Judicial Activism - Section 377, Indian Penal Code, 1860
LEGAL METHODS AND SOCIAL SCIENCE
BY: ANMOL MALHOTRA
ROLL NO: 15159
GROUP NO: 21
RAJIV GANDHI NATIONAL UNIVERSITY OF LAW
Judicial cial to the society in general and people at large. activism is the use of judicial
power to articulate and to enforce what is benefit to the society.
Section 377 of the Indian Penal Code states whoever voluntarily has carnal intercourse
against the order of nature shall be punished.
This ban has not kept consent in mind and has made all non-vaginal intercourse illegal,
therefore covering all homosexual activities under its ambit.
The words used are “against the order of nature” which are open to interpretation and
may or may not include oral sex and other sexual activities which do not result in
A writ petition was filed in 2001 by the naz foundation questioning
the validity of section 377 on grounds of violation to dignity, privacy
and health under article 21, article 14 and article 15.
The Ministry of Health and Family filed an affidavit stating that’s
section 377 was needed to prevent the spread of aids.
Soon after this the Delhi high court ruled that section 377 was in
violation of article 21, article 14 and article 15.
However another view point came up that of the Home Ministry
being in favor of section 377 and the National AIDS Control
Organization (NACO) against it.
All review petitions were dismissed by the Supreme Court on January 28, 2014.
On December 11, the Supreme Court held that carnal intercourse was a criminal offense.
The court stated that the section 377 would be kept until the parliament amended it.
Various special leave petitions were files by faith based and religious groups from all parts of india.
In July 2009, it was ruled that consensual homosexual activates amongst adults were legal.
• it is to be noted that the crux of the judgment does not deal with gay rights.
• The naz foundation deals with hiv and aids for MSM (men having sex with men) and
wanted section 377 to be removed as they claimed it was used to harass members of
the lgbt community and this led to homosexuals going underground.
• This was denied on the grounds of insufficient evidence and was termed as anti-gay
by the media.
• The judgement clearly stated that Naz Foundation miserably failed to furnish the
evidence of what they claimed.
•The SC said that article 14 does not state that same rules should be
applied to everyone irrespective of circumstances, it only means that
everyone should be treated equally in the same circumstances .
•The SC said those indulging in normal intercourse and those indulging
in intercourse against the order of nature were different classes.
•AS far as article 21 is concerned, it was noted that right to privacy cannot be infringed upon
and this article has been read keeping article 21 in mind.
•However in case of a violation against a state, this right may be infringed if the act was in state
Mindset is the main problem
for the LGBT community in
India. Various places in India are
known to provide medical
treatment to homosexuals such
as “conversion therapy.”
Electric shock therapy and
testosterone injections are
used to “fix” homosexuality,
even mental health
professionals believe in these
Some believe that section 377 is
still in play because the British
introduced it in the 18th
century and that there is
nothing known as
“homosexual” in Indian
However, during the recent
times changes in the way
homosexuals are perceived
have changed and terms like
“gay” and “lesbian” have
become more prominent.