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Key Parts Of The Supreme Court’s Verdict That Decriminalised Section 377

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The Supreme Court of India on September 6 struck down colonial-era law that bans consensual sex between same-sex individuals. Striking down Section 377 of the Indian Penal Code, five-judge constitutional bench in a unanimous judgment noted that the law was ‘irrational, indefensible and manifestly arbitrary’.

Chief Justice Of India Dipak Misra-led bench comprising of Justices R.F. Nariman, A.M. Khanwilkar, D.Y. Chandrachud and Indu Malhotra, passed an historic verdict and put an end to a long battle for rights of LGBTQ+ community. In their judgments, justices made some very progressive remarks reaffirming the faith in the judicial system of the country. CJI has asked the government to publicise the judgment so that a behavioral change in the society can be brought.

Here are the highlights of the judgments( CJI and Justice Khanwilkar noted their judgment in the same draft):

CJI and Justice Khanwilkar

1. A person belonging to the LGBTQ+ community does not become an alien to the concept of individual and his individualism cannot be viewed with a stigma.
2. The purpose of having a Constitution is to transform the society for the better and this objective is the fundamental pillar of transformative constitutionalism.
3. The freedom that is required to be attached to sexuality still remains in the pavilion with no nerves to move. The immobility due to fear corrodes the desire to express one‘s own sexual orientation as a consequence of which the body with flesh and bones feels itself caged and a sense of fear gradually converts itself into a skeleton sans spirit.
4. In the garb of social morality, the members of the LGBT community must not be outlawed or given a step-motherly treatment of malefactor by the society. If this happens or if such a treatment to the LGBT community is allowed to persist, then the constitutional courts, which are under the obligation to protect the fundamental rights, would be failing in the discharge of their duty. A failure to do so would reduce the citizenry rights to a cipher.
5. We must not forget that the founding fathers adopted an inclusive Constitution with provisions that not only allowed the State, but also, at times, directed the State, to undertake affirmative action to eradicate the systematic discrimination against the backward sections of the society and the expulsion and censure of the vulnerable communities by the so-called upper caste/sections of the society that existed on a massive scale prior to coming into existence of the Constituent Assembly.

Justice J. Chandrachud

1. Tragedy and anguish inflicted by Section 377 should be remedied.Macaulay’s legacy exists 68 years after the coming of a liberal Constitution. Human instinct to love has been constrained. Sexual orientation has become a reason for blackmail on the Internet.
2. Sexuality must be construed as a fundamental experience through which individuals define the meaning of their lives.
3. “What is ‘natural’ and what is ‘unnatural’? And who decides the categorization into these two ostensibly distinct and water-tight compartments? Do we allow the state to draw the boundaries between permissible and impermissible intimacies between consenting adults?
4. “Section 377 is based on a moral notion that intercourse which is lustful is to be frowned upon.It does so, on the basis of a social hypocrisy which the law embraces as its own. It would have human beings accept a way of life in which sexual contact without procreation is an aberration and worse still, penal. It would ask of a section of our citizens that while love, they may, the physical manifestation of their love is criminal. This is manifest arbitrariness writ large.
5. LGBTQ possess full range of constitutional rights, including sexual orientation and partner choice, LGBTQ has equal citizenship and equal protection of laws.

Justice Indu Malhotra

1. History owes an apology to the members of this [LGBTQIA] community.
2. “Same-sex love is not a mockery of nature, but rather nature at play.To belong, not to the rule, not to the norm, but rather to the exception, to the minority, to the variety, is neither a symptom of degeneration nor of pathology,” she quoted Kurt Hiller’s speech.
3. The members of this [LGBTQ+] community were compelled to live a life full of fear of reprisal and persecution. This was on account of the ignorance of the majority to recognise that homosexuality is a completely natural condition, part of a range of human sexuality.
4. Homosexuality is a natural variant of human sexuality.

Justice R.F. Nariman

1. The fact that only a minuscule fraction of the country’s population constitutes lesbians and gays or transgenders, and that in the last 150 years, less than 200 persons have been prosecuted for committing the offence under Section 377, is neither here nor there.
2. homosexuality cannot be regarded as a mental disorder by taking recourse to the Mental Healthcare Act, as per which, the Parliament has recognised the same.
3. The Yogyakarta Principles animates Article 14. Homosexuals have a fundamental right to live with dignity, are entitled to be treated as human beings and imbibe the spirit of fraternity.
4. Government officials, police, to be given periodic sensitisation campaigns.

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Now as an MH Fellow with YKA, she’s expanding her impressive scope of work further by launching a campaign to facilitate the process of ensuring better menstrual health and SRH services for women residing in correctional homes in West Bengal. The campaign will entail an independent study to take stalk of the present conditions of MHM in correctional homes across the state and use its findings to build public support and political will to take the necessary action.

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As a Youth Ki Awaaz Menstrual Health Fellow, Nitisha has started Let’s Talk Period, a campaign to mobilise young people to switch to sustainable period products. She says, “80 lakh women in Delhi use non-biodegradable sanitary products, generate 3000 tonnes of menstrual waste, that takes 500-800 years to decompose; which in turn contributes to the health issues of all menstruators, increased burden of waste management on the city and harmful living environment for all citizens.

Let’s Talk Period aims to change this by

Find out more about her campaign here.

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