Supreme Court Decriminalizes Consensual Gay Sex

In a historic judgment on 6 September 2018, the Supreme Court of India struck down part of Section 377 of the Indian Penal Code (IPC) which criminalizes homosexual relationships between consenting adults.

- Madhavi Gokhlay

A five-judge Constitution Bench of former Chief Justice Dipak Misra, Justice A.M. Khanwilkar, Justice Rohinton F. Nariman, Justice D.Y. Chandrachud, and Justice Indu Malhotra agreed on the matter, with four separate but concurring judgments read out in the top court.

The main 166-page judgment authored by former Chief Justice Dipak Misra along with Justice A.M. Khanwilkar began with a quote by the great German thinker, Johann Wolfgang Von Goethe: “I am what I am, so take me as I am.”

The judgment described the Constitution as “a living and organic document capable of expansion with the changing needs and demands of the society” and stressed that “the Courts must robe themselves with the armory of progressive and pragmatic interpretation to combat the evils of inequality and injustice that try to creep into the society.”

Constitutional morality embraces several virtues, the foremost being espousal of a pluralistic and inclusive society, the order read. “The veil of social morality cannot be used to violate the fundamental rights of even a single individual, for the foundation of Constitutional morality rests upon the recognition of diversity that pervades the society,” it stated.

Discrimination on the basis of one’s sexual orientation would entail a violation of the fundamental right of freedom of expression, said the judgment. “Section 377 of the IPC subjects the LGBT community to societal pariah and dereliction, and is, therefore, manifestly arbitrary, for it has become an odious weapon for the harassment of the LGBT community by subjecting them to discrimination and unequal treatment,” it read.