Section 377 Verdict: History Owes An Apology To The LGBT Community, Says Supreme Court

Five years after making homosexuality illegal again, the Supreme Court today by a 5-0 unanimous verdict decriminalised consensual sex between homosexuals. The top court, while reading down Section 377 of the Indian Penal Code, said it violates the LGBT community's right to equality, right to dignity and privacy.

Chief Justice of India Justice Dipak Misra, who read the first opinion, highlighted that social morality is different from constitutional morality.

The Chief Justice rejected the notion that there is anything unnatural among homosexual adults. “Respect for individual choice is the very essence of liberty under law and, thus, criminalizing carnal intercourse under Section 377 IPC is irrational, indefensible and manifestly arbitrary.”

Justice AM Khanwilkar, who didn't write a separate verdict, concurred with the Chief Justice's opinion.

The five-judge constitution bench's ruling came on petitions filed against the colonial-era law by, among others, Keshav Suri, the executive director of The Lalit Suri Hospitality Group, and the Naz Foundation. They had filed a review petition against the Supreme Court's 2013 ruling that re-criminalised homosexuality, overturning Delhi High Court's 2009 verdict that had held Section 377 “illegal”.

Justice DY Chandrachud began his verdict by highlighting as to how a colonial-era law has deprived a large section of population equality from other citizens of the country seven decades after Independence. “It is difficult to right the wrongs of history. But we can certainly set the course for the future. That we can do by saying, as I propose to say in this case, that lesbians, gays, bisexuals and transgenders have a constitutional right to equal citizenship in all its manifestations,” he wrote, supporting partial striking down of Section 377 .

Justice Indu Malhotra, the junior-most judge on the bench, joined the other four in reading down the law that criminalised homosexuality.

The top court directed that the judgment be given wide publicity. Justice Rohinton Nariman, the fifth judge on the bench, highlighted the need to sensitise members of the public and especially police officials in their dealings with the members of the LGBT community.

Justice Nariman, finding Section 377 arbitrary, rejected the argument that change in society can only be reflected if elected representatives amend laws and the Supreme Court should “not indulge in taking upon itself the guardianship of changing societal mores”. He wrote that the very purpose of the fundamental rights chapter in the Constitution is to place them beyond the reach of majoritarian governments so that constitutional morality can be applied by this court “to give effect to the rights, among others, of ‘discrete and insular' minorities”.

Here's the full judgment of the Supreme Court: