Bidding adieu to the colonial legacy of criminalising homosexuals, the Supreme Court on 6 September 2018 read down Section 377 and legalised consensual sexual relationship between two adults. However, the provision would still apply to any person having sexual activity with an animal and any non-consensual sexual act “against the order of nature”. While overruling the Suresh Koushal decision (11 December 2013), the Apex Court observed letting Suresh Koushal remain in law would be tantamount to a “retrograde step in the direction of the progressive interpretation of the Constitution and denial of progressive realization of rights.”
The five-judge bench gave a concurring judgement and Chief Justice of India Dipak Mishra held that “Section 377 IPC, in its present form, being violative of the right to dignity and the right to privacy, has to be tested, both, on the pedestal of Articles 14 and 19 of the Constitution as per the law laid down in Maneka Gandhi (supra) and other later authorities Court.”
Holding that section 377 is an unreasonable restriction to the freedom of expression and choice of the LGBT community, it opined that “consensual carnal intercourse among adults, be it homosexual or heterosexual, in private space, does not in any way harm the public decency or morality.”
The Supreme Court wrote the historic judgement responding to the fight for decriminalisation of LGBT community. The judgment marks the beginning of the fight for other civil rights of sexual minorities.
Sama welcomes this ground-breaking and long-awaited judgment, which protects and strengthens the rights of all to freely express their sexuality and identity.