NEW DELHI: Homosexuality is not a crime in India anymore and it is not a mental disorder, five Supreme Court judges declared today in a spectacular leap for gay rights in the country and a rainbow moment in its history. The Supreme Court overruled its own 2013 decision and partially struck down Section 377, a controversial British-era law that banned consensual gay sex. 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.
Here’s your 10-point cheat sheet to this big story:
- “We have to bid adieu to prejudices and empower all citizens,” said Chief Justice Misra, reading out what he said was a consensus judgment. The judges also said: “Any discrimination on the basis of sexuality amounts to a violation of fundamental rights”.
- Section 377, which is part of an 1861 law, bans “carnal intercourse against the order of nature with any man, woman or animal” — which was interpreted to refer to homosexual sex.
- 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”.
- 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.
- 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.”
- The ban on gay sex was challenged by five 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.
- The petitions were opposed by Christian bodies like the Apostolic Alliance of Churches and Utkal Christian Association, besides some other NGOs and individuals.
- 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.
- 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.