LGBT rights

‘History owes an apology to LGBT community’: India’s Supreme Court decriminalises homosexuality

Chief Justice of India Dipak Misra said the law was irrational, indefensible, and manifestly arbitrary. The Congress has welcomed the decision.

A Constitution Bench of the Supreme Court on Thursday decriminalised homosexual activity between consenting adults, which was punishable by up to 10 years in jail according to Section 377 of the Indian Penal Code.

The five-judge Constitution Bench heard a batch of six petitions and interventions filed by non-governmental organisation Naz Foundation, parents of queer people and Voices Against 377, a collective of human rights groups. These groups urged the top court to reconsider its judgement from 2013, when it set aside a 2009 order by the Delhi High Court decriminalising homosexuality. The top court had then said that only the legislature can change laws.

On July 17, a Constitution Bench headed by Chief Justice Dipak Misra reserved the verdict on the matter. The court had said it would strike down the law if it is convinced that it violates fundamental rights. The Centre did not take a stand and left the decision “to the wisdom of the court”.

Here are updates of the day:

6 pm: The petitioners have called the verdict a “huge statement” and described it as an emotional moment.

5.53 pm: Several global media houses praise the Indian Supreme Court’s verdict. The Washington Post noted that activists had struggled for more than a decade to invalidate Section 377. “The judgment reflects rapid social change in India, where only five years ago, the top court upheld the same law,” The Washington Post says. “Since then, campaigners have mobilised a movement to spread awareness about gay rights.”

A report in The New York Times describes the ruling as a groundbreaking victory for gay rights in India. BBC, which describes the verdict as historic, noted that in a largely conservative India, where “leaders of all religions have consistently opposed gay sex, it will still be a while before attitudes change and the community finds full acceptance”.

“Thursday’s historic ruling is the culmination of a lengthy and often fraught legal battle for equality in a country where homosexuality remains taboo,” CNN reports.

5 pm: Excerpts from Justice Fali Nariman’s judgement.

4.45 pm: Read a quick primer on what the judgement says. “The court has read down the provision and has declared all forms of consensual sex between competent adults to be legal. This consent, the court clarified, should be free consent without any coercion.”

4.40 pm: Former Attorney General Mukul Rohatgi calls it an “important decision”. “I’m happy as the court has realised the right of LGBTs, their pain and gave them proper space in the society. Most important thing about this decision is that they will be given equal rights like others,” ANI reported him as saying.

4.15 pm: The Humsafar Trust holds a rally in Mumbai

Celebrations are also planned at Carter Road, Mumbai, at 6 pm, and Delhi’s Jantar Mantar at 5.30 pm.

3.40 pm: Some excerpts from the judgement of Justice DY Chandrachud.

3.10 pm: The Rashtriya Swayamsevak Sangh reacts to the judgement, saying it does not believe homosexuality is a crime. However, marriages between same sex partners are against nature, PTI reports quoting Sangh functionary Arun Kumar as saying.

2.30 pm: The judgement has been met with huge celebrations by activists. Social media is also full of cheers in the form of cartoons and memes.

2.15 pm: Dravida Munnetra Kazhagam leader Kanimozhi is among those who have welcomed the verdict. The Congress party has also reacted, along with some of its leaders such as senior advocate Kapil Sibal.

1 pm: The Supreme Court judgement today is to be considered in all pending prosecutions.

12.54 pm: Congress MP Shashi Tharoor says the Supreme Court has stood up for equal treatment of citizens, ANI reports. “In this country we’ve allowed govt to interfere in private lives of people to discriminate on the basis of sexual orientation, but Supreme Court stood up for equal treatment,” he says.

12.52 pm: The United Nations has welcomed the verdict. “Sexual orientation and gender expression form an integral part of an individual’s identity the world over, and violence, stigma and discrimination based on these attributes constitute an egregious violation of human rights,” the UN says, hoping that the ruling will be the “first step towards guaranteeing the full range of fundamental rights to LGBTI persons”.

12.50 pm: Advocate Prashant Bhushan hails the verdict and notes how the law was used for long by governments and police to harass people and intrude into their privacy.

12.26 pm: History owes an apology to the LGBT community for their ostracisation and discrimination against them, says Justice Indu Malhotra, who is now delivering her judgement.

12.22 pm: “Decriminalisation is but the first step, the Constitution envisages much more,” says Justice Chandrachud. “LGBTs are a victim of Victorian morality. Constitutional morality, and not societal morality, should be the driving force for deciding validity of Section 377.”

12.20 pm: Human sexuality cannot be confined to a binary, observes Justice Chandrachud.

12.19 pm: Treatment of homosexuality as a disorder or disease has a severe impact on mental health of such persons, says Justice Chandrachud.

12.16 pm: The LGBTQ community has the right to constitutional equality in all its manifestations, says Justice Chandrachud. The law has imposed morality, it is anachronism, he adds.

The law has been destructive to LGBT identity, according to Justice Chandrachud, who is reading out his judgement.

12.11 pm: Justice Chandrachud observes that the criminal status of homosexual activity had become an instrument of oppression. Gay, lesbian, bisexual and transgender people have equal rights as other citizens, he says. The law inflicts tragedy and anguish, and has to be remedied, he adds.

12.10 pm: “Lethargy of law is manifest yet again,” says Justice Chandrachud. He says the law deprived the LGBT community of the simple right to live and love. “Physical manifestation of their love was constrained,” he says.

12.09 pm: Justice DY Chandrachud is now reading his judgement.

12.07 pm: Justice Nariman asks the government to give wide publicity to the order to counter the stigma associated with homosexuality. Homosexual people have the right to live with dignity, he says.

12.01 pm: Justice Nariman says the Suresh Kaushal judgement does not hold good after the NALSA and Puttuswamy judgements. The Mental Healthcare Act passed by the Parliament shows the legislature is also aware that homosexuality is not a mental disorder, the second judgement says.

11.59 am: Justice Rohinton Nariman will now read out his concurring judgement.

11.58 am: Sexual activity with animals – bestiality – will remain criminal, according to the first judgement.

11.57 am: Section 377, as far as it criminalises consensual sex between adults, cannot be considered constitutional, the judgement says.

11.53 am: Any discrimination on basis of sexual orientation is a violation of fundamental rights, says the judgement.

11.51 am: The judgement by Chief Justice Misra and Khanwilkar says the law is irrational, indefensible and manifestly arbitrary. The primary objective of having a Constitutional society is to transform the society progressively, the judgement says.

11.46 am: The LGBT community possesses rights like others, and majoritarian views and popular morality cannot dictate constitutional rights, says Chief Justice Misra in the judgement on behalf of himself and Justice Khanwilkar.

11.44 am: Chief Justice Dipak Misra and Justice Khanwilkar say “no one can escape from their individuality”, reports Firstpost.

11.39 am: The judges unanimously decriminalise gay sex. The first judgement is being read out.

11.37 am: The judges have now assembled. Chief Justice Dipak Misra says the four judgements concur.

11.27 am: The judges are expected to start reading out their judgements shortly.

Activists wait outside the Supreme Court. (Credit: Aabid Shafi/Scroll staff)
Activists wait outside the Supreme Court. (Credit: Aabid Shafi/Scroll staff)

11 am: Here are five petitioners in the Section 377 case – Navtej Singh Johar is a Sangeet Natak Akademi award-winning Bharatnatyam dancer, Sunil Mehra is a senior journalist, Ritu Dalmia is a chef and restaurateur, Aman Nath is the founder of the Neemrana chain of hotels and Ayesha Kapur is a businesswoman.

10.45 am: “The mood is extremely optimistic: the judges have been extremely empathetic,” said Akhilesh Godi, one of the petitioners in the case, told Reuters. “It is not only about decriminalising but recognising our fundamental rights.”

10.05 am: The central government had not taken a stand on the case and told the bench in July that it left the decision on Section 377 “to the wisdom of the court”.

10 am: During the hearings in July, the judges had said they would strike down the law if they believed it violated fundamental rights. The court had said that legally recognising such acts would allow the state to spread awareness about the health of gay couples, while justice Indu Malhotra had said that homosexuality “is not an aberration, but a variation”.

9.55 am: The ruling, which was earlier expected at 10.30 am, is expected around 11.15 am.

9.30 am: Hotelier Keshav Suri, who is one of the petitioners, says the time is high for the colonial-era law to be repealed, News 18 reports.

8 am: Four judges will write the judgement. Chief Justice of India Dipak Misra, justices RF Nariman, DY Chandrachud and Indu Malhotra will write separate judgements.

7.50 am: Seventy-two countries and territories worldwide continue to criminalise same-sex relationships, including 45 in which sexual relationships between women are outlawed. Britain partially legalised homosexuality around 50 years ago.

Under Section 377, heterosexual couples are also liable for imprisonment for engaging in consensual penile non-vaginal sex, including penile oral or penile anal sex, in the privacy of their bedrooms, thus it does not pertain to just “gay sex”.

7.45 am: The top court had earlier said that courts cannot wait for a “majoritarian government” to decide on amending a law if it violates fundamental rights.

7.30 am: The verdict comes over a year after the Supreme Court, in its landmark judgement on the right to privacy, said that sexual orientation is an “essential component of identity” and the rights of lesbian, gay, bisexual and transgender population are “real rights founded on sound constitutional doctrine”.

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