Supreme Court strikes down Section 377 that criminalised 'unnatural sex', says history owes apology to LGBTQ persons

In a unanimous verdict, a Supreme Court constitution bench partially scrapped Section 377 of Indian Penal Code which criminalised 'unnatural sex'. Four separate but concurring judgments were delivered, authored by Chief Justice Dipak Misra, Justices DY Chandrachud, Rohinton Fali Nariman and Indu Malhotra. The case was being heard by a five-judge constitution bench that also included Justice AM Khanwilkar.

Reading the judgement, Misra said, "Section 377 is arbitrary. LGBT community possess rights like others. Majoritarian views and popular morality cannot dictate constitutional rights... We have to vanquish prejudice, embrace inclusion, and ensure equal rights."

 Supreme Court strikes down Section 377 that criminalised unnatural sex, says history owes apology to LGBTQ persons

The petitioners in the Section 377 matter outside the Supreme Court with advocates Menaka Guruswamy and Arundhati Katju. Twitter @barandbench

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 apex court stated that any discrimination on the basis of sexual orientation is a violation of fundamental rights. "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.

"Autonomy, intimacy and identity of an individual are to be protected," said Misra as he declared the judgement. "I am what I am. So take me as I am. No one can escape from their individuality.”

Malhotra in her judgement said that History owes an apology to the community. "History owes an apology to those people persecuted by Section 377 for the social ostracism caused by the section. This section infringed on right against discrimination under Article 15, and privacy under Article 21. "

Chandrachud also stated that to deny LGBTQ community of their right to sexual orientation is a denial of their citizenship and a violation of their privacy.

The bench, stating that homosexuality is not a mental disorder, hoped for a better future. "Constitution nurtures dissent as a safety valve of society, we can't change history but can pass way for better future"

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 judgement 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 IITs.

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 the NGO, Naaz Foundation, 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 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 writ petitions were opposed by Apostolic Alliance of Churches and Utkal Christian Association and some other NGOs and individuals, including Suresh Kumar Kaushal.

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With inputs from PTI

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Updated Date: Sep 06, 2018 13:17:07 IST