“SAB RAB KE BANDE” by decriminalizing LGBT sex Supreme Court has proved that all Indian have equal rights.

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The plight of the LGBT community in India

The LGBT community in India has long struggled with discrimination and social stigma. Being Indian homosexual is considered a great shame, disrespectful of family and relatives. It is an invitation to discrimination. Homosexuality is often seen as a disease. There have been occasions when self-proclaimed “gurus” have offered to cure gay men and women through yoga. Although educated and westernized upper-middle-class Indians were more or less tolerant of gays the same could not be said about the rest of the population.

Section 377 of IPC turned them into (potential) criminals

The erstwhile Section 377 of the IPC criminalized “sexual acts against the law of nature” which includes everything other than heterosexual intercourse. It was an archaic law passed by the British in 1860 as part of the Indian Penal Code. The section was repeatedly misused to harass members of LGBT community.

Long legal battle

In December 2001 Naz Foundation a NGO working for issues related to HIV/AIDs among gay men filed a public interest litigation before Delhi High Court which challenged the constitutional validity of Sec  377and asking for legalization of homosexuality. The PIL was dismissed by Delhi High Court in 2004.

In February 2006, Naz Foundation appealed to the Supreme Court which reinstated the case in Delhi High Court. As time went by an umbrella organization “Voices Against 377” joined the petition.

In July 2009 in a landmark judgment, the Delhi High Court bench consisting of Chief Justice Ajit Prakash Shah and Justice S Muralidhar decriminalized homosexuality among consenting adults and held Sec 377 to be in violation of Article 14, 15 and 21 of Constitution of India. The matter was challenged before Supreme Court by Delhi based astrologer Suresh Kumar Koushal.

In Dec 2013 the Supreme Court set aside the Delhi High Court verdict of 2009.

In June 2016 five eminent citizens – Indian classical dancer Navtej Singh Johar, journalist Sunil Mehra, chef Ritu Dalmia, hotelier Aman Nath, and business executive Ayesha Kapur – filed a petition before Supreme Court challenging Sec 377. July 10, 2018, a five-judge constitution bench of Supreme Court began hearing on the petition. Sep 6, 2018, in a unanimous verdict the Supreme Court decided to scrap Sec 377

The Supreme Court verdict – “Sec 377 is irrational, arbitrary and incomprehensible”

The Supreme Court in its ruling said that gay sex among consenting adults is not a crime and that no person had control over sexual orientation. The Court held that the section was anti-constitutional and struck it down calling it arbitrary and a fetter to equal rights for LGBT community. According to the judges, the opinion of society has to take a backseat to personal liberty. As long as someone indulged in the gay sexual act in private it cannot be termed as criminal. When hearing arguments the bench had disapproved of the notion that majority of Indians were against gay sex. The Court held firm to its position that no community can be deprived of its sexual freedom and rights in the name of broader public opinion. The Court was also not inclined towards leaving the matter to hands of the Parliament, an argument which had been made by several conservative groups.

 

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