Supreme Court of India)SCI) decriminalizes Homosexuality Thursday Sep 06,2018

Homosexuality is not a crime in India anymore and it is not a mental disorder, five Supreme Court of India(SCI)judges declared on Thursday Sep 06,2018  in a spectacular leap for gay rights in the country and a rainbow moment in its history.

The SCI overruled its own 2013 decision and partially struck down Section 377, a controversial British-era law that banned consensual gay sex.

The Bench, led by Chief Justice of India (CJI) Dipak Misra and comprising Justices Rohinton F. Nariman, A.M. Khanwilkar, D.Y. Chandrachud and Indu Malhotra, gave four separate but concurring judgments.


The ban is irrational, indefensible and manifestly arbitrary, the judges said.

"Take me as I am," said Chief Justice of India Dipak Misra, toasting gay pride.

1. "We have to bid adieu to prejudices and empower all citizens," said Chief Justice Misra, reading out what he said was a consensus judgement. The judges also said: "Any discrimination on the basis of sexuality amounts to a violation of fundamental rights".
2. They also said that "consensual carnal intercourse among adults, be it homosexual or heterosexual, in private space, does not in any way harm the public decency or morality".
3. Section 377, which is part of an 1861 law, banned "carnal intercourse against the order of nature with any man, woman or animal" -- which was interpreted to refer to homosexual sex.
4. A part of that law still remains; non-consensual or consent obtained by force continues to be an offence, as will "carnal intercourse with children, animals and bestiality".
5. The verdict is being cheered by millions across the country, far beyond the gay community, which has fought for decades for the right to be treated equally.
6. The historic judgment acknowledged their struggle as it noted "158 years ago, the law deprived people of love." The judges said: "Respect for individual choice is the essence of liberty; LGBT community possesses equal rights under the constitution."
7. The ban on gay sex was challenged by 5 high profile petitioners- from a classical dancer to a celebrity chef and a hotel chain owner -- who said they were living in fear of being punished.
8. The petitions were opposed by Christian bodies like the Apostolic Alliance of Churches and Utkal Christian Association, besides some other NGOs and individuals.
9. The homosexual community had a five-year reprieve after the Delhi High Court in 2009 described Section 377 as a violation of the fundamental rights guaranteed by the constitution and removed the ban. It had responded to a petition by Naz Foundation, which has fought for almost a decade for gay rights.
10. In 2013, the Supreme Court cancelled the Delhi high court order and restored the ban on homosexuality, saying it was the job of parliament to decide on scrapping laws. The Supreme Court this year said the court "cannot wait for a majoritarian government" to decide on enacting, amending or striking down a law if it violates fundamental rights.

SCI Strikes Down Law That Punished Gay Sex

SCI on Thursday struck down a colonial-era law that made gay sex punishable by up to 10 years in prison, a landmark victory for gay rights that one judge said would "pave the way for a better future."

The 1861 law, a relic of Victorian England that hung on long after the end of British colonialism, was a weapon used to discriminate against India's gay community, the judges ruled in a unanimous decision.

"Constitutional morality cannot be martyred at the altar of social morality," Chief Justice Dipak Misra said, reading the verdict. "Social morality cannot be used to violate the fundamental rights of even a single individual."

As the news spread, the streets outside the courthouse erupted in cheers as opponents of the law danced and waved flags.

"We feel as equal citizens now," said activist Shashi Bhushan. "What happens in our bedroom is left to us."

In its ruling, the court said sexual orientation was a "biological phenomenon" and that discrimination on that basis violated fundamental rights.

The court's ruling struck down the law's sections on consensual gay sex, but let stand segments that deal with such issues as bestiality.

Homosexuality has a tangled history in India, and some of Hinduism's most ancient texts are accepting of gay sex. But same-sex couples have also been harassed for centuries in many Indian communities, whether Hindu, Muslim or Christian.

Transgendered people known as "hijras," for example, have long been a common sight in India. But their treatment — both shunned as impure, and embraced for the belief that they can bring powerful blessings — reflects the complexities of gay life here.

Homosexuality has gained a degree of acceptance in deeply conservative India over the past decade, particularly in big cities. India now has openly gay celebrities, and some high-profile Bollywood films have dealt with gay issues. But many gay people still face isolation and persecution, and the court's ruling will do little to change life on the ground for millions of people.

On Thursday, a leader of a prominent hard-line Hindu group noted that while it doesn't see homosexuality as a crime, it believes gay marriage is not "compatible with nature."

Arun Kumar, a spokesman for the Rashtriya Swayamsevak Sangh, the parent organization of the ruling Bharatiya Janata Party, said Indian society "traditionally does not recognize" gay relationships, the Press Trust of India news agency reported.

A New Delhi High Court in 2009 declared Section 377 unconstitutional, but that decision was overturned in a ruling by three Supreme Court justices in 2013 on the grounds that amending or repealing the law should be left to Parliament. But lawmakers failed to take action and in July the government told the Supreme Court to give a ruling in the case.

"We cannot change history but can pave a way for a better future," said Justice D.Y. Chandrachud.

The law known as Section 377 held that intercourse between members of the same sex was against the order of nature. The five petitioners who challenged the law said it was discriminatory and led to gays living in fear of harassment and persecution.

Jessica Stern, the executive director of the New York-based rights group OutRight Action International, said the original law had reverberated far beyond India, including in countries where gay people still struggle for acceptance.

"The sodomy law that became the model everywhere, from Uganda to Singapore to the U.K. itself, premiered in India, becoming the confusing and dehumanizing standard replicated around the world," she said in a statement, saying "today's historic outcome will reverberate across India and the world."