Criminals no more: Supreme Court delivers verdict on gay sex

Five-judge bench unanimously decriminalises homosexuality; Section 377 of the Indian Penal Code will continue to govern non-consensual sexual acts, carnal intercourse with minors and bestiality

Homosexuality is no longer a crime in India.
A Constitutional Bench of the Supreme Court on Thursday decriminalised consensual sex among adults of the same gender by overturning its previous order on Section 377 of the Indian Penal Code. The judges – Chief Justice Dipak Misra and Justices Rohinton F Nariman, AM Khanwilkar, DY Chandrachud and Indu Malhotra – gave four separate but concurring judgments against the colonial-era law.

“History owes an apology to members of the community for the delay in ensuring their rights,” noted Justice Malhotra, while stating that the section will “continue to govern non-consensual sexual acts, carnal intercourse with minors and acts of bestiality”.

Chief Justice Misra and Justice Khanwilkar observed that: “Only Constitutional morality and not social morality can be allowed to permeate rule of law…Sexual orientation is one of the many natural phenomenon..any discrimination on basis of sexual orientation amounts to violation of fundamental rights.”

The other judges called for sensitisation to reduce social stigma against the community as well as increased awareness and sensitivity on the part of counsellors, medical community and mental health practitioners.

The 157-year-old Section 377 prohibited “carnal intercourse against the order of nature with any man, woman or animal”. This had been widely interpreted to refer to homosexual sex. Thursday's verdict on Section 377 came on five petitions moved by dancer Navtej Jauhar, journalist Sunil Mehra, chef Ritu Dalmia, hoteliers Aman Nath and Keshav Suri and business executive Ayesha Kapur. In legalising gay sex, the Constitutional bench overturned its 2013 ruling in Navtej Johar vs the Union of India case, in which it dismissed the issue as concerns of a “minuscule fraction of the country’s population”.

The verdict caps the LGBTQ community's epic battle against Section 377, which has witnessed several flip flops in courts over the last 18 years. Naaz Foundation, an NGO, had first approached the Delhi High Court against the section in 2001. After a couple of setbacks, the High Court ruled in favour of Naaz Foundation. “We declare section 377 of Indian Penal Code in so far as it criminalises consensual sexual acts of adults in private is violative of Articles 21, 14, and 15 of the Constitution,” a Bench comprising then High Court Chief Justice AP Shah and Justice S Murlidhar had ruled on July 2, 2009. In 2013, however, the Supreme Court cancelled the Delhi High Court’s verdict and re-criminalised homosexuality.

The Supreme Court's decision to strike down parts of Section 377 was widely hailed. Nonetheless, many, including those in the LGBTQ community, called for reduced stigma and wider inclusion of their members.

Read the Supreme Court’s landmark judgement here.

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