06/09/2018 7:50 AM IST | Updated 31/01/2019 4:23 PM IST

Section 377 Supreme Court Verdict: Four Key Highlights

The court has decriminalised gay sex and said history owes an apology to members of the LGBT community

Anindito Mukherjee / Reuters
The court had said it will strike down Section 377 if it is convinced that the law violates fundamental rights.

The Supreme Court on Thursday read down Section 377 of the Indian Penal Code (IPC), which criminalises gay sex. The section is unconstitutional as it criminalises any consensual act between two consenting adults, said Chief Justice Dipak Misra in his judgement. Here is all you need to know about today's verdict:

1. What exactly did the Supreme Court decide today?

In July, the five-judge Constitution bench of Chief Justice Dipak Misra, Justices Rohinton F Nariman, AM Khanwilkar, DY Chandrachud and Indu Malhotra heard arguments on a batch of petitions filed after the Court's 2017 privacy verdict.

Four separate concurring judgements were read out on Thursday, with Justice Khanwilkar agreeing with CJI Misra's opinion. Homosexuality is not an offence, said CJI Misra, adding that "only constitutional morality" exists in India. Justice Nariman said that members of the LGBT community are entitled to be treated equally without any stigma attached to them.

"History owes an apology to members of the LGBT community," said Justice Indu Malhotra. Justice Chandrachud also referred to the years of struggles of the LGBTQIA community, saying "It is difficult to right a wrong by history. But we can set the course for the future. This case involves much more than decriminalizing homosexuality. It is about people wanting to live with dignity."

The petitions, filed by dancer Navtej Singh Johar and others, had urged the Supreme Court to reconsider its own 2013 judgement which set aside a historic 2009 order by the Delhi High Court. Initially, the bench debated whether it should look at larger questions beyond sexual orientation but CJI Misra finally observed that the issue of the section's constitutionality should be settled first. The government also said it would not contest the petitions, instead leaving it to the court's "wisdom" to decide the matter.

2. What is Section 377?

Introduced in 1861 during the British rule, this law was modelled on the Buggery Act of 1533 and criminalised sexual activities "against the order of nature". This has been used to criminalise sexual activity between homosexual people, adding to the trauma faced by the community in India, where lack of awareness and deeply conservative attitudes can make it difficult to find a support system. The IPC section says "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 a term which may extend to ten years, and shall also be liable to (pay a) fine".

3. What did the Supreme Court do in 2013?

A two-judge bench of the Supreme Court — Justices GS Singhvi [who retired immediately after the verdict] and SJ Mukhopadhaya — set aside a 2009 Delhi high court judgement that decriminalised homosexuality, dealing a huge blow to the LGBTQ community and right activists. The bench said: "We hold that Section 377 does not suffer from... unconstitutionality and the declaration made by the Division Bench of the High Court is legally unsustainable". At the same time, it also said the government was free to annul the law through legislation.

4. How did the matter first land up in court?

An organisation called AIDS Bhedbhav Virodhi Andolan first filed a writ petition in the Delhi high court in 1994, asking it to declare Section 377 unconstitutional. However, the petition was dismissed in 2001. Naz Foundation, an NGO, approached the Delhi high court in 2001 over the matter. In 2009, a bench comprising then Chief Justice AP Shah and Justice S Murlidhar said, "We declare section 377 of Indian Penal Code in so far as it criminalises consensual sexual acts of adults in private is violative of Articles 21, 14, and 15 of the Constitution." The 2009 judgement had been widely celebrated as path-breaking and progressive, but the 2013 SC order meant that the fight became even harder. The Naz Foundation filed a curative petition in 2014 and since then, more petitions were filed. The landmark right to privacy judgement of 2017 also provided fresh impetus for the top court to consider the matter again.

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