Gay sex among consenting adults is not a criminal offence, the Supreme Court has unanimously ruled, holding that part of a 158-year-old colonial law that criminalized it, violated the constitutional right to equality and dignity.
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, later left to the wisdom of the apex court the issue of criminalising consensual same-sex between two adults in India.
Gay sex had been punishable by up to 10 years in jail. The Supreme Court that has been hearing petitions against the Section 377 will be giving its verdict today.
"Any consensual sexual relationship between two consenting adults - homosexuals, heterosexuals or lesbians - can not be said to be unconstitutional", said the Chief Justice of India, Dipak Misra, as he read out the judgment.
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He also described today's judgment of the Supreme Court as anti-Indian civilization and said that he shall mobilize the Members of the Parliament also in this regard. Even as Britain has come up with laws which uphold the rights of the members of the LGBTQ community, India is still battling to understand its constitutional validity.
"Social morality can not violate the rights of even one single individual", said CJI Misra and Justice Khanwilkar.
It said Section 377 was a product of Victorian-era morality and there was no reason to continue with it as it enforced Victorian morale on the citizens of the country. "This decision is basically saying, 'You are not alone, ' " said Menaka Guruswamy, one of the lead attorneys representing the gay Indians who challenged the law.
In so far as consensual unnatural sexual act in private is concerned, it is neither harmful nor contagious to society, the bench said. All these factors, coupled with the fact that Justice D Y Chandrachud was the one who delivered the main judgement on the right to privacy and has been vocal about LGBTQ rights as well, has instilled new confidence among the members of the community.
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CJI Misra, while reading out the judgement, said: "Any consensual sexual relationship between two consenting adults ─ homosexuals, heterosexuals or lesbians ─ can not be said to be unconstitutional", India Today reported.
In 2011, the then Union Health Minister Ghulam Nabi Azad, at a convention attended by former Congress President Sonia Gandhi and a host of other Union ministers, had said homosexuality is a "disease" and it is "unnatural".
She told the court: "History owes an apology to these people persecuted by Section 377 for the social ostracism caused by the section". "We welcome the progressive & decisive verdict from the Supreme Court & hope this is the beginning of a more equal & inclusive society", it said, adding intersex and asexuality to LGBT. The court said other aspects of section 377, dealing with sex with animals and children, remain in place.
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