Section 377 verdict

 

The Supreme Court in a landmark judgment legalised gay sex by holding that sex between two consenting adults is not a crime. A five-judge bench of the Supreme Court gave the final verdict in 2018.

Section 377

• Section 377 of the Indian Penal Code 1860, a relic of British India, states that “whoever voluntarily has carnal intercourse against the order of nature with any man, woman or animal shall be punished.”
• This included private consensual sex between adults of same sex.
• After the recent SC judgement, provisions of Section 377 remain applicable in cases of non-consensual carnal intercourse with adults, all acts of carnal intercourse with minors, and acts of bestiality (intercourse between a person and an animal).

The Verdict

• SC made it clear that Article 14 of the Constitution guarantees equality before the law and this applies to all classes of citizens thereby restoring the ‘inclusiveness’ of the LGBTQ Community.
• SC upheld the pre-eminence of Constitutional morality in India by observing that equality before the law cannot be denied by giving precedence to public or religious morality.
• SC noted that modern psychiatric studies and legislations recognise that gay persons and transgender do not suffer from a mental disorder and therefore cannot be penalized.
• SC observed that homosexuality is not unique to humans, which dispels the prejudice that it is against the order of nature.
• Supreme Court stated that the ‘Yogyakarta Principles on the Application of International Law in Relation to Issues of Sexual Orientation and Gender Identity’ should be applied as a part of Indian law.

Yogyakarta Principles recognise freedom of sexual orientation and gender identity as part of Human Rights. They were outlined in 2006 in Yogyakarta, Indonesia by a distinguished group of International Human Right experts.