Team  SoOLEGAL

How Supreme Court’s Section 377 approach took a 180° turn

Team SoOLEGAL 9 Jan 2018 10:16am

How Supreme Court’s Section 377 approach took a 180° turn

On Monday, The SC decision to review its own four-year-old verdict criminalising consensual sexual relationship in private between adults of same gender was triggered five months ago, when a 9-judge bench had ruled that the LGBTQ community members' sexual orientation had an inseparable relationship with their fundamental right to privacy. In the unanimous verdict declaring right to privacy as part of right to life, Justice D Y Chandrachud, who authored the main judgement for the 9-judge bench, was joined by Justice Sanjay Kishan Kaul in declaring that the Supreme Court’s 2-judge bench had erred in December 2013 by upsetting a Delhi High Court's 2009 judgement decriminalising Section 377, which punished same sex relationship in private between adults.

Times View

We have consistently maintained that the state has no role to play in determining people's sexual preferences. As long as it is consensual it should not matter whether it is between people of the same gender or of different genders. The law should stay out of it once it is established that there is no coercion involved. If Section 377 is read down by the court to reflect such a liberal approach, that would be welcome. But even better would be for the legislature to make it clear in the language of the law itself that all consensual sex is outside the ambit of this section.

The Nine-judge bench had scythed through the logic in the 2013 judgement in Suresh Kumar Koushal v NAZ foundation saying it was in conflict with the LGBT community's claim based on right to privacy, entrenched in right to life guaranteed under Article 21 of the Constitution.

Section 377   Supreme Court Decision   fundamental right to privacy   LGBTQ community   Article 21  

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