New Delhi: Supreme Court here on Thursday decriminalised gay sex. The apex court ordered that gay sex among consenting adults is not an offence, reading down a British-era section 377 of the penal code that penalises people for their sexual orientation.
“Any discrimination on the basis of sexual orientation violates fundamental rights,” said Chief Justice Dipak Misra, reading out the operative portion of the top court’s verdict that struck down Section 377 to the extent that it penalised consensual sexual relationship between two adults.
“Social morality cannot be used to violate the fundamental rights of even a single individual… Constitutional morality cannot be martyred at the altar of social morality,” he added.
In four separate but concurring verdicts, the five judges of the top court ruled that the section failed to make a distinction between consensual and non-consensual acts. Bestiality will also continue to be an offence under section 377.
“It had become a weapon for the harassment for LGBT and subject them to discrimination,” Chief Justice Misra said.
Section 377, which treats consensual sexual acts by adults of the same sex as an offence and provides for life in prison, is modelled on Britain’s Buggery Act of 1533 and had survived on the statute in India though it has been scrapped in Britain.
The Delhi high court had decriminalised consensual gay sex in 2009 but the top court had cancelled the order four years later, ruling that only parliament should be changing laws.
In 2016, the Supreme Court, however, agreed to hear a petition by five prominent members of the LGBT challenging the constitutionality of section 377.