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Supreme Court to Review Article 377 Governing LGBTQ

The Supreme Court of India had given verdict in December 2013, upholding criminalization of consensual gay sex. This judgement of Supreme Court had overturned a 2009 judgement of Delhi High Court which had decriminalized Section 377 of IPC. Delhi High Court had legally permitted consensual sexual relationship between adults of the same gender.

Now a bench of CJI Dipak Misra, Justice AK Khanwilkar and Justice DY Chandrachud have indicated that time has come to take a fresh look at this topic. Following aspects were highlighted:-

  • A section of people who exercise this choice should not remain in state of fear. Discrimination against an individual on the basis of sexual orientation is against the dignity and self worth of the individual.
  • Law should not curtail or temper right given in Article 21 (Right to life and personal liberty). Right of privacy and protection of sexual orientation are at the core of fundamental rights guaranteed by Article 14, 15 and 21.
  • Any restriction imposed on individual’s autonomy and choice must be in conformity with constitutional morality.
  • Social morality changes as per time. It is not a constant.
  • Individual’s sexual orientation is a part of right to privacy and right to life. Sexual orientation is an important attribute of privacy.

So Supreme Court has agreed to review its own decision of 2013. The guarantee of constitutional rights does not depend on being favourably regarded  by majoritarian opinion. Stage has been set for a constitutional scrutiny to find distinction between public perception of morality and constitutional rights.

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