Breaking! Gays in India are NOT criminals, says SC

by Garry Watts September 6, 2018, 12:57
Breaking! Gays in India are NOT criminals, says SC

"Any kind of sexual activity with animals shall remain penal offence under Section 377 of the IPC", it said while adding that Section 377 of IPC was a weapon to harass members of LGBT community, resulting in discrimination.

Going by the proceedings in the court, it appears as though the court would decriminalise the section which the LGBT community has termed as draconian. The court will be giving its verdict on the 5 petitions which state that Section 377 violates the basic rights mentioned in the Constitution of India.

"No one can escape from their individuality", the CJI said, citing John Mills.

The five-judge Constitution bench has assembled in court and the judgment will be read out shortly.

A historic judgement was passed by the Supreme Court on Thursday under which Section 377 of the Indian Penal Code has been struck down.

The top court's verdict was previously set to be delivered on July 17, but on that day, it chose to reserve its verdict. "LGBTQ community possesses same rights as others".

The top court, while pronouncing the verdict on a batch of seven petitions it was hearing, the court said, "Homosexuality is not an offence".

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"Respect for individual choice is the essence of liberty", Dipak Misra, India's chief justice, told a packed courtroom.

"Section 377 inflicts tragedy and anguish; it has to be remedied".

The apex court had asserted that courts can not wait for a "majoritarian government" to decide on enacting, amending or striking down a law if it violates fundamental rights. "What is unnatural? It can be between a man and man and also between a man and a woman". 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. In 2017, in a major verdict, the Supreme Court ruled that the right to privacy is a fundamental right and sexual orientation, the court said, is "an essential component of identity" and that the rights of queer people are "founded on Constitutional doctrine".

"Any consensual sexual relationship between two consenting adults - homosexuals, heterosexuals or lesbians - can not be said to be unconstitutional", said Misra, as he read out the judgement.

The court heard arguments about how history has changed its view on homosexuality from pathological prejudice to a "normal and benign variation of human sexuality".

This decision was then appealed in the Supreme Court via a review petition, and the last known status was that of a pending curative petition. However, the issue resurrected in July 2016, when a fresh petition was filed.

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