New Delhi
In a historic verdict, the Supreme Court today de-criminalised homosexual acts between consenting adults in private, bringing cheers to millions of members of the LGBT community who had been hounded for their sexual orientation under Section 377 of the Indian Penal Code that made it a punishable offence.
A five-judge Constitution Bench, headed by Chief Justice of India Dipak Misra, read down the British-era law, terming it “irrational, indefensible and manifestly arbitrary”.

The verdict will not reopen concluded cases under Section 377 but can be relied upon in pending matters against the LGBT community members.

The five judges wrote four concurring verdicts. While CJI Misra and Justice AM Khanwilkar delivered one verdict, Justices Rohinton Nariman, Dhananjay Chandrachud and Indu Malhotra wrote separate verdicts.

The top court said homosexuality was a type of sexual orientation and not a disease and members of the lesbian, gay, bisexual and transgender (LGBT) community deserved to be treated with human dignity. Terming sexual orientation a “biological phenomenon”, it said any discrimination on this ground was violative of their fundamental rights.

Section 377 refers to ‘unnatural offences’ and says whoever voluntarily has carnal inter-course 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 10 years, and shall also be liable to pay a fine.

The judgment came on petitions by dancer Navtej Jauhar, journalist Sunil Mehra, chef Ritu Dalmia, hoteliers Aman Nath and Keshav Suri, business executive Ayesha Kapur and 20 IITians challenging the validity of Section 377.

“Section 377, so far as it penalises any consensual sexual relationship between two adults, be it homosexuals (man and a man), heterosexuals (man and a woman) or lesbians (woman and a woman), cannot be regarded as constitutional.

“However, if anyone, by which we mean both a man and a woman, engages in any kind of sexual activity with an animal, the said aspect of Section 377 is constitutional and it shall remain a penal offence,” the CJI ruled. Any act without the consent of the other person would also invite penal liability.

The SC also declared parts of Section 377 as an unreasonable restriction on right to freedom of speech and expression. In his separate but concurring verdict, Justice Chandrachud, said, “Members of LGBT community are entitled, as all other citizens, to the full range of constitutional rights.”