New Delhi: In a landmark judgement, the Supreme Court on Thursday struck down part of a 158-year-old colonial-era law which criminalised gay sex among consenting adults, observing that it violated the constitutional right to equality and dignity.

The top court decriminalised part of the Section 377 of the Indian Penal Code that criminalises consensual gay sex, saying it was irrational, indefensible and manifestly arbitrary.

A five-judge constitution bench headed by Chief Justice Dipak Misra, which also comprised Justices R F Nariman, A M Khanwilkar, D Y Chandrachud and Indu Malhotra, said that sexual orientation is a biological phenomenon and any discrimination on this ground is violative of fundamental rights.

“It is declared that insofar as Section 377 criminalises consensual sexual acts of adults in private, is violative of Articles 14, 15, 19, and 21 of the Constitution.

It is, however, clarified that such consent must be free consent, which is completely voluntary in nature, and devoid of any duress or coercion,” the bench ruled.

The CJI held that Section 377 in its present form violated Article 19(1)(a) of the Constitution that deals with freedom of speech and expression.

“Individual has sovereignty over his or her body and can surrender autonomy wilfully to another individual and their intimacy in privacy is a matter of their choice and such concept of identity is not only sacred but is also in recognition of the quintessential facet of humanity in a person’s nature,” the verdict said.

SC Decriminalises Consensual Gay Sex: What The Court Said in Its Verdict on Section 377

SC Decriminalises Consensual Gay Sex: What The Court Said in Its Verdict on Section 377

It also said that “consensual carnal intercourse among adults, be it homosexual or heterosexual, in private space, does not in any way harm the public decency or morality. Therefore, Section 377 IPC in its present form violates Article 19(1)(a) of the Constitution.”

The verdict came as a major victory for the LGBTQ (lesbian, gay, bisexual, transgender) community that has been fighting for 17 years to get consensual gay sex legalised. The historic ruling made India the 26th country in the world where homosexuality is legal.

“History owes an apology to members of the community for the delay in ensuring their rights for denying them their rights and compelling them to live a life of fear,” said Justice Indu Malhotra.

In its 493-page judgement, the bench said aspects of Section 377 dealing with unnatural sex with animals and children remain in force. “Any kind of sexual activity with animals shall remain a penal offence under Section 377 of the IPC,” it said.

In four separate yet concurring judgements, the top court overturned its 2013 verdict which had re-criminalised consensual unnatural sex.

The court observed that Section 377 forced the LGBTQ community to “live in hiding” and as “second class citizens” while “others enjoyed right to sexual orientation”.

“Section 377 of IPC was weapon to harass members of LGBT community, resulting in discrimination,” the five-judge SC bench observed, adding that “human tendency to love among LGBTQ community members had been caged by a 18-year-old law”.

Section 377: How it All Started in 2001 And Ended Today With SC's Landmark Judgement

Section 377: How it All Started in 2001 And Ended Today With SC's Landmark Judgement

The judgement came on a batch of writ petitions filed by dancer Navtej Jauhar, journalist Sunil Mehra, chef Ritu Dalmia, hoteliers Aman Nath and Keshav Suri and business executive Ayesha Kapur as well as 20 former and current students of the IITs.

They had sought decriminalisation of consensual sex between two consenting adults of the same sex by declaring Section 377 _ enacted 158 years ago _ illegal and unconstitutional.

CJI Misra, who wrote the judgement for himself and Justice Khanwilkar, said the denial of self-expression was akin to inviting death.

The bench said courts must protect the dignity of an individual as right to live with dignity is recognised as fundamental right.

Observing that the Constitution nurtured dissent as a “safety valve” of society, he said “we cannot change the history but can pave a way for better future”.

The apex court noted that India is a signatory of international treaties on rights of LGBTQ and it was obligatory to adhere to them.

Homosexuality Not a Crime, But it's Neither Natural Nor Desirable: RSS on SC's Verdict on Section 377

Homosexuality Not a Crime, But it's Neither Natural Nor Desirable: RSS on SC's Verdict on Section 377

The issue was first raised by the NGO, Naaz Foundation, which approached the Delhi High Court in 2001. In 2009, the Delhi High Court decriminalised sex between consenting adults of the same gender.

This was overturned in 2013 by the apex court which also dismissed the review plea against which the curative petitions were filed. Section 377 had made “carnal intercourse against the order of nature” punishable by imprisonment for life.

LGBTQ Community Celebrates ‘Historic’ SC Verdict

Celebrations broke out all around the nation as the LGBTQ community welcomed the SC verdict on Section 377, asserting that the “historic” verdict granted them a basic human right but also acknowledging that complete equality was still some distance away.

Activists, members of the LGBTQ (lesbian, gay, bisexual, trans, queer) community, authors and politicians welcomed the verdict — which also said society cannot dictate a sexual relationship between consenting adults — with many cutting cakes and unfurling the rainbow flag.

LGBTQ activist Anjali Nazia said the Supreme Court had paved way for bigger judgements ahead.

“We were granted a basic human right today and we can’t express just how happy we are,” Nazia told PTI.

Describing the verdict as a landmark, Anjan Joshi, member of the Society for People, Awareness, Care and Empowerment (SPACE), said it would be help them in their quest for equality.

“It is a start. We know we have a long way to go in terms of right to adoption, right to marriage but it is a very welcome beginning,” Joshi said.

According to Alliance India CEO Sonal Mehta, it is a day of victory for love and law.

“We are finally not criminals and this minuscule minority has an identity now,” is how gender and sexuality rights activist Arpit Bhalla put it.

SC Verdict Momentous, Important Step Towards Liberal Society: Congress

The Congress hailed the SC verdict decriminalising consensual gay sex as “momentous” and said that it is an important step forwards towards a liberal and tolerant society.

Congress chief spokesperson Randeep Surjewala said the age-old colonial law was an anachronism in today’s modern times and the verdict restores the fundamental rights and negates discrimination based on sexual orientation.

“Supreme Court verdict on Section 377 is momentous.

“An age-old colonial law, that was an anachronism in today’s modern times, ends restoring the fundamental rights and negating discrimination based on sexual orientation. It’s an important step forward towards a liberal, tolerant society,” he said on Twitter.

On its official Twitter handle, the Congress said, “We join the people of India & the LGBTQIA+ community in their victory over prejudice. We welcome the progressive & decisive verdict from the Supreme Court & hope this is the beginning of a more equal & inclusive society.”