Gay sex not a crime, rules SC Support verdict, but not samesex marriage: RSS
LANDMARK RULING Strikes down Sec 377 as violating right to equality
five-judge Constitution Bench of the Supreme Court on Thursday unanimously decriminalised part of the 158year-old colonial law under section 377 of the Indian Penal Code which criminalises consensual unnatural sex, saying it violated the right to equality.
The Constitution Bench headed by Chief Justice of India Dipak Misra termed the part of section 377 which criminalises consensual unnatural sex as “irrational, indefensible and manifestly arbitrary.”
The bench, which also comprised justices RF Nariman, AM Khanwilkar, DY Chandrachud and Indu Malhotra, struck down section 377 as being violative of the right to equality and the right to live with dignity.
In four separate but concurring judgements, the top court set aside its 2013 verdict in the Suresh Kaushal case which had re-criminalised consensual unnatural sex. The bench said the other aspects of section 377 of the IPC dealing with unnatural sex with animals and children remain in force.
“Any kind of sexual activity with animals shall remain penal offence under section 377 of the IPC,” the bench said.
Dealing with a clutch of petitions, the court held that section 377 was used as a weapon to harass members of the lesbian, gay, bisexual, transgender and queer (LGBTQ) community, resulting in discrimination, with justice Indu Malhotra in her separate judgement saying that “history owes an apology to the community for denying them their rights and compelling them to live a life of fear.”
Section 377 refers to ‘unnatural’ offences and says 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 for a term which may extend to 10 years, and shall also be liable to pay a fine.
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Homosexuality is not a crime, the Rashtriya Swayamsevak Sangh (RSS) said on Thursday, while maintaining that it does not support same-sex marriage as it was “not natural.”
The comments came on a day the Supreme Court partially decriminalised Section 377, which criminalises consensual unnatural sex, saying it violated the right to equality and other sections of the Constitution.
“Like the Supreme Court’s verdict, we also do not consider this (homosexuality) as a crime,” RSS spokesperson Arun Kumar said. However, gay marriages and such relationships were not “compatible with nature” , he felt.
The Congress on its part hailed the Supreme Court verdict as “momentous” and said it was an important step forward towards a liberal and tolerant society.
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