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Section 377: History owes an apology to LGBT community for ostracisation, discrimination: Justice Indu Malhotra

Sep 6 (AZINS) The Supreme Court on Thursday delivered one of its most landmark judgements yet when it amended Section 377 of the Indian Penal Code.

The 493-page judgement was written by four judges headed by Chief Justice of India Dipak Misra. While CJI's verdict was 166 pages, Justice Nariman filed a 96-page judgment, Justice DY Chandrachud filed a 181-page judgement, and Justice Indu Malhotra's judgement was 50 pages.

Slamming petitioner Suresh Kumar Kaushal's views that gay sex should be criminalised as 'impermissible', the Supreme Court said that the primary objective of a having a Constitutional society was to transform society progressively. "Constitutional provisions should not be interpreted in literal sense, Supreme Court," the bench said.

Here are the highlights of each judge

CJI Dipak Misra

Sans identity the name only remains a plain factor. Emphasis is laid on the identity of a person. The sustenance of identity is the pillar of life.

Denial of self-expression is like death

Certain sections of our society have been living in shackles of exclusion. Have to vanquish prejudice and embrace inclusion and ensure equal rights. Prejudices are deeply ingrained in society.

We have to fester tolerance and peaceful coexistence, we have to respect them who they are and not ask them to be who they aren't.

Sexual orientation is one of many biological phenomena. It is natural, and no discrimination can exist. Any violation is against freedom of speech and expression.

Justice Nariman

Justice Rohinton Nariman places extensive reliance on foreign jurisprudence including recent judgment from Trinidad and Tobago.

Justice Rohinton Nariman says one feature of his judgment is reliance on Mental Healthcare Act as per which Parliament has recognised that homosexuality is not a mental disorder.

Justice Chandrachud

Gays, Lesbians, Bi-sexual and Transgenders have equal rights as other citizens

This case is much more than just decriminalising a provision. It is about an aspiration to realise Constitutional rights and equal existence of LGBT community as other citizens.

To deny LGBT community of their right to sexual orientation is a denial of their citizenship and a violation of their privacy. They cannot be pushed into obscurity by an oppressive colonial legislation.

Treatment of homosexuality as a disorder/ disease has a severe impact on mental health of such persons.

Decriminalisation is but the first step; the Constitution envisages much more. Constitutional morality and not societal morality should be the driving force for deciding validity of Section 377

LGBT community entitled to equal citizenship, equal rights under the Constitution.

Justice Indu Malhotra

History owes an apology to LGBT persons for ostracization, discrimination.

Fundamental rights are available to LGBT persons regardless of the fact that they constitute a minority.

Section 377 violates the right to life and liberty guaranteed by Article 21 which encompasses all aspects of the right to live with dignity, the right to privacy, and the right to autonomy and self-determination with respect to the most intimate decisions of a human being.

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