CJI Dipak Misra reads out the verdcit of Section 377

10 September, 2018, 10:34 | Author: Angel Logan
  • India's top court to rule on decriminalizing gay sex

In January this year, Supreme Court said a larger group of judges would re-consider the previous judgment (which reinforced criminalisation of homosexuality) and examine Section 377's constitutional validity. Respect for each other's rights and others are supreme humanity. "Nation after nation has been extending full rights to gay people under the law, and now India, as the world's second-most populous country, stands, at least legally, among the more progressive", the paper wrote.

Members of the LGBT community hugged each other and cried outside the Supreme Court in New Delhi as news of the verdict spread.

Section 377 had prohibited "carnal intercourse against the order of nature with any man, woman or animal" - which was widely interpreted as referring to homosexual sex. "The veil of social morality can not be used to violate fundamental rights of even a single individual, for the foundation of constitutional morality rests upon the recognition of diversity that pervades the society", CJI Misra ruled.

Justice Chandrachud said, "Why do politicians sometimes hand over power to judges and we see that happening in the Supreme Court everyday".

BBC revealed that the ruling was delivered by a five-judge bench headed by India's outgoing chief justice Dipak Misra.

The battle to repeal Section 377 began in 2001, when a group called the Naz Foundation challenged it in court.

"So pleased to learn that the Supreme Court has ruled against criminalising sexual acts in private".

Until today, nine still had the original British laws in place more or less unchanged, including India.

Justice Indu Malhotra, a member of the bench in her separate judgment, said that history owed an apology to the members of this community and their families, for the delay in providing redressal for the ignominy and ostracism that they have suffered through the centuries.

He said the denial of right to sexual orientation was akin to denial of right to privacy and the society can not dictate sexual relationship between consenting adults as it was a private affair.

After the apex court had set aside the Delhi High Court's 2009 judgement decriminalising sex between consenting adults of the same sex by holding Section 377 of IPC as "illegal", review petitions were filed.

The court found that the ban - and punishment of as much as 10 years in prison - had effectively "closeted" the LGBT community, which it said has the same rights as others in Indian society. "There are other judgments which do not regard this right "to be that I am" as something that is immutable", he said.

The bench, which also comprised Justices R F Nariman, A M Khanwilkar and D Y Chandrachud, struck down part of section 377 of the IPC as being violative of the right to equality and the right to live with dignity.

Former Union Health Minister Harsh Vardhan had said in 2014, "Everybody has human rights, and it is the government's job to protect them". However, the bench made it clear that sex with animals, which also forms a part of Section 377, will remain a criminal offence.


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