Supreme Court Constitution Bench decriminalises gay sex 

A Constitution bench of the Supreme Court on Thursday unanimously decriminalised part of a 158-year-old colonial law that made "unnatural" sex a criminal offence under Section 377.

  • Published 6.09.18
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LGBT community celebrating outside Supreme Court after Supreme Court verdict in New Delhi on Thursday. Picture by Prem Singh

New Delhi, Sep. 6 (Agencies): A Constitution bench of the Supreme Court on Thursday unanimously decriminalised part of a 158-year-old colonial law that made "unnatural" sex a criminal offence under Section 377.

A five-judge Constitution bench headed by Chief Justice Dipak Misra termed the part of Section 377 of the Indian Penal Code that relates to sex against the order or nature between men and women as irrational, indefensible and manifestly arbitrary.

“Any consensual sexual relationship between two consenting adults - homosexuals, heterosexuals or lesbians - cannot be said to be unconstitutional,” said Chief Justice Misra, as he read out the judgment.

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

Gay sex was reinstated as a criminal offence in 2013 after four years of decriminalisation. Gay sex had been punishable by up to 10 years in jail.

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.

Activists welcomed the ruling.

”Thanks to all that fought for this, braving the worst sort of prejudice. This is a good day for human rights,” Meenakshi Ganguly, South Asia director for Human Rights Watch, said on Twitter.

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

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 judgment 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 Indian Institutes of Technology.

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 Naaz Foundation, a non-government organisation, which approached the Delhi High Court in 2001. The Delhi High Court had in 2009 decriminalised sex between consenting adults of the same gender by holding the penal provision as “illegal”. This high court judgment was overturned in 2013 by the apex court.

(This report was updated with additional comments and inputs at 1.45pm.)

 

 

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