Landmark ruling ends gay sex ban

New Delhi: In a historic, path-breaking judgment, the Supreme Court on Thursday partially struck down as unconstitutional the 158-year-old colonial law which criminalised consensual homosexual acts between two consenting adults. It held that homosexuality, lesbian, gay sex or un-natural sex between a man and woman is no more an offence for prosecution of the offender.

In a unanimous 493-page verdict, a five-judge Constitution Bench declared Section 377 of the Indian Penal Code unconstitutional, insofar as it criminalises consensual sexual acts of adults in private. It however, clarified that such consent must be free consent, which is completely voluntary in nature, and devoid of any duress or coercion. The court also said that the provisions of Section 377 would continue to govern non-consensual sexual acts against adults, all acts of carnal intercourse against minors, and acts of bestiality.

The Chief Justice Dipak Misra wrote for himself and Justice A.M Khanwilkar. Justices Rohinton Nariman, D.Y. Chandrachud and Ms. Indu Malhotra gave concurring verdicts giving additional reasons.

The CJI said that criminalisation of consensual carnal intercourse, be it amongst homosexuals, heterosexuals, bi-sexuals or transgenders, hardly serves any legitimate public purpose or interest.

 He said, "Per contra, we are inclined to believe that if Section 377 remains in its present form in the statute book, it will allow the harassment and exploitation of the LGBT community to prevail. We must make it clear that freedom of choice cannot be scuttled or abridged on the threat of criminal prosecution and made paraplegic on the mercurial stance of majoritarian perception."

The CJI said the very existence of Section 377 IPC criminalising transgenders casts a great stigma on an already oppressed and discriminated class of people. This stigma, oppression and prejudice has to be eradicated and the transgenders have to progress from their narrow claustrophobic spaces of mere survival in hiding with their isolation and fears to enjoying the richness of living out of the shadows with full realisation of their potential and equal opportunities in all walks of life.

The ideals and objectives enshrined in our benevolent Constitution can be achieved only when each and every individual is empowered and enabled to participate in the social mainstream and in the journey towards achieving equality in a Constitution.

The court held that Section 377 IPC, so far as it penalises any consensual sexual activity between two adults, be it homosexuals (man and a man), heterosexuals (man and a woman) and lesbians (woman and a woman), cannot be regarded as constitutional. 

However, it said if anyone, by which we mean both a man and a woman, engages in any kind of sexual activity with an animal, the said aspect of Section 377 IPC is constitutional and it shall remain a penal offence under Section 377 IPC. Any act of the description covered under Section 377 IPC done between the individuals without the consent of any one of them would invite penal liability under Section 377 IPC.

The CJI said the sexual autonomy of an individual to choose his/her sexual partner is an important pillar and a not-segregable facet of individual's right. This right cannot be smothered under some vague and archival stipulation that it is against the order of nature or under the perception that the majority population is peeved when such an individual exercises his/her liberty despite the fact that the exercise of such liberty is within the confines of his/her private space.

The court said that any display of affection amongst the members of the LGBT community towards their partners in public so long as it does not amount to indecency or has the potentiality to disturb public order couldn't be bogged down by majority perception.

Section 377 IPC amounts to unreasonable restriction as it makes carnal intercourse between consenting adults within their castle a criminal offence which is manifestly not only overboard and vague but also has a chilling effect on an individual's freedom of choice. Further Section 377 IPC does not meet the criteria of proportionality and is violative of the fundamental right of freedom of expression including the right to choose a sexual partner.

Section 377 IPC also assumes the characteristic of unreasonableness, for it becomes a weapon in the hands of the majority to seclude, exploit and harass the LGBT community. It shrouds the lives of the LGBT community in criminality and constant fear mars their joy of life. They constantly face social prejudice, disdain and are subjected to the shame of being their very natural selves. Thus, an archaic law, which is incompatible with constitutional values, cannot be allowed to be preserved.

Justice Indu Malhotra said the mere fact that the LGBT persons constitute a "miniscule fraction" of the country's population couldn't be a ground to deprive them of their Fundamental Rights guaranteed by the Constitution. Even though the LGBT constitute a sexual minority, members of the LGBT community are citizens of this country who are equally entitled to the enforcement of their Fundamental Rights guaranteed by Articles 14, 15, 19, and 21.

She said history owes an apology to the members of this community and their families, for the delay in providing redressal for the ignominy and ostracism that they have suffered through the centuries. The members of this community were compelled to live a life full of fear of reprisal and persecution. This was on account of the ignorance of the majority to recognise that homosexuality is a completely natural condition, part of a range of human sexuality.

Justice Malhotra while over-ruling the 2011 apex court verdict upholding the provision said the misapplication of this provision denied them the Fundamental Right to equality guaranteed by Article 14. It infringed the Fundamental Right to non-discrimination under Article 15. The declaration of the aforesaid reading down of Section 377 shall not, however, lead to the re-opening of any concluded prosecutions, but can certainly be relied upon in all pending matters whether they are at the trial, appellate, or revision stages, she added.