Updat at 1:13 PM: All the lawyers & judges who have worked on this are the people to be interviewed and thanked. I am a nobody but they are the people to be thanked. It is massive time to celebrate: Keshav Suri, Executive Director of Lalit Group of hotels & petitioner in Section 377 case
Update at 12:57 PM: I'm pleased to welcome SC decision to decriminalise consensual acts of adults in private. In this country, we've allowed govt to interfere in private lives of people to discriminate against people on basis of sexual orientation, but SC stood up for equal treatment of citizens: Shashi Tharoor
Update at 12:25 PM: 5-judge bench unanimously holds section 377 (to the extent of sexual acts between consenting adults) as unconstitutional. Section 377 struck down for acts between consenting adults. Other aspects of section 377 - bestiality, sexual offences in absence of consent etc remain unaffected and unchanged
Update at 12:23 PM: I concur with the other 4 judges. History owes an apology to this community. Members of this community were compelled to live a life of fear. This was due to the ignorance of the majority. They’ve been denied fundamental right under article 14, 15 and 21. LGBTQ persons deserve to live a life unshackled: Justice Indu Malhotra
Update at 12:22 PM: After Justice Chandrachud, it's time for Justice Indu Malhotra to pronounce her judgment
Update at 12:21 PM: They need to be subjected to the idea of constitutional morality and not the society. The choice of a partner, the desire for sexual intimacy, THE STATE HAS NO BUSINESS TO INTRUDE IN THESE PERSONAL MATTERS. Section 377 to the extent of sexual acts between two consenting adults is UNCONSTITUTIONAL. Suresh Koushal overruled: Justice Chandrachud
Update at 12:19 PM: India has a constitutional Duty to honour international conventions. There is a growing consensus towards same sex relationships and human sexuality. This consensus has allowed the society to move onto offences beyond the idea of homosexuality. In the scheme of a compassionate global order, India cannot be left behind. LGBTQ has been subjected to Victorian morality: Justice Chandrachud
Update at 12:17 PM: What is natural and what is unnatural and who decides this? There must come a time when constitutional guarantees of inclusion and equality overtake discrimination - that time is now. Homosexuals need to be made comfortable for who they are - counselors need to do this. Human sexuality cannot be defined narrowly. Members of the LGBTQ have rights to be protected: Justice Chandrachud
Update at 12:15 PM: Gays, lesbians, transgenders bisexuals should have equal participation in the society. Section 377 denies that to them. We must as a society ask questions on the form of injustice. Individual liberty is the soul of Justice. our constitution nurtures dissent as a safety valve. It is difficult to correct the past but we can set the course for the future. Discrimination is being faced by the LGBTQ - have dealt with it exclusively in the judgment and have titled it “ashes of the gay”: Justice Chandrachud
Update at 12:08 PM: Human instinct to love was constrained by the physical manifestation of their sexuality: Justice Chandrachud
Update at 12:07 PM: Justice Nariman concludes, and now Justice Chandrachud pronounces his verdict.
Update at 12:06 PM: Government should take all measures to give wide publicity to this judgment. Government ought to remove the stigma associated with homosexuality. Through mediums of print, electronic media etc, govt should spread the word: Justice Nariman
Update at 12:03 PM: Such groups are entitled to protection, ought to be treated as human beings without any discrimination: Justice Nariman
Update at 12:01 PM: An important feature of my judgment is the mental health act. Homosexuality is not a disorder. Mental health act is reducing stigma with mental illness and does not recognise homosexuality as a mental illness. Union of India did not oppose homosexuality. Suresh Koushal judgment cannot be held to be correct. Persons who are homosexuals have fundamental rights: Justice Nariman
Update at 11:59 AM: Have considered international laws along with various reports on the issue of penal laws contradicting fundamental rights of citizens. This judgment is a judgment pointing in the right direction. Section 377 subjects members of LGBTQ to societal barriers. Proper measures need to be taken to address problems like fear and shame felt by the LGBTQ community: Justice Nariman
Update at 11:55 AM: Sexual orientation is biological, innate. She or he has no control over who they get attracted to. Any repression will be a violation of free expression: CJI Dipak Misra
Update at 11:52 AM: Section 377 contrary to Article 14 of the constitution. LGBTQ have been targeted resulting in discrimination. Section 377 to the extent of consenting sexual acts between adults to be struck down. Any consensual sexual relationship between two consenting adults - homosexuals, heterosexuals or lesbians cannot be said to be unconstitutional. Suresh Koushal judgment overruled: CJI Dipak Misra
Update at 11:51 AM: CJI Dipak Misra and Justice AM Khanwilkar’s judgment overrules the Suresh Koushal verdict.
Update at 11:50 AM: After the privacy judgment, right to privacy was made a fundamental right. Existence of Section 377 contradicts that: CJI Dipak Misra
Update at 11:48 AM: LGBTs enjoy same rights as other citizens under constitution. Section 377 irrational, arbitrary and denied dignity to some. 377 is irrational, indefensible and manifestly arbitrary. Equality is the basis on which the constitution rests. At the core of the concept of identity is self determination. Primary objective of a constitutional democracy is inclusiveness. Right to live with dignity is recognised as a fundamental right internationally: CJI
Update at 11:44 AM: Only when every individual is liberated can we call ourselves a true democratic society. We have to bid adieu to perceptions and social prejudices. LGBTQ community has the same rights as other citizens do. Denial of self expression is like death: CJI Dipak Misra
Update at 11:38 AM: Emphasis is laid on the identity of an individual. Sustenance of identity is one’s right. Dignity, protecting one’s identity and one’s privacy are the important pillars of the constitution. Privacy of human beings constitutes the cardinal rule of our constitution: CJI Dipak Misra
Update at 11:35 AM: I am what I am. So take me as I am. No one can escape from their individuality. Shakespeare said a rose by any other name would smell just as sweet. The name is a convenient concept for identification. Sans identity, the name only remains a term: CJI Dipak Misra
Update at 11:34 AM: There are four opinions. One by CJI and Justice Khanwilkar, rest by the other four judges: CJI Dipak Misra
Update at 11:33 AM: The five-bench have arrived, and they are pronouncing the judgment.
Update at 11:25 AM: The court room where the verdict on Section 377 will be pronounced is jam packed. The five-judge bench will give out the verdict in five minutes.
Update at 11:18 AM: Full court reference concludes, judgment to pronounced in just over 10 mins.
Update at 11:12 AM: The verdict on Section 377 will be pronounced at 11:30 AM.
Update at 11:00 AM: Right to privacy clearly says that what happens in one’s bedroom with two adults is a concern to them, not to anyone else: Mukul Rohatgi, former AG and main lawyer for gay rights
Update at 10:58 AM: Hopeful that the verdict will be positive for the concerned community. Its obvious that whole world has move forward and its time for Indian society to be mature enough: Mukul Rohatgi, former AG and main lawyer of gay rights
Update at 10:45 AM: Full court reference underway. Verdict expected around 11-11.15 am.
Update at 10:03 AM: There is a full court reference at 10:30 am because of the death of two senior lawyers. Verdict expected at around 11 am
The biggest day for gay rights in India has finally arrived, with the Supreme Court set to deliver on Thursday its verdict on Section 377 of the Indian Penal Code which criminalises homosexuality.
It had been on July 17 that a 5-judge Constitution bench headed by the Chief Justice of India, Dipak Misra, had reserved its verdict following days of marathon hearings involving multiple stakeholders over whether or not gay sex should be decriminalised.
The central government had in its submission at that time left the matter to the wisdom of the apex court, with a point in the affidavit stating:
"I state and submit that so far as the constitutional validity Section 377 to the extent it applies to "consensual acts of adults in private" is concerned, the Union of India would leave the said question to the wisdom of the Honourable Court."
During that time, as the bench heard a batch of petitions against Section 377, it had referred to the 2013 judgment of the Supreme Court that had criminalised consensual gay sex as a "mess". That 2013 verdict had set aside the Delhi High Court's 2009 order decriminalising Section 377. It had been five years later, on January 8, 2018, that a three-judge bench of the apex court decided to revisit the 2013 verdict. While referring the matter to a five-judge bench, the Supreme Court had said:
"Earlier decision of the Supreme Court in 2013 requires to be reconsidered because of the constitutional issues involved and we think it appropriate to send this to a larger bench".
The five-judge bench heard as many as six petitions and interventions which were filed by the NGO Naz Foundation, 'Voices Against 377' human rights activists and parents of queer children. The hearing saw as many as 35 individuals petitioners appearing before the court to demand that the 156-year-old colonial anti-LGBT law is struck down in India.
What does Section 377 say?
Section 377 of the IPC reads, "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." While the law doesn't explicitly refer to LGBT, the very mention of "against the order of nature" has come to be referred for same-gender sexual relations.
Does Section 377 only pertain to homosexuals?
Simply put, no. While the assumption is that Section 377 impacts only homosexuals, the law also allows the state to interfere on matters of heterosexual consensual sex as well. Given the fact that the implications of "against the law of nature" in the act include consensual sexual acts of oral and anal sex in private, the section empowers the state to make private consensual acts between heterosexuals unlawful.
Why do LGBT and human rights activists want Section 377 struck down?
The fulcrum of the argument for anti-Section 377 activists is based upon the constitutionally enshrined principles of fundamental rights, equality and privacy.
In previous petitions, activists have prayed to the top court to “declare the “Right to Sexuality,” “Right to Sexual Autonomy” and the “Right to Choice of a Sexual Partner” to be part of the Right to Life guaranteed under Article 21 of the Constitution of India”. They have also prayed to the top court to “Declare Section 377 of the Indian Penal Code, 1860 to be unconstitutional”.
Is Section 377 against the Indian Constitution?
Activists against Section 377 argue that the law is against the Indian Constitution. While the matter is presently being heard in the Supreme Court of India, the argument to strike the law down is based upon multiple sections of the Indian Constitution.
Article 5 of the constitution states that every person who “was born in the territory of India” shall be a citizen of India. The core argument of LGBT activists is about why their sexual orientation and choice of partner should make them outside the purview of fundamental rights which include Article 14 that states the “state shall not deny to ANY person equality before the law”. Therefore, the argument to strike it down is based upon the fact that the Indian state and Indian law is bound by the Indian constitution to not discriminate on the basis of gender.
The fundamental right under Article 15, which places a “prohibition of discrimination” on the grounds of sex also adds weight to the argument that Section 377 is against the tenets of the Indian Constitution. Additionally, Article 21 of the Indian constitution which says “NO PERSON shall be deprived of his personal life or liberty” also pours into the narrative that a legislative agenda that targets homosexuals for what they do in their private lives may against what the Indian Constitution envisions.
2017's landmark Right to Privacy verdict:
Additionally, the Supreme Court, in the landmark Right to Privacy verdict in 2017 gave a boost to the possible decriminalisation of Section 377 and said, “Discrimination against an individual on the basis of sexual orientation is deeply offensive to the dignity and self-worth of the individual.”
Para 126 of page 124 of the Right to Privacy verdict states: "Sexual orientation is an essential attribute of privacy. Discrimination against an individual on the basis of sexual orientation is deeply offensive to the dignity and self-worth of the individual. Equality demands that the sexual orientation of each individual in society must be protected on an even platform. The right to privacy and the protection of sexual orientation lie at the core of the fundamental rights guaranteed by Articles 14, 15 and 21 of the Constitution.