A five-judge Constitution bench of the Indian Supreme Court on Thursday unanimously decriminalised homosexual activity between consenting adults in a landmark judgement. In doing so, the court turned down its own order from 2013 when it had said only the legislature can change laws.
The 157-year-old Section 377 of the Indian Penal Code criminalised “sex against the order of nature” and made it punishable by 10 years in prison. The judges said provisions of the law that criminalise such activity between consenting adults was unconstitutional. The provision against bestiality, or sexual activity with animals, remains.
The unanimous verdict came through four separate judgements – one of them written by Chief Justice Dipak Misra and Justice AM Khanwilkar together, and the others by Justices Rohinton Nariman, DY Chandrachud and Indu Malhotra. Supporters outside the court celebrated once the judgement came, and many broke down.
Gay, lesbian, transgender and bisexual people have the right to constitutional equality in “all its manifestations”, and majoritarian views and popular morality cannot dictate constitutional rights, the bench said. The bench said the state could not be allowed to decide what is natural and what is not.
History owes the community an apology, said Justice Indu Malhotra, in her judgement against the colonia-era law.
Misra and Khanwilkar said “no one can escape from their individuality” and discrimination on the basis of sexual orientation violated fundamental rights. The law against homosexual activity was irrational, indefensible and manifestly arbitrary, they said. Chandrachud called it an “anachronistic colonial law”.
Chandrachud said treating homosexuality as a disorder or disease has a severe impact on the mental health of such people. The law has been destructive to the LGBT identity and was used to oppress and inflict tragedy and anguish, he said. The law deprived the community of the simple right to live and love, constraining their physical manifestation of love, Chandrachud said.
“Decriminalisation is but the first step, the Constitution envisages much more,” Chandrachud added, hinting that more litigation around LGBT rights could come next. “Constitutional morality, and not societal morality, should be the driving force for deciding validity of Section 377.”
Nariman asked the government to give wide publicity to the order to counter the stigma associated with homosexuality. He pointed out that the Mental Healthcare Act passed by the Parliament showed the legislature is also aware that homosexuality is not a mental disorder.
United Nations, others hail verdict
Besides scores of LGBTQ supporters, activists and others have welcomed the judgement, celebrating that a fundamental part of many of their identities will no longer be a crime in the country.
The United Nations welcomed the verdict, saying it hoped it would be the “first step towards guaranteeing the full range of fundamental rights to LGBTI persons”.
“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 said.
“I’m elated,” Harish Iyer, activist and writer, told The Guardian. “We have thrown out the British once again.” Iyer added that this was the beginning of “many more battles we have to fight”.
Social media also erupted in celebrations.
The verdict came on 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.