NEW DELHI: In a historic judgment, the Supreme Court on Thursday ruled that consensual adult gay sex is not a crime saying sexual orientation is natural and people have no control over it. The judgment, by a Constitution bench of the country's top court, has defanged the British-era Section 377 of the Indian Penal Code (IPC), which deemed that gay sex is a punishable offence. Now, it is no longer an offence under Section 377 to engage in consensual gay sex in private.
Thursday's judgment heralds a new dawn for personal liberty and is a major victory for the LGBTQ (lesbian, gay, bisexual, transgender) community that has been fighting hard and persistently to legalise gay sex. "The law must be interpreted as per the requirement of changing times," said the SC in its judgement.
"Consensual sex between adults in a private space, which is not harmful to women or children, cannot be denied as it is a matter of individual choice. Section 377 results in discrimination and is violative of constitutional principles," said the SC.
The five-judge Constitution bench - comprising Chief Justice of India (CJI) Dipak Misra and Justices R F Nariman, A M Khanwilkar, D Y Chandrachud and Indu Malhotra - was unanimous in its decision.
"Section 377 is irrational, arbitrary and incomprehensible as it fetters the right to equality for LGBT community...LGBT community possesses same equality as other citizens," said CJI Dipak Misra.
What society thinks, the judges said, has no say when it comes to people's freedoms. "Social morality cannot violate the rights of even one single individual," said CJI Misra and Justice Khanwilkar. Read more via Times of India
India Gay Sex Ban Is Struck Down. ‘Indefensible,’ Court Says.
NEW DELHI — India’s Supreme Court on Thursday unanimously struck down one of the world’s oldest bans on consensual gay sex, a groundbreaking victory for gay rights that buried one of the most glaring vestiges of India’s colonial past.
After weeks of deliberation by the court and decades of struggle by gay Indians, Chief Justice Dipak Misra said the law was “irrational, indefensible and manifestly arbitrary.” News of the decision instantly shot around India. On the steps of an iconic courthouse in Bangalore, people danced, kissed and hugged tightly, eyes closed. In Mumbai, India’s pulsating commercial capital, human rights activists showered themselves in a blizzard of confetti.
The justices eagerly went further than simply decriminalizing gay sex. From now on, they ruled, gay Indians are to be accorded all the protections of the Constitution.
“This ruling is hugely significant,” said Meenakshi Ganguly, the South Asia director for Human Rights Watch. With restrictions on gay rights toppling in country after country, the ruling in India, the world’s second-most-populous nation, may encourage still more nations to act, she said.
Still, however historic the ruling of the court, considered a liberal counterweight to the conservative politics sweeping India, gay people here know that their landscape remains treacherous. Changing a law is one thing — changing deeply held mind-sets another. And few suggested that other major victories, like same-sex marriage, were on the near horizon.
Many Indians are extremely socially conservative, going to great lengths to arrange marriages with the right families, of the right castes. Loved ones who try to rebel are often ostracized. Countless gays have been shunned by their parents and persecuted by society.
Much of this may also be true in other parts of the world. But what made India stand out from most — at least until Thursday — was its application of an anachronistic law drawn up by British colonizers during the Victorian era and kept on the books for 150 years. Read more via New York Times
excerpt
IN THE SUPREME COURT OF INDIA CRIMINAL ORIGINAL JURISDICTION WRIT PETITION (CRIMINAL) NO. 76 OF 2016
Introduction
Not for nothing, the great German thinker, Johann Wolfgang von Goethe, had said, ―I am what I am, so take me as I am‖ and similarly, Arthur Schopenhauer had pronounced, ―No one can escape from their individuality‖. In this regard, it is profitable to quote a few lines from John Stuart Mill:-
―But society has now fairly got the better of individuality; and the danger which threatens human nature is not the excess, but the deficiency of personal impulses and preferences.‖
The emphasis on the unique being of an individual is the salt of his/her life. Denial of self-expression is inviting death. Irreplaceability of individuality and identity is grant of respect to self. This realization is one‘s signature and self-determined design. One defines oneself. That is the glorious form of individuality. In the present case, our deliberation and focus on the said concept shall be from various spectrums.
Shakespeare through one of his characters in a play says ―What‘s in a name? That which we call a rose by any other name would smell as sweet‖. The said phrase, in its basic sense, conveys that what really matters is the essential qualities of the substance and the fundamental characteristics of an entity but not the name by which it or a person is called. Getting further deeper into the meaning, it is understood that the name may be a convenient concept for identification but the essence behind the same is the core of identity. Sans identity, the name only remains a denotative term. Therefore, the identity is pivotal to one‘s being. Life bestows honour on it and freedom of living, as a facet of life, expresses genuine desire to have it. The said desire, one is inclined to think, is satisfied by the conception of constitutional recognition, and hence, emphasis is laid on the identity of an individual which is conceived under the Constitution. And the sustenance of identity is the filament of life. It is equivalent to authoring one‘s own life script where freedom broadens everyday. Identity is equivalent to divinity.
The overarching ideals of individual autonomy and liberty, equality for all sans discrimination of any kind, recognition of identity with dignity and privacy of human beings constitute the cardinal four corners of our monumental Constitution forming the concrete substratum of our fundamental rights that has eluded certain sections of our society who are still living in the bondage of dogmatic social norms, prejudiced notions, rigid stereotypes, parochial mindset and bigoted perceptions. Social exclusion, identity seclusion and isolation from the social mainstream are still the stark realities faced by individuals today and it is only when each and every individual is liberated from the shackles of such bondage and is able to work towards full development of his/her personality that we can call ourselves a truly free society. The first step on the long path to acceptance of the diversity and variegated hues that nature has created has to be taken now by vanquishing the enemies of prejudice and injustice and undoing the wrongs done so as to make way for a progressive and inclusive realisation of social and economic rights embracing all and to begin a dialogue for ensuring equal rights and opportunities for the ―less than equal‖ sections of the society. We have to bid adieu to the perceptions, stereotypes and prejudices deeply ingrained in the societal mindset so as to usher in inclusivity in all spheres and empower all citizens alike without any kind of alienation and discrimination.