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-Radhika maheshwari

The Supreme Court of India today restored a landmark Delhi High Court judgement which had decriminalised homosexuality.

In January this year, the Supreme Court said that it will reconsider its 2013 judgment in Suresh Kumar Koushal, (Suresh Kumar Koushal & Ors. v. Naz Foundation & Ors) wherein it had upheld the constitutionality of Section 377 of the Indian Penal Code, which criminalises homosexuality.

In a 2016 petition filed by five persons challenging Section 377, the Court issued notice to the Centre and referred the matter to a larger Bench.

The matter was heard by a Constitution Bench of Chief Justice of India Dipak Misra and Justices Rohinton Fali Nariman, AM Khanwilkar, DY Chandrachud and Indu Malhotra.

Senior Advocate Mukul Rohtagi appeared on behalf of the lead petitioner, Navtej Singh Johar, while Senior Advocate Anand Grover represented petitioners Arif Jafar, Ashok Row Kavi and intervenor Naz Foundation.

A five-judge Constitution bench gave the verdict on a bunch of petitions to scrap the law. The Chief Justice, while reading out the verdict said criminalising gay sex is irrational and indefensible.

The supreme court passed the judgement and said,

  1. “Section 377 was a weapon to harass members of LGBT community, resulting in discrimination.”
  2. “Section 377 is arbitrary. LGBT community possess rights like others. Majoritarian views and popular morality cannot dictate constitutional rights.”
  3. “No one can escape from their individualism. Society is now better for individualism. In the present case, our deliberations will be on various spectrums”
  4. “Autonomy of an individual is important. He or she can not surrender it to anyone”
  5. “Homosexuality is not a mental disorder”

Section 377 refers to ‘unnatural offences’ and says whoever voluntarily has “carnal intercourse against the order of nature with any man, woman or animal”, shall be punished by up to 10 years in jail under the 1861 law. Although prosecution under Section 377 is not common, gay activists say the police use the law to harass and intimidate members of their community.

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