Supreme Court's decision on Section 377: Separate decision of 5 Judges

The Supreme Court pronounced the historic judgment by decriminalising Section 377 of the IPC on Thursday. In this petition, the views of judges of the five-judges constitutional bench were in this way:-

1. Chief Justice Deepak Mishra and Justice AM Khanvilkar

Both of these judges rely on NALSA's decision to outline the relationship between human rights and constitutional guarantee. From the way the NALSA's case is highlighted on the importance of identification, it also connects human rights and dignity and freedom of independence. Repeating this spirit, we must accept that the concept of identity which is constitutional, can not be seen only in the context of its orientation, because in such a situation anyone's personal choice can be kept out. At the centre of this hypothesis of identity is self-determination which is to understand the individual's own abilities.

In the case of Suresh Kaushal, the Supreme Court had overturned the Delhi High Court's decision and justified the constitutionality of section 377 of the IPC but such ideas do not have any place now.

Constitutional ethics is one of the most important qualities in which it has been assimilated. Promotion of pluralism and inclusive society. Constitutional morality expects from the parts of the state such as the judiciary that it will preserve diversity in the society and will not allow the small groups of low population to douse the majority groups on their rights and independence. Constitutional ethics cannot be sacrificed on the altar of social ethics. Only constitutional ethics can have placed under rule of law. Under the guise of social ethics, even the fundamental right of a person can not be allowed to be abrogated because the basis of constitutional ethics is the acceptance of diversity in the society.

Protection of the right to live with dignity

The right to live with dignity has been accepted as human rights. The constitutional court must preserve its right to the dignity of every person, because if the right to dignity is not there, then all other rights become meaningless. Science has put forward this fact that no person has any control over whom he may get attracted. If there is any discrimination against someone based on their sexual orientation, then it is the gross violation of their fundamental rights and freedom of expressions.

Fundamental rights are not just for the majority

Following the decision on Right to Privacy in Justice K. S. Puttaswamy (Retd.) and Anr. vs Union Of India And Ors, the fundamental rights have gone on a very high level. The decision that has been given in the Suresh Kaushal case is wrong because the framers of the Constitution had no intention to give the benefit of fundamental rights only to the very same part of the population which is the majority.

Regarding Section 377 Article 14 and 19

Section 377 of the IPC violates Article 14 and 19 of the Constitution. This section should be examined in the light of Article 14 and 19. There is a violation of article 14 on discrimination against the LGBT community. Section 377 of the IPC is in such a form today that even with the consent, cohabitation is a crime.

Article-19(1)(a): Section 377 places unreasonable restriction. Under Section 377, unrestricted restrictions for public goodness and morality are imposed on this community and after a border, ethics cannot be enlarged and this can not be the basis for restricting the fundamental rights of the LGBT community and limiting freedom of expression. In this way, Section 377 violates Article 19 (1) (a) in the present form.

The decision given in the Suresh Kaushal case is not conducive to the above-mentioned reference and therefore it is overruled.

2. JUSTICE NARIMAN

Homosexuals have the right to live a dignified life. People of this group have the right to get equal protection under the law and deal with human dignity in society. Section 377, which criminalizes sexual relations between homosexuals, is unconstitutional. In our opinion, the Union of India should use public media to publicize this decision from time to time in public, including TV, radio, print and online media. The Govt. officials will run the program to eventually end the stigma of such people.

3. JUSTICE CHANDRACHUD

i) Members of the LGBT community will be entitled to all rights of a citizen without discrimination, and they will get the equal protection of the law.

ii) Whom to partner to fulfil his sexual desire and there can be no discrimination against anyone on this basis.

iii) The LGBT community has the same constitutional rights that are available to other citizens.

iv) The decision given in Suresh Kaushal case is overruled.

4. JUSTICE INDU MALHOTRA

i) Section 377, which deals with establishing sexual relations with consent (the consent of persons above 18 years of age), contravenes Article 14, 15, 19, and 21 of the Constitution. This consent must be of free and voluntary in nature and there should be no duress or compulsion in it.

ii) Due to this decision on section 377, no such case will be opened in which the prosecution has been completed but if any case is at the hearing, appeal or review level, then it can be reassured in that context.

iii) Section 377 will be effective on non-consensual sexual relations with an adult, minor and animal.

iv) The judgement in the case of Suresh Kaushal &ors. v. the Naz Foundation is overruled.