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  1. Gay sex legal, says SC; British-era law scrapped, Section 377 partially struck down

Gay sex legal, says SC; British-era law scrapped, Section 377 partially struck down

In a historic judgement, the Supreme Court on Thursday scrapped a controversial colonial-era ban on gay sex and declared that such sex among consenting adults is no longer a criminal offence.

By: | New Delhi | Published: September 7, 2018 6:07 AM
article 377, lgbt, supreme court Members of the LGBT community celebrate after the Supreme Court struck down a colonial-era law that made homosexual acts punishable by up to 10 years in prison, in Bengaluru on Thursday

In a historic judgement, the Supreme Court on Thursday scrapped a controversial colonial-era ban on gay sex and declared that such sex among consenting adults is no longer a criminal offence. The verdict that heralded a new dawn for personal liberty is being cheered by millions across the country, far beyond the gay community.

Overruling its own controversial 2013 decision in the Suresh Kaushal case which had re-criminalised “consensual unnatural sex”, a five-judge Constitution Bench unanimously, but in four separate concurring judgments, partially struck down Section 377, a 158-year-old British-era law that criminalised gay sex and thereby impinged on the constitutional right to equality and dignity.

The ban is irrational, indefensible and manifestly arbitrary, the judges said. “Take me as I am,” Chief Justice of India Dipak Misra said, encapsulating the verdict. “We have to bid adieu to prejudices and empower all citizens. Any discrimination on the basis of sexuality amounts to a violation of fundamental rights,” he said. Delivering a 493-page judgement, the top court said, “Morality cannot be martyred at the altar of social morality and only constitutional morality can be allowed under the rule of law,” while also holding that Section 377 was used as a weapon to harass the members of the lesbian, gay, bisexual, transgender and queer (LGBTQ) community, resulting in discrimination.

Terming sexual orientation as a “biological phenomenon” and “natural”, it held that the LGBTQ community possesses the same constitutional rights as other citizens of the country. The courts must protect the dignity of an individual as the right to live with dignity is recognised as a fundamental right, the top court held.

Section 377 bans “carnal intercourse against the order of nature with any man, woman or animal” — which was interpreted to refer to homosexual sex.

A part of this law still remains; non-consensual or consent obtained by force continues to be an offence, as will “carnal intercourse with children, animals and bestiality”, the apex court said in its landmark verdict.

Justice RF Nariman in his separate judgment held members of the LGBT community among other rights have the choice of whom to partner, the ability to find fulfilment in sexual intimacies. The right not to be subjected to discriminatory behaviour are intrinsic to the constitutional protection of sexual orientation, he added.

Justice Indu Malhotra, a lone woman judge on the bench, said that history owed an apology to the members of the LGBTQ community and their families for the delay in providing redressal for the ignominy and ostracism that they have suffered through the centuries.

The ban on gay sex was challenged by five high-profile petitioners — classical dancer Navtej Jauhar, journalist Sunil Mehra, chef Ritu Dalmia, hoteliers Aman Nath and Keshav Suri, business executive Ayesha Kapur and 20 former and current students of the IITs.

The Delhi High Court in 2009 read down Section 377 and described it as a violation of the fundamental rights. However, the SC in 2013 restored the ban on homosexuality, saying it was the job of Parliament to decide on scrapping laws.

Senior Congress leader and MP Shashi Tharoor said that “the government has no place in the bedroom… Private acts between consenting adults is something which no government should have criminalised as unfortunately we have done.”

Senior advocates and jurists said that everyone has the right to live a dignified life with equality. Former attorney general Soli Sorabjee termed it as a “celebratory judgment”, saying if an individual has certain sexual preference, it is not a crime.

Senior advocate Anand Grover, who was appearing for one of the petitioners in the case, said “the historic judgment will change the political course and the human values.”
Activists, members of the LGBTQ community, Bollywood and authors also hailed the verdict. They said society cannot dictate a sexual relationship between consenting adults — with many cutting cakes and unfurling the rainbow flag.

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.

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