New Delhi: In a historic judgement, the Supreme Court on Thursday ruled that consensual adult gay sex is not a crime.
The judgement by the a Constitution bench of the country's top court, has defanged the British-era Section 377 of the Indian Penal Code (IPC) which criminalised sex which deems that gay sex is a punishable offence.
Thursday's judgement is a major victory for the LGBTQ (lesbian, gay, bisexual, transgender) community that has been fighting hard and persistently to legalise gay sex.
Long before the constitution bench delivered the verdict on Thursday, the five judges had dropped enough hints about what they thought of the nearly 160-year-old law.
Like when Chief Justice Misra observed that the LGBT community felt the stigma “because of the criminality attached” and homosexuals can get together once it is removed. On other occasions, the judges had made it clear that consent was going to be the key and no one could impose their sexual orientation on others.
The five-judge Constitution bench comprising Chief Justice Dipak Misra and Justices R F Nariman, A M Khanwilkar, D Y Chandrachud and Indu Malhotra was unanimous in its decision.
'Section 377 is irrational, arbitrary and incomprehensible as it fetters the right to equality for LGBT community...LGBT community possesses same equality as other citizens, said CJI Misra.
What society thinks, the judges said, has no place when it comes to people's freedoms.
"Social morality cannot violate the rights of even one single individual', said CJI Misra and Justice Khanwilkar.
The issue of Section 377 was first raised by an NGO, Naaz Foundation, which in 2001 approached the Delhi high court that then decriminalised sex between consenting adults of the same gender by holding the penal provision "illegal".
The high court had decriminalised consensual gay sex in 2009 but the top court had cancelled the order four years later, ruling that only parliament should be changing laws.
In 2016, the Supreme Court, however, agreed to hear a petition by five prominent members of the LGBT, or lesbian, gay, bisexual and transgender community Bharatnatyam dancer Navtej Johar, culture expert Aman Nath, restaurateurs Ritu Dalmia and Ayesha Kapur and mediaperson Sunil Mehra, challenging the constitutionality of section 377.
The court later set up a five-judge bench to determine if the provision violates fundamental rights guaranteed by the constitution which concluded the hearing in July.