Section 377: Supreme Court rules in unanimous judgment; renders archaic law unconstitutional

The court said that sexual orientation of an individual is natural and discrimination on the basis of sexual orientation is a violation of Freedom of Expression.

By BusinessToday.In  
Thursday, September 6, 2018

In a historic decision, the Supreme Court ruled on Wednesday that homosexuality is not an offence. A five-judge bench headed by CJI Dipak Misra heard a bunch of seven petitions on the constitutionality of Section 377. The bench also comprised Justices Fali Nariman, A M Khanwilkar, D Y Chandrachud and Indu Malhotra. All the judges concurred.

CJI Misra observed, "No one can escape from their individualism. Society is now better for individualism. In the present case, our deliberations will be on various spectrums." "I am what I am. So take me as I am. No one can escape from their individuality," he said.

The bench then ruled that gay sex is legal. CJI Misra and Justice AM Khanwilkar said that consensual sexual relations between same gender adults in private does not fall foul of Section 377 IPC.

Supreme Court also invoked Freedom of Expression in its judgment. "Sexual orientation of an individual is natural and discrimination on the basis of sexual orientation is a violation of Freedom of Expression," the court said.

The CJI also observed that certain sections of our society have been living in shackles of exclusion. "Have to vanquish prejudice and embrace inclusion and ensure equal rights. Prejudices are deeply ingrained in society," he added.

Calling Section377 arbitrary the Supreme Court said majoritarian views cannot dictate constitutional rights. "LGBT community possess human rights like all other sections of society. Equality is essence of constitution. 377 is arbitrary," the apex court said.

Justice Fali Nariman said that homosexuals are entitled to live in dignity and that the Section 377 is so far from it that it criminalises same-sex intercourse.

The CJI said, "We have to fester tolerance and peaceful coexistence, we have to respect them who they are and not ask them to be who they aren't. Leading a life without pretence, freedom will be fulfilled where LGBT community possess equal rights."

(Edited by Anwesha Madhukalya)

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