India's top court legalises gay sex in landmark ruling

India's top court legalises gay sex in landmark ruling

Supporters of the lesbian, gay, bisexual and transgender (LGBT) community celebrate after the Supreme Court's verdict of decriminalizing gay sex and revocation of the archaic Section 377 law, at an NGO in Mumbai, India, September 6, 2018.

United Nations India Thursday lauded the Supreme Court for striking down a "key component" of IPC's Section 377 which criminalises "specific sexual acts between adults" and said the judgment will boost efforts to eliminate stigma and discrimination against LGBTI persons.

Chief Justice Dipak Misra said the ruling was unanimous, and all five judges wrote sections of the order that runs nearly 500 pages long.

It's a 157-year-old colonial-era law which criminalises certain sexual acts as "unnatural offences" which are punishable by a 10-year jail term. 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.

Notably, the Indian Supreme Court went out of its way to say the country's constitution was not "collection of mere dead letters" and can and should evolve with the changing times.

A group advocating for the rights of sexual minorities argued that the law violates India's constitution, which guarantees the equality of all citizens. In the judgement on privacy as a fundamental right, the apex court's nine-judge bench had said the right to privacy can not be denied to members of the LGBT community merely because they have unconventional sexual orientation and form a miniscule fraction of the over 1.32 billion Indian population. We are exclusively on consensual acts between man-man, man-woman.

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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.

Others who have filed petitions against section 377 are journalist Sunil Mehra, chef Ritu Dalmia, hotelier Aman Nath and business executive Ayesha Kapur.

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.

But in January this year, the Supreme Court agreed to hear a challenge by a clutch of high-profile Indians who said the law created an atmosphere of fear and intimidation in the world's largest democracy.

CJI Deepak Mishra and Justice DV Chandrachud will give their separate judgments. "On July 12, Justice Indu Malhotra said, "(Homosexuality) is not an aberration, but a variation.Because of family pressures and societal pressures, they are forced to marry the opposite sex and it leads to bi-sexuality and other mental trauma".

Quoting from his judgment, he said, "LGBT individuals as well as those who do not conform to societal expectations of sexual behaviour defy gender stereotypes". The sexual orientation of an individual is natural and discrimination on the basis of sexual orientation is a violation of freedom of expression. The court said other aspects of section 377, dealing with sex with animals and children, remain in place.

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