SC strikes down Section 377, rules in favor of LGBT rights
New Delhi: Fri, 07 Sep 2018 08:25, by: Deepak Mohanty

In a landmark ruling, the Supreme Court of India on Thursday (September 6) strikes down Section 377 of the Indian Penal Code that criminalizes private, consensual sexual activities between same sex adults (i.e.“against the order of nature”). In its judgement, which is indeed historic, the apex court writes that ‘gay sex is not a crime’.

It’s been over a century, the archaic IPC Section that was first introduced under British rule way back in 1861 has for long curtailed fundamental rights. Certainly, it has no place in a modern 21st century democratic Indian society. We as Indians have certainly come a long way and there was unquestionably a need to look and acknowledge the rights of LGBT community.

LGBT community in India has welcomed the decision with much elationas as many have been living under endless fear of exposing themselves to a ‘not so free’ or open society. A Five Judge Bench, comprising CJI Dipak Mishra, has declared that “Section 377 IPC is irrational, indefensible and arbitrary. The majoritarian views and popular morality cannot dictate constitutional rights.

The judgement also noted that 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 is a violation to right to equality and it results in discrimination and harassment of the members of LGBT community.

The Supreme Court also underlined that the legal system must protect the dignity of individuals as it is recognized as a fundamental right. The court further says that consensual unnatural sexual act in private is neither harmful nor contagious to society.

However,bestiality will continue to be an offence under Section 377.

Netizens welcomed the judgement

Netizens were quick to respond as most welcomed the judgement and even see it as a tool that would facilitate a more inclusive society by recognizing the rights of every individual.

Author Immortals of Meluha, Amish Tripathi tweeted: “I'm delighted that Indian laws have finally caught up with Indian culture. Traditional ancient Indian culture did not criminalise LGBTQs. I am proud to see modern India finally live up to the liberal values of our great ancestors in this regard.”

Commenting on the judgement, Physician, Professor and Odisha-based Social Activist Dr. Tushar Kanti Nayak said: “This Section was Cruel, Inhuman, Sadistic, Unjust, Sinful, Medieval, Forced upon LGBT people by those by chance were born Normal (in anatomical, physiological statistical majority). Are Blood Groups of LGBT different from ABO/Rh type? A historic decision.” 

Bollywood film director and producer Karan Johar tweeted it as the‘historical judgment’. He further said that decriminalising homosexuality and abolishing Section377 is a huge thumbs up for humanity and equal rights!

Mixed reaction from Political Parties

While the ruling BJP government at center has left the judgement to the Supreme Court, one of its most vocal leader Subramanian Swamy has said that decriminalizing same sex would result in an increase in the number of HIV cases.

On the other hand, the Congress party has welcomed the judgement by terming it as a great day for the country and for equality.

Congress party leader Dr. Shashi Tharoor tweeted: “So pleased to learn that the Supreme Court has ruled against criminalising sexual acts in private. This decision vindicates my stand on Section 377 & on exactly the same grounds of privacy, dignity &constitutional freedoms. It shames those BJP MPs who vociferously opposed me in LS.”

United Nations, Amnesty India welcome the landmark ruling.

The United Nations in India has welcomed the judgement as its press statement reads as: “The court’s ruling will be the first step towards guaranteeing the full range of fundamental rights to LGBTI persons. We also hope that the judgment will boost efforts to eliminate stigma and discrimination against LGBTI persons in all areas of social, economic, cultural and political activity, thereby ensuring a truly inclusive society.”

Amnesty India remarked it as the beginning of a new era of equality. The rights body said:‏ “The judgement closes the door on a dark chapter of Indian history. It marks a new era of equality for millions of people in India. The remarkable victory today is a milestone in the 3-decade old struggle by the LGBTI community and their allies in India.”

--Deepak Mohanty