NEW DELHI: A five-judge Constitution bench of the Supreme Court on Thursday unanimously decriminalised part of the 158-year-old colonial law under Section 377 of the IPC that banned consensual unnatural sex between adults.
The bench headed by Chief Justice of India Dipak Misra and comprising Rohinton Nariman, A M Khanwilkar, D Y Chandrachud and Indu Malhotra pronounced their verdict in a 493-page judgment.
CJI Misra began by invoking the great German philosopher Goethe, "I am what I am, so take me as I am."
Calling Section 377 irrational and arbitrary, the CJI stressed that the LGBTQ community enjoys the same rights as other citizens under the Constitution.
Click below to read the full judgment:
The apex court said that the judgment will be considered in all pending prosecutions.
#WATCH Celebrations at Delhi's The Lalit hotel after Supreme Court legalises homosexuality. Keshav Suri, the executive director of Lalit Group of hotels is a prominent LGBT activist. pic.twitter.com/yCa04FexFE— ANI (@ANI) September 6, 2018
"Denial of self-expression is like death. Social morality cannot violate the rights of even one single individual. Sexual orientation is natural and people have no control on it," Justice Misra stated.
He also said that any discrimination on basis of sexual orientation amounts to a violation of fundamental rights.
The court, however, said other aspects of Section 377 of IPC dealing with unnatural sex with animals and children shall remain in force.
Justice Nariman in his concurring judgement said homosexuality was not a mental disorder or a disease.
"Persons who are homosexual have a fundamental right to live with dignity," Nariman said.
Celebrations in Chennai after Supreme Court legalises homosexuality. pic.twitter.com/b9Zye3F361— ANI (@ANI) September 6, 2018
Centre must give wide publicity of this verdict to put to end the social stigma associated with homosexuality, he added.
Saying that individual liberty is the soul of the constitution, Justice DY Chandrachud observed, "Section 377 is a colonial legacy and it continued in the law book even after independence."
'History owes an apology to the members of this community'
Justice Indu Malhotra in her judgement said, “Sexual orientation is innate to a human being. It is an important attribute of one’s personality and identity. Homosexuality and bisexuality are natural variants of human sexuality. LGBT persons have little or no choice over their sexual orientation. LGBT persons, like other heterosexual persons, are entitled to their privacy, and the right to lead a dignified existence, without fear of persecution. They are entitled to complete autonomy over the most intimate decisions relating to their personal life, including the choice of their partners. Such choices must be protected under Article 21. The right to life and liberty would encompass the right to sexual autonomy, and freedom of expression. The right to life and liberty would encompass the right to sexual autonomy, and freedom of expression."
"History owes an apology to the members of this community and their families, for the delay in providing redressal for the ignominy and ostracism that they have suffered through the centuries. The members of this community were compelled to live a life full of fear of reprisal and persecution. This was on account of the ignorance of the majority to recognise that homosexuality is a completely natural condition, part of a range of human sexuality. The misapplication of this provision denied them the Fundamental Right to equality guaranteed by Article 14. It infringed the Fundamental Right to non-discrimination under Article 15, and the Fundamental Right to live a life of dignity and privacy guaranteed by Article 21. The LGBT persons deserve to live a life unshackled from the shadow of being 'unapprehended felons'" she stressed in her conclusion.
The apex court also said that the above verdict is just the first step in decriminalising the Section 377.
We have finally got justice. We are finally 'azaad in azaad Hind': Ashok Row Kavi, LGBT rights activist and founder of Humsafar Trust on Supreme Court legalises homosexuality pic.twitter.com/F2dBq5SLti— ANI (@ANI) September 6, 2018
Section 377 refers to 'unnatural offences' and earlier said 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 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.
The issue was first raised by the NGO, Naaz Foundation, which approached the Delhi High Court in 2001.
The Delhi High Court had in 2009 decriminalised sex between consenting adults of the same gender by holding the penal provision as "illegal".
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.