The Supreme Court, in a historic verdict Thursday, decriminalised consensual sex between two adults irrespective of their gender and partially struck down Section 377 of the Indian Penal Code. A five-judge bench, headed by Chief Justice of India Dipak Misra and comprising Justices Fali Nariman, A M Khanwilkar, D Y Chandrachud and Indu Malhotra, unanimously delivered the judgment after hearing a clutch of petitions challenging criminalisation of homosexuality. Follow LIVE UPDATES here.
While delivering the verdict, the apex court referred to those areas of the section which criminalises consensual unnatural sex as “irrational, indefensible and manifestly arbitrary”. The court noted that Section 377 of the IPC was used as a weapon to harass the members of the LGBTQ community, resulting in discrimination. The LGBTQ community possesses the same human and fundamental rights as other citizens, the top court said.
However, other aspects dealing with unnatural sex with animals and children remain in force, the top court said. Any kind of sexual activity with animals shall remain penal offence under Section 377.
Terming sexual orientation as a biological phenomenon, the top court said that any discrimination on this grounds is violative of fundamental rights. As far as consensual unnatural sex act in private is concerned, it is neither harmful nor contagious to society, the top court observed.
Here’s what the judges said
Speaking for himself and Justice A M Khanwilkar, CJI Misra said denial of self-expression is akin to inviting death. He added that it is necessary for courts to protect the dignity of an individual as the right to live with dignity is recognised as a fundamental right.
Emphasising on the exploitation of the LGBTQ members due to the provisions in Section 377, Justice Chandrachud said the community has constitutional rights like that of other citizens.
Justice Nariman said both the government and media must give wider publicity to the top court’s verdict to ensure the community does not face any discrimination.
While delivering the verdict, the court said the Constitution nurtures dissent as a safety valve of society. One cannot change history but can pass way for a better future, it added.
SC also said that due to the provisions in Section 377, members of the concerned community were forced to live in hiding and as second-class citizens while others enjoyed the rights of sexual orientation.
Justice Indu Malhotra said history owes an apology to the LGBTQ community, for denying them their rights and compelling them to live a life of fear.
Section 377 is violative of the right to live with dignity, the top court observed. It added that society cannot dictate sexual relationships between consenting adults as it is a private affair.
Homosexuality is not a mental disorder. It is a completely natural condition, the court said. It also said that India is a signatory of international treaties on the rights of LGBT and it is obligatory to adhere to the treaties.
What is Section 377 of IPC?
According to Section 377 of the Indian Penal Code (IPC), “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 which may extend to ten years, and shall also be liable to fine.” Follow LIVE UPDATES here.
This archaic British law dates back to 1861. Introduced by the British during the colonial era, the section is based on the then-existing English Buggery Act 1553 and penalises all sexual activities “against the order of nature”.
Petitioners in the Section 377 case
File petitions were filed by well-known LGBTQ activists – dancer Navtej Jauhar, journalist Sunil Mehra, chef Ritu Dalmia, hoteliers Aman Nath and Keshav Suri and business executive Ayesha Kapur. The petition claimed the “rights to sexuality, sexual autonomy, choice of sexual partner, life, privacy, dignity and equality, along with the other fundamental rights guaranteed under Part-III of Constitution, are violated by Section 377”.
Here is what has happened so far:
2001: NGO Naz Foundation files the first petition, Delhi HC dismisses plea
In 2001, NGO Naz Foundation was the first to approach the Delhi High Court, seeking a law to allow homosexual relations between consenting adults. However, in 2003, the court dismissed the plea, saying the body had no standing in the matter. The Naz Foundation later appealed the dismissal to the Supreme Court in 2006, which instructed the high court to reconsider the case.
2009: Delhi HC decriminalises homosexuality
In a landmark decision in July 2009, the Delhi High Court decriminalised homosexuality among consenting adults on grounds that it violated Articles 14, 15 and 21 of the Constitution of India. “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 Chief Justice A P Shah and Justice S Murlidhar had said in its 105-page judgement.
The bench added, “As it stands, Section 377 denies a gay person a right to full personhood which is implicit in notion of life under Article 21 of the Constitution.” It, however, upheld criminalisation for non-consensual and non-vaginal sex involving minors.”
Article 14 guarantees equality before the law, Article 15 prohibits discrimination on grounds of religion, race, caste, sex or place of birth and article 21 guarantees protection of life and personal liberty.
In court, the government had argued that as homosexuality comprises only 0.3 per cent of India’s population, the rights of more than 99 per cent of the people cannot be compromised. In response to this, the bench had noted, “Moral indignation, howsoever strong, is not a valid basis for overriding individuals’ fundamental rights of dignity and privacy. In our scheme of things, Constitutional morality must outweigh the argument of public morality, even if it be the majoritarian view.”
2013: Supreme Court overturns Delhi HC decision on Section 377
In December 2013, the Supreme Court overturned the HC’s decision, after finding it “legally unsustainable.” A two-judge bench, comprising Justice G S Singhvi and Justice S J Mukhopadhaya, observed that the HC had overlooked the fact that a “miniscule fraction of the country’s population constitutes LGBT,” and that in over 150 years less than 200 people were prosecuted for committing offence under the section.
The apex court also left it to Parliament to consider deleting the provision.
Meanwhile, the Naz foundation’s review petition in 2014 was quashed by the SC.
NCRB decides to collect data on offences under Section 377
It was only after the apex court’s verdict, that the National Crime Records Bureau (NCRB) decided to begin collecting data related to offences under Section 377. Other crimes were later added to the bureau’s repository, including gangrape and murder of victim after rape.
2014: Govt’s stand on Section 377
After Prime Minister Narendra Modi-led government was sworn in in 2014, it said it would take a decision regarding Section 377 only after the SC judgment. In a written reply to Lok Sabha, Minister of State (Home) Kiren Rijiju had said, “No. The matter is sub-judiced before the Supreme Court. A decision regarding Section 377 of IPC can be taken only after pronouncement of judgement by the Supreme Court.”
2015: Shashi Tharoor’s Private Member Bill
In 2015, the lower house, where the BJP is in majority, voted against the introduction of a private member’s Bill to decriminalise homosexuality. The Bill had been proposed by Congress’ Shashi Tharoor.
2016: Five petitioners move SC over Section 377
The five petitioners (mentioned above) moved the top court, challenging the constitutional validity of Section 377.
2017: SC upholds Right to Privacy
The Supreme Court, in a landmark judgment in August 2017, held Right to Privacy as a fundamental right. It also observed that “sexual orientation is an essential attribute of privacy”. It said that the “right to privacy and the protection of sexual orientation lie at the core of the fundamental rights guaranteed by Articles 14, 15 and 21 of the Constitution”.
The judgment, which implicitly overrules its 2013 verdict, is likely to bear on this review.
2018: SC hears case on Section 377
Five-judge Constitutional bench, led by Chief Justice of India Dipak Misra and comprising Justices R F Nariman, A M Khanwilkar, D Y Chandrachud and Indu Malhotra, decided to hear the pleas challenging Section 377.
Centre takes no stand on consensual gay sex
Responding to the clutch of petitions, the Centre said it would not take a stand on the validity of Section 377 that criminalises consensual sex between two adults of the same sex. Additional Solicitor General (ASG) Tushar Mehta, appearing for the Centre, had told the apex court, “We leave it to the wisdom of the court.” The Home Ministry has filed an affidavit elucidating the government’s stand on the case.
“I state and submit that so far as the constitutional validity Section 377 to the extent it applies to “consensual acts of adults in private” is concerned, the Union of India would leave the said question to the wisdom of this Hon’ble Court,” the Centre’s affidavit read.