Section 377 verdict: What the five judges said in Supreme Court

Aaron Brown
September 6, 2018

In a landmark Judgment Supreme Court of India has struck down 157 year old law which criminalizes consensual homo sexual acts between adults. This Bench ripped apart the December 2013 judgment. The bench heard various stakeholders for four days in July, including gay rights activists.

Justice Nariman said, "If you license prostitution, you control it. All prohibition is wrong".

The gay community has the same right in India as any ordinary citizen, the Supreme Court ruled on Thursday ending a draconian British-era law that criminalised gay sex and heralding a new, bright era for gay rights in the country.

"History owes an apology to members of the community for the delay in ensuring their rights. section 377 will, however, continue to govern non-consensual sexual acts, carnal intercourse with minors and acts of bestiality".

Objecting to the observation of the two-judge bench in Suresh Kumar Kaushal, Senior Advocate Arvind Datar had advanced, "it is logically wrong to say that since the Parliament, despite the recommendation of the Law Commission in its 172nd Report, has chosen not to delete section 377, it is constitutional..."

The apex court had asserted that courts can not wait for a "majoritarian government" to decide on enacting, amending or striking down a law if it violates fundamental rights.

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Taking note of the Centre's submission that other issues like gay marriages, adoption and ancillary civil rights of LGBTQ community should not be dealt, the court said it was not considering all these issues.

"We would not wait for the majoritarian government to enact, amend or not to enact any law to deal with violations of fundamental rights", the bench had said while reserving its verdict.

Two years ago, a petition was filed by dancer N S Johar, journalist Sunil Mehra, chef Ritu Dalmia, hotelier Aman Nath and business executive Ayesha Kapur who said that Section 377 violated their right to privacy and personal liberty.

A panel of five judges issued a unanimous judgment striking down the provision and affirming the right to equality and dignity. "You can not impose your sexual orientation on others without their consent", the top court had said. The Centre in its reply said it was leaving it to the wisdom of the Supreme Court to decide if Section 377 was constitutionally valid.

The Constitution Bench hearing in the Section 377 case began on July 10, with Justice Chandrachud orally observing that a person's choice of a partner is a fundamental right to life, and a "partner" includes same sex partner.

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