The Supreme Court of India has decriminalised gay sex between consenting adults by reading down Section 377 of the Indian Penal Code (IPC). The judgment titled Navtej Singh Johar & Ors. v. Union of India was delivered by a bench of chief justice of India Dipak Misra and justices Rohinton Nariman, AM Khanwilkar, DY Chandrachud and Indu Malhotra.

Section 377

The Court held that Section 377 insofar as it criminalises consensual sexual acts between adult human beings, is unconstitutional and liable to be struck down. Section 377 is a 146-year-old law which prohibited ‘carnal intercourse against the order of nature with any man, woman or animal,’ taken to mean homosexual sex and all anal and oral sex. The Court made it clear sex with animals will remain a criminal offence. Gay sex was punishable with up to 10 years in prison, although few have been imprisoned. The court said the law went against the rights enshrined in India's constitution. In giving the verdict, Chief Justice Dipak Misra said ‘the law had become a weapon for harassment for the LGBT community.’ The unanimous ruling comes in response to a petition filed by five people who said they were living in fear of being harassed and prosecuted by police.

Days in court

In 2009, a court in the capital New Delhi had already repealed the law, but the highest court reinstated it as a criminal offense in 2013, following pressure from religious groups. However, activist groups took their lead from later judgements delivered by the supreme court. In 2016, the court agreed to hear the section 377 petition again and three senior judges said the issue was a ‘matter of constitutional importance.’ Then in a judgement on the right to privacy in August 2018, the court stated that ‘discrimination against an individual on the basis of sexual orientation is deeply offensive to the dignity and self-worth of the individual.’