India's top court scrapped a colonial-era ban on gay sex on Thursday in a landmark judgement that activists hope will uphold the right to equality. Gay sex is considered taboo by many in socially conservative India, and was reinstated as a criminal offence in 2013 after four years of decriminalisation. Gay sex had been punishable by up to 10 years in jail.
A five-judge bench in India's Supreme Court was unanimous in overturning the ban.
“Any consensual sexual relationship between two consenting adults - homosexuals, heterosexuals or lesbians - cannot be said to be unconstitutional,” said the Chief Justice of India, Dipak Misra, as he read out the judgement. The CJI said, "Denial of self expression is like death, adding, Section 377 is irrational, indefensible and manifestly arbitrary."
Delivering the judgement for himself and on behalf of Justice Khanwilkar, he overturned the Suresh Koushal judgment, thereby effectively decriminalising homosexuality. The LGBTQ community possesses equal rights as any other citzen, he said. "They (LGBTQ community) should be allowed to live with dignity and without pretence. This is their journey to dignity, equality and liberty," he added.
“Societal morality cannot trump constitutional morality. Societal morality cannot overturn the fundamental rights of even a single person,” the CJI's verdict states. “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,” he added.
Agreeing with the CJI on the partial removal of Section 377, Justice Nariman said homosexuals have a fundamental right to live with dignity, entitled to be treated as human beings and imbibe the spirit of fraternity. He put the onus on Centre to reduce the stigma associated with the community.
Justice Chandrachud said that the tragedy and anguish inflicted by law must be remedied. "Macaulay's legacy exists 68 years after the coming of a liberal Constitution. Human instinct to love has been constrained," he said. He added that the section has ensured that sexual minorities to lived in silence.
Justice Indu Malhotra said, The society owes an apology to the LGBTQ community for the years of stigma imposed on them.
Activists welcomed the ruling. “Thanks to all that fought for this, braving the worst sort of prejudice. This is a good day for human rights,” Meenakshi Ganguly, South Asia director for Human Rights Watch said on Twitter. “It is not only about decriminalising but recognising our fundamental rights,” Akhilesh Godi, one of the petitioners in the case, told Reuters shortly before the judgement was announced.
The judges in the case had previously said that gay people in India faced deep-rooted trauma and live in fear. A law known as “Section 377” had prohibited “carnal intercourse against the order of nature with any man, woman or animal” - which was widely interpreted to refer to homosexual sex.