Friday, 18 October, 2019

India's top court decriminalizes homosexual acts

India's top court decriminalizes homosexual acts India's top court decriminalizes homosexual acts
Patty Aguilar | 08 September, 2018, 17:59

"Constitutional morality can not be martyred at the altar of social morality", Chief Justice Dipak Misra said, reading the verdict. The LGBT community in Chennai joined their counterparts all over India in celebrating their rights.

The bench said it is no longer an offence for LGBTIQ (lesbian, gay, bisexual, transgender/transsexual, intersex and queer/questioning) community to engage in consensual sex between two adults in private.

But a five-judge bench in India's Supreme Court was unanimous in overturning the ban today.

While several companies including Hindustan Unilever, Infosys and Godrej told Reuters they welcomed the lifting of Section 377 that criminalised gay sex, others said they had no plans for better workplace rights. She left the court room ringing when she 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".

He declared, "The choice of whom to partner, the ability to find fulfilment in sexual intimacies and the right not to be subjected to discriminatory behaviour are intrinsic to the constitutional protection of sexual orientation".

Under Section 377, the penalty was a 10-year jail term, although it has "hardly ever been used in cases of consenting adults".

It had in 2013 restored the criminality of the sexual relationship between persons of the same sex, after the Delhi High Court' had decriminalised it in 2009.

Responding to the larger issue of discrimination and not just the ability to engage in acts of sexuality, Misra wrote: "Any discrimination on the basis of one's sexual orientation would entail a violation of the fundamental right of freedom of expression". The section came into force in 1861 during British colonial rule.

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Reading clauses (1) and (2) of Article 13 together, he argued that if section 377 was introduced in present day, it would not stand the test of Part III of the Constitution, and hence, the provision, as enacted in 1860, could not either.

Though the law is rarely enforced in full, it has helped create a culture of fear and repression within the LGBT community, say campaigners.

In a concurring judgement, Justice Nariman said homosexuality is "not a mental disorder or disease".

Justice Chandrachud was one of the judges in that ruling as well.

The Supreme Court's decision prompted a long-awaited release for LGBT+ people in the country, after years of campaigning in the face of state-legislated discrimination.

The bench, which also comprised Justices R F Nariman, A M Khanwilkar, D Y Chandrachud and Indu Malhotra, struck down Section 377 as being violative of the Right to Equality. "The Government must give wide publicity and government officers should be sensitised on LGBTs", said Justice DY Chandrachud.

Congress on Thursday described the Supreme Court's decision to decriminalise homosexuality as "momentous" saying it was an important step towards a liberal and tolerant society. The privacy judgment struck down earlier Supreme Court judgments, that immediately had a bearing on the 2013 Section 377 order as well.

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