“A section of people or individuals who exercise their choice should never remain in a state of fear.” SC to revisit Section 377 Judgment.

The Supreme Court, on 8th January has taken up the decision to revisit the judgment given in the case of Suresh Kumar Koushal v Naz Foundation & Ors.

A three-judge bench headed by CJI Dipak Misra stated that Section 377 of the Indian Penal Code, which criminalizes homosexuality needed consideration. It further issued a notice to the Centre, seeking its response to the writ petition.

The Judgment was given in reference to a petition filed by a group of individuals from the LGBT community stating that they live in constant fear of police action because of their sexual preferences. The Hon’ble Bench observed that “A section of people or individuals who exercise their choice should never remain in a state of fear. Choice can’t be allowed to cross boundaries of law but confines of law can’t trample or curtail the inherent right embedded in an individual under Art 21 of Constitution.”

Further, it held that the “right to privacy and the protection of sexual orientation lie at the core of the fundamental rights guaranteed by Articles 14, 15 and 21 of the Constitution”.

While in the Naz Foundation case, the Hon’ble Supreme Court had held that That Section 377 IPC is gender neutral and covers voluntary acts of carnal intercourse against the order of nature irrespective of the gender of the persons committing the act. They pointed out that the section impugned in the writ petition includes the acts of carnal intercourse between man and man, man and woman and woman and woman and submitted that no Constitutional right vests in a person to indulge in an activity which has the propensity to cause harm and any act which has the capacity to cause harm to others cannot be validated.

The Court, in the present case referred the case to a constitutional bench, as it requires the consideration of a law.


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