Same gender sex not a crime, rules India court
new delhi — India’s Supreme Court on Thursday struck down a British-era law that made gay sex punishable by up to 10 years in prison, a landmark victory for gay rights.
“Constitutional morality cannot be martyred at the altar of social morality,” Chief Justice Dipak Misra said, reading the verdict. “Social morality cannot be used to violate the fundamental rights of even a single individual.”
As the news spread, the streets outside the courthouse erupted in cheers as opponents of the law danced and waved flags.
In its ruling, the court said sexual orientation was a “biological phenomenon” and that discrimination on that basis violated fundamental rights.
“We cannot change history but can pave a way for a better future,” said Justice D.Y. Chandrachud.
The law known as Section 377 held that sexual acts between members of the same sex was against the order of nature. The five petitioners who challenged the law said it was discriminatory and led to gays living in fear of harassment and persecution.
The court’s ruling struck down the law’s sections on consensual gay sex, but let stand segments that deal with such issues as bestiality. On Thursday, a leader of a prominent hard-line Hindu group noted that while it doesn’t see homosexuality as a crime, it believes gay marriage is not “compatible with nature.”
Arun Kumar, a spokesman for the Rashtriya Swayamsevak Sangh, the parent organisation of the ruling Bharatiya Janata Party, said Indian society “traditionally does not recognise” gay relationships. —
new delhi — In a historic verdict, the Supreme Court on Thursday decriminalised homosexuality between consenting adults by declaring Section 377, the penal provision which criminalised gay sex, as “manifestly arbitrary”.
In separate but unanimous verdicts, a five-judge Constitution Bench of Chief Justice Dipak Misra, Justice Rohinton Nariman, Justice A.M. Khanwilkar, Justice D.Y. Chandrachud and Justice Indu Malhotra partially struck down Section 377 of the Indian Penal Code (IPC) as unconstitutional.
The bench said it is no longer an offence for LGBTIQ (lesbian, gay, bisexual, transgender/transsexual, intersex and queer/questioning) community to engage in consensual sex between two adults in private.
Reading out the judgment, Chief Justice Misra said attitudes and mentality have to change to accept others’ identity and accept what they are, and not what they should be.
“It is the constitutional and not social morality which will prevail,” said the court. Chief Justice Misra said consensual sex between adults in a private space, which is not harmful to women or children, cannot be denied as it is a matter of individual choice.
Section 377 will not apply to consensual same-sex acts, clarifying that sexual act without consent and bestiality will continue to be an offence under section 377.
“An individual has full liberty over his or her body and his or her sexual orientation is a matter of one’s choice,” said the Chief Justice.
He said the LGBTIQ community has an equal right to live with dignity and are entitled to equal protection of law. He directed the Centre to give wide publicity to this judgment to remove the stigma attached to homosexuality. —