Supreme Court of India decriminalised homosexuality
What Section 377 of Penal Code says:
377. 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 fine.
Sexual activity between people of the same gender is legal but same-sex couples legally cannot marry or obtain a civil partnership. On 6 September 2018, the Supreme Court of India decriminalised homosexuality by declaring Section 377 of the Indian Penal Code unconstitutional.
Five Judge Bench [Bench of Chief Justice of India Dipak Misra and Justice Rohinton Nariman, Justice AM Khanwilkar, Justice DY Chandrachud and Justice Indu Malhotra]has declared Section 377 IPC unconstitutional.
''History owes an apology to the members of this community and their families, for the delay in providing redressal for the ignominy and ostracism that they have suffered through the centuries. The members of this community were compelled to live a life full of fear of reprisal and persecution. This was on account of the ignorance of the majority to recognise that homosexuality is a completely natural condition, part of a range of human sexuality. The mis-application of this provision denied them the Fundamental Right to equality guaranteed by Article 14. It infringed the Fundamental Right to non-discrimination under Article 15, and the Fundamental Right to live a life of dignity and privacy guaranteed by Article 21. The LGBT persons deserve to live a life unshackled from the shadow of being ‘unapprehended felons’.
In view of the aforesaid findings, it is declared that insofar as Section 377 criminalises 51 consensual sexual acts of adults (i.e. persons above the age of 18 years who are competent to consent) 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. ii. The declaration of the aforesaid reading down of Section 377 shall not, however, lead to the reopening of any concluded prosecutions, but can certainly be relied upon in all pending matters whether they are at the trial, appellate, or revisional stages. iii. The provisions of Section 377 will continue to govern non-consensual sexual acts against adults, all acts of carnal intercouse against minors, and acts of beastiality. iv. The judgment in Suresh Kumar Koushal & Anr. v. Naz Foundation & Ors. is hereby overruled for the reasons stated in paragraph
The Reference is answered accordingly. In view of the above findings, the Writ Petitions are allowed.