Gay sex decriminalised: History owes apology to LGBT community and kin, says Supreme Court

Section 377 Supreme Court Verdict HIGHLIGHTS: The verdict Thursday was on five petitions moved by dancer Navtej Johar, journalist Sunil Mehra, chef Ritu Dalmia, hoteliers Aman Nath and Keshav Suri and business executive Ayesha Kapur.

By: Express Web Desk | New Delhi | Updated: September 6, 2018 10:41:06 pm
LGBT community rally held at Vakola on Thursday following supreme court verdict on section 377 (Express photo by Nirmal Harindran)

Section 377 Supreme Court Verdict Live Updates: A five-judge Constitutional bench of the Supreme Court Thursday, in four separate but concurring judgments, legalised same-sex relations between consenting adults. It termed the 2013 judgment constitutionally impermissible. The apex court was hearing a clutch of petitions challenging criminalisation of homosexuality. 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 verdict Thursday was on five petitions moved by dancer Navtej Johar, journalist Sunil Mehra, chef Ritu Dalmia, hoteliers Aman Nath and Keshav Suri and business executive Ayesha Kapur.

During the four-day hearing earlier this year, the Centre had said it would not contest the petitions, and left the decision to the “wisdom of the court”. In its affidavit, the Ministry of Home Affairs said: “I state and submit that so far as the constitutional validity (of) 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.” Follow Section 377 Verdict Reactions LIVE updates

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Supreme Court partially decriminalises Section 377 of IPC. Follow LIVE UPDATES in HindiMalayalam, Bengali, Tamil

21:14 (IST) 06 Sep 2018
Congress MP Shashi Tharoor expresses happiness over the SC verdict on Section 377

Congress leader Shashi Tharoor on Thursday expressed happiness over the SC verdict and said the judgment 'shamed' BJP MPs who had opposed him on the issue in the Lok Sabha.

21:00 (IST) 06 Sep 2018
Amnesty hails Supreme Court judgment decriminalising consensual gay sex

Amnesty International India on Thursday said the landmark verdict by SC in favour of the gay community has given hope to everyone fighting for justice and equality. The apex court today unanimously decriminalised part of the 158-year-old colonial law under Section 377 of the IPC which criminalises consensual unnatural sex, saying it violated the rights to equality.

The verdict has been appreciated from various quarters with celebrities and political leaders expressing joy over the historic judgment. However, the BJP and the RSS were critical of the latest development. 

“The judgment closes the door on a dark chapter of Indian history. It marks a new era of equality for millions of people in India," said Asmita Basu, Programmes Director, Amnesty International India.

19:27 (IST) 06 Sep 2018
Celebrations in Lucknow after Supreme Court decriminalised consensual gay sex

There were celebrations in Lucknow after Supreme Court's historic verdict on Section 377. The LGBTQ+ community expressed joy over the apex court's judgment in some other parts of the country also.

19:10 (IST) 06 Sep 2018
Petitioner reacts

"Maybe I would have left the country" had the verdict not been favourable, said hotelier Keshav Suri, one of the petitioners against Section 377, parts of which was struck down by the Supreme Court.

18:11 (IST) 06 Sep 2018
Homosexuality is like a genetic disorder and medical research must be done to rectify it: Subramanian Swamy

BJP MP Subramanian Swamy on Thursday reacted over the Supreme Court verdict on section 377. He termed homosexuality as a genetic disorder and said that medical research must be done to rectify it. "Of course what happens in someone's private life should not be of anyone's concern, neither they should be punished. It is basically a genetic disorder, like someone having six fingers. Medical research must be done to rectify it," he was quoted as saying by ANI.

"It is the American game. Soon there will be gay bars here where homosexuals can go. HIV will spread. So, after looking at the consequences, I hope the next Govt will move a 7 judge bench to set aside this 5 judge bench order," he said.

18:00 (IST) 06 Sep 2018
Section 377: Timeline of the case and the landmark judgements

Section 377 of the Indian has been partially struck down Thursday by a five-judge bench of the Supreme Court, with the apex court legalising same-sex relations between consenting adults. The bench headed by Chief Justice Dipak Misra gave four separate, but concurring judgments, that decriminalised sex between two consenting adults irrespective of their gender. Here is a timeline of the case

17:56 (IST) 06 Sep 2018
Humsafar Trust takes out LGBT pride parade in Mumbai after Supreme Court legalises homosexuality

In the afternoon today, Humsafar Trust took out LGBT pride parade in Mumbai, after Supreme Court legalised homosexuality.

17:26 (IST) 06 Sep 2018
Bengal transgender judge expresses joy over SC verdict on section 377, wishes to adopt a child

When the Supreme Court Thursday decriminalised homosexuality in a historic verdict, Joyita Mondal, a transgender judge, was joyous but also looking beyond Section 377 and the broader issues of adoption, employment and elections concerning the LGBTQ community. “Though India received independence long back, we got ours today,” said Mondal, a Lok Adalat judge in North Dinajpur district’s Islampur in North Bengal.

She went on to add that “I wish to adopt a child” while underlining it was about time sexual minorities were granted rights on par with other citizens. The judge also said the next step should be reservation in employment for the transgender community and contesting assembly and general elections. “Enough joking around, we want a change. It is time the stigma be removed from us. We want respect from society,” she said. READ MORE

16:50 (IST) 06 Sep 2018

16:18 (IST) 06 Sep 2018
One of petitoners in SC says LGBT community would no longer feel like criminals

One of the petitioners in the Supreme Court said Thursday that the LGBT community would no more feel like criminals and second-class citizens, as the court verdict is a new dawn for them. A five-judge constitution bench of the Supreme Court on Thursday unanimously decriminalised part of the 158-year-old colonial law under Section 377 of the IPC which criminalises consensual unnatural sex, saying it violated the rights to equality.

15:15 (IST) 06 Sep 2018
RSS says homosexuality not a crime but opposes marriages between same-sex partners

Sangh functionary Arun Kumar on Thursday said that RSS doesn't believe homosexuality to be a crime but "marriages between same-sex partners are against nature," reports PTI.

15:09 (IST) 06 Sep 2018
SC verdict on Section 377 decriminalising consensual gay sex welcomed by experts

Saying that everyone has the right to live a dignified life with equality, senior advocates and jurists today welcomed the historic judgment by the apex court decriminalising consensual gay sex between adults. Former Attorney General Soli Sorabjee termed it as a "celebratory" judgment, reports PTI. Senior advocate Anand Grover said the verdict will change the political course and human values.

13:59 (IST) 06 Sep 2018
Top quotes from today's ruling

CJI Dipak Misra and Justice Khanwilkar:

“I am what I am. So take me as I am.”

“Only Constitutional morality and not social morality can be allowed to permeate rule of law…Sexual orientation is one of the many natural phenomena…any discrimination on basis of sexual orientation amounts to violation of fundamental rights.”

Justice Nariman:

“Homosexuals have right to live with dignity. They must be able to live without stigma.”

Justice Chandrachud:

“Human sexuality cannot be reduced to a binary formulation and decriminalising Section 377 is but a first step.”

Justice Indu Malhotra:

“History owes an apology to members of the community for the delay in ensuring their rights."

Read more on what the five judges said in the Supreme Court

13:27 (IST) 06 Sep 2018
UN welcomes SC verdict on Section 377

United Nations on Section 377 verdict: "Welcome today’s landmark ruling by SC. Sexual orientation and gender expression form an integral part of an individual’s identity the world over and violence, stigma and discrimination based on these attributes constitute an egregious violation of human rights."

12:32 (IST) 06 Sep 2018
Justice Malhotra: 'History owes an apology to the community'

Justice Indu Malhotra, the only woman on the five-judge bench, says history owes an apology to the members of the community for the delay in ensuring their rights. In her judgment, she iterates that Section 377 will continue govern non-consensual sexual acts, carnal intercourse with minors and acts of bestiality.

12:27 (IST) 06 Sep 2018
Decriminalising Sec 377 is but a first step, says Justice Chandrachud

Justice Chandrachud says human sexuality cannot be reduced to a "binary formulation". He asks the medical community to sensitise itself about rights of the LGBTQ community, instead of trying to change what is not a disease.

12:16 (IST) 06 Sep 2018
Justice Chandrachud: Sec 377 an 'anachronistic colonial law'

Justice D Y Chandrachud is reading his judgement now. He says Section 377 is an 'anachronistic colonial law', and adds that its provision have confined a group of citizens to the margins. He says the law rests on deep-rooted gender stereotypes. "Who decides what is natural and what is unnatural? Can the state be allowed to decide? Denial of right to sexual orientation is denial of privacy rights," he said, adding that courts have to ensure citizens are not pushed obscurity because of a colonial law.

12:13 (IST) 06 Sep 2018
From Indira Jaising to Karan Johar — Reactions to SC verdict on Section 377

There are a host of reactions coming in, in response to the Supreme Court's judgment on Section 377. Follow our LIVE BLOG for more reactions.

12:02 (IST) 06 Sep 2018
After CJI, Justice Nariman is reading his judgment

Justice R F Nariman is reading his judgement now. As we told you earlier, there are four separate but concurring judgments. Justice Nariman refers to the Mental Healthcare Act, 2017, and says Parliament has also recognised that homosexuality is not a disease. "Homosexuals have right to live with dignity. They must be able to live without stigma," he says, while asking the government to give wide periodic publicity to judgement so that stigma is reduced & finally removed.

12:01 (IST) 06 Sep 2018
SC partially decriminalises Section 377 of IPC

The Supreme Court has partially struck down Section 377 of the IPC, in so far as it punishes sex between consenting adults in same sex relations. The apex court has overruled the Suresh Kaushik verdict of 2016, which had reversed the Delhi High Court ruling decriminalising sex in such relations.

11:53 (IST) 06 Sep 2018
CJI: 'Sexual orientation is natural'

CJI Dipak Misra says: "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. After judgement in Puttuswamy case, privacy has been raised to fundamental right."

11:44 (IST) 06 Sep 2018
'LGBTQ community possess same rights as others'
11:40 (IST) 06 Sep 2018
Unanimous verdict on Section 377, says CJI

Four opinions will be read out by the judges. CJI Dipak Misra says there is a consensus among the judgments, which means all the judges are in agreement.

11:35 (IST) 06 Sep 2018
The bench has assembled

The bench, led by CJI Misra has assembled. The judgment is expected to be read now.

11:33 (IST) 06 Sep 2018
Side note: CJI retires on October 2

CJI Dipak Misra is set to retire on October 2. The bench he heads is expected to rule on several important cases in the next month, including today's verdict on Section 377. The cases include the constitutional validity of the Aadhaar Act, 2016, Adultery, criminalisation of politics etc. Read the complete list here.

11:22 (IST) 06 Sep 2018
Verdict at 11.30 am

The verdict is expected after 11.30, which is when the court will re-assembly. The five-judge bench, led by CJI Dipak Misra and comprising Justices R F Nariman, A M Khanwilkar, D Y Chandrachud and Indu Malhotra, is expected to deliver four separate judgments.

11:15 (IST) 06 Sep 2018
Will gay sex be decriminalised? All eyes on SC
11:00 (IST) 06 Sep 2018
Dancer, Chef, Hoteliers — Who are the petitioners in the case?

The verdict on Section 377 comes 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. Here is a short profile on each of them.

10:57 (IST) 06 Sep 2018
Coming up: SC to examine correctness of 2013 judgment

In July, when the SC had reserved its verdict in the case, CJI Misra had observed that the court is only concerned with consensual acts. "We are only on consensual acts... Consent is the fulcrum... Your enjoyment cannot offend the dignity of others." This may mean that today's verdict will concern sex between consenting adults. Nonetheless, it will raise larger questions on marriage, adoption and inheritance etc. of sexual minorities.

10:44 (IST) 06 Sep 2018
Judgment shortly

The petitions are listed for judgment at 10.30 am this morning. However, it is likely to be delayed as a full court reference in the memory of senior advocates Dr G C Bharuka and V A Mohta. Meanwhile, as we wait, here are some pictures from outside the court, taken by our photojournalist Abhinav Saha.

Journalists outside the Supreme Court on Thursday; petitioner Keshav Suri talks to the media (Express Photo/Abhinav Saha)

10:35 (IST) 06 Sep 2018
SC: 'If rights are violated, we can’t wait for majoritarian govts to act'

In July, when the SC reserved its verdict in the case, the bench had observed that it does not wait for “majoritarian governments” to act if it finds that a law violates fundamental rights. Justice Nariman had said, "The moment we are convinced that there is a violation of fundamental rights, we cannot leave anything to the legislature... The whole object of the fundamental rights chapter is to strike down laws that violate fundamental rights which majoritarian governments may find difficult to do because of vote bank concerns etc."

Read more here

10:00 (IST) 06 Sep 2018
Watch video: The journey of Section 377 of IPC

09:47 (IST) 06 Sep 2018
Navtej Johar of Navtej Johar vs Union of India

Shalini Nair writes in The Indian Express today: It was in 1994 that journalist Sunil Mehra met Bharatnatyam dancer Navtej Johar for a profile he was working on. Coming back to the newsroom, Sunil declared that he could not write the story with the journalistic objectivity required of him. That story remained untold but the two moved in together within six months.

We are products of psychological and emotional dysfunction, says Johar; today's verdict could start changing that.

Read the entire article here

09:14 (IST) 06 Sep 2018
Editorial — SC must seize opportunity to right a shameful wrong

The Supreme Court has an opportunity to end the matter conclusively, and to right a dreadful historical wrong, in whose persistence the court has been instrumental. Historically, governments have been reluctant to withdraw Section 377. But now, in an admirable change of stance, it has lobbed the ball back to the court, where it belongs. The Supreme Court is the proper guardian of the rights of minorities like the LGBT community — in Parliament, majoritarian opinion may prevail. Besides, the validity of Section 377 is a question of right and wrong, which is best addressed legally.

Read the editorial, 'Unnatural section' here

09:10 (IST) 06 Sep 2018
Section 377 — a timeline of the case

In July 2009, the Delhi HC had decriminalised homosexuality among consenting adults after finding that it violated Article 14, 15 and 21 of the Constitution. At the time, the HC was hearing a petition filed by NGO Naz Foundation. The government had argued that homosexuality comprises only 0.3 per cent of the population, and therefore the rights of over 99 per cent cannot be compromised.

The verdict, however, was struck down by a two-judge bench of the Supreme Court in December 2013. The top court, finding that the HC's judgment was "legally unsustainable", recriminalised gay sex. The SC also left it to Parliament to consider deleting the provision from the IPC.

A review petition filed by Naz was quashed.

In January this year, riding on the back of the SC's verdict on the right to privacy being a fundamental right, a petition challenging Section 377 was assigned to a five-judge Constitution bench.

08:51 (IST) 06 Sep 2018
What is Section 377 of IPC?

Dating back to 1861, Section 377 of the IPC states: “Whoever voluntarily has carnal inter­course against the order of nature with any man, woman or animal, shall be punished with 1[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.” What is Section 377 of IPC?

08:23 (IST) 06 Sep 2018
Section 377 verdict at 10.30 am

A five-judge bench will deliver a verdict on Section 377 of the Indian Penal Code (IPC), the criminalisation of homosexuality, on Thursday morning. The highly-anticipated judgment comes at a time when the LGBTQ movement, demanding the right to free choice, and to live happy, equal lives without discrimination or hate, is picking up pace not just across India, but across the world.  The verdict is likely to be delivered after 10.30 this morning. Follow our LIVE blog for the latest news and information.

Explained | The story of the long legal battle, and its many ups and downs

Supreme Court verdict on Section 377: The judgment will be delivered on a batch of five petitions. The top court had earlier reserved its verdict on July 17. (Express Photo/Vignesh Krishnamoorthy)

The criminalisation of homosexuality was first imposed by the British in 1861. Section 377 of the IPC, which stems from this belief, deals with “unnatural offences” and stated that “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.”

The Supreme Court held a four-day hearing on a batch of petitions challenging this colonial-era law in July this year. During the hearing, the apex court made it clear that it would only deal with the question of the validity of Section 377 — whether gay sex was a criminal offence — and would not wade into the issue of marriage in the LGBTQI groups or inheritance in their live-in relationships.

Explained | 377 battle at journey’s end

There are over 20 countries where homosexuality is not a criminal offence, and same-sex marriage is recognised, including the US, England, Australia, Germany and France.