SC decriminalizes gay sex, LGBTQ community celebrates verdict
The expression “carnal intercourse” as used in Section 377 is distinct from the expression “sexual intercourse”, which appears in Sections 375 and 497 of the IPC
New Delhi, Sep 6. A five-judge Constitution bench of the Supreme Court Thursday unanimously decriminalised part of the 158-year-old colonial law under Section 377 of the IPC which criminalises consensual unnatural sex.
A five-judge Constitution bench headed by Chief Justice Dipak Misra termed the part of Section 377 of the Indian Penal Code which crimiminalises unnatural sex as irrational, indefensible and manifestly arbitrary.
The bench, which also comprised Justices R F Nariman, A M Khanwilkar, D Y Chandrachud and Indu Malhotra, struck down Section 377 as being violative of right to equality.
The top court, in four separate but concurring judgements, set aside its own verdict in the Suresh Kaushal case.
Section 377 refers to ‘unnatural offences’ and says whoever voluntarily has carnal intercourse against the order of nature with any man, woman or animal shall be punished with imprisonment for life, or with imprisonment of either description for a term which may extend to 10 years, and shall also be liable to pay a fine.
The apex court, however, said other aspects of Section 377 of IPC dealing with unnatural sex with animals and children shall remain in force.
The historic judgement came on a batch of writ petitions filed by dancer Navtej Jauhar, journalist Sunil Mehra, chef Ritu Dalmia, hoteliers Aman Nath and Keshav Suri and business executive Ayesha Kapur and 20 former and current students of the IITs.
They had sought decriminalisation of consensual sex between two consenting adults of the same sex by declaring Section 377 illegal and unconstitutional.
So pleased to learn that the SupremeCourt has ruled against criminalising sexual acts in private. This decision vindicates my stand on Section 377& on exactly the same grounds of privacy, dignity &constitutional freedoms. It shames those BJP MPs who vociferously opposed me in LS.
— Shashi Tharoor (@ShashiTharoor) September 6, 2018
The issue was first raised by the NGO, Naaz Foundation, which approached the Delhi High Court in 2001. The Delhi High Curt had in 2009 decriminalised sex between consenting adults of the same gender by holding the penal provision as “illegal”.
Historical judgment!!!! So proud today! Decriminalising homosexuality and abolishing #Section377 is a huge thumbs up for humanity and equal rights! The country gets its oxygen back! ????????? pic.twitter.com/ZOXwKmKDp5
— Karan Johar (@karanjohar) September 6, 2018
This high court judgement was overturned in 2013 by the apex court which also dismissed the review plea against which the curative petitions were filed which are pending.
The writ petitions were opposed by Apostolic Alliance of Churches and Utkal Christian Association and some other NGOs and individuals, including Suresh Kumar Kaushal.
* The IPC was drafted by Lord Macaulay and introduced in 1861 in British India.
* Section 377 of the IPC is under Chapter XVI titled “Of Offences Affecting the Human Body”.
* Within this Chapter, Section 377 is categorized under the sub-chapter titled “Of Unnatural Offences” and reads as follows: A) 377. Unnatural Offences — Whoever voluntarily has carnal intercourse against the order of nature with any man, woman or animal, shall be punished with imprisonment for life, or with imprisonment of either description for a term which may extend to ten years, and shall also be liable to fine.
B) “Explanation—Penetration is sufficient to constitute the carnal intercourse necessary to the offence described in this section.”
* The marginal note refers to the acts proscribed as “unnatural offences”. This expression, however, is not used in the text of the Section.
* The expression “carnal intercourse” as used in Section 377 is distinct from the expression “sexual intercourse”, which appears in Sections 375 and 497 of the IPC
* It bears noting that the text of the law does not target the lesbian, gay, transgender, bisexual or intersex (LGBTI) communities directly.
* Under the law even heterosexual couples are liable for imprisonment for engaging, with mutual consent, in penile non-vaginal sex, including penile oral or penile anal sex, in the privacy of their bedrooms.
