Pride without Prejudice! People rejoice as Section 377 struck down by SC

Updated: Sep 07, 2018, 08:44 IST | Agencies

Five-member Constitutional Bench headed by Chief Justice Dipak Misra strikes down Section 377 of the Indian Penal Code, which deemed that gay sex is a criminal offence

Pride without Prejudice! People rejoice as Section 377 struck down by SC
An LGBTQ activist celebrates the Supreme Court verdict at Carter Road, Bandra. Pic/Pradeep Dhivar

It was a moment of pride for the LGBTQ (Lesbian, Gay, Bisexual, Transgender and Queer) community and Indian society at large, as the Supreme Court ruled that consensual gay sex is not a crime. The apex court struck down Section 377 of the Indian Penal Code - a British-era law - making India the 26th country in the world where homosexuality is legal.

The SC called parts of Section 377 that criminalised consensual same-sex relations "irrational, indefensible and manifestly arbitrary", and stated that the draconian law violates the right to equality and the right to live with dignity.

The LGBTQ community's flag takes pride of place in Santacruz. Pic/Sayyed Sameer Abedi
The LGBTQ community's flag takes pride of place in Santacruz. Pic/Sayyed Sameer Abedi

History owes apology
Putting an end to the 17-year legal struggle, the top court delivered four separate but concurring judgments, setting aside its 2013 verdict which had re-criminalised homosexual activity on pain of life imprisonment. "History owes an apology to members of the community for the delay in ensuring their rights, for denying them their rights and compelling them to live a life of fear," said Justice Indu Malhotra, who was part of the five-judge Constitution bench headed by Chief Justice Dipak Misra. The bench, which also comprised Justices R F Nariman, A M Khanwilkar and D Y Chandrachud, issued a 493-page judgment maintaining that sexual acts with animals and children will remain criminal acts.

The judgment came on a batch of writ petitions filed by dancer Navtej Jauhar, journalist Sunil Mehra, chef Ritu Dalmia, hoteliers Aman Nath and Keshav Suri and business executive Ayesha Kapur, and 20 former and current students of the IITs. The issue was first raised by the NGO, Naaz Foundation in Delhi High Court in 2001. In 2009, it decriminalised sex between consenting adults of the same gender. This was overturned in 2013 by the SC.

26th nation in the fold
India has now joined 25 other countries where homosexuality is legal. However, 72 countries and territories worldwide still continue to criminalise same-sex relationships, including 45 in which such relationships between women are outlawed. According to a report by the International Lesbian, Gay, Bisexual, Trans and Intersex Association (ILGA), there are eight countries in which homosexuality can result in a death penalty, and dozens more with prison sentences.

Congrats from world media
The world media hailed the overturning of a the colonial-era Section 377 in India, stating that the landmark ruling was a boost for gay rights not only here, in the world's largest democracy, but also across the world. International media houses such as The Washington Post, New York Times, The Guardian, BBC and CNN called it a "groundbreaking victory" for gay rights.

Hope for justice, equality
Amnesty International India said the verdict has given hope to everyone fighting for justice and equality. "The judgment closes the door on a dark chapter of Indian history. It marks a new era of equality for millions of people in India," said Asmita Basu, programmes director, Amnesty International India. However, the community's struggle for rights, including marriage, adoption and inheritance will continue, she warned.

The wow factor

Some statements from the judgment

* Not for nothing, the great German thinker, Johann Wolfgang von Goethe said-I am what I am, so take me as I am. Similarly, Arthur Schopenhauer had pronounced-No one can escape from their individuality.

* Shakespeare through one of his characters in a play says-What's in a name? That which we call a rose by any other name would smell as sweet. The phrase, in its basic sense, conveys that what really matters is the essential qualities of the substance and the fundamental characteristics of an entity but not the name by which it or a person is called.

* The American Psychological Association has opined that sexual orientation is a natural condition and attraction towards the same sex or opposite sex are both naturally equal, the only difference being that the same sex attraction arises in far lesser numbers.

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