The Supreme Court declared on Thursday that homosexuality is no longer a crime in India. The apex court passed the verdict on Thursday after reviewing its 2013 order that had recriminalised consensual gay sex. The landmark judgment is a historic victory for the LGBTQIA+ community that has struggled to exercise their right to free choice for 25 years.
The 158-year-old colonial law under Section 377 of the Indian Penal Code (IPC) was finally partially struck down by a five-judge constitution bench headed by Chief Justice Dipak Mishra. However, other aspects of Section 377 that deals with unnatural sex with animals and children is still illegal.
Reading out the judgment, Chief Justice of India Dipak Mishra said, “I am what I am. So take me as I am. No one can escape from their individuality. We have to bid adieu to prejudices and to empower all citizens.”
This is what the bench said:
Identity pivotal…Sustenance of identity is filament of life…many sections continue to suffer exclusions due to stereotypes…we can’t call ourselves developed society unless they are freed from these shackles…LGBTQ community possess same rights as others @IndianExpress
— Ananthakrishnan G (@axidentaljourno) September 6, 2018
#Section377: History owes an apology to LGBT persons for ostracisation, discrimination, Supreme Court of India. #InduMalhotra.
— Bar & Bench (@barandbench) September 6, 2018
What is Section 377?
Section 377 of the IPC punishes those who engage in sex ‘against the order of nature’, which means anal sex or sex other than vaginal penetration. The archaic centuries-old states, “Whoever voluntarily has carnal intercourse against the order of nature with any man, woman or animal, shall be punished.”
Individuals charged with section 377 could be imprisoned for life, or with ‘imprisonment of either description for a term which may extend to ten years, and shall also be liable to fine’.
What was Delhi High Court’s verdict in 2009?
On July 3, 2009, the Delhi High Court struck down Section 377, asserting that it violated fundamental rights to life and liberty. The verdict came after a public interest litigation by Delhi-based gay rights NGO Naz Foundation. The high court pronounced that the section stripped an individual of dignity and made them criminal on the basis of their sexual identity. It also violated Article 13 by singling out homosexuals as a class.
What did Supreme Court do with Delhi High Court’s verdict?
The apex court reversed the Delhi HC’s judgment in December 2013 and upheld the section solely because it was constitutionally valid. The Supreme Court bench stated that it was the Parliament’s job to scrap laws.
This overruling was heavily criticised by India’s LGBTQIA+ community. Members and activists from the community claimed that the section was often used to harass and intimidate people in the queer community.
Member of India’s LGBT (Lesbians Gays Bisexuals Transgenders) community shout slogans during a parade in Gurgaon on the outskirts of New Delhi, India. Credit: AP
How is the Right to Privacy related to Section 377?
The Supreme Court delivered a landmark verdict in August 2017, ruling that right to privacy is a fundamental right. In the right to privacy judgment, the order stated, “Privacy includes at its core the preservation of personal intimacies, the sanctity of family life, marriage, procreation, the home and sexual orientation. Privacy also connotes a right to be left alone…”
This judgment was the basis on which five high-profile petitioners Aman Nath (owner of the Neemrana hotel chain), Navtej Johar (classical dancer), Ritu Dalmia (celebrity chef), Sunil Mehra (journalist) and Ayesha Kapur (restauranteur), challenged the ban on gay sex, arguing that they are living in fear of being punished.
What has the SC said so far about Section 377?
While reviewing and hearing arguments on Section 377, quite a few positive remarks have been made by the five-judge constitution bench that started reviewing its 2013 order in July this year.
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