“The Beauty Of The Constitution Is That It Compels Us To Unlearn Our Prejudices”: Menaka Guruswamy Discusses The Section 377 Judgment
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“The Beauty Of The Constitution Is That It Compels Us To Unlearn Our Prejudices”: Menaka Guruswamy Discusses The Section 377 Judgment

Caravan Magazine |
September 10, 2018

On 6 September, in a landmark unanimous verdict, a five-judge bench of the Supreme Court partially struck down Section 377 of the Indian Penal Code to decriminalise sexual relations between consenting adults.


The provision had long been a tool of oppression used against the Indian queer community and its decriminalisation marked a momentous recognition of basic human rights in the country. In 2009, a bench of the then chief justice of the Delhi High Court AP Shah and Justice S Muralidhar ruled that the provision violated the right to equality and right to life in the Constitution. Four years later, on a petition filed by an astrologer, Suresh Kumar Koushal, a division bench of the Supreme Court, presided over by the justices GS Singhvi and SJ Mukhopadhaya, overturned the high court’s verdict, upholding the constitutionality of Section 377.

The Supreme Court’s 2013 verdict was challenged in a review petition, which was dismissed, and multiple curative petitions remained pending for years, till the apex court began hearing the case, in July this year. The bench, comprising the chief justice of India, Dipak Misra and the judges AM Khanwilkar, DY Chandrachud, Rohinton Nariman and Indu Malhotra, heard several petitioners, intervenors and respondents in the case before pronouncing its verdict in a nearly 500-page judgment. Four judges wrote separate and concurring opinions—Misra wrote on behalf of himself and Khanwilkar—reading down Section 377 and expounding on the fundamental rights to equality, liberty and a life with dignity for the queer community. Each opinion acknowledged the historic discrimination suffered by the community and emphasised that majoritarian values cannot defeat constitutional morality. “Society cannot dictate the expression of sexuality between consenting adults,” Chandrachud writes. “That is a private affair. Constitutional morality will supersede any culture or tradition.”

Credit by - Caravan Magazine

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