Gay Sex is Not a Crime: Supreme Court in Historic Judgement



In a historic judgement, the Supreme Court (SC) on Thursday said that consensual adult gay sex is not a crime. The judgement, by a Constitution bench of the country's top court, has defanged the British-era Section 377 of the Indian Penal Code (IPC), which criminalised sex which deems that gay sex is a punishable offence.

Thursday's judgement heralds a new dawn for personal liberty and is a major victory for the LGBTQ (lesbian, gay, bisexual, transgender) community that has been fighting hard and persistently to legalise gay sex. The five-judge Constitution bench - comprising Chief Justice of India (CJI) Dipak Misra and Justices R F Nariman, A M Khanwilkar, D Y Chandrachud and Indu Malhotra - was unanimous in its decision.

"Section 377 is irrational, arbitrary and incomprehensible as it fetters the right to equality for the LGBT community...LGBT community possesses same equality as other citizens," said CJI Dipak Misra. What society thinks, the judges said, has no place when it comes to people's freedoms. "Social morality cannot violate the rights of even one single individual," said CJI Misra and Justice Khanwilkar. "The right to privacy as part of the right to life applies fully to LGBT community," said CJI Misra.

Prior to reserving the verdict, the bench had, in what was yet another indication of which way it could go, also disapproved arguments that a majority of the population in India is against legalising gay sex. "We decide questions of law on the basis of the Constitution, constitutional principles and its ethos and not based on a referendum," said the SC's Constitution bench at the time.

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