NEW DELHI: The Supreme Court on Thursday restored a landmark Delhi High Court judgement which had decriminalised homosexuality in a move that was immediately hailed by the minority LGBT community.
A five-judge bench led by CJI Dipak Misra diluted Section 377 of the Indian Penal Code, to exclude all kinds of adult consensual sexual behaviour. The law will still stand on the statute book to deal with unnatural sexual offences against minors and animals such as sodomy and bestiality.
The dreaded section not only made any kind of homosexual behaviour but also other kinds of “unnatural” sex such as oral and anal sex etc a criminal offence.
“Section 377, IPC, to the extent that it criminalises consensual sex between two adults is arbitrary, irrational and hence liable to be partially struck down.”
A.M. Khanwilkar, R.F. Nariman, D.Y. Chandrachud and Indu Malhotra, were the other judges on the bench. The judgement was unanimous.
This will help the community claim equal constitutional status as other citizens. It also affirms their right to claim the right to adopt, marry and have a family.
It may also prevent social ostracism with the court declaring affirmatively that it was not a mental disorder. But something inate to a human being.
The Delhi High Court had in 2009 taken this view, but a bench of the top court had controversially undone the ruling saying changing mores were best left to Parliament to deal with.
Section 377 makes even consensual sexual acts – both homosexual and heterosexual – a crime if they are against the order of nature.
Those in favour of diluting the law to decriminalise all consensual sexual behaviour have argued that majoritarian morality must make way for constitutional morality which makes it mandatory for the state to provide equality to all.
No one can be discriminated against only on the grounds of their sexual orientation and called for constitutional protection to even sexual minorities.
Those against diluting Section 377 urged the court to retain the law on the statute book citing morality, religion and cultural ethos of India.
The government on its part left the issue to the court, but insisted it cannot go beyond debating criminality, to examine other civil rights for the community such as the right to marry, adopt etc.
Several leading lights of the small but significant LGBT community had challenged the very existence of the law on the statute book.