Gay sex not a crime in India: Supreme Court decriminalises Section 377

New Delhi: The gay community has the same right in India as any ordinary citizen, the Supreme Court ruled on Thursday ending a draconian British-era law that criminalised gay sex and heralding a new, bright era for gay rights in the country.

In a unanimous decision, the five-judge bench -- led by Chief Justice of India Dipak Misra -- decriminalised Section 377 of the Indian Penal Code that banned consensual gay sex, holding out promise of a new dawn in personal liberty.

While reading the verdict, CJI Misra observed that the LGBT community has the same rights as of any ordinary citizen of India. He said respect for each others rights, and respect for others is supreme humanity. Criminalising gay sex is irrational and indefensible, he said.

"No one can escape from their individualism. Society is now better for individualism. In the present case, our deliberations will be on various spectrums," CJI Misra said before reading out the verdict.

"Sustenance of identity is the pyramid of life," CJI Misra added.

The Supreme Court had in 2013 restored Section 377, a British-era law that bans gay sex. It had overturned a landmark judgement by the Delhi High court in 2009 which had ruled that consenting intercourse between two adults was not illegal.

After the 2013 verdict, five high-profile petitioners – Bharatnatyam dancer Navtej Johar, documentary filmmaker Sunil Mehra, restaurateur Ritu Dalmia, hotelier and historian Aman Nath and business executive Ayesha Kapur – challenged it and became the human faces of this battle.

Before their entry, the battle was fought since the early nineties by NGOs, the Naaz Foundation being one of them.

Read: 1861-2018: Section 377, a sorry British-era law that dies to give hope

While reserving the verdict on July 17 this year, a bench of CJI Dipak Misra and Justices R F Nariman, A M Khanwilkar, D Y Chandrachud and Indu Malhotra brushed aside as "far-fetched" the arguments from opponents of decriminalisation of Section 377 that it could also legalise incest, group sex and sodomy.

The top court had also said, "no one should have to live in fear because of their sexuality."

The five petitioners had argued that Section 377 violates rights principles enshrined in the constitution, like equality before law, no discrimination based on religion, race, caste, sex or place of birth and freedom of speech and expression.

The Supreme Court had in 2013 cancelled a Delhi High Court order that had decriminalised homosexuality by overturning the outdated law and said it was the job of Parliament to decide on scrapping laws.

Section 377 of the Indian Penal Code bans “carnal intercourse against the order of nature with any man, woman or animal”.

Gay sex is punishable by up to 10 years in jail under the 1861 law. Prosecution under Section 377 is, however, not common, but activists complain that authorities use the law to harass or scare gay people.