In a historic verdict, upholding an individual's right to personal liberty, the Supreme Court on Thursday effectively legalised gay sex in India. The Supreme Court struck down Section 377 of the IPC, a controversial British-era legal provision, which criminalised consensual gay sex.
The five-judge bench was headed by Chief Justice of India Dipak Misra and comprised Justices R.F. Nariman, A.M. Khanwilkar, D.Y. Chandrachud and Indu Malhotra. The bench favoured decriminalising gay sex by a majority of 3-2.
Chief Justice Misra and Justices Nariman, Chandrachud and Malhotra gave separate opinions during the verdict.
The Supreme Court was hearing petitions for striking down Section 377 and had reserved its verdict on July 17. In one of the earlier hearings, the Supreme Court had said that "no one should have to live in fear because of their sexuality," giving an indication that the criminality factor associated with sexual intercourse between two individuals from the same gender would be taken away.
It had also said courts cannot wait for a “majoritarian government” to enact, amend or strike down laws that violate fundamental rights.
The verdict also comes as a landmark judgement for Dipak Misra, who would be stepping down as the chief justice on October 2.
Human rights activists had earlier claimed that the possible decriminalisation of Section 377 will be a major step toward removing the stigma around same sex relationships in India.
Section 377 refers to 'unnatural offences' and says whoever voluntarily has carnal intercourse against the order of nature with any man, woman or animal shall be punished with imprisonment for life, or with imprisonment of either description for a term that may extend to 10 years, and shall also be liable to pay a fine.
The constitutional validity of Section 377 was first raised by the Naaz Foundation, an NGO, which in 2001 had approached the Delhi High Court. The Delhi High Court in 2009 struck down Section 377 as “illegal”.
However, in 2013, the Delhi High Court judgement on Section 377 was overturned by the Supreme Court, following which the current batch of curative petitions was filed.
