SC Strikes The 158-Year-Old Colonial Law, Legalizes Homosexuality!
Even though there is a long road to perfection, the country has flaws that it is trying to ameliorate. The Supreme Court drubbed the 158-year-old colonial law on consensual gay sex. The Court back-peddled its own decision and said Section 377 is irrational and arbitrary. The judgment was delivered by a Bench of 5 members- Chief Justice of India Dipak Misra and Justices DY Chandrachud, Rohinton Nariman, AM Khanwilkar, and Indu Malhotra.
Section 377 refers to ‘unnatural offences’ and says whoever voluntarily has ‘carnal intercourse against the order of nature with any man, woman or animal’, shall be punished up to 10 years in jail under the 1861 law.
“LGBT Community has same rights as of any ordinary citizen. Respect for each other’s rights, is supreme humanity. Criminalizing gay sex is irrational and indefensible” said Chief Justice Dipak Misra.
It all started in 2001 when Naz Foundation, an NGO that work on HIV/AIDS and sexual health issues, filed a petition in the Delhi high court against Section 377. the Delhi High Court described Section 377 as a violation of the fundamental rights guaranteed by the constitution in 2009. Various religious groups protested against this decision and in 2013, Delhi High Court judgement was overturned by the Supreme Court stating that amending or repealing Section 377 should be a matter left to Parliament, not the judiciary.
In August 2017, the Supreme Court held Right to Privacy as a fundamental right. Sexual orientation is an “essential component of identity” and the rights of lesbian, gay, bisexual and transgender population are “real rights founded on sound constitutional doctrine” said SC.
Finally CJI Misra announced to the nation that “We intend to rule, subject to arguments, that two consenting adults even if engaged in ‘unnatural sex’ will not be liable for prosecution for any offence”.
Homosexuality is not a mental disorder, nor is a “PHASE”. Nobody should be discriminated against on basis of their sexual preferences. Majoritarian views and popular opinion cannot dictate constitutional rights and SC has said it loud and clear. To deny any individual of his/her sexual orientation is denial of their basic rights, freedom of expression and is a violation of privacy.
“We – despite our differences – are one people.”