It is not crime to be gay in India anymore: Supreme Court

A five-judge bench headed by Chief Justice of India Dipak Misra delivered its verdict on whether Section 377 that holds gay sex as an offence in India, ruling that homosexuality is not an offence.

All judges concurred on their opinions and their viewpoint was 'take me as I am' and that prejudice cannot rule India. Outside the court and across the nation people celebrated.

The CJI said: "No one can escape from their individualism. Society is now better for individualism. In the present case, our deliberations will be on various spectrums."

"Respect for individual choice is the essence of liberty; LGBT community possesses equal rights under the constitution," the apex court said.

Holding that homosexuality is not mental disorder, the court said: "Autonomy of an individual is important. He or she can not surrender it to anyone"

“Section 377 is arbitrary. The LGBT community possesses rights like others. Majoritarian views and popular morality cannot dictate constitutional rights. We have to vanquish prejudice, embrace inclusion and ensure equal rights.”

"History owes an apology to the members of the LGBT community and their families for the delay in providing redressal for the  ignominy and  ostracism  they have faced through the centuries,"  Justice Indu Malhotra of the bench said.

 

Besides Chief Justice Dipak Misra the bench comprises judges R.F. Nariman, A.M. Khanwilkar, D.Y.Chandrachud and Indu Malhotra.

In 2013, the top court had upheld gay-sex as an offence though this section was read down  by the Delhi High Court in July 2009 in response to a Naz Foundation petition in the Delhi high court against Section 377.

That judgement was overturned by the Supreme Court  on 11 December 2013  holding that amending or repealing section 377 should be a matter left to Parliament, not the judiciary.

Reactions also started pouring in on Twitter and other social media platforms.

In Aug 2017, the Supreme Court had held Right to Privacy as a fundamental right. It also ruled that sexual orientation is an "essential component of identity". In July this year the apex court began hearing petitions challenging Section 377 wth indications that it might be repealed.

Chapter XVI, Section 377 of the IPC dates back to 1860 introduced during the British rule of India, and it criminalises sexual activities "against the order of nature", arguably including homosexual acts.

According to it, Unnatural offence means: "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 term which may extend to ten years, and shall also be liable to fine."

The Delhi High Court verdict of July 2009 was not challenged by the Government of India. Since then it was like a law in India. But the SC verdict of 2013 changed all that and gay sex again became illegal in India.