Section 377: Supreme Court Renders Archaic Law Unconstitutional In Historic Verdict

Sep 06, 2018, 13:00
Section 377: Supreme Court Renders Archaic Law Unconstitutional In Historic Verdict

The erstwhile Section 377 defines "unnatural offences" and prescribes the punishment for it.

"Section377 is arbitrary. The LGBT community possesses rights like others".

"Social morality can not violate the rights of even one single individual", said CJI Misra and Justice Khanwilkar. Respect for each other's rights and others are supreme humanity, observed the bench unanimously, while saying that right to live with dignity is right.

The 2009 verdict on Section 377 by the Delhi Court was delivered after an NGO, Naz Foundation, had filed petitions challenging the Section 377 which criminalises gay sex.

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Justice Rohinton Nariman taking note of Justice Chandrachud's observations during the July 17 hearing had said that prohibitions have never resolves any social issue. "We have to demand our rights", said Kaushik Gupta, a lawyer-activist.

In the hearing, the government chose to remain neutral on the legality of Section 377, leaving the decision entirely to the wisdom of the Supreme Court.

"The law had become a weapon for harassment for the LGBT community", Chief Justice Dipak Misra said as he announced the landmark verdict.

As The Wire has reported before, Section 377 has seen several challenges in the past, including one that was temporarily successful.

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He also said that Any discrimination on basis of sexual orientation amounts to a violation of fundamental rights. Twenty-four years later, the Supreme Court has indicated that it may do away with the criminality clause against consenting adults. "What is unnatural? It can be between a man and man and also between a man and a woman".

"Any consensual sexual relationship between two consenting adults-homosexuals, heterosexuals or lesbians - can not be said to be unconstitutional", said the Chief Justice of India, Dipak Misra, as he read out the judgement.

The court heard arguments about how history has changed its view on homosexuality from pathological prejudice to a "normal and benign variation of human sexuality".

This high court judgement was overturned in 2013 by the apex court which also dismissed the review plea against which the curative petitions were filed which are pending. In July 2009, the Delhi high court de-criminalised gay sex.

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The writ petitions were opposed by Apostolic Alliance of Churches and Utkal Christian Association and some other NGOs and individuals including Suresh Kumar Kaushal.

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