The Supreme Court of India has today in its historic verdict decriminalised homosexuality under section 377, making gay sex legal. According to reports, a five-member bench, delivering the first of its four judgements, announced that consensual sexual relationships between adults of the same gender in private do not fall foul of section 377 of IPC.
#Section377 is indefensible, irrational and manifestly arbitrary, says Chief Justice Dipak Misra.
— BloombergQuint (@BloombergQuint) September 6, 2018
CJI Deepak Mishra and Justice Khanwaliker, reading the verdict, reportedly stated that discrimination on the basis of sexual orientation is a violation of freedom of speech and expression. Continuing the verdict, CJI Mishra and Justice Khanwaliker pronounced that bestiality, will still remain a punishable offence and the specific part of section 377, which makes consensual sexual acts in private between two adults, homosexual or heterosexual, is unconstitutional.
A Supreme Court bench comprising of Justices Rohinton Nariman, Indu Malhotra, AM Khanwaliker, DY Chandrachud and CJI Deepak Mishra had begun the hearing for a set of petitions filed to challenge the criminalisation of homosexual relationships under section 377 of the Indian Penal Code in the month of July.
Earlier in 2009, the Delhi High Court had passed a 105-page judgement over the issue stating that criminalisation of gay sex as per section 377, effectively denies a gay person the status of ‘personhood’ which is a violation of the notion of life under section 21 of the Indian constitution.
However, in 2012, the SC had reversed the order of the Delhi HC and had restored the section 377 of the IPC. The SC had maintained that only a minuscule fraction of the Indian population represent the LGBT community and in over 150 years of its existence, less than 200 people have been prosecuted under the section 377.
Another milestone towards the granting of rights to the LGBT community had come when in 2017, the SC decided to hold the right to privacy as a fundamental right. The SC had mentioned that the rights to privacy and sexual orientation is the core of the fundamental rights protected under section 14,15 and 21 of the Indian Constitution.
During the initial hearings in July, Additional Solicitor General Tushar Mehta, appearing for the government of India had stated that the Indian government will not contest the challenge to section 377 and will leave the judgement to the SC’s wisdom, so far as the SC limits the constitutional validity of section 377 to ‘consensual acts of adults in private’.
An NGO named Naaz foundation is one of the main petitioners in the case. Some Christian organisations and the All Indian Muslim Personal Law Board have opposed the petitions and have submitted that they want section 377 to stay.
The Supreme Court verdict is being celebrated widely among the members of LGBTQ community as well as the general public who have long opposed the archaic law.