Section 377 verdict updates: RSS says homosexuality not crime, but needs social and psychological solutions

Auto Refresh Feeds
Section 377 verdict updates: RSS says homosexuality not crime, but needs social and psychological solutions
  • 14:44 (IST)

    Union Home Minister Rajnath Singh had opposed homosexuality 

    So far there have been no reactions from the BJP on the Supreme Court verdict that came today.  

    BJP's Rajnath Singh, in 2013 had openly supported the Section 377 while terming homosexuality unnatural. "We will state (at an all-party meeting if it is called) that we support Section 377 because we believe that homosexuality is an unnatural act and cannot be supported," Singh told The Telegraph  in 2013. 

    Another BJP leader had said at the time that provincial India would not be persuaded by the argument that same sex was rooted in Hindu culture and mythology. “India is largely status-quoist. Fiction is fiction, the reality is different,” he said. 

  • 14:23 (IST)

    Will I now get my rights? asks 'Aligarh' proffesor Siras' partner

    “I was his partner. Will I be treated as that after the new verdict? Now that it is decriminalised, will I get my rights as his partner?” Irfan asks speaking to News18

    Recalling the episode eight years later, Irfan says he was harassed and hounded like a criminal. “Out of frustration I set myself on fire but I was saved by my family at the right time. All these years I was vulnerable and subject to biases – people called me gay, or said ‘oh he was with Siras.’”

    "He gave me food and we bonded well. We went to fairs as well. That day when the sting happened we were supposed to go for numaish – but our life became a mela – movies have been made, discussions have happened on TV, I feel I have been stripped of everything. Our story was consumed," said Irfan.

  • 14:12 (IST)

     De-criminalisation of Section 377 is but the first step

    The decriminalisation of Section 377 is a baby step in the direction of  guaranteeing equal rights to the members of LGBTQ community. While the government has been advised to broadcast the judgment and sensitise law enforcing agencies, precedents show we have been slow in catching up to the civil rights of the minorities. 

    Besides, the issue remains that they still have no legal production from innate discrimination at workplace, especially in the private sector. Then there are the social constraints and the stigma attached to it. 

  • NALSA, Right to Privacy judgments made Section 377 an anomaly 

    After the Right to Privacy judgment, this judgment was excepted. Consistent jurisprudence of the Supreme Court in NALSA and the Right to Privacy case resulted in Supreme Court's 2013 ruling being an anomaly. It is great that the anomaly has been resolved. 

  • Bengaluru-based gay man says we are taking baby steps as a society

    Alex Mathews (from Bengaluru), who identifies as gay, and is also a drag queen going by the name, Mayamma, says "When I heard the verdict, I just started crying. I just couldn't stop the tears because it was the whole hurt that I went through.. it's just... I had to let it out. I'm glad that it is over. Earlier there was a point where I was scared to even hold a guy's hand in public, now at least I can do that. I mean, I don't know if we are that progressive to indulge in PDA like that, but slowly, we're taking baby steps.

  • 13:39 (IST)

    Section 377 manifestation of majoritarian impulse to subjugate a sexual minority, says SC

    "Human instinct to love has been constrained. Section 377 is based on deep-rooted gender stereotypes. It is a majoritarian impulse to subjugate a sexual minority to live in silence," the court said in its ruling.  

  • 13:19 (IST)

    The long fight against Section 377 at a glance

     

  • 13:17 (IST)

    Homosexuality not a mental disorder: Supreme Court

    Homosexuality is not a mental disorder. It is a completely natural condition, the Supreme Court observed today during the judgment of Section 377. The apex court said that the society cannot dictate sexual relationship between consenting adults as it a private affair. Justice Chandrachud said that the denial of right to sexual orientation is akin to denial of right to privacy. 

  • 13:15 (IST)

    Celebrations at Delhi's Lalit hotel after SC decriminalises homosexuality 

  • 13:09 (IST)

    Section 377 based on deep-rooted stereotypes

    "Human instinct to love has been constrained. Section 377 is based on deep-rooted gender stereotypes. It is a majoritarian impulse to subjugate a sexual minority to live in silence," the court said in its ruling.  

  • Feels like burden of shame lifted for people of community: Hrishi Sathawane on Supreme Court verdict

    "When I came out to my parents in the early 2000s, my family took me to a psychiatrist for evaluation. I told the psychiatrist, you must be an idiot. If you even attempt to give me shock therapy, I'll take you to court. But there are several others in the country who faced immense discrimination.

    This (the SC decision) is the first step. There is a lot more to do such as including LGBT members under non-discriminatory clauses, recognising gay marriage etc. have to be taken up. Society has to accept it. It will take time. Take women's rights for example, it has taken so many years, yet we are not there 100 per cent. Now at least there is a legal framework," Sathawane, who was the first gay Indian to get married to his partner said. 

  • 12:52 (IST)

    Sushant Divgikar, model and queer rights activist hails 'epic' judgment 

    Over the years, the mindset has changed and it’s time indeed that Section 377 was scrapped. It’s not even an Indian construct! It is a Victorian relic, and reflects a colonial mindset. Section 377 should have left when the British left our country, it should have ended with the end of their oppressive and inhumane rule. 
    Section 377 has now been thrown in the bin — which is where it belongs. It violated the fundamental rights of millions of Indians — rights the Constitution promises all the citizens of this great country. 

  • 12:46 (IST)

    LABIA collective to meet today evening

    LABIA (queer feminist LBT collective) released an open letter on the Section 377 judgment. The group along with several other organistaions has called for a public meet to celebrate the judgment and discuss with regard to the arrests of human rights defenders.


    We are here We are queer
    Down with 
    normativities of all kinds!
    A luta continua


    aise dastoor ko, subh e be noor ko
    main nahi manta main nahi janta

  • 12:38 (IST)

    Justice Indu Malhotra says consent must mean free consent 

    "History owes the members of this community redressal for past persecution and ignorance of the majority. This sction infringed on right against discrimination under Article 15, and privacy under Article 21. 

    In view of the findings, in so far as consensual sex between adults is criminalized, the article is struck down. (Under Articles 14, 19, 21) Consent must mean free consent."

  • 12:30 (IST)

    'Constitution protects fluidity of sexual experience'

    "The Constitution protects the fluidity in sexual relations. With regard to sexuality and health, it is important to recognize the difference between individual rights and conduct that harms others (non-consensual sex). Every individual has sovereignty over their body and sexual orientations are defined by natural instincts. Counselling practice will have to focus on de-stigmatising homosexuality, that reflects current medical opinion."

  • 12:23 (IST)

    Every individual has sovereignty over his body: Supreme Court upholds basic civil rights of sexual minorities

    "Sexual orientation is a natural phenomenon. Any discrimination on this basis is violative of the Constitution. Any individual has sovereignty over his/her body... Many sections continue to suffer exclusions due to stereotypes... We can’t call ourselves a developed society unless they are freed from these shackles.. LGBTQ community is no different they possess same rights as others. Sustenance of one's identity is a filament of life, someone's sexuality cannot be criminalised in a free society."

  • 12:18 (IST)

    Karan Johar celebrates Supreme Court judgment, says country gets its oxygen back 

  • 12:15 (IST)

    Supreme Court directs govt to ensure proper broadcast of judgment, says police should be sensitised 

    The Supreme Court directed the Union of India should take all measures to properly broadcast the fact that homosexuality is not a criminal offence to create public awareness and eliminate the stigma members of the community have to face. Te court also asked that the police force should be given be periodic training to sensitise them about the issue. 

  • 12:12 (IST)

    Any discrimination on the basis of sexual orientation is violation of fundamental rights: Supreme Court

    "Sexual orientation is one of many biological phenomena which are described as natural and inherent. They are considered part of freedom of expression. Constitutional morality urges the organs of the State including judiciary to protect heterogeneity and prevent imposition of popular perception on the minority. The fundamental rights of even a single individual cannot be infringed upon," the court read. 

  • 12:08 (IST)

    2013 SC order's logic of 'minuscule population' was flawed, says Constitutional Bench 

    Reading out the judgment, the Supreme Court struck down its previous judgment upholding the criminality clause. The court said, "Privacy is a fundamental right under the Puttaswamy case (Right to Privacy ruling)." The court also recognised that the logic that since LGBTQ community only forms a 'minuscule' part of the population is incorrect. 

    "Rights of the last man should also be preserved by the courts. Progressive interpretation of constitution and progressive realization of rights. The previous judgment was incorrect."

  • Declaration of rights only first step in long journey

    For a long time, the LGBTQ community has been trapped in the debate of individual versus larger community. This verdict will finally change the landscape of human rights of the community in India. However, it is important to understand that a declaration of rights is only first step. For substantive equality it is imperative to set up structural changes in policy so that changes can happen on the ground. 

  • 11:57 (IST)

    CJI Dipak Misra upholds rights of LGBTQ community, says autonomy, intimacy and identity of an individual are to be protected

  • Section 377 struck down partially

    Clauses of Section 377 that criminalised consensual sex between adults have been struck down by the Supreme Court. A constitutional bench concurred that this section of the law cannot be regarded as constitutional.

    However, sexual activity with animals and other related clauses in Section 377 will remain criminal. Any act without consent of any one of the partners would still invoke Criminality under 377

  • 5 Points from Supreme Court judgment on Section 377

    1) NALSA - Rights of LGBTQ community recognized including life with dignity. In the same vein, at the core of identity, lies the right to self-determination, CJI Misra said.

    2) Justice Suresh Koushal had overturned the Naz foundation ruling byu the Delhi High Court on the grounds that LGBTQ is a miniscule part of the population and mere scope of abuse. Such a view is constitutionally impermissible

    3) Opposing this view the CJI held that the role of courts are more important when rights affected are of a minority subject to historical discrimination.

    4) Transformative Constitution -  The Chief Justice says that the interpretation of the constitution should not be literal. It should reflect intent and purpose, in consonance with changing times.

    5) Constitutional morality urges the organs of the State including judiciary to protect heterogeneity and prevent imposition of popular perception on the minority. The fundamental rights of even a single individual cannot be infringed upon

  • 11:46 (IST)

    CJI Misra says LGBTQ community has the same fundamental rights as citizen

  • 11:45 (IST)

    Chief Justice Dipak Misra reads out first of four judgments; Justice Khanwilkar concurs

    Chief Justice Dipak Misra has started reading out on behalf of himself and Justice Khanwilkar. Misra spoke about importance of individual identity with dignity, individual autonomy and equality for all without discrimination are cardinal corners of our constitution.

  • 11:43 (IST)

    Supreme Court judges likely to give concurring judgment on Section 377

    According to reports from the courtroom, the judges have come out with a concurring judgment. Four judges,  CJI Dipak Misra, Justices RF Nariman, DY Chandrachud and Indu Malhotra, have authored separate judgments while Justice Khanwilakar has chosen to concur with Misra. 

  • 11:36 (IST)

    Five-judge bench assembles in court

    The five-judge Constitution bench has assembled in court and the judgment will be read out shortly. The majority ruling will decide whether the constitutional validity of section 377 of the IPC can be upheld. 

  • 11:29 (IST)

    Copies of judgments reach court, order to be read out shortly

  • 11:28 (IST)

    Despite NALSA judgment,  'visibly different' LGBT Indians struggle for jobs, basic rights and dignity

    According to a report in Reuters, that confusion over the law in India has made many employers fearful of hiring LGBT candidates, experts say, as they believe being LGBT is a crime, rather than just certain sexual acts.

    "Trans women and effeminate men are harassed most because ours is a very patriarchal society,” said Suresh Ramdas, who heads the LGBT support group for Hewlett-Packard, the world’s largest personal computer maker, in India.

    “For a transgender person, it becomes a lot more difficult because they are visibly different, they cannot put their appearance behind them.”

    While many businesses around the world are starting to recognize the benefits of including lesbian, gay, bisexual, transgender (LGBT) people, most countries do not provide any legal protection against workplace discrimination.

  • 11:19 (IST)

    Five-judge Constitution bench to assemble at 11:30 AM

    The five-judge Constitution bench will assemble at 11.30 am and will start reading out the court's judgment. The majority ruling will decide whether the constitutional validity of section 377 of the IPC can be upheld. 

  • 11:15 (IST)

    Centre worries if decriminalising homosexuality will prompt LGBTQ community to seek other civil rights

    A report in The Wire quoted to the proceedings in the court during a previous hearing. The Centre was apparently worried that if given legal recognition the members of the LGBTQ will demand other rights as well, including wealth, inheritance, adoption, compulsory employment and maintenance. 

    "I’m saying in future, fundamental rights here could be used for other things… like property rights. Please make sure that what you write in your judgment, you don’t say anything here which can be construed in future for anything like this,” additional solicitor general Tushar Mehta told the court. 

  • 11:00 (IST)

    My family disowned me after I came out to the world, says world's first openly gay member of royal family

    Manavendra Singh Gohil, better known as Prince Manavedra, the world’s first openly gay member of royalty spoke to News18 about the upcoming Supreme Court verdict. He said that the reading down of Section 377 has been long overdue. "Making someone’s sexual preference in bed a crime is not just unfair, it’s also unconstitutional according to the fundamental rights we are ensured as Indian citizens,” he said.

     “My family disowned me after I came out to the world. It was not because I was homosexual, they knew about that for years. They only reacted when I told the world,” Gohil told News18.

  • 10:57 (IST)

    Supreme Court judgment at 11.15 am; right-wing groups say society won't accept LGBTQ community

    "The society never has nor will it accept the LGBTQ community. We will not let the "social fabric of the nation be destroyed," said Ajay Gautam, founder, Hum Hindu said ahead of the Supreme Court's ruling. 

  • 10:38 (IST)

    Members of LGBTQ communities face regular harassment at work 

    In a 2016 survey of 100 Indian LGBT employees, the Mission for Indian Gay and Lesbian Empowerment (MINGLE), an advocacy group, found that 40 percent had been harassed at work and the majority were not covered by LGBT workplace protection policies.

  • 10:36 (IST)

    Homophobia has a cost! World Bank study says India lost $31 billion a year 

    The World Bank estimates that homophobia costs India $31 billion a year due to lower educational achievements, loss of labor productivity and the added costs of providing healthcare to LGBT people who are poor, stressed, suicidal or HIV positive, Reuters  reported.

  • 10:28 (IST)

    The fight against Section 377: A History 

    The issue was first raised by NGO Naaz Foundation, which had in 2001 approached the Delhi High Court which had in 2009 decriminalised sex between consenting adults of the same gender by holding the penal provision as "illegal".

     
    This high court judgement was overturned in 2013 by the apex court which also dismissed the review plea against which the curative petitions were filed which are pending.
     
     
    The top court had commenced hearing on the fresh writ petitions challenging re-criminalisation of consensual gay sex between two adults, rejecting the Centre's plea seeking postponement of the proceedings by four weeks.
     
     
    At the outset of the hearing, the five-judge bench on July 10 had made it clear that it was not going into the curative petitions and would adjudicate on the fresh writ petitions in the matter.
     
     
    The writ petitions were opposed by Apostolic Alliance of Churches and Utkal Christian Association and some other NGOs and individuals including Suresh Kumar Kaushal.
     
     
    Kaushal had also challenged the 2009 verdict of the high court in the apex court which had restored section 377 of IPC.

  • 10:25 (IST)

    5 to 10% of Indian Workforce is LGBTQ, says study

    A resource guide titled ‘Creating Inclusive Workplaces for LGBT Employees in India’, created by Google, IBM, Goldman Sachs and Community Business last year, records that the LGBTQ community makes up about 5 to 10 percent of India Inc's workforce. Around 80 percent of them report discrimination in the form of homophobic comments, gestures, actions or even physical threats and violence.

  • 10:09 (IST)

    Supreme Court verdict expected by 11.15 am

    Latest reports have said that the Supreme Court verdict will be delayed at least by 30 minutes. CNN-News18 reported that the verdict is expected at around 11.15 am instead of 10.30 because of the full court reference in memory of two senior advocates.

  • 09:40 (IST)

    'I'm also a human being,' says hotelier Keshav Suri on LGBTQ rights and Section 377

  • 09:34 (IST)

    Centre refused to oppose, or support discriminatory British-era law 

    The Centre, which had initially sought adjournment for filing its response to the petitions, had left to the wisdom of the court the issue of legality of the penal provision on the aspects of criminalising consensual unnatural sex between two consenting adults. It had said that the other aspects of the penal provision dealing with minors and animals should be allowed to remain in the statute book.

  • 09:27 (IST)

    'If not now, then when' asks Keshav Suri, director of Lalit Suri Hospitality Group 

    Hotelier Keshav Suri, who is the son of late Lalit Suri and director of the Lalit Suri Hospitaity Group, the holding company of the chain of Lalit hotels, is openly gay. He too has filed a petition in the Supreme Court supporting decriminalisation of gay sex. In an interview with News18Suri opines that the archaic law should be scrapped without any further delay. 

  • 09:21 (IST)

    SC regarding LGBTQ as minuscule section of population drove us to challenge 2013 order, says one of petitioners

    Navtej Johar of Navtej Johar vs the Union of India case said that the Supreme Court ruling of 2013, which justified upholding the discriminatory law because LGBTQ community constitutes a 'miniscule' section of the populace was what drove him to file a review petition. 

    Speaking to The Indian ExpressJohar's partner Sunil Mehra said, “We had to make a point that this is not just a matter of omission of law, there is a human cost involved. We exist.”

  • 09:08 (IST)

    If SC decriminalises homosexuality today, it'll open debate on rape of men

    Various surveys and medical reports have highlighted that sodomy in prison cells and sexual assault of men is commoner than we would like to think. If the Supreme Court strikes down the Section 377, it may even open up debate for legal recourse for male sexual assault victim, apart from restoring the dignity and rights of gay couples. 

  • 09:06 (IST)

    If SC scraps down law, it'll give us right to live with dignity, says Sridhar Rangayan 

    "Today is a big day for the Indian LGBTQ community and a lot of hope is pinned on it. Our very lives depend on it, and we are convinced that the Supreme Court will deliver a favourable judgment. It will not only free us from the shackles of a colonial law but offer us rights as free citizens of India.
    As a filmmaker and artist it will give me a voice which I intend to use with responsibility," says Sridhar Rangayan, Filmmaker, Winner of National Award & Director of KASHISH Mumbai International Queer Film Festival. He is also one of the petitioners in the Supreme Court in Section 377 case.

  • 08:54 (IST)

    SC's NALSA judgment gave teeth to LGBTQ community's fight

    In the National Legal Services Authority (NALSA) vs Union of India case. In the NALSA judgment, the bench, consisting of justices KS Radhakrishnan and AK Sikri, broke down the heteronormative, binary gender constructs of ‘man’ and ‘woman’ and affirmed that the transgender community also enjoys the same rights under the constitution. In the 2014 judgment, the court for the first time held that the transgender community has a right to a distinct 'third geder' under the right to dignity and life as defined under the Constitution. 

    This ensured that the fight for different sexual identities gained a legal recognition, thereby oaving way for the argument that if a person has the right to chose their gender, they also have the freedom to chose their sexual orientation. 

  • 08:48 (IST)

    Recap: Four judges to pen judgment on Section 377

    A five-judge constitution bench headed by Chief Justice Dipak Misra was hearing the matter and had reserved its verdict on 17 July after hearing various stakeholders for four days, including gay rights activists. The bench also comprised Justices R F Nariman, AM Khanwilkar, DY Chandrachud and Indu Malhotra. Of the five judges, only Justice Khanwilkar hasn't authored a judgment, while all the other judges have authored different judgments. 

  • 08:46 (IST)

    Legal battle against law first started in 1994; SC likely to strike it down 24 yrs later

    The legal battle against the archaic Section 377 first started in 1994 when a the AIDS Bhedbhav Virodhi Andolan (ABVA), a human rights activist group, filed a public interest petition in the Delhi High Court challenging the constitutional validity of Section 377. 

    The petition was filed in the wake of the report of a medical team that visited Tihar Jail in Delhi and reported a high incidence of sodomy in the wards. The Tihar jail authorities refused to supply condoms to inmates despite the known prevalence of homosexual activity between the inmates and risk of exposure to HIV infection. However, the ABVA became defunct soon afterwards and the petition never came up for hearing.

    It was only in 2001 that the legal process was revived, when the Naz Foundation, an NGO approached the Delhi High Court with a request to decriminalise consensual sex between adults of the same gender. Several other petitions challenging various aspects of the law have now been clubbed together, and the court is expected to deliver a judgment with far-reaching implications. 

  • 08:23 (IST)

    India's first gay marriage took place in 2017 

    Hrishi Mohankumar Sathawane, a US-based engineer from India, got married to his partner Vinh in Yavatmal. In a Facebook post put out at the time, Hrishi shared his story of coming out to his family, earning their acceptance, and finally introducing his partner to his family. The family organised a private commitment ceremony for the couple on 30 December 2017. We are enclosing the complete Facebook post so that Hrishi's story is told in his words.  

  • 08:07 (IST)

    Supreme Court had upheld Section 377, overruling Delhi HC judgment in 2013

    Supreme Court - The judiciary's reformist views as revealed in several observations made during the course of hearing are more recent. In 2013, a Supreme Court bench comprising Justices GS Singhvi and SJ Mukhopadaya overturned a Delhi HC judgment scrapping down the criminality clause in the archaic law. The bench had defended the decision citing low prosecution rates, miniscule population of LGBTQ community, and the Parliament's failure to come up with a law to this effect.

    Activists, and the Naz Foundation who ws the petitioner in the case, decried the judgment and claimed the Supreme Court had pushed them back a 100 years back in their fight for equal rights. 


Section 377 verdict LATEST updates: The RSS has put out a statement saying that it does not believe that homosexuality is a criminal offence but its not natural. "The Indian society did not accept such relations and this issue needs a social and psycological solution," it said.

"Human instinct to love has been constrained. Section 377 is based on deep-rooted gender stereotypes. It is a majoritarian impulse to subjugate a sexual minority to live in silence," the Supreme Court said in its ruling.  

A Supreme Court constitution bench on Thursday pronounced a unanimous verdict scrapping Section 377 of the Indian Penal Code, which criminalises ‘unnatural sex’. Chief Justice Dipak Misra noted that majoritarian views and popular morality cannot dictate constitutional rights.

A five-judge constitution bench headed by Chief Justice Dipak Misra and comprising Justices Rohinton Fali Nariman, AM Khanwilkar, DY Chadrachud and Indu Malhotra had reserved its verdict on July 17 after hearing various stakeholders, including LGBTQIA+ rights activists, over four days.

Here are the main conclusions made by the Supreme Court:

1. NALSA - rights recognized including life with dignity. In the same vein, at the core of identity, lies self determination.

2. Suresh Koushal overturned Naz foundation by taking the ground that LGBTQ is a miniscule part of the population and mere scope of abuse. Such a view is constitutionally impermissible

3. The role of Courts are more important when rights affected are of a minority subject to historical discrimination.

4. Transformative Constitution- interpretation should not be literal. Should reflect intent and purpose, in consonance with changing times.

5. Constitutional morality urges the organs of the State including judiciary to protect heterogeneity and prevent imposition of popular perception on the minority. The fundamental rights of even a single individual cannot be infridged upon

The five-judge Constitution bench has assembled in court and the judgment will be read out shortly. The majority ruling will decide whether the constitutional validity of section 377 of the IPC can be upheld.

"The society never has nor will it accept the LGBTQ community. We will not let the "social fabric of the nation be destroyed," said Ajay Gautam, founder, Hum Hindu said ahead of the Supreme Court's ruling.

The Supreme Court's NALSA and Right To Privacy judgments were some landmark moments in the fight against homosexuality. While the former led the law to recognise the trans communities' right to chose their own gender, it opened a debate for homosexuals to have the right to chose their sexual orientation. Similarly, with the Supreme Court ratifying the Right To Privacy, consensual private intercourse could be argued to be a private matter of an individual.

Latest reports have said that the Supreme Court verdict will be delayed at least by 30 minutes. CNN-News18 reported that the verdict is expected at around 11.15 am instead of 10.30 because of the full court reference in memory of two senior advocates.

The Supreme Court will pronounce 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. A five-judge constitution bench headed by Chief Justice Dipak Misra had reserved its verdict on 17 July after hearing various stakeholders for four days, including gay rights activists.

Various surveys and medical reports have highlighted that sodomy in prison cells and sexual assault of men is commoner than we would like to think. If the Supreme Court strikes down the Section 377, it may even open up debate for legal recourse for male sexual assault victim, apart from restoring the dignity and rights of gay couples.

The legal battle against the archaic Section 377 first started in 1994 when the AIDS Bhedbhav Virodhi Andolan (ABVA), a human rights activist group, filed a public interest petition in the Delhi High Court challenging the constitutional validity of Section 377. Twenty-four years later, the Supreme Court has indicated that it may do away with the criminality clause against consenting adults.

Four of five judges — CJI Dipak Misra, Justices RF Nariman, DY Chandrachud and Indu Malhotra — have authored separate judgments while Justice Khanwilakar has chosen to concur with one of the judges.

The Supreme Court had attached importance to the consent of individuals on matters of sexual intercourse and sexuality. In a previous hearing, the constitutional bench had indicated that the court will uphold the concept of consent of individuals in its decision.

"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.

The Supreme Court will pronounce 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.

A five-judge Constitution Bench headed by Chief Justice Dipak Misra had reserved its verdict on 17 July after hearing various stakeholders for four days, including gay rights activists.
Besides the CJI, the bench also comprised Justices RF Nariman, AM Khanwilkar, DY Chandrachud and Indu Malhotra.

The apex court had asserted that courts cannot wait for a "majoritarian government" to decide on enacting, amending or striking down a law if it violates fundamental rights.

It had made clear that it may not strike down the law completely and deal with it to the extent it relates to consensual acts between two adults.

"If Section 377 of the IPC goes away entirely, there will be anarchy. 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," the bench had said while reserving its verdict.

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.

The Centre, which had initially sought adjournment for filing its response to the petitions, had later left to the wisdom of the court the issue of legality of the penal provision on the aspects of criminalising consensual unnatural sex between two consenting adults.

It had said that the other aspects of the penal provision dealing with minors and animals should be allowed to remain in the statute book.

The apex court heard the 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 IITs. They have sought decriminalisation of consensual sex between two consenting adults of the same sex by declaring section 377 of IPC as illegal and unconstitutional.

The issue was first raised by NGO Naaz Foundation, which had in 2001 approached the Delhi High Court which had in 2009 decriminalised sex between consenting adults of the same gender by holding the penal provision as "illegal".

This high court judgement was overturned in 2013 by the apex court which also dismissed the review plea against which the curative petitions were filed which are pending.

The top court had commenced hearing on the fresh writ petitions challenging re-criminalisation of consensual gay sex between two adults, rejecting the Centre's plea seeking postponement of the proceedings by four weeks.

At the outset of the hearing, the five-judge bench on 10 July had made it clear that it was not going into the curative petitions and would adjudicate on the fresh writ petitions in the matter.

The writ petitions were opposed by Apostolic Alliance of Churches and Utkal Christian Association and some other NGOs and individuals including Suresh Kumar Kaushal.

Kaushal had also challenged the 2009 verdict of the high court in the apex court which had restored Section 377 of IPC.


Updated Date: Sep 06, 2018 16:05 PM

Also See