A writ petition was filed by the petitioners claiming that section 377 IPC should be decriminalized as it violates the right to sexuality and is thus unconstitutional.
Whether Section 377 IPC can be considered to be a crime solely based on popular morality?
Whether criminalizing voluntary carnal intercourse serves a particular public purpose?
Section 377 IPC
The Court first looked at the question of what is “against the order of nature” under Section 377 IPC. The Court observes there is a constant change in the morals of the society and what is natural is not fixed- the perception of what is natural can vary individual to individual. The Court points that just because something is against popular public morality, does not mean it is wrong by law or is wrong according to the morals of the Constitution. The Court then questions the sustainability of Section 377 IPC on comparing it with Section 375 IPC. The Court observes that as per section 377 IPC, voluntary carnal intercourse, both among homosexuals and heterosexuals, is subject to criminal punishment. However, as per Section 375 IPC, consensual or voluntary carnal intercourse is not regarded as a crime after the Criminal Law (Amendment) Act 2013 which broadened the definition of rape.
On the question of public purpose: The Court holds that criminalization of voluntary acts among consenting adults serves no legitimate public purpose whatsoever. Infact, the Court holds more than serving a good purpose, it leads to harassment of the LGBTQ community.
Section 377 IPC was read down and excluded voluntary consensual sexual relationships between adults in private. On concluding, the court also extended an apology to the members of the LGBTQ community for years of suffering and fear.