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The Supreme Court delivered an historic judgment today for the LGBT community. It legalized the gay sex thus abolishing Section 377 of the IPC. A bench headed by Chief Justice, DipakMisra reserved its verdict after hearing various stakeholders, including gay rights activists for days.
The Centre left it on the Court to decide the issue of legality of Section 377 in the respect of criminalizing consensual unnatural sex between consenting adults.
The Centre said that other aspects of the provision which deals with the minor and animals should be allowed to remain in the statute book. Section 377 referred to ‘unnatural offences’.
Background:
The issue of Section 377 was raised by NGO Naaz Foundation, which approached the Delhi High Court. The Delhi HC in its 2009 judgment decriminalized the sex between two consenting adults by holding that the provision is illegal.
The Apex Court rejected the Centre’s plea to postpone the hearing and started hearing the matter afresh. This judgment was overturned by the Apex Court in 2013 which also dismissed the review plea against which several petitions were filed.
The judgment of the Delhi HC was criticized by the Child right activists on the ground that section 377 is necessary as it tackles the cases of Child abuse. But with the enactment of much child-friendly Act, that is POCSO (Protection of Children from Sexual Offences) Act, 2012, the need to use Section 377 was removed.The Section also penalized the sexual acts such as oral and anal sex in private.
Various petitions were filed and heard by the Apex Court which sought to decriminalize the consensual sex between two consenting adults of same sex by declaring Section 377 of IPC as unconstitutional. The petitioners said that the section legitimized the stigma associated with sexual orientation and it is thus, mandatory to abolish the penal provision.
The Supreme Court, on September 6, 2018 took a very bold step by scrapping off Section 377 of IPC and thus decriminalizing the 158-year-old colonial law which criminalized consensual gay sex.
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