In a landmark judgment, a five-judge Constitution Bench of the Supreme Court decriminalised homosexuality, with a prayer to the LGBTQ community (Lesbian, Gay, Bisexual, Transgender, Queer) to forgive history for subjecting them to “brutal” suppression.
About IPC Section 377:
- Whoever voluntarily has carnal intercourse against the order of nature with any man, woman or animal, shall be punished with 1[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.
- This archaic British law dates back to 1861 and criminalises sexual activities against the order of nature. The court also called it ‘Macaulay’s legacy.’
Previous court cases:
- In 2009, in a landmark judgment, the Delhi High Court described Section 377 as a violation of the fundamental rights guaranteed by the Constitution. Following this, religious groups moved the Supreme Court for a direction against the verdict.
- The Supreme Court in 2013 overruled the Delhi High Court’s order and reinforced criminalisation of homosexuality stating that Parliament’s job was to scrap laws. This judgment by the apex court was highly criticised by the LGBTQ community in India and was seen as a setback for human rights.
Petition filed in Supreme Court:
- The petition claimed their rights to sexuality, sexual autonomy, choice of sexual partner, life, privacy, dignity and equality, along with the other fundamental rights guaranteed under Part-III of Constitution, are violated by Section 377.
Details of recent Judgement:
- The Bench, led by Chief Justice of India Dipak Misra, unanimously held that criminalisation of private consensual sexual conduct between adults of the same sex under Section 377 of the Indian Penal Code was clearly unconstitutional.
- The court, however, held that the Section would apply to “unnatural” sexual acts like bestiality. Sexual act without consent continues to be a crime under Section 377.
- The Constitution Bench declared the 156-year-old “tyranny” of Section 377 “irrational, indefensible and manifestly arbitrary.
- Section 377 discriminated against a minority based solely on their sexual orientation. It violated the right of the LGBTQ community to “equal citizenship and equal protection of laws.”
- The court held that bodily autonomy was individualistic. Choice of a partner was part of the fundamental right to privacy.
Dig – deeper:
- Macaulay’s law: – Enactment of Indian Penal Code
- The Indian Penal Code (IPC) is the main criminal code of India.
- It is a comprehensive code intended to cover all substantive aspects of criminal law.
- The code was drafted in 1860 on the recommendations of first law commission of India established in 1834 under the Charter Act of 1833 under the Chairmanship of Thomas Babington Macaulay.
- It came into force in British India during the early British Raj period in 1862.
- However, it did not apply automatically in the Princely states, which had their own courts and legal systems until the 1940s.
- The Ranbir Penal Code (RPC) applicable in Jammu and Kashmir is also based on this Code.
Article 14 of the Indian Constitution:
- Article 14 of the Constitution of India provides for equality before the law or equal protection within the territory of India.
- The State shall not deny to any person equality before the law or equal protection of law within the territory of India.
- Progressive definitions:
The present definition of mental illness in the 2017 Parliamentary statute makes it clear that homosexuality is not considered to be a mental illness.
- With the Supreme Court decriminalising gay sex, India joins 25 other countries where homosexuality is legal.
- However, 72 countries and territories worldwide still continue to criminalise same-sex relationships, including 45 in which such relationships between women are outlawed.
- Some of the countries where gay sex has been legalised are: Argentina (2010), Greenland (2015), South Africa (2006), Australia (2017), Iceland (2010), Spain (2005), Belgium (2003), Ireland (2015), United States (2015), Brazil (2013), Luxembourg (2014).