New Delhi, Sep 6: In a landmark verdict, the Supreme Court has partially struck down Section 377 of the Indian Penal Code. Observing that the section was unconstitutional the five judge Bench held that Section 377 is irrational, indefensible and manifestly arbitrary.
Delivering a unanimous verdict the court said 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, the Bench held.
Also Read | Section 377 verdict by SC today: All you need to know
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Section 377 will not be applicable to same sex acts between homo-sexuals, hetero-sexuals and lesbians. Section 377 would however be applicable to bestiality and sexual acts without consent by one of them.
It is no longer an offence under Section 377 for LGBT community to engage in consensual sex in private.
SC says consensual sex between adults in private space, which is not harmful to women or children, cannot be denied as it is a matter of individual choice. SC partially strikes down Section 377.
Bodily autonomy is individualistic. It is a matter of choice and is part of dignity. Section 377 is violative of Article 14 of the Constitution, says CJI.
Right to privacy as part of right life applies fully to LGBT community: CJI
Social morality cannot violate the rights of even one single individual says CJI
The view taken in the Suresh Koushal judgment is impermissible says SC
Primary objective of having a Constitutional society is to transform the society progressively; Constitutional provisions should not be interpreted in literal sense: SC
In all there are four opinions. All the judgments are concurrent.
The Suresh Koushal judgment has been overturned.
LGBT community possesses same equality as other citizens.
CJI says section 377 is irrational, arbitrary and incomprehensible as it fetters the right to equality for LGBT community.
A five-judge SC bench by unanimous decision decriminalises Section 377 making gay sex legal. CJI Dipak Misra and Justice A M Khanwilkar pronounce the first judgment saying consensual sexual relation between same gender adults in private does not fall foul of section 377 IPC.
SC says that Section 377 is irrational, indefensible and manifestly arbitrary
Sustenance of identity is the pyramid of life: CJI
Denial of self-expression is like death, CJI
No one can escape from their individualism. Society is now better for individualism. In the present case, our deliberations will be on various spectrums- CJI Dipak Misra
It is a unanimous verdict expressed through four separate by concurring judgments says CJI
All concurring judgments, four opinions say CJI
Judges have arrived at the court.Verdict shortly
Scores of activists and students have gathered outside the Supreme Court.
The full court reference has concluded. The judges will re-assemble at 11.30, following which the verdict will be pronounced.
Section 377: A timeline: In July 2009, the Delhi HC had decriminalised homosexuality among consenting adults after finding that it violated Article 14, 15 and 21 of the Constitution. At the time, the HC was hearing a petition filed by NGO Naz Foundation. The government had argued that homosexuality comprises only 0.3 per cent of the population, and therefore the rights of over 99 per cent cannot be compromised. The verdict, however, was struck down by a two-judge bench of the Supreme Court in December 2013. The top court, finding that the HC's judgment was "legally unsustainable", decriminalised gay sex. The SC also left it to Parliament to consider deleting the provision from the IPC. A review petition filed by Naz Foundation was quashed. In January riding on the court’s verdict on fundamental rights, a petition challenging the section was filed.
Section 377 in a nutshell: 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 fine. Explanation: Penetration is sufficient to constitute the carnal intercourse necessary to the offence described in this section.
The petitions were opposed by the Apostolic Alliance of Churches and Utkal Christian Association. Individuals like Suresh Kumar Kaushal too had opposed the petitions. The Bench had said that it would not go into the curative petitions and would adjudicate fresh on the matter.
Before reserving the verdict, the Bench had said, "we are solely on consensual acts between man-man, man-woman. Consent is the fulcrum here. You cannot impose your sexual orientation on others without their consent," the top court had said while allaying apprehensions of those opposed to the decriminalisation of the penal provision. "We would not wait for the majoritarian government to enact, amend or not to enact any law to deal with violations of fundamental rights."
The Full Court reference is for late G V Bharuka and V A Mohta. The verdict will be delivered once the reference is over.
The verdict will be delivered by around 11.15 am as there is a full court reference in memory of two senior advocates.
The verdict is likely to be delivered by 11 am. There has been a slight delay. The verdict was to be delivered by 10.30 am.
During the hearing the Centre has said that it would leave the question to the Supreme Court’s wisdom. The government had also said that it would not contest the petitioner on consensual sex, but added that incest and bestiality be kept away from deliberation.
Justice A M Khanwilkar not penning a separate judgment.
Chief Justice of India Dipak Misra, Justices RF Nariman, DY Chandrachud and Indu Malhotra will be penning separate judgments.
The CJI and Justice Chandrachud have listed to give separate judgments for the Constitution Bench. Two other judges too are expected to deliver separate verdicts.
During the course of the marathon hearing the SC dropped several hints to suggest that it would de-criminalise Section 377.
The verdict would be delivered by a five judge Bench headed by Chief Justice of India Dipak Misra who retires on October 3. The lone lady judge on the Bench, Justice Indu Malhotra had said that homosexuality is only a variation and not an aberration.
Justice Malhotra went on to add that the prejudice and stigma piled on the LGBTQ community has denied even basic medical care in the country. The pressure on homosexual people from within the home is such that they succumb to marry the opposite sex, leading to a life of mental trauma and bi-sexuality.
Homosexuality is not against the order of nature, but nature itself. Hundreds of animal species show the same sexual orientation, she also went on to add.
The Bench said once the criminality of consensual gay sex goes away, then related issues like social stigma and discrimination against the LGBTQ community will also go.