A constitutional bench headed by Chief Justice of India Dipak Misra in the Supreme Court of India on Thursday unanimously struck down on Section 377 of the Indian Penal Code (IPC) which criminalises ‘unnatural sex’. The judgement, in four separate and concurring judgements legalised same-sex relations between consenting adults.
The bench comprised of Justices Fali Nariman, A M Khanwilkar, D Y Chandrachud and Indu Malhotra. The verdict had been given on five petitions appealed by dancer Navtej Jauhar, journalist Sunil Mehra, chef Ritu Dalmia, hoteliers Aman Nath and Keshav Suri and business executive Ayesha Kapur.
CJI Dipak Misra said, “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.”
#Section377: The provision of IPC had resulted in collateral effect in that consensual sex between LGBT person is criminalised and is violative of Article 14, Supreme Court.
— Bar & Bench (@barandbench) September 6, 2018
“Section 377 is arbitrary. The LGBT community possesses rights like others. Majoritarian views and popular morality cannot dictate constitutional rights. We have to vanquish prejudice, embrace inclusion and ensure equal rights,” he said in the judgement with Justice Khanwilkar, LiveLaw reported.
“Sexual orientation of an individual is natural and discrimination on the basis of sexual orientation is a violation of freedom of expression,” the court said. “The provision of IPC had resulted in collateral effect in that consensual sex between LGBT person is criminalised and is violative of Article 14, Supreme Court.”
Justice Nariman, in his judgement, said that the Suresh Kumar Koushal was no longer good law in view of the NALSA and Puttaswamy judgments. He also said that “homosexuality cannot be regarded as mental disorder” and “homosexuals have the right to live with dignity”.
“Section 377 inflicts tragedy and anguish; it has to be remedied,” Justice Chandrachud said.
“This case is much more than just decriminalising a provision. It is about an aspiration to realise constitutional rights and equal existence of LGBT community as other citizens,” Chandrachud added.
He referred to the right to privacy judgment from last year and said, “To deny the LGBT community of their right to sexual orientation is a denial of their citizenship and a violation of their privacy. They cannot be pushed into obscurity by an oppressive colonial legislation.”
He added that IPC Section 377 has been destructive to the LGBT identity.
Meanwhile, Bollywood producer-directior, Karan Johar tweeted:
Historical judgment!!!! So proud today! Decriminalising homosexuality and abolishing #Section377 is a huge thumbs up for humanity and equal rights! The country gets its oxygen back! 👍👍👍💪💪💪🙏🙏🙏 pic.twitter.com/ZOXwKmKDp5
— Karan Johar (@karanjohar) September 6, 2018
Earlier, during the hearings of the apex court, the government of India’s affidavit said, “In the most respectful submission of the Union of India, allowing any other issue (other than constitutional validity of Section 377) to be argued and adjudicating the same with giving an opportunity to the Union of India to file a counter affidavit to the Union of India may not be in the interest of justice and would be violative of principles of natural justice.”
Section 377 of the IPC criminalises “unnatural sex”, with “natural sex” being between a man and a woman and of the penile-vaginal variety. This has led to discrimination against same-sex between consenting adults.