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India's top court legalises gay sex in landmark ruling

India's top court legalises gay sex in landmark ruling

A five-judge panel in India's Supreme Court was unanimous in its decision to end the law commonly known as "Section 377", that prohibits "carnal intercourse against the order of nature with any man, woman or animal" -which is widely interpreted to refer to gay sex.

There will be two opinions for the Bench.

On Thursday, four separate but concurring judgments were delivered, authored by CJI Misra, Justice Chandrachud, Justice Nariman and Justice Malhotra. Meanwhile, while giving verdict on gay sex, CJI Dipak Misra observed that "No one can escape from their individualism". The nine-judge Bench underlined the impact of Section 377, saying it "poses a grave danger to the unhindered fulfilment of one's sexual orientation, as an element of privacy and dignity".

Section 377 - the 150-year-old law formed during the British era that prohibits gay sex in the country might face the exit door today. The bench had earlier reserved its verdict on July 17.

"I state and submit that so far as the constitutional validity of Section 377 to the extent it applies to "consensual acts of adults in private" is concerned, the Union of India would leave the said question to the wisdom of this Hon'ble Court", the centre's affidavit had said.

It had made clear that it may not strike down the law completely and deal with it to the extent it relates to consensual acts between two adults. While the top court acknowledged that sex as per the order of nature was seen as intercourse between a man and a woman for the goal of procreation, the fact that it had already recognised a third gender needs to be kept in mind.

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Senior advocate Mukul Rohatgi, for Mr. Suri, had argued that "everything changes with the passage of time..."

"We are exclusively on consensual acts between man-man, man-woman".

"Human sexuality can not be confined to a binary". Homosexuality is part of human sexuality.

The top court, while pronouncing the verdict on a batch of seven petitions it was hearing, the court said, "Homosexuality is not an offence". That is prohibited under the Hindu marriage law. The Additional Solicitor General told the court that if it meant to touch on other issues like same-sex marriage, then the Centre will file another detailed affidavit.

To this, Justice Chandrachud had replied that the Bench is not sitting to adjudicate over any "kinky notions" of sexual orientation.


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