SC legalises gay sex, partially strikes down Sec 377
New Delhi, Sep 6: In a landmark verdict, the Supreme Court has partially struck down Section 377 of the Indian Penal Code. Observing that the section was unconstitutional the five judge Bench held that Section 377 is irrational, indefensible and manifestly arbitrary.
Delivering a unanimous verdict the court said Section 377 is irrational, arbitrary and incomprehensible as it fetters the right to equality for LGBT community. LGBT community possesses same equality as other citizens, the Bench held.
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A five-judge SC bench by unanimous decision decriminalises Section 377 making gay sex legal. CJI Dipak Misra and Justice A M Khanwilkar pronounce the first judgment saying consensual sexual relation between same gender adults in private does not fall foul of section 377 IPC.
Section 377: A timeline:
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", decriminalised gay sex. The SC also left it to Parliament to consider deleting the provision from the IPC.
A review petition filed by Naz Foundation was quashed.
In January riding on the court’s verdict on fundamental rights, a petition challenging the section was filed.
Section 377 in a nutshell: 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.
Explanation: Penetration is sufficient to constitute the carnal intercourse necessary to the offence described in this section.
The petitions were opposed by the Apostolic Alliance of Churches and Utkal Christian Association. Individuals like Suresh Kumar Kaushal too had opposed the petitions. The Bench had said that it would not go into the curative petitions and would adjudicate fresh on the matter.
Before reserving the verdict, the Bench had said, “we are solely on consensual acts between man-man, man-woman. Consent is the fulcrum here. You cannot impose your sexual orientation on others without their consent," the top court had said while allaying apprehensions of those opposed to the decriminalisation of the penal provision. "We would not wait for the majoritarian government to enact, amend or not to enact any law to deal with violations of fundamental rights.”
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