In a landmark move that will remain etched in the history India, the Supreme Court has repealed sec 377 IPC, an archaic law enforced in the colonial era about 150 years ago. The section essentially criminalised consensual sex between homosexual adults, thus incriminating them in the eyes of the law.
The striking down of the anti-LGBT legislation enforces that any sexual activity between consenting adults is not subject to government intervention, and thus prevents the LGBT community, a large section of the population, from living like criminals. This can be considered as a significant victory for the activists, members, and supporters of the community, who have struggled for several years.
Section 377, imposed in India during the British era, considered any intercourse that’s “against the order of nature”, (i.e. non-penile-vaginal intercourse), as a criminal act punishable with life imprisonment. For over a century, this has created a sense of fear and anger towards the “queer” members of the society.
This also meant that the Lesbian, Gay, and Bisexual Indians had to suffer various forms of harassment and ostracisation on a regular basis, and even honour killing, with no option for them to file complaints in fear of further intimidation and persecution.
A five-judge panel unanimously voted against section 377. While speaking about the decision, Justice Indu Malhotra said that the society is still ignorant about how homosexuality is a natural trait, and in a heart-warming message, she even said that history owes the LGBT members and their families an apology for the long infringement of their rights.
Justice Chardrachud stated “that the state does not have the right to control the private lives of any citizen, and this de-decriminalization can be considered as the first step towards the greater cause of providing the members of the LGBT community their constitutional rights.” According to CJI Misra, LGBT members of the society, too, have the right to privacy.
Earlier, in 2013, the apex court had overruled the rule of the Delhi High Court that called the banning of consensual sex a violation of the fundamental rights. At that time, the top court had said that such a ruling was unsustainable. However, the previous ruling was wrongly based on the tenets of the constitution.
The verdict says that consensual intercourse within the private space of adults, with no harm being caused to women or children, cannot be considered as a criminal act since it is a matter of choice. It also says that the sexual orientation of a person is a private matter, as well, and criminalisation of a person on the basis of sexual orientation is unlawful.