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Supreme Court strikes down law against gay sex in India

India’s Supreme Court has struck down a colonial-era ban on gay sex at the centre of years of legal battles. Section 377 was a 157-year-old British-era colonial law that criminalized sex between homosexuals.

Reading his verdict on Thursday on petitions challenging the constitutionality of the law, Chief Justice of India Dipak Misra said: “Majoritarian views and popular morality cannot dictate constitutionally enshrined rights.”

This means that while Section 377 will continue to be part of Indian penal law, it can no longer be used to criminalize consensual sex between people of the same gender. The historic judgment was delivered by a five-judge constitutional bench of the Supreme Court, which overturned an earlier 2012 ruling.

The five judge bench of Chief Justice of India Dipak Misra and justices Rohinton Nariman, A M Khanwilkar, D Y Chandrachud and Indu Malhotra heard an array of petitions challenging the constitutional validity of Section 377.

“The view taken by the SC [the Supreme Court] in Suresh Kumar Koushal [judgment] is impermissible, ” the Supreme Court ruled. The verdict overruled the judgment in the infamous 2013 case of  Suresh Kumar Koushal versus the Naz Foundation that struck down a 2009 Delhi High Court judgement decriminalizing gay sex.

The 2013 judgment of the apex court said: “Section 377 does not suffer from unconstitutionality.”

Constitutional equality

“Discrimination on the basis of sexual orientation is a violation of freedom of speech and expression,” said Chief Justice of India Misra and Justice Khanwilka in their judgment.

They added: “Bodily autonomy is individualistic. Expression of intimacy is part of right to privacy.” The Supreme Court’s 2017 ruling making right to privacy a fundamental right in India lent a lot of support to the case against Section 377.

“Section 377 inflicts tragedy and anguish; it has to be remedied,” said Justice Chandachud on Thursday. Justice Nariman said homosexuality cannot be regarded as “mental disorder” and homosexuals had the right to live with dignity.

Section 377 of the IPC refers to “unnatural offenses,” saying whoever voluntarily has carnal intercourse against the “order of nature” with a man, woman or animal can be punished with life imprisonment or 10 years imprisonment and a fine. The section came into force in 1861 during British colonial rule.

During a hearing in July this year in the Supreme Court, Advocate Menaka Guruswamy, representing a group of IIT students, argued that Section 377 curtails the freedom of expression and the right to form associations under clauses (a), (b) and (c) of Article 19 [right to freedom of speech] of a sexual minority.

“Its not just consensual sex between homosexual partners that this court should recognize, but their love for each other. How strongly must you love knowing that you are unconvicted felons under Section 377?” she asked.

“Tell my young clients that their lives will be different,” she  pleaded. “The recognition of equal citizenship, that is the business of life, so that they know they are loved, protected.”

Individual rights are supreme

As legal experts pointed out, changing this colonial law was almost a foregone conclusion after a nine-judge constitutional bench of the Supreme Court ruled in August 2017 that privacy is a fundamental right.

Justice Chandrachud was one of the judges in that ruling as well. The privacy judgment struck down earlier Supreme Court judgments, that immediately had a bearing on the 2013 Section 377 order as well. This led to a fresh bunch of petitions which cited the 2017 historic judgment to read down Section 377 and decriminalize homosexuality.

During the hearing, Justice Chandrachud observed that “our focus is not only on the sexual act, but the relationship between two consenting adults and the manifestation of their rights under Articles 14 and 21 … We want the relationship to be protected under Fundamental Rights and to not suffer moral policing,” he said.

In a 2009 judgment on a Public Interest Litigation (PIL) filed by Delhi-based non-government organization Naz Foundation, Justice A P Shah, the then chief justice of the Delhi high court, and Justice S Muralidhar had struck down Section 377.

Their judgement said: “We declare that Section 377 of the IPC, insofar as it criminalizes consensual sexual acts of adults in private, is violative of Articles 21 [Right to Protection of Life and Personal Liberty], 14 [Right to Equality before Law] and 15 (Prohibition of Discrimination on Grounds of Religion, Race, Caste, Sex or Place of Birth) of the constitution.”

But in 2013, a two-judge bench of the Supreme Court set aside the 2009 Delhi HC judgment. It said that prosecution under Section 377 was significantly less and it only affected “a minuscule fraction of the country’s population” comprising lesbians, gays, bisexuals or transgenders.

The judgment also said that amending or repealing Section 377 should be a matter for the Parliament.

However, during the July hearings this year on petitions challenging Section 377, Justice Nariman said: “We don’t wait for majoritarian governments to repeal laws. If a law is unconstitutional, it is the duty of the court to strike it down.”

The federal government had also left the decision to the Supreme Court. By passing this landmark judgment, the Supreme Court has put India on a progressive path, finally giving many citizens the right to choose their partners and be treated as equals in the eyes of the law.

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