New Delhi: In a landmark decision, a five-judge Constitution Bench of the Supreme Court junked, albeit partially, Section 377 of the IPC on Thursday. Taking up the cause of the LGBT community, the bench comprising Chief Justice Dipak Misra, and Justices RF Nariman, DY Chandrachud, AM Khanwilkar and Indu Malhotra said while they had four different judgements, they were unanimous in the decision. Speaking for himself and Justice Khanwilkar, CJI Misra said, “The Court must try to protect the dignity of every individual of the society including people from the LGBT community. The sexual orientation is natural and people have no control on it.” He said denial of self-expression was akin to inviting death. He added that societal morality cannot trump constitutional morality. Societal morality cannot overturn the fundamental rights of even a single person. (Catch LIVE Updates Here)

Reading out the second judgement, Justice Nariman said homosexuality was not a mental problem and the Parliament was also alive to the fact. The bench termed Sec 377 “irrational, indefensible and manifestly arbitrary” and struck it down as being violative of the right of equality. It said that Sec 377 was a weapon to harass members of the LGBT community, leading to discrimination. However, the court said that the other aspects of Section 377 which deal with unnatural sex with animals and children would remain in force. Any kind of sexual activity with animals shall remain a penal offence under the Section.

Justice Nariman observed that even our Parliament accepts that homosexuality is not an ailment or a disorder and he drew heavily from judgements abroad; relying on foreign jurisprudence, including recent judgment from Trinidad and Tobago. He called for the media and the Government to give publicity to the judgement so that the community didn’t continue to face discrimination.

Justice Chandrachud observed that treatment of homosexuality as a disorder or a disease severely impacted the mental health of such people. He said the case wasn’t just about decriminalising a provision but about an aspiration to realise Constitutional rights and an equal existence of LGBT community as other citizens. He said denying the LGBT community their right to sexual orientation is a denial of their citizenship and a violation of their privacy. “They cannot be pushed into obscurity by an oppressive colonial legislation,” he added.

Justice Malhotra added that history owed an apology to all members of the LGBT community who had ever been ostracised or discriminated against. The Court added that the judgement would be considered in all pending cases.

The Bench had been hearing writ petitions filed by dancer Navtej Jauhar, journalist Sunil Mehra, chef Ritu Dalmia, hoteliers Aman Nath and Keshav Suri, business executive Ayesha Kapur and 20 former and current IIT students. They had sought decriminalisation of consensual sex between two consenting adults of the same sex by declaring section 377 of IPC as illegal and unconstitutional.