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Apex Court Decriminalises Consensual Gay Sex

The Supreme Court has unanimously decriminalised same sex relations between consenting adults. Homosexuality was criminalised under Section 377 of the IPC.  

A five-judge Constitution bench of the Supreme Court, headed by Chief Justice Dipak Misra, struck down a key component of the 158-year-old colonial law under Section 377 of the IPC.

The judgement termed the part of Section 377 of the Indian Penal Code, which criminalises same sex as “irrational, indefensible and manifestly arbitrary’’. The judgement, however, said other aspects of Section 377 of IPC dealing with unnatural sex with animals and children shall remain in force.  

The bench, which also comprised Justices R.F.Nariman, A.M. Khanwilkar, D.Y.Chandrachud and Indu Malhotra, struck down Section 377 as being violative for right of equality.

The Supreme Court set aside its own verdict of 2013. In 2017, the Apex Court had said privacy is a fundamental right, opening the door for fresh plea to decriminalise gay sex.

Section 377 refers to `unnatural offences’ and says whoever voluntarily has carnal intercourse against the order of nature with any man, woman or animal shall be punished with imprisonment with 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 judgement came on a batch of writ petitions filed by individuals who had sought decriminalisation of consensual sex between two consenting adults of the same sex by declaring Section 377 illegal and unconstitutional.

The issue had been first raised by 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.

Important quotes in the judgement:

CJI Dipak Misra and Justice Khanwilkar:

“I am what I am. So take me as I am.”

“Only Constitutional morality and not social morality can be allowed to permeate rule of law…Sexual orientation is one of the many natural phenomena…any discrimination on basis of sexual orientation amounts to violation of fundamental rights.”

Justice Nariman:

“Homosexuals have right to live with dignity. They must be able to live without stigma.”

Justice Chandrachud:

“Human sexuality cannot be reduced to a binary formulation and decriminalising Section 377 is but a first step.”

Justice Indu Malhotra:

“History owes an apology to members of the community for the delay in ensuring their rights.”

Justice Indu Malhotra, the only woman on the five-judge bench, says history owes an apology to the members of the community for the delay in ensuring their rights. In her judgment, she iterates that Section 377 will continue govern non-consensual sexual acts, carnal intercourse with minors and acts of bestiality.

Meanwhile, the United Nations in India has welcomed the landmark ruling by of India on Section 377 of the Indian Penal Code and hoped that the ruling will be the first step towards guaranteeing full range of fundamental rights to LGBTI ( lesbian, gay, bisexual, transgender and intersex) persons.


In a statement, UN in India said sexual orientation and gender expression form an integral part of an individual’s identity the world over, and violence, stigma and discrimination based on these attributes constitute an egregious violation of human rights. It added that LGBTI persons across the world continue to be the targets of violent attacks and are affected by multiple and intersecting forms of discrimination based on age, gender, ethnicity, disability and social status.


“The UN in India sincerely hopes that the court’s ruling will be the first step towards guaranteeing the full range of fundamental rights to LGBTI persons. We also hope that the judgment will boost efforts to eliminate stigma and discrimination against LGBTI persons in all areas of social, economic, cultural and political activity, thereby ensuring a truly inclusive society. The focus must now be on ensuring access to justice, including remedy; effective investigations of acts of violence and discrimination; and effective access to economic, social and cultural rights,” the organisation said.

By TIS Staffer
the authorBy TIS Staffer

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