In a historical judgment, the Supreme Court has said Section 377 was arbitrary in the current scenario. "We must recognise individuality. LGBT community posses equal right," said CJI Dipak Misra reading out the judgment on the much-awaited gay rights verdict.
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 Supreme Court said that Thursday's judgment will be considered in all pending prosecutions related to the matter.
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.
In July during the Section 377 hearings, the Supreme Court bench had said courts cannot wait for a “majoritarian government” to enact, amend or strike down laws that violate fundamental rights.
However, the Supreme Court had also said that it would confine itself to the issue of how Section 377 restricts consensual acts between two adults and not go into wider social issues.
Interestingly, the Narendra Modi government left the issue of the constitutional validity of Section 377 to the “wisdom” of the Supreme Court, though it added it would intervene if other matters such as gay marriage came up.