New Delhi: The gay community has the same right in India as any ordinary citizen, the Supreme Court ruled on Thursday -- ending a draconian British-era law that criminalised gay sex and heralding a new, bright era for gay rights in the country.
In a unanimous decision, the five-judge bench -- led by Chief Justice of India Dipak Misra -- decriminalised a part of Section 377 of the Indian Penal Code that banned consensual gay sex, holding out promise of a new dawn in personal liberty.
The constitution bench headed by Chief Justice Dipak Misra termed the part of Section 377 of the Indian Penal Code which criminalises consensual unnatural sex as irrational, indefensible and manifestly arbitrary.
While reading the verdict, CJI Misra observed that the LGBTQ (lesbian, gay, bisexual, transgender and queer) community has the same rights as of any ordinary citizen of India. He said respect for each others rights, and respect for others is supreme humanity. Criminalising gay sex is irrational and indefensible, he said.
"No one can escape from their individualism. Society is now better for individualism. In the present case, our deliberations will be on various spectrums," CJI Misra said before reading out the verdict. "Sustenance of identity is the pyramid of life," CJI Misra added.
The bench, which also comprised Justices R F Nariman, A M Khanwilkar, D Y Chandrachud and Indu Malhotra, struck down Section 377 of the IPC as being violative of the right to equality and the right to live with dignity.
In four separate but concurring judgements, the top court set aside its 2013 verdict in the Suresh Kaushal case which had re-criminalised consensual unnatural sex. The bench said the other aspects of Section 377 of the IPC dealing with unnatural sex with animals and children remain in force.
“Any kind of sexual activity with animals shall remain penal offence under Section 377 of the IPC,” the bench said. Dealing with a clutch of petitions, the court held that section 377 of IPC was used as a weapon to harass members of the LGBTQ community, resulting in discrimination, with Justice Indu Malhotra in her separate judgement saying that history owes an apology to the community for denying them their rights and compelling them to live a life of fear.
The Supreme Court had in 2013 restored Section 377, a British-era law that bans gay sex. It had overturned a landmark judgement by the Delhi High court in 2009 which had ruled that consenting intercourse between two adults was not illegal.
After the 2013 verdict, five high-profile petitioners – Bharatnatyam dancer Navtej Johar, documentary filmmaker Sunil Mehra, restaurateur Ritu Dalmia, hotelier and historian Aman Nath and business executive Ayesha Kapur – challenged it and became the human faces of this battle.
Before their entry, the battle was fought since the early nineties by NGOs, the Naz Foundation being one of them.
Also Read: 1861-2018: Section 377, a sorry British-era law that dies to give hope
The top court said the LGBTQ community possesses same human and fundamental rights as other citizens.
CJI Misra, who wrote the judgement for himself and Justice Khanwilkar, said the denial of self expression was akin to inviting death. The other three judges have written their separate concurring verdicts. The bench said courts must protect the dignity of an individual as right to live with dignity is recognised as fundamental right. It termed sexual orientation as a “biological phenomenon” and held that any discrimination on this ground was violative of fundamental rights.
In so far as consensual unnatural sexual act in private is concerned, it is neither harmful nor contagious to society, the bench said. Justice Nariman asked the government and the media to give wide publicity to the verdict so that the LGBTQ community does not face any further discrimination. Justice Chandrachud, while reading out the operative portion of his verdict, said the members of LGBTQ community were targeted and exploited due to Section 377 of IPC.
The members of this community have constitutional rights like that of any other citizen, he said. Observing that the Constitution nurtured dissent as a “safety valve” of the society, he said, “We cannot change the history but can pave a way for better future”.
Justice Chandrachud also said due to Section 377, the LGBTQ members were forced to live in hiding and as second class citizens, while the others used to enjoy the right of sexual orientation. He said the denial of right to sexual orientation was akin to denial of right to privacy and the society cannot dictate sexual relationship between consenting adults as it was a private affair.
The apex court also said India was a signatory of international treaties on rights of LGBTQ and it was obligatory to adhere to them. The bench also said that homosexuality was not a mental disorder but a completely natural condition.
While reserving the verdict on July 17 this year, the bench of CJI Dipak Misra had brushed aside as "far-fetched" the arguments from opponents of decriminalisation of Section 377 that it could also legalise incest, group sex and sodomy.
The top court had also said, "no one should have to live in fear because of their sexuality."
The five petitioners had argued that Section 377 violates rights principles enshrined in the constitution, like equality before law, no discrimination based on religion, race, caste, sex or place of birth and freedom of speech and expression.
The Supreme Court had in 2013 cancelled a Delhi High Court order that had decriminalised homosexuality by overturning the outdated law and said it was the job of Parliament to decide on scrapping laws.
Section 377 of the Indian Penal Code bans “carnal intercourse against the order of nature with any man, woman or animal”.
Gay sex is punishable by up to 10 years in jail under the 1861 law. Prosecution under Section 377 is, however, not common, but activists complain that authorities use the law to harass or scare gay people.
