Beyond Decriminalisation: Section 377, Constitutional Transformation and the Continuing Struggle for LGBTQI+ Equality in India
Author : Dr. Sarvesh Mani Tripathi and Dr. Mohd Shamim
Abstract :
For over a century and a half, Section 377 of the Indian Penal Code cast a long shadow over sexual minorities in India. Introduced under British colonial rule in 1860, the law penalized consensual adult intimacy deemed “against the order of nature.” While rarely resulting in mass trials, its presence legitimized police harassment, social exclusion, and deep personal shame. This article explores how a grassroot civil right’s struggle transformed India’s constitutional landscape—moving from early AIDS activism in the 1990s through the landmark rulings in Naz Foundation (2009), Suresh Kumar Koushal (2013), and the historic 2018 verdict in Navtej Singh Johar. We argue that the real triumph of Navtej was not just striking down a penal code; it restored the human dignity and constitutional personhood of queer citizens. But decriminalization does not mean full equality. The article underscores the persistent chasm between negative liberty (freedom from arrest) and positive citizenship (equal rights to marriage, adoption, healthcare and fair employment) through subsequent cases such as the 2023 marriage equality judgment in Supriyo.
Keywords :
Section 377, LGBTQI+, human dignity, privacy, transformative constitutionalism, constitutional morality, substantive equality, India.
