Wednesday, 14 November, 2018

SC reads down Section 377: What's allowed and what's not?

India's top court to rule on decriminalizing gay sex Section 377: Supreme Court Renders India's Archaic Law Unconstitutional In Historic Verdict
Ebony Burgess | 10 September, 2018, 10:33

The Congress on Thursday hailed as "momentous" the Supreme Court verdict decriminalising consensual gay sex and termed it as an important step forward towards a liberal and tolerant society.

The 1861 law, a relic of Victorian England that hung on long after the end of British colonialism, was a weapon used to discriminate against India's gay community, the judges ruled in a unanimous decision.

Chief Justice Dipak Misra said the denial of self-expression was akin to inviting death, the Press Trust of India news agency reported. 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.

Supporters and members of the LGBT community celebrate after the country's top court struck down a colonial-era law that makes homosexual acts punishable by up to 10 years in prison, in Mumbai, India, Sept. 6, 2018.

Gay sex has always been taboo in conservative India - particularly in rural areas where homophobia is widespread. Though the decision technically only applied to the Delhi region, it was quickly overruled by the Supreme Court in 2013, following a petition launched by a loose coalition of Christian, Hindu and Muslim groups.

While reserving the verdict on July 17 this year, Misra and Justices R F Nariman, A M Khanwilkar, D Y Chandrachud and Indu Malhotra brushed aside as "far-fetched" the arguments from opponents of decriminalisation of Section 377 that it could also legalise incest, group sex and sodomy.

'Supreme Court verdict is momentous.

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The Bench maintained that the Lesbian, Gay, Bisexual and Transgender (LGBT) people are entitled to the entire range of same legal and constitutional rights as other citizens of the country. Earlier in 2009, the Delhi High Court had said that Section 377 violates the fundamental rights of the people mentioned in the Constitution.

In 2016, when the court agreed to hear the section 377 petition once more, three senior judges said they felt the issue was a "matter of constitutional importance". It said the State can not persecute people and decide the boundaries between what is permissible or not, holding that Section 377 IPC was based on "deep-rooted stereotypes of the society" that was violative of fundamental rights to equality and life with dignity.

As per NDTV, in one of the hearings, CJI Dipak Misra had said that if two adults are engaging in "unnatural sex", with consent, they will not be committing any offence.

However, then BJP President Rajnath Singh, months ahead of coming into power, was quoted in December 2013 as saying, "We will state (at an all-party meeting if it is called) that we support Section 377 because we believe that homosexuality is an unnatural act and can not be supported". The sexual orientation of an individual is natural and discrimination on the basis of sexual orientation is a violation of freedom of expression.

Dona Marwein, another participant, said the Supreme Court has chosen humanity and equal rights and removed the outdated law.

Justice Chandrachud was one of the judges in that ruling as well.

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