Denial of self-expression is like death: CJI Misra while reading historic verdict

In December 2013, a Supreme Court bench comprising Justice GS Singhvi and Justice SJ Mukhopadhaya in the Suresh Kumar Koushal and another vs Naz Foundation and others case had set aside the high court's judgement and said that it was for the legislature to look into desirability of deleting section 377 of IPC. In others, transgender people are given special status and praised for being loyal. Others greeted each other across the court room with waves, mouthing words of support.

Farhan Akhtar also took to Twitter and said, "Bye bye 377".

People walked into court feeling hopeful and almost certain of the outcome. "Decriminalisation is but the first step; the constitution envisages much more". Four days of seemingly positive arguments in July had kept people hopeful.

"We welcome the progressive & decisive verdict from the Supreme Court & hope this is the beginning of a more equal & inclusive society". "Great judgment", said Anjali Gopalan.

What is Section 377?

"It was a law that propagated homophobia", said Keshav Suri, one of the petitioners against Section 377, who organized a dance show at his family's luxury Delhi hotel to celebrate the court victory.

The court heard petitions challenging the constitutional validity of Section 377 of the Indian Penal Code which criminalised consensual unnatural sex. In his order he quoted Johann Wolfgang von Goethe, John Stuart Mill and Shakespeare.

Misra also said that "rights should evolve with the evolution of the society". "This [judgment] is going to increase awareness but this might also piss off people who are against us".

Thursday's ruling reversed the court's own 2013 decision rescinding a Delhi high court that sought to decriminalize homosexuality. "The Fundamental Rights of even a single individual can not be infringed upon".

"A range of previous judgments like the NALSA [recognition of transgenders] and the Justice Puttaswamy case [Right to Privacy] have led to the court now striking down the Section 377. (Under Articles 14, 19, 21) Consent must mean free consent". Justice Nariman said homosexuality can not be regarded as "mental disorder" and homosexuals had the right to live with dignity. Apart from CJI Misra, the five judges read their individual judgements, and each of them highlighted how Section 377 deprived the LGBTQ community of dignity and was a violation of their freedom of speech and expression.

Justice Nariman pointed out that India's Mental Healthcare Act had recognised that homosexuality is not a mental disorder and ordered the government to work towards eradicating the stigma surrounding sexual minorities, The Hindu report added.

The last judge to read was Justice Indu Malhotra, one of two female judges in the Supreme Court, and was recently appointed as a judge.

Justice Chandrachud said that denying rights to sexual orientation is denial of right to privacy.

It is a landmark ruling in a nation where attitudes about gays and lesbians are beginning to change - and the decision points to more questions of how India will extend equal protections to the LGBTQ community.

  • Tracy Klein