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.
The Section 377 act, which states a ban on consensual gay sex(homosexuality) was restored by Supreme Court in 2013. This decision is been reversed.
A five-judge Constitution Bench of the Supreme Court on Thursday decriminalised homosexuality by partially striking down the colonial era provisions of Section 377 of the Indian Penal Code (IPC).
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 judgment.
‘Section 377 is based on deep-rooted gender stereotypes’
Justice Chandrachud is one of the judge to deliver his verdict. He says:
“Tragedy and anguish inflicted by Section 377 should be remedied. Macaulay’s legacy exists 68 years after the coming of a liberal Constitution. Human instinct to love has been constrained. Sexual orientation has become a reason for blackmail on the internet.”
Quoting Leonard Cohen, he says, “Shadows of a receding past controls the quest of LGBTQ( lesbian, gay, bisexual, and transgender) for fulfillment.”
Justice Chandrachud continues. “What is the ‘order of nature’? State cannot decide the boundaries between what is permissible or not. Section 377 is based on deep-rooted gender stereotypes. It persecutes people. It is a majoritarian impulse to subjugate a sexual minority to live in silence,” he says and adds decriminalization of homosexuality is only the first step.
Terming criminalizing homosexuality “unconstitutional”, he says LGBTQ possess “full range of constitutional rights” including sexual orientation and partner choice. “LGBTQ has equal citizenship and equal protection of laws.”
‘Homosexuality is not an illness’
The Indian Psychiatric Society (IPS) has said it is “time to stop looking at homosexuality as a mental illness”. It states that the there is no scientific evidence that sexual orientation can be altered by any treatment. Any such attempt “may lead to low self-esteem and stigmatization,” it warns.
A “position statement on Homosexuality” issued by the Society says: “Homosexuality is not a psychiatric disorder and we recognize same sex sexuality as a normal variant of human sexuality much like heterosexuality and bisexuality.’’
The Society adds that there is no scientific evidence that sexual orientation can be altered by any treatment and that any such attempts may in fact lead to low self-esteem and stigmatization of the person.