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Supreme court verdict on section 377 – alc’s description of the event

In the captivating campus of Asian Education Group, Asian Law College organized a group discussion session on 4th October 2018 in regards to the landmark judgment pronounced by the honorable Supreme Court of India over section 377 of Indian Penal Code. Students of all the batches of BALLB & LLB were divided into various groups and asked to move to respective classes for discussion. Further the students initiated the activity by reading the actual text of legal provision as Section 377 which was introduced by Lord Macaulay in 1860 as a part of Indian Penal Code. Plain reading of the provision make it clear about its applicability such as Unnatural offences: Whoever voluntarily has carnal intercourse against the “order of nature” with any Man, Woman, and Animal shall be punished with imprisonment for life, or imprisonment of either description for a term which may extend to ten years, and shall also be liable to fine.

The students began the discussion by highlighting the historical background of legal provision. The moment to repeal section 377 among consenting adults was initiated by Bhedbhav Virodhi Andolan back in 1991. As the case continued to be unresolved and was revived in Suresh kumar kaushal v Naz Foundation in this case where the NGO took initiative and filed a PIL seeking legalization of section 377 among consenting adults. They contended that the law violates Article 14 of the Constitution, which guarantees all people “equality before the law and equal protection of law”. Article 15 which prohibit discrimination on the grounds of religion, race, caste, sex or place of birth Article 21, which guarantees Protection of life and Personal liberty. Honorable High Court of Delhi dismissed the PIL. The NGO struggled and filed review petition again the plea for review was also rejected. Further the Activist approached the Supreme Court against the order of High Court.

The Apex court considered the PIL and sent it back to the High Court Stating that Naz Foundation has the standing to PIL and to consider the case on merit basis. Subsequently there was great intervention in the case by Delhi High Court and stated section 377 of IPC stands decriminalized. In 2013 two judges bench reversed the High Court’s 2009 decision. The thoughtless judgment of two judge bench re-criminalized the provision of section 377.   The flood to hold up for the right to be oneself started out, as a trickle in a fight for access to healthcare for marginalized gay and transgender people. The prominence of identity has been expressly stated in National Legal Services Authority v. Union of India popularly known as NALSA case, wherein the Court was dwelling upon the status of identity of the transgender. The case of NALSA emphasized on the Privacy of the individual having been put on such a high pedestal and sexual orientation. Section 377 cannot be construed as a reasonable restriction as that would have the potentiality to destroy the individual autonomy and sexual orientation. Justice Radhakrishnan after referring to catena of judgments and certain International Covenants, stated that gender identity is one of the most fundamental aspects of life which refers to a person‘s basic sense of being male, female or transgender or transsexual person.  We have noticed that as the Judicial battle Continued, the world around and within us has also changed. In one of the hearings on section 377, Former Chief Justice of India Dipak Misra observed that the ban on gay sex may soon be disappeared “We intend to rule, subject to arguments, that two accepting adults even if engaged in ‘unnatural sex’ will not be liable for prosecution for any offence.” Different identities are now recognized and so are different realities.

Further the discussion extended by highlighting the latest pronouncement of Supreme Court. Last several days have been awash in rainbow ensign and joyousness following the Supreme Court’s landmark verdict relating to the application of Section 377 of the Indian Penal Code in the case of Navtej Singh Johar v Union of India to overturn the 150-year-old law that criminalized the homosexuality, the SC opened the door to a larger image of human rights involving the right to make a choice and live with dignity without fear and discrimination in the famous case. Former Chief Justice Dipak Misra remarked that punitive laws eroded the “right to choose without fear” a partner and realize “a basic right to companionship”.

On the other hand students moreover discussed about the cons of the landmark judgment mentioning that our Country India is rapidly changing, we are thriving in almost all the fields. On a daily basis there are happenings which make us proud and they certainly are more than ugly events occurring in our country. It does not matter how much we improve on ourselves, it really doesn’t matter unless the ground reality changes. The concept that people are born divinely ordained into social classes that are then finely ranked in status is distinctive to the subcontinent. In a country where people yet do not accept inter-caste/ or inter-religion marriages it is quite difficult to make them understand the rights of LGBT community people.

To summarizing, the above stated judicial pathway students analyzed that it is very much apparent that two-decade-old legal fight will not only result in the decriminalization of sex between consenting adults and remove the social and legal stigma attached to lesbian, gay, bisexual, transgender and queer persons, but also evolve constitutional jurisprudence on equality, non-discrimination and minority rights. The initiatives taken by the Honorable Apex Court is been appreciated and faith in the judicial system has been retained by the larger number of people throughout the country. It has not only provided justice to one community rather has made tremendous contribution as being the guardian and protector of the fundamental rights.

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