation violated the right to equality; criminalizing consensual sex between adults in private violated the right to privacy; sexual orientation is an intrinsic part of self-identity and refusing it would violate right to life. Thus, fundamental rights cannot be denied on the ground that homosexuals account for a marginal percentage of the population.

Right to Privacy:

Privacy is the "area of a man's life that a fair man with a sense of the legitimate needs of the community will find it wrong to invade under any given circumstance." The right to privacy is protected as an integral part of the right to life and personal liberty, as provided in Article 21 of the Constitution. In Kharak Singh v. State of U.P[1], a question arose for the first time, whether the right to privacy is included in the right to personal freedom? Justice Subba Rao, speaking for the minority, ruled that the right to privacy is an integral element of personal freedom, though not explicitly stated in our constitution. It is also understood that certain issues relating to one's private life and personal relationships are at the heart of the right to privacy. This area of private intimacy and autonomy must allow individuals to establish human relationships without intervention of outside community or State. Accordingly, the right to privacy is based on the assumption that there is a privacy zone created by different fundamental rights which the state cannot contravene. It is argued that interpersonal sexual contact, whether homosexual or heterosexual, falls within the ambit of privacy Section 377, by criminalizing such consensual sexual acts, violates the right to privacy of the individuals which is protected under Article 21 of the constitution.

377 of Indian Penal Code:

Section 377 of the Indian Penal Code was enforced under British rule in India in 1860. As per the provision, anyone who voluntarily has carnal intercourse with any man, woman or animal against the order of nature shall be punished with life imprisonment or each individual is imprisoned for a term of up to ten years, and is also liable to a fine[2].

Constitutionality of Section 377 of IPC:

The constitutionality of Section 377 of the Indian Penal Code was challenged before the Delhi High Court being violative of Article 14, 15, 19 and 21 of the Constitution. Section 377 represents an antiquated view of the meaning of sex, namely as a means of procreation, and has no place in a modern society. It has claimed that the law was misused to punish consensual sex activities that are not peno-vaginal. The High Court of Delhi in the case of Naz Foundation vs. Gov of N.C.T of Delhi[3] ruled in the year 2009 that Section 377 could not be used to punish sex between two consenting adults; this infringes the right to privacy and personal liberty under Article 21 of the Constitution. The Court ruled that the classification and persecution of homosexuals infringes the guarantee of equal rights provided under Article 14 of the Constitution. Section 377 has also violated human dignity, which is at the heart of the Constitution of India.

Many organizations and individuals have challenged the judgment of the High Court of Delhi in the Supreme Court. They claimed that the right to privacy should not be used to commit any offence; decriminalizing homosexuality would be harmful to the institution of marriage and would draw young people to homosexual practices. The Supreme Court overruled the judgment of the Delhi High Court in its Suresh Kumar Koushal vs. Naz Foundation[4] in 2013 and held that the decision to decriminalize homosexuality can only be initiated by the Parliament and not by the Court. It also held that Section 377 criminalizes such acts and not any specific class of people. This was also related to the small number of individuals who were members of the LGBTI community and under Section 377 only a fraction of them were charged.

On 5 January 2018, the Supreme Court established a constitutional bench to hear the challenge referred to in Section 377 in a comprehensive manner, even though the curative petition had been brought before the Court. In this case of Navtej Singh Johar vs. Union of India[5], a five Judge bench was formed and writ petition was filed seeking recognition of the right to freedom, the right to sexual integrity and the right to choose a sexual partner as part of the right to life guaranteed by Article 21 of the Constitution of India. In addition, it was sought to declare that Article 377 as unconstitutional. Section 377 also infringed the Article14 of the Constitution (Right to Equality before the Law), since it was ambiguous in the sense that it did not describe "carnal intercourse is against nature’s order."

There was no intelligible distinction between natural and unnatural, or logical classification of consensual sex. Section 377 also violated Article 15 of the Constitution (Protection from Discrimination) as it discriminated on the grounds of the sex, Section 377 had a "chilling impact" on Article 19 (Freedom of Expression) as it restricted the right to express one's sexual identity by speaking and choosing his/ her partner.

Section 377 infringed the right to privacy as it subjected LGBT (Lesbian, Gay, Bisexual, and Transgender) people to the fear of being embarrassed or shunned because of "a certain preference or way of life." It was argued that the right to privacy was not unbridled, and that such actions derogated from the 'constitutional norms of modesty’ and they would increase the prevalence of HIV/AIDS in society. Thus, declaring Section 377 as unconstitutional would be harmful to the institution of marriage and could breach Article 25 of the Constitution (Freedom of Conscience and Propagation of Religion).

The five bench Judges of Supreme Court of India unanimously held that Section 377 of the IPC as unconstitutional. The Supreme Court of India partly struck down Section 377 of the Indian Penal Code, decriminalizing the same-sex relationships between adults. Today it is constitutionally acceptable for LGBT (Lesbian, Gay, Bisexual, and Transgender) people to engage in sexual intercourse. In Section 377, the Court upheld clauses criminalizing non-consensual acts or sexual acts on animals.


Section 377 of the IPC rejects the goals set out in the preamble, namely: justice, tolerance and equality for homosexuals. Such purposes constitute the basic feature of the Constitution However, it rejects equality and equal protection and allows discrimination, which is thus a direct violation of the Constitution's basic feature.

The Court struck down Article 377 as unconstitutional and claimed that homosexuality “is not an aberration but a sexual deviation.” The right to privacy requires not only the right to be left alone, but also “spatial and conclusive right to privacy”. Since the reasoning for Section 377, namely Victorian morality, "long gone," there was no justification for the continuation of the statute. It was concluded that by imposing on the Union of India an obligation to take appropriate steps to publicize the judgment in order to eradicate the stigma faced by the LGBT community in society, and the Government and the police officers were also motivated to raise awareness of the Community's plight in order to ensure fair treatment to them.

[1] AIR 1963 SC 1295 [2] Section 377 in The Indian Penal Code, 1860. [3] WP(C)7455/2001 [4] Civil Appeal No. 10972 OF 2013 [5] W. P. (Crl.) No. 76 of 2016 D. No. 14961/2016



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