By Matters India Reporter
New Delhi: The Supreme Court of India on September 6 struck down a controversial British-era law that bans consensual gay sex.
In a spectacular leap for the gay rights movement in the country, a five-judge bench of the apex court declared that homosexuality is no longer a crime in India.
The court reversed its own 2013 decision restoring Section 377 that criminalized gay sex.
“We have to bid adieu to prejudices and to empower all citizens,” Chief Justice of India Dipak Misra said, reading out the judgment. Four judges gave a concurrent judgment.
The Chief Justice said: “No one can escape from their individualism. Society is now better for individualism. In the present case, our deliberations will be on various spectrums.”
“Respect for individual choice is the essence of liberty; LGBT community possesses equal rights under the constitution,” the Supreme Court said.
Five celebrity petitioners had challenged the 2013 order.
The Supreme Court began hearing their petitions in July, beginning an emotional debate over the right to freedom and privacy.
The court noted that the Section 377 of the Indian Penal Code was a weapon to harass members of the LGBT community, resulting in discrimination.
It, however, upheld other aspects of Section 377 that deals with unnatural sex with animals and children.
Any kind of sexual activity with animals shall remain penal offence, it asserted.
Earlier, reading out the verdict, Justice R F Nariman said homosexuality is not a mental disorder, which has been also recognized by Parliament. The federal government must give wide periodic publicity to the SC judgment to eliminate stigma attached to LGBT community, he added.
The “Section 377” bans “carnal intercourse against the order of nature with any man, woman or animal.”
Under the 1861 law, gay sex was punishable by up to 10 years in jail. Although prosecution under Section 377 is not common, gay activists said the police used the law to harass and intimidate members of their community.
The petitioners are Bharatnatyam dancer Navtej Singh Johar, journalist Sunil Mehra, restaurateur Ritu Dalmia, Neemrana hotel chain co-founder Aman Nath and businesswoman Ayesha Kapur.
The petitioners argued that Section 377 violates rights and principles enshrined in the constitution, like equality before law, no discrimination based on religion, race, caste, sex or place of birth and freedom of speech and expression.
In 2013, the apex court cancelled a Delhi high court order that had decriminalized homosexuality by overturning the outdated law and said it was the job of parliament to decide on scrapping laws.
The Supreme Court this year said the court “cannot wait for a majoritarian government” to decide on enacting, amending or striking down a law if it violates fundamental rights.
In 2009, the Delhi High Court had described Section 377 as a violation of the fundamental rights guaranteed by the constitution. It had responded to a petition by Naz Foundation, which has fought for almost a decade for gay rights.