New Delhi: In a historical and path-breaking judgement, the Supreme Court on Thursday partially struck down as unconstitutional the 158-year-old colonial law — Section 377 of the IPC — which criminalises consensual homosexual acts between two consenting adults. It held that homosexuality, lesbian, gay sex or unnatural sex between a man and woman is no more an offence for prosecution of the offender.
In a unanimous 493-page verdict, a five-judge Constitution Bench declared Section 377 of the IPC unconstitutional, insofar as it criminalises consensual sexual acts of adults in private. It clarified that such consent must be free consent, which is completely voluntary in nature, and devoid of any duress or coercion. The court also said that the provisions of Section 377 would continue to govern non-consensual sexual acts against adults, all acts of carnal intercourse against minors, and acts of bestiality or any kind of sexual activity with an animal.
CJI Dipak Misra wrote for himself and Justice A.M. Khanwilkar. Justices Rohinton Nariman, D.Y. Chandrachud and Indu Malhotra gave concurring verdicts giving additional reasons. The court, while striking down part of the Section 377 that criminalises consensual gay sex, said it was ‘irrational, indefensible and manifestly arbitrary’. The CJI said that criminalisation of consensual carnal intercourse, be it amongst homosexuals, heterosexuals, bi-sexuals or transgenders, hardly serves any legitimate public purpose or interest.
Consensual carnal intercourse among adults, be it homosexual or heterosexual, in private space, does not in any way harm the public decency or morality. Therefore, Section 377 IPC in its present form violates Article 19(1)(a) of the Constitution. The CJI said, ‘Social morality cannot be used to violate the fundamental rights of even a single individual… Constitutional morality cannot be martyred at the altar of social morality.’
