Supreme Court scraps section 377 of IPC, decriminalises consensual gay sex

September 06, 2018
India

New Delhi:A five-judge Constitution bench of the Supreme Court Thursday unanimously decriminalised part of the 158-year-old colonial law under Section 377 of the IPC which criminalises consensual unnatural sex.

A five-judge Constitution bench headed by Chief Justice Dipak Misra termed the part of Section 377 of the Indian Penal Code which crimiminalises unnatural sex as irrational, indefensible and manifestly arbitrary.

The bench, which also comprised Justices R F Nariman, A M Khanwilkar, D Y Chandrachud and Indu Malhotra, struck down Section 377 as being violative of right to equality.

The top court, in four separate but concurring judgements, set aside its own verdict in the Suresh Kaushal case.

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 which may extend to 10 years, and shall also be liable to pay a fine.

The apex court, however, said other aspects of Section 377 of IPC dealing with unnatural sex with animals and children shall remain in force.

The historic judgement came on a batch of writ petitions filed by dancer Navtej Jauhar, journalist Sunil Mehra, chef Ritu Dalmia, hoteliers Aman Nath and Keshav Suri and business executive Ayesha Kapur and 20 former and current students of the IITs.

They had sought decriminalisation of consensual sex between two consenting adults of the same sex by declaring Section 377 illegal and unconstitutional.

The issue was first raised by the NGO, Naaz Foundation, which approached the Delhi High Court in 2001. The Delhi High Curt had in 2009 decriminalised sex between consenting adults of the same gender by holding the penal provision as “illegal”.

This high court judgement was overturned in 2013 by the apex court which also dismissed the review plea against which the curative petitions were filed which are pending.

The writ petitions were opposed by Apostolic Alliance of Churches and Utkal Christian Association and some other NGOs and individuals, including Suresh Kumar Kaushal.

 

Here are some of the most powerful things the bench said while pronouncing their judgement that everyone must know:
  • Social morality cannot be used to violate the fundamental rights of even a single individual. Constitutional morality cannot be martyred at the altar of social morality.
  • Constitution is a living organic document; pragmatic interpretation has to be given to combat rigorous inequality and injustice.
  • Any discrimination on the basis of sexual orientation violates Fundamental Rights.
  • Section 377 fails to make distinction between consensual and non-consensual acts. It had become a weapon for the harassment of LGBT and subject them to discrimination.
  • To deny members of LGBT community the full expression of right to sexual orientations is to deny them right under constitution, it’s denial of the right to privacy.
  • No law can be divorced from constitutional morality, state has no business to intrude in personal matters, nor can societal norms regulate sexual orientation. Homosexuality is natural.
  • History owes an apology to the LGBT community. They were made to live a life full of fear.
  • Decriminalisation is but the first step; the Constitution envisages much more. LGBTs are victims of Victorian morality. Constitutional morality and not societal morality should be the driving force for deciding validity of Section 377.

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