The Supreme Court on Thursday pronounced its much-awaited verdict on a clutch of petitions seeking decriminalisation of a 158-year-old colonial law under Section 377 of the IPC which criminalises consensual gay sex. The court has partially struck down section 377 of IPC and de-criminalised the law by saying that the right to love is an individual’s choice. It said other aspects of Section 377 dealing with unnatural sex with animals and children remain in force. The decision was unanimously taken by a five-judge bench of the Supreme Court.
Chief Justice of India, Dipak Misra while reading out his judgement said that LGBTQ community has same fundamental rights as others and added that heterogenous fibre must be maintained. He said that the identity of an individual is important. “No one can escape from their individualism. Society is now better for individualism. In the present case, our deliberations will be on various spectrums,” he added.
Mishra added that 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 the violation of fundamental rights. After judgement in Puttuswamy case, privacy has been raised to fundamental right,” he said.
READ | Section 377 Timeline
The verdict was reserved by a five-judge constitution bench headed by Chief Justice Dipak Misra on July 17 after hearing various stakeholders for four days, including gay rights activists. Besides the CJI, the bench also 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 Jauhar, 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.”
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.