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Supreme Court of India Rewrites the History of LGBT Community Decriminalizing Homosexuality Under Section 377

Overturning the historical discrimination towards the LGBT Community, India, Supreme Court finally made the amendment under Section 377, decriminalizing gay sex and ensuring that each sexual orientation will be respected throughout the nation.

The recent Judgment passed by the Supreme Court in the matter of the validity of Section 377 of IPC that criminalizes the Homosexual acts between adults has struck down the 157-year-old law. 
The Judgment was passed by the 5 judge bench comprising of the Chief Justice of India Dipak Mishra, Justice Indu Malhotra,  Justice DY Chandrachud, Justice R.F. Nariman and Justice AM Khanwilkar.

CJI Dipak Mishra said that the judgment was passed with the unanimous opinion of the four separate judgments that came on the same conclusion. He also stated that “Discrimination on sexual orientation is the violation of freedom of speech and expression”. 

The recent Judgment held section 377 of IPC unconstitutional, but it will still be in effect if an action takes place against the adults in non-consensual sexual acts and all carnal and acts of bestiality against minors stated Justice Indu Malhotra. She, in her separate judgment, said that “ History owes an apology to the LGBT community for the delay in providing the redressal of the discrimination and pain they have suffered in the society through the centuries.

Justice DY Chandrachud and Justice Nariman in their concurring judgment said, “Human sexuality cannot be confined to a binary. Section 377 has travelled so much, that it has been destructive to LGBT identity”. This has forced the LGBT community to live their lives in hiding their identity from the society and always living as a second-class citizen.
Justice Nariman was of the view that, “Homosexuality cannot be regarded as a mental disorder, gays to have the right to live their life with dignity”. 

Sexual orientation is not a matter of choice. Further, the Justices were of the view that sexuality is not something that someone creates on their own. It is the result of nature and nurture. Treating someone differently on the basis of their sexuality is the violation of Articles 14, 15,19 and 21. 

These people of LGBT community are left with a little or sometimes with no choice to live with the partners of their choice. Whereas, section 377 also criminalized them from choosing a partner and having sexual relations with them.

Further, Justice Malhotra overruled two-judge bench judgment in the case of Suresh Kumar Kaushal Vs. Naaz Foundation. Now, India is one of those countries where homosexuality is not considered as illegal. 

Hence, the day turned out to be a big day for the LGBT community. 


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Reviewed by:
Jyoti Yadav
Published on 07-Sep-18

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