HOMOSEXUALITY IS NEITHER A CRIME NOR MENTAL DISORDER: SUPREME COURT
By- Darshita Chaube, INN/Gwalior, @Infodeaofficial
A five judge constitutional bench of the Supreme Court decriminalized homosexuality by partially striking down the colonial era provisions of Section 377 of the Indian Penal Code (IPC). Section 377 was a British era law (1861) that banned consensual gay sex. In 2009, Delhi High Court removed the ban describing Section 377 as a violation of Fundamental Rights, responded to a petition by Naz Foundation.
In 2013, Supreme Court restored the ban on homosexuality, saying it was the job of Parliament to pass verdict on scrapping laws and cancelled Delhi High Court order. The ban was challenged by five high profile petitioners, Mr. Natej Singh Johar who is a classical dancer, Mr. Aman Nath who is owner of Neemrana Chain of Hotels, Ms. Ayesha Kapur who is a business woman, Journalist Sunil Mehra and Chef Ritu Dalmia.
They said, they were living in a fear of being punished. In 2018, the Supreme Court removed the ban and passed a historic judgment, by saying the ban was irrational, indefensible and manifestly arbitrary.
Millions have been fighting for the rights of LGBT Community (lesbian, gay, bisexual and transgender). The verdict is being cheered by millions beyond gay community. The judges said, “Any discrimination on the basis of sexuality amounts to a violation of Fundamental Rights.” “Section 377 is violation of Article 14, bodily autonomy is individualistic; a matter of choice & is part of dignity”, they added.
The constitutional bench of five judges passed the verdict separately with consent. The bench said, “Consensual sex between adults in a private space, which is not harmful to women or children, cannot be denied as it is a matter of individual choice.
”Chief Justice of India Deepak Mishra said, “LGBT Community possesses same equality as other citizens.”Justice Khanwilkar said, “Social morality cannot violate the rights of even one single individual.” Justice Malhotra said, “Members of LGBT Community members owed an apology from society for being denied equal rights over the years.”
Justice Chandrachud said, “Punishment under Section 377 made the LGBT a closest community, destroyed the identity of members and reached their dignity, all part of right to life. The state has no business to get into controlling the private lives of LGBT community members or for that matter that if any citizen.”
Justice Nariman delivered his verdict, “The Yogyakarta Principle animates Article 14.” The Yogyakarta Principle is a document about human rights in the areas of sexual orientation and gender identity which was published in an international meeting of Human Rights in Yogyakarta, Indonesia, in November 2006 and supplemented in 2017.
These principles will expand the grounds of gender expressions and sex characteristics. He also pointed out that the recently passed Mental Healthcare Act recognized that homosexuality is not a mental disorder. He ordered the Central Government to take campaign to reduce stigma surrounding sexual minorities.
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.” It is punishable in public.
Sexual orientation is biological innate. It is natural. The judgment of Supreme Court has given a hope to the rainbow of LGBT Community to live their lives freely and happily. The judgment protects the identity, dignity and equality of LGBT. However, the fight of LGBT Community for respect and indiscrimination is not over yet.
The Indian society has a mindset that is yet to be changed. The people of LGBT Community is surrounded by a stigma. They endure disrespect, taunts and become a topic of laugh for so called straight people. The society harms the morality by denial of sexual expression which is like a death to a person. It is very necessary to aware people so that the rights of LGBT Community will not be exploited and they will have lives of liberty, equality and honor.