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

Section 377 verdict: CJI Dipak Misra, Justices Rohinton F Nariman, A M Khanwilkar, D Y Chandrachud and Indu Malhotra gave four separate but concurring judgments.

By: Express Web Desk | New Delhi |
Updated: September 6, 2018 6:50:16 pm
Section 377 verdict: CJI Dipak Misra, Justices Rohinton F Nariman, A M Khanwilkar, D Y Chandrachud and Indu Malhotra gave four separate but concurring judgments.

In a landmark judgment Thursday, the Supreme Court overturned its previous order on Section 377 and decriminalised gay sex. A five-judge Constitution bench led by CJI Dipak Misra held that the 157-year-old colonial-era law will not apply to sex between consenting adults, irrespective of their gender. The section will, however, continue to apply to bestiality and sexual acts without consent and those involving a minor.

CJI Misra, Justices Rohinton F Nariman, A M Khanwilkar, D Y Chandrachud and Indu Malhotra gave four separate but concurring judgments.

Here is what they said:

CJI Dipak Misra and Justice Khanwilkar:

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“I am what I am. So take me as I am.”

“Identity pivotal…Sustenance of identity is filament of life…many sections continue to suffer exclusions due to stereotypes…we can’t call ourselves developed society unless they are freed from these shackles…LGBTQ community possesses same rights as others.”

“We have to vanquish prejudice, embrace inclusion, and ensure equal rights”

“Only Constitutional morality and not social morality can be allowed to permeate rule of law…Sexual orientation is one of the many natural phenomena…any discrimination on basis of sexual orientation amounts to violation of fundamental rights.”

“Discrimination on the basis of sexual orientation is violation of freedom of speech and expression.”

“Bodily autonomy is individualistic. Expression of intimacy is part of right to privacy.”

“Section 377 is arbitrary. LGBT community posses rights like others. Majoritarian views and popular morality cannot dictate constitutional rights”

“Section 377 to the extent it criminalizes sexual acts between consenting adults, whether homosexual or hetrosexual, is unconstitutional.”

Justice Nariman:

“Homosexuals have right to live with dignity. They must be able to live without stigma.”

He asked the government to give wide periodic publicity to judgement so that stigma is reduced and finally removed. Also calls for training for Govt officials to sensitise

Nariman refers to Mental Healthcare Act, 2017 and says Parliament also now alive like Court that homosexuality is not a disease

Justice Chandrachud:

“Human sexuality cannot be reduced to a binary formulation and decriminalising Section 377 is but a first step.”

Justice Chandrachud asks medical community to sensitise itself about rights of LGBTQ community. “Instead of trying to change what is not a disease, counsellors must wake up to these rights.”

“Who decides what is natural and what is unnatural? Can state be allowed to decide? Denial of right to sexual orientation is denial of privacy rights. Courts have task not to allow to push citizens lives into obscurity because of some colonial law”

“A colonial legislature made section 377 criminal…It is an anachronistic colonial law…It has confined a group of citizens to the margins..It rests on deep-rooted gender stereotypes.”

Justice Indu Malhotra:

“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.”

Section 377: Full text of the judgment

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First published on: 06-09-2018 at 01:11:31 pm
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