Abolition of ‘Section377’: A historic judgement

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“Knowledge will give you power, but character respect.”

– Bruce Lee


Homosexuality is no longer a crime in India. Yes, that’s the final verdict! On Thursday, the Supreme Court partially struck down the British-era law which criminalised consensual homosexual sex in India. While reading his judgment on Section 377 of the IPC, Chief Justice of India Dipak Misra noted, “I am what I am. So take me as I am. No one can escape from their individuality”. CJI Dipak Misra, Justices RF Nariman, DY Chandrachud and Indu Malhotra pronounced separate but concurrent judgements. Justice Indu Malhotra, the lone woman judge in the five-judge bench, said, “History owes an apology to those people persecuted by Section 377.” In its 493-page judgment written by the eminent judges, the apex court has acknowledged that there is a problem in the way Lesbian, Gay, Bisexual and Transgender (LGBT) persons are treated in society. It tells queer people that they have been right all along, and that their fight has been a vital and important one. Decriminalising homosexuality and abolishing ‘Section377’ is a huge thumbs up for humanity and equal rights! It is a huge victory for civil rights and the LGBTQ community as the Constitution Bench of the SC unanimously read down Section 377 of the IPC and at the same time recognised the sexual rights of the LGBTQ community and provided legal protection to homosexuality. The issue had been debated for years with the legal process itself taking several twists and turns. In 2009, the Delhi high court had decriminalised homosexuality by finding Section 377 of IPC violative of the Constitution.

Needless to say there is opposition to homosexuality and same-sex marriage from all quarters. Section 377 doesn’t let people accept themselves. A study spanning 19 states by the Delhi-based Centre for the Study of Developing Societies (CSDS) in 2016 found strong views against homosexuality, but revealed some interesting trends: 61% of the respondents thought love between two men or two women was wrong. This judgment one hopes will remove stigma from society and help people embrace themselves. These hopes are shared by millions of people belonging to the LGBT community. Central to the Supreme Court’s reading down of Section 377 is the connection between legal decision and social attitudes. The verdict reminds us of the vision of the father of Indian constitution Dr BR Ambedkar, who fought for the primacy of constitutional morality over social morality, for the safety of the individual. The same is apparently reflected CJI’s argument, when he said, “Societal morality cannot trump constitutional morality. Societal morality cannot overturn the fundamental rights of even a single person.” The bench, while striking down key clauses of Section 377, decided to retain only sexual activity with animals and other such acts under the definition of “unnatural sex”.

The end of section 377 is the culmination of a long struggle that activists, lawyers, academics, non-government organizations (NGOs), and the corporate world have been engaged in since the 1990s. The verdict comes on five petitions moved by dancer Navtej Jauhar, journalist Sunil Mehra, chef Ritu Dalmia, hoteliers Aman Nath and Keshav Suri and business executive Ayesha Kapur. The judgment is the first in the series of the ten important judgments that the Chief Justice of India will be a part of before his retirement on October 2. The BJP-led NDA government should now accept this.

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