In a historic verdict, upholding an individual's right to personal liberty, the Supreme Court on Thursday effectively legalised gay sex in India by striking down clauses of Section 377 of the IPC that criminalised gay sex, calling it “unconstitutional”.
"Consensual sex between competent adults from the LGBT community is decriminalised (in India)," said the Supreme Court, upholding individual freedom and right to privacy.
In course of the judgment, the Supreme Court also struck down the Delhi High Court's 2013 Suresh Kumar Koushal judgment and said, that Thursday's judgment will be considered in all pending prosecutions related to the matter.
A five-member Constitution Bench of the Supreme Court pronounced the verdict on a group of petitions seeking to decriminalise Section 377 of the Indian Penal Code (IPC), which criminalises gay sex. The bench, headed by CJI Dipak Misra, also comprised of Justices R.F. Nariman, A.M. Khanwilkar, D.Y. Chandrachud and Indu Malhotra. Interestingly, four judgments—all concurring—were read out on Thursday. While CJI Misra and Justice Khanwilkar delivered a combined judgment, the rest three had their own separate judgments.
All the judgments were routed on themes, including individuality, right to privacy, constitutional morality over societal morality and arbitrariness of Section 377.
Beginning the process of giving the verdict on Thursday, CJI Dipak Misra said Section 377 was “arbitrary” and noted that homosexual couples had “equal rights”.
"Sexual orientation is one of many biological phenomena. It is natural and no discrimination can exist. Any violation is against freedom of speech and expression," said CJI Misra, while Justice Nariman observed that homosexuality cannot be regarded as a "mental disorder".
"To deny LGBT community of their right to sexual orientation is a denial of their citizenship and a violation of their privacy. They cannot be pushed into obscurity by an oppressive colonial legislation," said Justice D.Y. Chandrachud.
"History owes an apology to these people (from LGBTcommunity) and their families. Homosexuality is part of human sexuality. They have the right of dignity and free of discrimination," said Justice Indu Malhotra in her judgment.
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 Supreme Court, on Thursday, noted that bestiality would still remain an offence under Section 377.
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”.
