Highlights from the Supreme Court's verdict on decriminalising Section 377

The Supreme Court, in four separate but concurring judgements, set aside its own verdict in the Suresh Kaushal case, decriminalising homosexuality for consenting adults. Here are some highlights from the judgments of Chief Justice Dipak Misra, and Justices R.F. Nariman, A.M. Khanwilkar, D.Y. Chandrachud and Indu Malhotra.

Badges against the Section 377 law of the Indian Penal Code are pictured on a table at the entrance of an NGO, in Mumbai on September 6, 2018.

A five-judge Constitution Bench of the Supreme Court on Thursday unanimously decriminalised part of the 158-year-old colonial era provisions of Section 377 of the Indian Penal Code (IPC) which criminalises consensual unnatural sex.

The Bench, headed by Chief Justice Dipak Misra and comprising Justices R.F. Nariman, A.M. Khanwilkar, D.Y. Chandrachud and Indu Malhotra, termed the part of Section 377 of the IPC which crimiminalises unnatural sex irrational, indefensible and manifestly arbitrary.

Here are some key parts of the judgment from the Justices who struck down Section 377 as being violative of right to equality.

Chief Justice of India Dipak Misra:

• Societal morality cannot trump constitutional morality. Societal morality cannot overturn the fundamental rights of even a single person.
• Section 377 is irrational, indefensible and manifestly arbitrary
• Bodily autonomy is individualistic. A matter of choice and is part of dignity.
• The LGBTQ community needs the rainbow of hope for the sake of the humanity. They should be allowed to live with dignity and without pretense. This is their journey to dignity, equality and liberty.
• It is time to bid adieu to prejudicial perceptions deeply ingrained in social mindset. Time to empower LGBTQ community against discrimination. They should be allowed to make their choices.
• Sexual orientation is biological, innate. She or he has no control over who they get attracted to. Any repression will be a violation of free expression.

Justice R.F. Nariman:

• The Yogyakarta Principles animates Article 14. Homosexuals have a fundamental right to live with dignity, are entitled to be treated as human beings and imbibe the spirit of fraternity
• Government officials, police, to be given periodic sensitisation campaigns

Justice J. Chandrachud:

• 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, Justice Chandrachud says, Shadows of a receding past controls the quest of LGBTQ for fulfillment.
• 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,"
• Decriminalisation of homosexuality is only the first step.
• LGBTQ possess full range of constitutional rights, including sexual orientation and partner choice, LGBTQ has equal citizenship and equal protection of laws.

Justice Indu Malhotra:

• Society owes an apology to the LGBTQ community for the years of stigma imposed on them.

Published - September 06, 2018 02:39 pm IST