SC declares Section 377 of IPC as unconstitutional

In a historic decision, the Supreme Court of India today decriminalised gay sex between consenting adults by reading down Section 377 of the Indian Penal Code (IPC).

The judgment titled Navtej Singh Johar & Ors. v. Union of India was delivered by a Bench of Chief Justice of India Dipak Misra and Justices Rohinton Nariman, AM Khanwilkar, DY Chandrachud and Indu Malhotra.

CJI Misra and Justices Nariman, Chandrachud and Malhotra delivered separate, concurring judgments.

Today, the Court held that Section 377 insofar as it criminalises consensual sexual acts between adult human beings, is unconstitutional and liable to be struck down.

However, the Court made it clear that sex with animals, which also forms a part of Section 377, will remain a criminal offence.

Here is how the pronouncement of the verdict unfolded:

  • : Respect for individual choice essence of liberty; LGBT community possess equal rights under the Constitution, Supreme Court.
  •  CJI Dipak Misra reading judgment on behalf of himself and Justice Khanwilkar
  • : View taken by SC in Suresh Kumar Koushal impermissible, Supreme Court.
  • : Primary objective of having a Constitutional society is to transform the society progressively; Constitutional provisions should not be interpreted in literal sense, Supreme Court.
  • : Sexual orientation of an individual is natural and discrimination on the basis of sexual orientation is a violation of Freedom of Expression, Supreme Court.
  • : The provision of IPC had resulted in collateral effect in that consensual sex between LGBT person is criminalised and is violative of Article 14, Supreme Court.
  •  of IPC insofar as it criminalises consensual sexual acts between man and man, man and woman or woman and woman is unconstitutional and struck down. Sex with animals will however remain criminal. Judgment in Suresh Kumar Koushal overruled.
  • : Justice Rohinton Nariman now reading out his concurring judgment
  • #Section377: Justice Rohinton Nariman places extensive reliance on foreign jurisprudence including recent judgment from Trinidad and Tobago.
  • Justice Rohinton Nariman says one feature of his judgment is reliance on Mental Healthcare Act as per which Parliament has recognised that homosexuality is not a mental disorder #Section377
  • Justice Rohinton Nariman concludes his concurring judgment, Justice Chandrachud reading his judgment now
  • : Gays, Lesbians, Bi-sexual and Transgenders have equal rights as other citizens, Justice DY Chandrachud
  • This case is much more than just decriminalising a provision It is about an aspiration to realise Constitutional rights and equal existence of LGBT community as other citizens, DY Chandrachud
  • To deny LGBT community of their right to sexual orientation is a denial of their citizenship and a violation of their privacy. They cannot be pushed into obscurity by an oppressive colonial legislation, DY Chandrachud
  • Treatment of homosexuality as a disorder/ disease has a severe impact on mental health of such persons, DY Chandrachud J.
  • De-criminalisation is but the first step; The Constitution envisages much more. LGBTs are victims of Victorian morality. Constitutional morality and not Societal morality should be the driving force for deciding validity of Section 377, DY Chandrachud J.
  • LGBT community entitled to equal citizenship, equal rights under the Constitution, DY Chandrachud J. Suresh Kumar Koushal overruled
  • : History owes an apology to LGBT persons for ostracisation, discrimination, Supreme Court of India.
  • : This judgment to be considered in all pending prosecutions, 

The erstwhile Section 377 defines ‘unnatural offences’ and prescribes the punishment for it. The provision reads as follows:

“Whoever voluntarily has carnal inter­course against the order of nature with any man, woman or animal, shall be punished with 1[imprisonment for life], or with impris­onment of either description for a term which may extend to ten years, and shall also be liable to fine.

Explanation.—Penetration is sufficient to constitute the carnal intercourse necessary to the offence described in this section.”

The Delhi High Court had read down the provision and decriminalised gay sex back in 2009. However, in 2013, the Supreme Court had reversed the Delhi High Court decisionand criminalised gay sex, resulting in an uproar.

The curative petition in that matter is still pending and was even referred to a Constitution Bench when fresh writ petitions were filed in Supreme Court challenging the validity of the provision.

These writ petitions were heard first, and the Court has now delivered its verdict in the same. The curative petition has effectively been rendered moot as a result of this judgment.

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