The Supreme Court of India on Thursday declared its judgment on adult gay sex and said that it is not a crime and also added that sexual orientation is natural and people have no control over it.
The judgment, by a Constitution bench of the country’s top court, has defanged the British-era Section 377 of the Indian Penal Code (IPC), which deemed that gay sex is a punishable offence. Now, it won’t be considered as an offence under section 377 for engaging in consensual sex in private.
The judgment on Thursday omens a new dawn for the personal liberty and is also a major victory for the lesbian, gay, bisexual and the transgender (LGBTQ). The community which was fighting very hard and was persistently wanted the gay sex to be legal. “The law must be interpreted as per the requirement of changing times,” said the SC in its judgement.
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“Consensual sex between adults in private space, which is not harmful to women or children, cannot be denied as it is a matter of individual choice. Section 377 results in discrimination and is violative of constitutional principles,” said the SC.
The five judge Constitution bench consisting of the Chief Justice of India, Dipak Mishra and the Justice RF Nariman along with Indu Malhotra, DY Chandrachud and A M Khanwilkar were unified during the decision.
“Section 377 is irrational, arbitrary and incomprehensible as it fetters the right to equality for LGBT community LGBT community…LGBT community possesses same equality as other citizens,” said CJI Dipak Misra.
Judges also said that whatever the society may think, but when it comes to freedom of person, it doesn’t matter. “Social morality cannot violate the rights of even one individual,” said CJI Misra and Justice Khanwilkar.
The Supreme Court in August 2017 had said that each individual has a fundamental right to privacy and is a part of right to life and sex is private. The judges while giving the judgment referred to that. “The right to privacy as part of right to life applies fully to LGBT community,” said CJI Misra.
“We have finally got justice. We are finally ‘azaad in azaad Hind’,” said Ashok Row Kavi, LGBT rights activist and founder of Humsafar Trust after the apex court’s judgement.
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