India's top court legalises gay sex in landmark ruling

On Thursday, four separate but concurring judgments were delivered, authored by CJI Misra, Justice Chandrachud, Justice Nariman and Justice Malhotra.

Objecting to the observation of the two-judge bench in Suresh Kumar Kaushal, Senior Advocate Arvind Datar had advanced, "it is logically wrong to say that since the Parliament, despite the recommendation of the Law Commission in its 172nd Report, has chosen not to delete section 377, it is constitutional..." TV reports quoted him as saying LGBT community has equal rights, and that Section 377 is irrational.

"Majoritarian views and popular views can not dictate constitutional rights". On July 17, the five-judge bench comprising, apart from Misra, Justices DY Chandrachud, Rohinton Fali Nariman, AM Khanwilkar and Indu Malhotra, had asserted that it will not wait for a "majoritarian government" to decide on enacting, amending or striking down a law that tends to violate the fundamental rights. "Sexual orientation is one of the many natural phenomena...any discrimination on basis of sexual orientation amounts to violation of fundamental rights".

The section of the Indian penal code that criminalised gay sex came into force in 1862.

"A colonial legislature made section 377 criminal..."

A law known as "Section 377" had prohibited "carnal intercourse against the order of nature with any man, woman or animal" - which was widely interpreted to refer to homosexual sex.

Coming back to current times, the Supreme Court is again hearing the petitions against Section 377 and is likely to pass its final verdict today. "What is its impact on your religious freedom?" asked Justice Nariman. "I am a nobody but they are the people to be thanked. But will the cure be worse than the disease, we have to see", his lawyer, Soumya Chakraborty, said. He also discussed Yogyakarta principles and said that they will directly apply here.

He pointed out that Section 377 fell under the "Unnatural Offences" chapter in the IPC. Gay sex was punishable by up to 10 years in jail.

Section 377 criminalises the sexual expression of adults belonging to the LGBTQ community and also penalises non-penile-vaginal sex between consenting heterosexual-identifying adults.

However, this relief was short-lived.

In January this year, Chief Justice of India Dipak Misra called out an old 2016 petition and listed it for January 8.

In July, the apex court heard the arguments on a batch of petitions demanding that this law be scrapped.

After the 2013 verdict, five high-profile petitioners - Bharatnatyam dancer Navtej Johar, documentary filmmaker Sunil Mehra, restaurateur Ritu Dalmia, hotelier and historian Aman Nath and business executive Ayesha Kapur - challenged it and became the human faces of this battle.

The issue was first raised by NGO Naaz Foundation, which had in 2001 approached the Delhi High Court which had in 2009 decriminalised sex between consenting adults of the same gender by holding the penal provision as "illegal".

  • Joey Payne