Section 377 Verdict: India’s top court decriminalises homosexuality in landmark verdict

Section 377 Verdict: India’s top court decriminalises homosexuality in landmark verdict

In a landmark judgment, India’s Supreme Court has decriminalised homosexuality, striking down a colonial era law from 1861, saying homosexuality is not an offense.

Upholding the rights of individuals, a 5-judge bench led by India’s Chief Justice Dipak Misra took a unanimous decision with the chief justice saying the “LGBT Community has the same rights as of any ordinary citizen. Respect for each others rights, and others are supreme humanity. Criminalising gay sex is irrational and indefensible,” the chief justice reportedly observed.

The court has observed:

The section 377, which dates back to 1861, had criminalised sexual activities that are "against the order of nature." The law has been used to criminalise homosexuality in the country, often impinging on the rights of the LGBTQ community in India.

A five-person bench headed by India’s Chief Justice Dipak Misra pronounced its judgment following a hearing in July on a string of petitions that had challenged the law as unconstitutional that violated the fundamental rights of citizens including the right to equality and right to freedom and expression. The right to privacy verdict of the Supreme Court earlier this year is also likely to be a significant factor that will influence the court’s decision.

In 2013, India’s Supreme Court had overturned an earlier ruling by the Delhi High Court which had decriminalised section 377 in 2009.

The Indian government which had been given the option of enacting legislation that would have scrapped this law, had left the decision to the “wisdom” of India’s Supreme Court.

The decision marks a key moment for both India’s Supreme Court as well as its outgoing Chief Justice Misra who will pass on reigns to Justice Ranjan Gogoi next month.

In 2001, Netherlands became the first country to recognise same sex marriages. Same sex marriages are now legally permitted in over 20 countries including Australia, the US, New Zealand, Germany, and Malta, among others.

Section 377

The section 377 of the Indian Penal Code is a colonial era law that criminalised sexual activities that are "against the order of nature” and was punishable with life imprisonment.

Specifically, the language of the 377 states that “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 has rarely been enforced, gay and civil right activists have long argued the law was used to harass members of India’s queer community.

The 377 itself traces its root to the Buggery Act of 1533, enacted during the reign of King Henry VIII that criminalised and sodomy and bestality.

Moment Of Pride

The decision has been hailed as a historic win for the LGBTQ rights in India and Twitter as abuzz with celebratory tweets from celebrities and politicians alike: