Section 377 will soon be dead: Harish Salve

Kristopher Drake
January 9, 2018

A bench comprising Chief Justice Dipak Misra and Justices AM Khanwilkar and DY Chandrachud said the issue arising out of section 377 of the Indian Penal Code (IPC) required to be debated upon by a larger bench.

Endorsing a rethink on the law, the CJI observed, "Societal morality changes from age to age". It took effect October 10. "Morality that public perceives, constitution may not conceive of". "In a democracy, [the] police and the state have no business interfering in [the] personal choice of individuals".

Despite this setback for LGBTQ supporters, there are still many legal challenges waiting for the religious freedom law. This also has implications for heterosexuals, as consensual sexual acts of adults - oral and anal sex in private - are now treated as unnatural and punishable under Section 377 of the Indian Penal Code.

The petitioners who have filed the plea are Navtej Singh Johar, a Sangeet Natak Akademi Award-winning Bharatnatyam dancer, a senior journalist Sunil Mehra, a restaurateur Ritu Dalmia, and Aman Nath, founder of the Neemrana chain of hotels.

Section 377 has undergone many twists and turns ever since the Delhi High Court decriminalised it in 2009.


Salve was quoted by ANI as saying, " Section 377 is dead after the nine-judge bench which has said all these are dimensions of Right to Privacy. "A section of people or individuals who exercise their choice should never remain in a state of fear. What is natural for one may not be natural for the other". "The court has to examine [the] constitutional validity in considering whether the prohibition imposed on two adults accounts for violation of their freedom at the same time legitimising may amount to encouraging immorality", party MP Majeed Memon said. The court said that the matter would need to be considered by a larger bench.

"The court's inaction today means that LGBTQ Mississipians will continue to face harassment and discrimination", said Mason Davis, head of Freedom for All Americans, a bipartisan campaign to secure nondiscrimination protections for LGBTQ persons.

With the apex court deciding to revisit its decision on Section 377 on Monday, there is a renewed hope among the members of the LGBT community.

Section 377 of IPC - which came into force in 1862 - defines unnatural offences. "It is an archaic provision which has no place in 21st century India", he told reporters.

Other reports by Ligue1talk

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