New Delhi: Gay sex among consenting adults is not an offence, the Supreme Court ordered on September 6, reading down a British-era section 377 of the penal code that penalizes people for their sexual orientation.
“Any discrimination on the basis of sexual orientation violates fundamental rights,” said Chief Justice Dipak Misra, reading out the operative portion of the top court’s verdict that struck down Section 377 to the extent that it penalized consensual sexual relationship between two adults.
“Social morality cannot be used to violate the fundamental rights of even a single individual… Constitutional morality cannot be martyred at the altar of social morality,” he added.
In four separate but concurring verdicts, the five judges of the top court ruled that the section failed to make a distinction between consensual and non-consensual acts. Bestiality will also continue to be an offence under section 377.
“It had become a weapon for the harassment for LGBT and subject them to discrimination,” Chief Justice Misra said.
Section 377, which treats consensual sexual acts by adults of the same sex as an offence and provides for life in prison, is modeled on Britain’s Buggery Act of 1533 and had survived on the statute in India though it has been scrapped in Britain.
The Delhi high court had decriminalized consensual gay sex in 2009 but the top court had cancelled the order four years later, ruling that only parliament should be changing laws.
In 2016, the Supreme Court, however, agreed to hear a petition by five prominent members of the LGBT, or lesbian, gay, bisexual and transgender community Bharatnatyam dancer Navtej Johar, culture expert Aman Nath, restaurateurs Ritu Dalmia and Ayesha Kapur and mediaperson Sunil Mehra, challenging the constitutionality of section 377.
The court later set up a five-judge bench to determine if the provision violates fundamental rights guaranteed by the constitution which concluded the hearing in July.
Long before the constitution bench delivered the verdict on Thursday, the five judges had dropped enough hints about what they thought of the nearly 160-year-old law.
Like when Chief Justice Misra observed that the LGBT community felt the stigma “because of the criminality attached” and homosexuals can get together once it is removed. On other occasions, the judges had made it clear that consent was going to be the key and no one could impose their sexual orientation on others.
At other times, the judges observed that the law could not deny the LGBT community their right to privacy even they make only make up for a “minuscule fraction” of the country’s population.
It had also underlined that the top court wasn’t going to wait for a “majoritarian government to enact, amend or not to enact any law to deal with violations of fundamental rights”.
During the court hearings, the NDA government had chosen not to take a stand in the matter, leaving it to the court’s wisdom but asked the court to clarify that the right to choose a partner should not extend to “perversions like incest.”
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