Supreme Court strikes down Section 377 of IPC as unconstitutional - (06 Sep 2018)

Constitution

In a historic verdict, Supreme Court strikes down Section 377 of Indian Penal Code, 1860 (IPC) as unconstitutional. Supreme Court, while decriminalizing gay sex in India recognized the fundamental rights of homosexuals. CJI Dipak Mishra said that, Section 377 of IPC is irrational, arbitrary and incomprehensible as it violates right to equality of Lesbian, Gay, Bisexual, Transgender (LGBT) community. The right to privacy has now been recognised to be an intrinsic part of the right to life and personal liberty under Article 21 of Constitution.

However, in the year 2013, the Supreme Court while setting aside Delhi High Court’s landmark verdict on homosexuality, decriminalising sexual relation between persons belonging to the same sex, upheld the constitutional validity of Section 377 of IPC that makes gay sex as punishable offence. In 2016, Supreme Court, while leaving the door open for a review of colonial-era ban on gay sex in India, agreed to hear LGBT matter and referred it to 5 judge bench.

In the landmark judgment, Supreme Court held that, Section 377 affects the private sphere of the lives of LGBT persons. It takes away the decisional autonomy of LGBT persons to make choices consistent with their sexual orientation, which would further a dignified existence and a meaningful life as a full person. Members of the LGBT community are entitled to the benefit of an equal citizenship, without discrimination, and to the equal protection of law.

Justice Indu Malhotra observed that, Section 377 as it criminalises consensual sexual acts of adults who are competent to consent) in private, is violative of Articles 14, 15, 19, and 21 of the Constitution. However, such consent must be free consent, which is completely voluntary in nature, and devoid of any duress or coercion. The judgment in Suresh K. Koushal & Anr. v. Naz Foundation & Ors. is overruled.

Tags : LGBT COMMUNITY EQUAL RIGHTS GRANT