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Consensual Gay Sex Not A Crime, Says SC In Landmark Ruling On Sec 377

Consensual Gay Sex Not A Crime, Says SC In Landmark Ruling On Sec 377
File photo of a gay pride parade.

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Consensual Gay Sex Not A Crime, Says SC In Landmark Ruling On Sec 377

Bestiality will, however, continue to remain a crime under Sec 377.

Consensual gay sex between adults is not a crime, the Supreme Court has said in a landmark judgment.

A five-Judge Constitution Bench headed by Chief Justice of India Dipak Misra ruled on Thursday that consensual sexual relations between same gender adults in private does not fall foul of Section 377 IPC.

The Bench pointed out that the provision failed to make a distinction between consensual and non-consensual acts. Bestiality, however, will continue to remain a crime under Sec 377.

The unanimous verdict on consensual gay sex was expressed through four separate but concurring judgments.

Here are some key points from the judgments.

CJI Dipak Misra and Justice AM Khanwilkar

  • Any discrimination on the basis of sexual orientation violates fundamental rights.
  • We have to vanquish prejudice, embrace inclusion, and ensure equal rights.
  • Sustenance of identity is the essence of existence.

Justice RF Nariman

  • Sec 377 subjects LGBT to societal barrier.
  • LGBT have a fundamental right to live with dignity, such groups are entitled to protection of law.
  • Union of India did not object to the petitioners in the present case, probably government saw the writing on the wall.

Justice DY Chandrachud

  • Constitution protects fluidity of sexual experience.
  • No law can be divorced from constitutional morality, state has no business to intrude in personal matters, nor can societal norms regulate sexual orientation.
  • To move beyond decriminalisation is just the first step.

Justice Indu Malhotra:

  • History owes apology to the LGBT community. They were made to live a life of fear.

What Sec 377 Is All About

Dating back to British India, Section 377 of the Indian Penal Code was drafted by Thomas Macaulay and enacted in 1860. It drew inspiration from the Buggery Act of 1533, enacted in Britain under King Henry VIII, and its successor, the Offences against the Person Act of 1828.

The latter law criminalised unnatural sexual acts, and also targeted homosexual acts. The United Kingdom decriminalised homosexuality in 1967; it legalised same-sex marriage in 2014. But Section 377 continued to remain a part of the Indian Penal Code (IPC).

(Read – A Detailed History Of Section 377 In India)

Law On Consensual Gay Sex: A Timeline

 2001: NGO Naz Foundation files a petition in the Delhi High Court against Section 377.

2003: The High Court dismisses the plea.

2006: Naz Foundation approaches the Supreme Court; SC directs the Delhi High Court to reconsider the case.

2009: Landmark High Court verdict overturns aspects of Sec 377 that are applicable to consensual, private acts between adults.

2013: Supreme Court overturns the HC verdict; says that the provision  of Sec 377 does not go against the Constitution. It is the Parliament, and not the Judiciary, that has the power to make a change in the law, it rules.

2016: SC agrees to hear a petition challenging the constitutionality of Sec 377 filed by dancer Navtej Johar, hotelier Aman Nath, restaurateur Ritu Dalmia, business executive Ayesha Kapoor, and mediaperson Sunil Mehra.

17 July 2018: SC reserves its order after hearing all sides over four days; Centre leaves a decision to the wisdom of the court.

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