Section 377 verdict : Supreme Court decriminalises gay sex

Supreme Court of India
Supreme Court of India, File Photo

New Delhi, Sep 6 :  The Supreme Court on Thursday in a landmark decision decriminalised homosexuality by declaring Section 377, the penal provision which criminalised gay sex, as “manifestly arbitrary”.

CJI Dipak Misra observed , “LGBT Community has same rights as of any ordinary citizen. Respect for each others rights, and others are supreme humanity. Criminalising gay sex is irrational and indefensible.”

The top court delivering separate but concurring judgments, said it is the constitutional and not social morality which will prevail. The verdict sparked celebrations amongst the LGBTIQ (lesbian, gay, bisexual, transgender/transsexual, intersex and queer/questioning) community across India.

Chief Justice Dipak Misra, also speaking for Justice A.M. Khanwilkar, said attitude and mentality has to change to accept the others’ identity and accept what they are and not what they should be.

Justice Rohinton Nariman, Justice D.Y. Chandrachud and Justice Indu Malhotra delivered concurring judgments thereby making the verdict of the five-judge bench a unanimous one.

 

A five-judge Constitution bench, headed by Chief Justice of India (CJI) Dipak Misra and comprising Justices D Y Chandrachud, Rohinton Fali Nariman, A M Khanwilkar and Indu Malhotra, issued the verdict on a bunch of petitions filed to scrap the law. The bench had earlier reserved its verdict on July 17.

CJI ruled “No one can escape from their individualism. Society is now better for individualism. In the present case, our deliberations will be on various spectrums”.

Celebrations in Chennai after Supreme Court in a unanimous decision decriminalises and legalises homosexuality

Criminalising gay sex is irrational and indefensible, observed the CJI while delivering the verdict. The Lesbian Gay Bisexual Transgender community has same rights as any other citizen, the CJI added. Respect for each other’s rights, and others are supreme humanity, observed the bench unanimously, while saying that right to live with dignity is right.
Known as Section 377 of the IPC, the 157-year-old law criminalised certain sexual acts, terming them as ‘unnatural offences’, punishable by a 10-year jail term.

“It is our duty to strike a law the moment we find a law in conflict with fundamental rights. We don’t leave it to the majoritarian government, which may or may or act” given the exigencies of its vote bank politics, the constitution bench had said.

“The moment we are convinced that a law is violative of the fundamental rights we will strike it down and not relegate it to legislature,” the court had said.

The hearing saw the Constitution bench disagreeing with some of the respondents telling it that decriminalizing the same sex relationship amongst the LGBT community would have a cascading effect on other statutes including the personnel laws and the spread of dreaded diseases like HIV and AIDS.

Unimpressed by the submission, Justice Nariman had said that there would be “no cascading effect” as all such references in other statutes will get deleted.

Justice Chandrachud rejecting the contention had said that the cause of the sexually transmitted diseases was not sexual intercourse but unprotected sex.

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