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Section 377: Imposing sanction of law on consenting adults encourage discrimination, says Supreme Court

'Consensual sexual acts between two adults in private will not be punishable under sec 377,' Supreme Court said.

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Imposing legal sanctions on consenting adults involved in a sexual relationship has given the state the authority to perpetuate social stereotypes and encourage discrimination, the Supreme Court said Thursday.

In a historic verdict, a five-judge constitution bench headed by Chief Justice Dipak Misra struck down part of Section 377 of IPC, which criminalised consensual unnatural sex, saying this penal provision has consigned a group of citizens to "the margins".

"What links LGBT individuals to couples who love across caste and community lines is the fact that both are exercising their right to love at enormous personal risk and in the process disrupting the existing lines of social authority," Justice D Y Chandrachud, who wrote a separate concurring verdict, noted. 

He said the British-era law had continued to exist for nearly 68 years after the country came out with a "liberal Constitution" after gaining independence.
 
"Gays and lesbians, transgenders and bisexuals continue to be denied a truly equal citizenship seven decades after Independence. The law has imposed upon them a morality which is an anachronism," he said, "while section 377 has been used to prosecute non-consensual sexual acts, it has also been used to prosecute consensual sexual acts." Justice Chandrachud said that Section 377 has been "destructive" of the identities of members belonging to the lesbian, gay, bisexual and transgender (LGBT) community who have been relegated to the anguish of closeted identities.

"By imposing the sanctions of the law on consenting adults involved in a sexual relationship, it has lent the authority of the state to perpetuate social stereotypes and encourage discrimination," he said.

"The struggle of citizens belonging to sexual minorities is located within the larger history of the struggles against various forms of social subordination in India. The order of nature that section 377 speaks of is not just about non-procreative sex but is about forms of intimacy which the social order finds 'disturbing'," the judge noted.

He also said that sexual orientation has become "a target for exploitation, if not blackmail, in a networked and digital age" and Section 377 was destructive of an identity which was crucial to a dignified existence.

Pronouncing its much-awaited verdict on a clutch of petitions, the apex court said that criminalizing section-377 is manifestly arbitrary and irrational. "Consensual sexual acts between two adults in private will not be punishable under sec 377," said the apex court.

Section 377 refers to 'unnatural offences' and says whoever voluntarily has carnal intercourse against the order of nature with any man, woman or animal, shall be punished with imprisonment for life, or with imprisonment of either description for a term which may extend to 10 years, and shall also be liable to pay a fine.

On a historic judgment, the apex court scrapped section 377 and said that  persons cannot be discriminated on the ground of sexual orientation.

He said the entitlement of members of LGBT community should be as equal participants in a society governed by the morality of the Constitution. "That in essence is what section 377 denies to them. The shadows of a receding past confront their quest for fulfillment," Justice Chandrachud said.

He referred to Article 372(1) of the Constitution, which provides that all laws in force prior to the commencement of the Constitution shall continue to be in force until altered or repealed, and said the IPC and many other pre-Independence laws were 'saved' and allowed to operate in independent India.

Earlier, the Indian Psychiatric Association issued a statement supporting members and addressing the stigma associated with being queer. 

In a statement, the Indian Psychiatric Association said, “In the opinion of the Indian Psychiatric Association, homosexuality is not a psychiatric disorder. This is in line with the position of the American Psychiatric Association and the International Classification of Diseases of the World Health Organization which removed homosexuality from the list of psychiatric disorders in 1973 and 1992 respectively.

“The IPS recognises same sexuality as a normal variant of human sexuality much like heterosexuality and bisexuality. 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 stigmatisation of the person."

(With PTI inputs)

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