Supreme Court rules it's not a crime to be a homosexual in India anymore

Supreme Court of India
A five-judge Supreme Court Constitution bench on Thursday unanimously decriminalised consensual gay sex. The apex court termed part of IPC's Section 377, which criminalises consensual unnatural sex, irrational, indefensible and manifestly arbitrary. The court also partly struck down Section 377 as violative of the right to equality.

The historic judgement came on a batch of writ petitions filed by dancer Navtej Jauhar, journalist Sunil Mehra, chef Ritu Dalmia, hoteliers Aman Nath and Keshav Suri and business executive Ayesha Kapur and 20 former and current students of the IITs.

"Any kind of sexual activity with animals shall remain penal offence under Section 377 of the IPC," it said while adding that Section 377 of IPC was a weapon to harass members of LGBT community, resulting in discrimination.

The Supreme Court further added that the section is arbitrary and 'untenable'.

The apex court said that discrimination on the basis of sexual orientation is a violation of freedom of speech and expression. It said that the homosexual community has the same rights as everyone else.

"The constitution is a dynamic document, having the primary objective of establishing a dynamic and inclusive society," the judgment of CJI Misra and J Khanwilkar.

All the 5 judges on the constitution bench, led by the Chief Justice of India, concurred on the matter.

CJI Misra quoted Schopenhauer, JS Mill and others on the freedom and liberty of an individual. He said, "We have to vanquish prejudice, embrace inclusion, and ensure equal rights", according to LiveLaw. TV reports quoted him as saying LGBT community has equal rights, and that Section 377 is irrational.

All the 5 judges on the constitution bench, led by the Chief Justice of India, concurred on the matter. 

CJI Misra quoted Schopenhauer, JS Mill and others on the freedom and liberty of an individual.  He said, "We have to vanquish prejudice, embrace inclusion, and ensure equal rights", according to LiveLaw. TV reports quoted him as saying LGBT community has equal rights, and that Section 377 is irrational.

A five-judge constitution bench headed by Chief Justice Dipak Misra had reserved its verdict on July 17 after hearing various stakeholders, including gay rights activists.

The Centre, which had initially sought an adjournment for filing its response to the petitions, had later left to the wisdom of the court the issue of the legality of the penal provision with regard to the aspects of criminalising consensual unnatural sex between two consenting adults.

The Centre had said that the other aspects of the penal provision dealing with minors and animals should be allowed to remain in the statute book.

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 of either description for a term which may extend to 10 years, and shall also be liable to pay a fine.

The issue of section 377 was first raised by an NGO, Naaz Foundation, which had in 2001 approached the Delhi High Court that had decriminalised sex between consenting adults of the same gender by holding the penal provision "illegal".

This 2009 judgement of the high court was overturned in 2013 by the apex court which had also dismissed a review plea. It had in 2013 restored the criminality of the sexual relationship between persons of the same sex, after the Delhi High Court' had decriminalised it in 2009.

The five-judge bench on July 10 had made it clear that it was not going into the curative petitions and would adjudicate on fresh writ petitions in the matter.

The writ petitions were opposed by the Apostolic Alliance of Churches, Utkal Christian Association and some other NGOs and individuals including Suresh Kumar Kaushal who had also challenged the 2009 verdict of the high court in the apex court.

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