Abstract

The regulation of sexuality within Indian criminal law has undergone a significant transformation, evolving from a colonial framework rooted in moral policing to a constitutional paradigm grounded in dignity, autonomy, and equality. Historically, Section 377 of the Indian Penal Code, 1860 criminalized consensual same-sex relations, reflecting Victorian moral values that were incongruent with India’s diverse cultural traditions. Its persistence created a contradiction between constitutional guarantees and lived realities, marginalizing individuals identifying as lesbian, gay, bisexual, transgender, and queer (LGBTQ+). This paper critically examines the evolution of LGBTQ+ rights in India through the interplay of judicial intervention, legislative reform, and socio-cultural dynamics. It analyses key judicial milestones, culminating in the landmark decision in Navtej Singh Johar v. Union of India, which decriminalized consensual same-sex relations and reaffirmed the primacy of constitutional morality over societal morality. The study further evaluates the impact of recent legislative reforms, particularly the enactment of the Bharatiya Nyaya Sanhita, 2023, Bharatiya Sakshya Adhiniyam, 2023, and Bharatiya Nagarik Suraksha Sanhita, 2023, which collectively replace colonial-era criminal laws and adopt a harm-based approach to regulation. While these reforms mark a significant step toward legal recognition and inclusivity, the paper argues that decriminalization alone is insufficient to achieve substantive equality. Persistent social stigma, absence of comprehensive anti-discrimination legislation, and lack of legal recognition for same-sex relationships continue to impede the realization of LGBTQ+ rights. The paper highlights the gap between formal legal equality and social acceptance, emphasizing the need for a holistic framework that integrates legal reform with cultural transformation. Ultimately, the study concludes that the success of India’s evolving legal framework depends on its ability to move beyond decriminalization toward affirmative protection and societal inclusion, ensuring that constitutional guarantees are fully realized in practice.

Keywords