In a landmark judgement on Thursday, the Supreme Court struck down Section 377 of the IPC that deals with criminalising homosexuality. The five-judge bench of the SC led by CJI Dipak Misra unanimously decriminalised consensual gay sex.
Key observations made by the SC bench:
- Section 377 of IPC in so far as it criminalises consensual sexual acts between man and man, man and woman or woman and woman is unconstitutional and struck down. Sex with animal will however remain criminal.
- LGBT community possess equal rights under the Constitution.
- Primary objective of having a Constitutional society is to transform the society progressively; Constitutional provisions should not be interpreted in literal sense.
- Sexual orientation of an individual is natural and discrimination on the basis of sexual orientation is a violation of Freedom of Expression, Supreme Court.
- The provision of IPC had resulted in collateral effect in that consensual sex between LGBT person is criminalised and is violative of Article 14.
- Justice Rohinton Nariman says one feature of his judgment is reliance on Mental Healthcare Act as per which Parliament has recognised that homosexuality is not a mental disorder.
- Bodily autonomy is individualistic. Expression of intimacy is part of right to privacy.
- Discrimination on the basis of sexual orientation is violation of freedom of speech and expression.