The Supreme Court of India ruled yesterday that Section 377, which penalises non peno-vaginal sex, is unconstitutional, thus legalising homosexuality in India. Four out of the five judges wrote separate judgements, and all four ruled that Section 377 infringes upon the rights of the LGBTQ people and must be read down.
Chief Justice Dipak Misra said that sexual orientation of an individual is natural and discrimination on the basis of sexual orientation is a violation of Freedom of Expression, Supreme Court, and the view taken by the Supreme Court in 2013 was wrong. Overruling the Suresh Kumar Kaushal judgement of 2013, the court ruled, ” Section 377 of IPC insofar as it criminalises consensual sexual acts between man and man, man and woman or woman and woman is unconstitutional and struck down. Sex with animals will however remain criminal.”
Justice Narhiman said that the Mental Healthcare Act, passed by the Parliament, recognises that homosexuality is not a mental disorder. Justice Chandrachud said, “To deny LGBT community of their right to sexual orientation is a denial of their citizenship and a violation of their privacy.” He also said that LGBT community is entitled to equal citizenship, equal rights under the Constitution. Justice Indu Malhotra, the lone woman judge on the bench, said, “History owes 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. The members of this community were compelled to live a lifefull of fear of reprisal and persecution. This was on account of the ignorance of the majority to recognise that homosexuality is a completely natural condition, part of a range of human sexuality.”
In 2009, Delhi High Court had made consensual same-sex relations legal and read down Section 377. The judgement was challenged in the Supreme Court by a various religious groups, and in 2013, a two judge bench of the Supreme Court reinstated Section 377, recriminalising homosexuality. Following this, five eminent LGBT personalities filed a fresh petition in the Supreme Court in 2016 arguing that Section 377 tramples their fundamental rights. The Supreme Court had then constituted a five-judge constitutional bench to decide on the matter.
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