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Gay sex among consenting adults is not an offence, the Supreme Court ordered in India

Gay sex among consenting adults is not an offence, the Supreme Court ordered in India
(sourceDNAindia) LGBT community win court case, fluidity of sexual experience protected

A five-judge constitution bench headed by Chief Justice Dipak Misra pronounced its verdict on the validity of Section 377 today. Gay sex among consenting adults is not an offence, the Supreme Court ordered on Thursday. The LGBT community welcome this decision through numerous tweets.

The Supreme Court read down Section 377 of the Indian Penal Code, decriminalising consensual gay sex on Thursday. “Any discrimination on the basis of sexual orientation violates fundamental rights,” said Chief Justice Dipak Misra. “Social morality cannot be used to violate the fundamental rights of even a single individual… Constitutional morality cannot be martyred at the altar of social morality,” he added.

LGBT possess equal rights as other citizens

The judge also wrote in the ruling: “Identity is pivotal to one’s name. In Constitution, emphasis is laid on individual recognition. Privacy of human beings constitutes the cardinal rule of our Constitution.”

Section 377, which treats consensual sexual acts by adults of the same sex as an offence and provides for life in prison, is modelled on Britain’s Buggery Act of 1533 and had survived on the statute in India though it has been scrapped in Britain.

In 2016, the Supreme Court agreed to hear a petition by five prominent members of the LGBT, or lesbian, gay, bisexual and transgender community Bharatnatyam dancer Navtej Johar, culture expert Aman Nath, restaurateurs Ritu Dalmia and Ayesha Kapur and mediaperson Sunil Mehra, challenging the constitutionality of section 377.

These are the main quotes in the ruling (extract hindustantimes.com): 

  • 1. Not for nothing the great German thinker said..I am what I am, so take me as I am.
  • 2. Identity is pivotal to one’s name. In Constitution, emphasis is laid on individual recognition. Privacy of human beings constitutes the cardinal rule of our Constitution .
  • 3. LGBT possess equal rights as other citizens.
  • 4. Any discrimination on the basis of sexual orientation violates fundamental rights.
  • 5.Constitution is a living organic document, pragmatic interpretation has to be given to combat rigorous inequality and injustice.
  • 6. Social morality cannot be used to violate the fundamental rights of even a single individual; constitutional morality cannot be martyred at the altar of social morality.
  • 7. Section 377 fails to make distinction between consensual and non-consensual acts ..It had become a weapon for the harassment for LGBT and subject them to discrimination.
  • 8. LGBTs have a fundamental right to live with dignity, such groups are entitled to protection of law.
  • 9. To deny members of LGBT community the full expression of right to sexual orientation is to deny them right under Constitution, is denial to right to privacy .
  • 10. History owes apology to the LGBT community. They were made to live a life full of fear.

Gay sex among consenting adults is not an offence, the Supreme Court ordered in India