BREAKING: SC Strikes Down 157 Year Old Law Criminalizing Consensual Homo-Sexual Acts Between Adults; Holds Section 377 IPC Unconstitutional To That Extent [Read Judgment]

In a landmark Judgment Supreme Court of India has struck down 157 year old law which criminalizes consensual homo sexual acts between adults. The Five Judge Bench has declared Section 377 IPC unconstitutional, insofar as it criminalises consensual sexual acts of adults in private.Chief Justice Dipak Misra said it is a unanimous verdict expressed through four separate but concurring judgments."Section 377 IPC is irrational , indefensible and arbitrary.The majoritarian views and popular morality cannot dictate constitutional rights"As per the Judgment of CJI and Justice Khanwilkar Section 377 is unconstitutional, to the extent it criminalizes consensual sexual acts between adults, whether homosexual or heterosexual. However, bestiality will continue as an offence.The 2013 SC judgment in Suresh Kumar Koushal case was overturned by the Constitution Bench. Majoritarian Morality Cannot Dictate Constitutional MoralityThe judgment of Chief Justice Dipak Misra and Justice Khanwilkar was emphatic in stating that constitutional rights cannot be dictated by majoritarian views and popular morality. Majoritarianism was held to be constitutionally untenable."Constitution is a dynamic document, having the primary objective of establishing a dynamic and inclusive society", said the judgment.The Chief's judgment further noted that it was time to bid adieu to prejudicial perceptions deeply ingrained in social mindset and to empower the LGBT community against discrimination.Identity & AutonomyThe judgment of CJI Misra and Justice Khanwilkar touched upon the aspects of identity and autonomy of individual. Sexual orientation was treated as an expression of identity, protected under fundamental right to freedom of speech and expression. The judgment also noted that sustenance of identity was the essence of existence."Sexual orientation is natural. Discrimination on the basis of sexual orientation is violation of freedom of speech and expression", noted the judgment.It was also stated that bodily autonomy of an individual was to be constitutionally protected. A person should be able to share intimacy in private with a person of his choice; that forms part of his right to privacy.Homosexuality not a mental disorderThe judgment of Justice R F Nariman held that homosexuality was not a mental disorder. He referred to the latest Mental Healthcare Act passed by the parliament, which recognized homosexuality as a normal condition. Justice Nariman also added that homosexuals have the right to live with dignity. Justice Nariman urged the government to give wide publicity to the order to counter the stigma associated with homosexuality.The Suresh Kumar Koushal judgment was held to be no longer a good law in view of the judgments in NALSA case and Puttaswamy judgment.Tragedy inflicted by Section 377The judgment of Justice Chandrachud touched upon the tragedy and anguish inflicted by Section 377."Section 377 has travelled so much that it has been destructive to LGBT community. It has inflicted tragedy and anguish, which are to be remedied", stated his judgment.He also observed that human sexuality cannot be confined to a binary.Justice Chandrachud also added that the case was not just about decriminalising Section 377 IPC, and was about recognizing the rights of LGBT community.Historical wrongs apologized.Justice Indu Malhotra said that history owed an apology to LGBT community for the persecution and ostarcism imposed by Section 377.The Constitution Bench comprising Chief Justice Dipak Misra and Justices RF Nariman, AM Khanwilkar, DY Chandrachud and Indu Malhotra reserved judgment on July 17, after four days of hearing. The Court expressed that it will examine whether its is permissible under Constitutional morality to criminalize sexual acts performed by consenting adults.Senior Advocates Mukul Rohatgi, Aravind Datar, Shyam Divan, CU Singh, Anand Grover and Advocates Menaka Guruswamy, Saurabh Kirpal and Jayna Kothari argued for various petitioners and intervenors.Although the Delhi High Court had struck down the provision in 2009, it was revived by the Supreme Court in 2013 in a widely criticised judgment by a Division Bench of Justice G S Singhvi and Justice S J Mukhopadhyaya.However, the issue resurrected in July 2016, when a fresh petition filed by well-known persons, including dancer N.S. Johar, journalist Sunil Mehra, chef Ritu Dalmia, hotelier Aman Nath and business executive Ayesha Kapur, was referred to Constitution Bench by a Division Bench headed by Justice Bobde. The reference was made on the basis of submission that it was the first time that individuals directly affected by the provision were approaching the Court.The SC judgment in privacy case noting that 'sexual orientation' was a facet of privacy right, brought in a fresh perspective to the issue. The four-day long marathon hearing had witnessed engaging submissions by a battery of lawyers."Section 377 violates Part III (of the Constitution)...right to life includes the...

BREAKING: SC Strikes Down 157 Year Old Law Criminalizing Consensual Homo-Sexual Acts Between Adults; Holds Section 377 IPC Unconstitutional To That Extent [Read Judgment]

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