Decriminalisation of Section 377: 5 Must Reads

On September 6th, the five-judge Bench partially struck down Section 377 of the Indian Penal Code, decriminalising same-sex relations between consenting adults. LGBT individuals are now legally allowed to engage in consensual intercourse. The Court has upheld provisions in Section 377 that criminalise non-consensual acts or sexual acts performed on animals.

Chief Justice Dipak Misra, Justice Rohinton Nariman, Justice DY Chandrachud and Justice Indu Malhotra authored four concurring judgements. Read the full judgment here.

• CJI Misra’s judgement (on behalf of himself and Justice Khanwilkar)
• Justice Nariman’s judgement
• Justice Chandrachud’s judgement
• Justice Malhotra’s judgement

Here are some opinion pieces which examines the judgment and the general struggle of the LGBT community.

1. Section 377: A Greater Transformation  –  Writing in The Hindu, Arvind Narain praises the judgment for explicitly stating that the  “the purpose of having a constitution is to transform society” to “embrace therein” the “ideals of justice, liberty, equality and fraternity”. The mandate to transform society in allegiance to the Constitution is a task vested in the state, the judiciary and the citizen.
2. The Supreme Court trans-formed – Jayna Kothari writes  in The Hindu that the Navtej Johar judgment holds special significance for transgender rights as Section 377 was used disproportionately against transgender persons.
3. Section 377: Whose Concerns Does The Judgment Address? – Writing in EPW,  Saptarshi Mandal strikes a discordant note by arguing that the outside the debate on act and identity,  the judgment doesnot frame Section 377 as a tool of harassment, extortion, illegal arrest, detention and violence employed by the police against queer persons.
4. What next after Sec. 377? – Ashok Row Kawi  warns the ” the hitherto invisible citizen”, (LGBT community) of  a difficult journey in negotiating civil life through the maze of legal barriers that the State has set up.
5. Section 377: Drawing a curtain on the Past – Writing in The Hindu, Suhrith Parthasarthy argues that in striking down Section 377, the Supreme Court has recognised the Constitution’s extraordinary transformative power.