SC Strikes Down 157 Year Old Law Criminalizing Consensual Homo-Sexual Acts Between Adults
The Supreme Court of India has struck down 157 year old law which criminalizes consensual homo sexual acts between adults in Navtej Singh Johar & Ors. v. Union of India The Five Judge of Constitutional Bench has declared Section 377 IPC unconstitutional, insofar as it criminalises consensual sexual acts of adults in private.
The judgment were delivered by a Bench of Chief Justice of India Dipak Misra and Justices Rohinton Nariman, AM Khanwilkar, DY Chandrachud and Indu Malhotra.
Justice Dipak Misra said it is a unanimous verdict expressed through four separate but concurring judgments.
“Section 377 IPC is irrational , indefensible and arbitrary.The majoritarian views and popular morality cannot dictate constitutional rights”
Justice Chandrachud “only the first step to bury the Colonial Ghost!”
Justice DY Chandrachud said decriminalising gay sex is only the first step to bury the Colonial Ghost, adding that time has come to move forward and give the LGBT community the other constitutional rights.
Justice Chandrachud says state has no business to get into controlling the private lives of LGBT community members or for that matter, any citizen.
Justice R F Nariman said homosexuality is not a mental disorder
“LGBT have a fundamental right to live with dignity, such groups are entitled to protection of law”.
He also stated that,“The government should give wide publicity to the judgment”.
Conclusions reached in the Judgement by HMJ Indu Malhotra –
i. In view of the aforesaid findings, it is declared that insofar as Section 377 criminalises consensual sexual acts of adults (i.e. persons above the age of 18 years who are competent to consent) in private, is violative of Articles 14, 15, 19, and 21 of the Constitution. It is, however, clarified that such consent must be free consent, which is completely voluntary in nature, and devoid of any duress or coercion.
ii. The declaration of the aforesaid reading down of Section 377 shall not, however, lead to the reopening of any concluded prosecutions, but can certainly be relied upon in all pending matters whether they are at the trial, appellate, or revisional stages.
iii. The provisions of Section 377 will continue to govern non-consensual sexual acts against adults, all acts of carnal intercouse against minors, and acts of beastiality.
The judgment in Suresh K. Koushal & Anr. v. Naz Foundation & Ors.57 is hereby overruled.
However, the Court made it clear that sex with animals, which also forms a part of Section 377, will remain a criminal offence.
Constitution Bench Judgement on Section 377 IPC, legalising Gay Sex in India (Downloadable PDF) LiveLaw