The supreme court of India today (Sept. 06) scrapped section 377 ofthe Indian penal code that criminalised homosexuality.
A bench consisting of chief justice Dipak Misra and justices DY Chandrachud, AM Khanwilkar, Indu Malhotra, and Rohinton Fali Nariman, in separate but concurring judgments, ruled that India’s LGBTQ community has the same sexual rights as everyone else.
The right to live with dignity has been recognised. Sexual orientation is a natural phenomenon determined by biology and science. Any discrimination on this basis is unconstitutional.
The supreme court bench was ruling on a bunch of petitions filed by several individuals and organisations seeking the scrapping of the 19th century law.
This now overturns a 2013 order of the apex court that had restored the validity of the said section after the Delhi high court had scrapped in 2009.
Reading out the judgment, chief justice Dipak Misra said:
Only Constitutional morality and not social morality can be allowed to permeate rule of law… Sexual orientation is one of the many natural phenomenon. Any discrimination on basis of sexual orientation amounts to violation of fundamental rights. After judgement in Puttuswamy case, privacy has been raised to fundamental right.
Section 377, which came into effect in 1861, deems sexual intercourse “against the order of nature” as punishable with imprisonment of between 10 years and a life sentence, along with a fine.
Today’s judgment caps years of struggle by the LGBTQ community of India to get fair treatment under Indian law. For years, members of the community have frequently been subjected to harassment by authorities who have often abused the now scrapped section.
In 2001, the Naz Foundation, a New Delhi-based NGO that works in the field of HIV/AIDS prevention, had challenged the section in the Delhi high court which ruled in favour and said that the law does not apply to consenting adults.
In the following days, a group of people challenged the order in the country’s top court.
Consequently, the supreme court bench, headed by justice GS Singhvi, reversed the order in 2013 and declared homosexuality a criminal offence again. Instead, it said that it is upon the parliament to take a call on scrapping the law.
Not surprisingly, widespread protests and demonstrations were staged against the verdict.
Since then, several petitions had been filed challenging the order. As the protests against section 377 gathered momentum, several high-profile names, including restaurateur Ritu Dalmia and hotelier Keshav Suri, also filed petitions against the obsolete law.