Supreme Court repeals 150 year old Section 377, gay sex in private is not a crime now




An LGBT Rights Activist in festive mood in Mumbai after the SC ruling (Source: Twitter)

Supreme Court of India in a benchmark judgement on Section 377 decriminalised gay sex. The court said in its judgement on Thursday that consensual adult gay sex is not a crime and sexual orientation is natural and no body has control over it.

The five-judge Constitution bench – comprising Chief Justice Dipak Misra, Justice R F Nariman, Justice A M Khanwilkar, Justice D Y Chandrachud and Justice Indu Malhotra repealed the law enshrined in section 377 that criminalises gay sex. They were all unanimous in their decision.

“The state has no business to get in controlling the private lives of LGBT community members,” Supreme Court Justice DY Chandrachud said during hearing of Section 377 case earlier today.

“Social morality cannot violate the rights of even one single individual,” said Chief Justice Misra and Justice Khanwilkar.

“Members of LGBT community members and their family member are owed an apology from society for being denied equal rights over the year,” said Justice Malhotra.

Timeline of This Historic Judgement

1994: ABVA, an NGO files petition in Delhi High Court seeking repeal of Section 377, after Tihar Male inmates denied condoms; fails to follow through

2001: PIL by Naz Foundation in Delhi HC seeks repeal of Colonial era Section 377, around since 1862

2004-2008: HC dismissed petition, Activists move SC, which asks it to reconsider, Centre plays for time; home, health ministries file contradictory affidavits, Centre submits gays sex is immoral, argues against decriminalization, HC shoots down ‘immoral’ argument, calls for scientific evidence, Centre says Parliament must decide

July 2, 2009: Delhi HC decriminalizes homosexuality

2009-2012: Religious groups, individuals challenge SC’s decriminalization verdict

Dec 11, 2013: SC sets aside 2009 Delhi HC order, leaves matter for Parliament to decide

2015: Lok Sabha votes against introduction of private member’s Bill by Congress MP Shashi Tharoor to decriminalize homosexuality

Feb 2016: 3-judge SC bench says all pleas will be reviewed afresh by a 5-judge constitutional bench

Aug 2017: SC upholds right to privacy, says sexual orientation is an “essential component of identity” and the rights of LGBTQ persons are “real rights founded on sound constitutional doctrine”

Jan 2018: SC bench headed by CJI Dipak Misra says 2013 ruling to be reconsidered, sends it to larger bench

July 2018: SC says it is up to bench to take a call on the 150-year old ban on gay sex

Sep 6, 2018: SC decriminalizes homosexuality

“Today’s SC decision is truly historic. It says that the rights which are granted by the Constitution of India are enjoyed by LGBT community as well. It is a day to celebrate. We have won the legal fight, but in society we still have to gain victory.”  Ankit Gupta, LGBT activist told to the media.

United Nations also welcomed the verdict on Section 377 by the apex court. “Welcome today’s landmark ruling by SC. Sexual orientation and gender expression form integral part of individual’s identity the world over and violence, stigma and discrimination based on these attributes constitute an egregious violation of human rights” said in a message.

Congress senior leader Shashi Tharoor expressed his happiness. “I’m pleased to welcome SC decision to decriminalise consensual acts of adults in private. In this country we’ve allowed govt to interfere in private lives of ppl to discriminate against ppl on basis of sexual orientation,but SC stood up for equal treatment of citizens” he said while talking to the media. Shashi Tharoor has been advocating against this law for years and has been a champion of LGBT rights.

“We have finally got justice. We are finally ‘azaad in azaad Hind,” Ashok Row Kavi, LGBT rights activist and founder of Humsafar Trust said on Supreme Court legalising homosexuality

RSS on Section 377

“Traditionally, the Indian society too does not recognise such relations. A man usually learns by experiences which is why this subject has to be dealt at social and psychological levels,” Arun Kumar, Akhil Bharatiya Prachar Pramukh, RSS told to the media.

“Like the Supreme Court we too do not consider this a crime. However, same sex marriage and relationship are neither natural nor desirable which is why we do not support such relationships,” he added.