INDIA’s Apex Court Recognises Gay Sex Ruling No Offence For Consensual Same-Sex Between Two Adults

THE Supreme Court  on Thursday scrapped the controversial Section 377,  a 158-year-old colonial law on consensual gay sex reversing its own earlier verdict by a five-judge Constitutional Bench headed by  retiring  Chief Justice of  India  Dipak Misra .The CJI said said Section 377 is irrational and arbitrary. “LGBT Community has same rights as of any ordinary citizen. Respect for each other’s rights, and others are supreme humanity. Criminalising gay sex is irrational and indefensible,” said Chief Justice Misra due to superannuate on October 2.The Bench comprised Justices Rohinton Nariman, AM Khanwilkar, DY Chandrachud and Indu Malhotra besides CJI Dipak Misra.The apex court decriminalized d homosexuality by partially striking down the provisions of Section 377 of the Indian Penal Code (IPC).Led by Chief Justice of India Dipak Misra, Justices Rohinton F. Nariman, A.M. Khanwilkar, D.Y. Chandrachud and Indu Malhotra gave four separate but concurring judgment which is being hailed  as historic .In the combined judgment, the CJI and Justice Khanwilkar said the Section would not apply to consensual same-sex acts between homosexuals, heterosexuals, lesbians and other sexual minorities but would apply to bestiality and sexual acts without consent by one of them. Justice Nariman asked the Union government to work towards eradicating the stigma surrounding homosexuality.

Justice Indu Malhotra says society owes an apology to the LGBTQ community for the years of stigma imposed on them.Justice Chandrachud is the next judge to deliver his verdict. He says:”Tragedy and anguish inflicted by Section 377 should be remedied. Macaulay’s legacy exists 68 years after the coming of a liberal Constitution. Human instinct to love has been constrained. Sexual orientation has become a reason for blackmail on the internet.”Quoting Leonard Cohen, he says, “Shadows of a receding past controls the quest of LGBTQ for fulfilment.”Justice Chandrachud observed “What is the ‘order of nature’? State cannot decide the boundaries between what is permissible or not. Section 377 is based on deep-rooted gender stereotypes. It persecutes people. It is a majoritarian impulse to subjugate a sexual minority to live in silence,” he says and adds decriminalisation of homosexuality is only the first step. Terming criminalising homosexuality “unconstitutional”, he says LGBTQ possess “full range of constitutional rights” including sexual orientation and partner choice. “LGBTQ has equal citizenship and equal protection of laws.”  The United Nations in a statement has hailed the fundamental rights of the LGBT community upheld by India’s topmost court.  “Sexual orientation and gender expression form an integral part of an individual’s identity the world over, and violence, stigma and discrimination based on these attributes constitute an egregious violation of human rights,” said the world body headquartered in New York.”It is not only about decriminalising but recognising our fundamental rights.” (pic courtesy to NDTV).

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