All You Need to Know About the SC’s Landmark Section 377 Verdict


India’s Supreme Court – arguably the world’s most activist court – has struck a blow for autonomy and equality by offering a “rainbow of hope” for LGBTIQ Indians. The surprising thing is not that the apex court has struck down section 377 of the Indian Penal Code (IPC) – which criminalized same-sex intercourse – but that it took so long. The decision may not immediately end all that and modernize India’s puritanical society, but it will empower sexual minorities to emerge from the shadows and exercise their basic liberties.

A day after the Supreme Court read down Section 377 of the Indian Penal Code, India’s lesbian, gay, bisexual, transgender and queer (LGBTQ) people say the next step in the legal fight will be for civil rights such as same-sex marriage, inheritance of property, and sharing insurance, among others. But the Union government, which left it to the court to decide on section 377, has indicated that it is likely to oppose any petition for same-sex marriage.

In the 493-page-long document, the five-judge bench, comprised of Chief Justice of India Dipak Misra along with Justices DY Chandrachud, Rohinton Nariman, Indu Malhotra and AM Khanwilkar, expanded and elaborated on India’s fundamental rights, affirmed the importance of choice and constitutional morality, and emphasized the transformative nature of our Constitution.

What is the case about? The case is about the constitutionality of section 377 of the IPC, which states: “Unnatural offences – Whoever voluntarily has carnal inter­course 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 ten years, and shall also be liable to a fine.”

What did the Supreme Court rule? After it recognized the fundamental right to privacy in Puttaswamy, the court had little choice but to decriminalize homosexuality. And, in that sense, this decision was entirely predictable. However, the justifications presented for striking down section 377 are important both for India’s rights jurisprudence in general and for claims currently being agitated by women and minorities in other cases. Therefore, the court’s ruling is of enormous significance, even beyond the rights of sexual minorities.

Gautam Yadav, one of the petitioners, said the fight for civil rights will start afresh but at the moment everyone is busy celebrating. “Decriminalizing Section 377 is the first step. Marriage and other civil rights is the second,” he said.