SC decriminalises gay sex, LGBT community celebrates historic day

Almost six weeks after the Supreme Court (SC) had reserved its verdict on the decriminalisation of homosexuality under Section 377 of the Indian Penal Code, the top court will today announce its verdict on the matter.

"Any consensual sexual relationship between two consenting adults-homosexuals, heterosexuals or lesbians - can not be said to be unconstitutional", said the Chief Justice of India, Dipak Misra, as he read out the judgement.

Suresh Kumar Koushal, who had unexpectedly won the re-criminalisation of Section 377 after the Delhi high court had de-criminalised it, also took his opposition to the court.

Five judges sitting at the country's Supreme Court were unanimous in overturning the ban, which was reinstated in 2013 after four years of decriminalisation following an appeal by religious groups.

Reading clauses (1) and (2) of Article 13 together, he argued that if section 377 was introduced in present day, it would not stand the test of Part III of the Constitution, and hence, the provision, as enacted in 1860, could not either. "This freedom can only be fulfilled when each of us realizes that the LGBT community possesses equal rights".

During the course of the marathon hearing the SC dropped several hints to suggest that it would de-criminalise Section 377.

"Any kind of sexual activity with animals shall remain penal offence under Section 377 of the IPC", it said while adding that Section 377 of IPC was a weapon to harass members of LGBT community, resulting in discrimination. CNN-News18 reported that the verdict is expected at around 11.15 am instead of 10.30 because of the full court reference in memory of two senior advocates.

Many people consider gay sex to be taboo in socially conservative India. "Prejudices are deeply ingrained in society", Justice Dipak Misra said. However, the issue resurrected in July 2016, when a fresh petition was filed. All five are well-known and publicly successful professionals from the field of dance, journalism, hospitality and business - Navtej Singh Johar, Sunil Mehra, Ritu Dalmia, Aman Nath and Ayesha Kapur. This second one pertains to the rights of transgender persons. Twenty-four years later, the Supreme Court has indicated that it may do away with the criminality clause against consenting adults.

The Supreme Court had attached importance to the consent of individuals on matters of sexual intercourse and sexuality.

  • Rogelio Becker