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Section 377 of the Indian Penal Code imposes criminal liability on anyone who “voluntarily has carnal intercourse against the order of nature”. When the abovementioned Section was challenged in the Supreme Court of India, the Court decided to de-criminalise specific conduct as indicated in the following analysis, and the decision was hailed as a landmark precedent. By issuing this decision, the Supreme Court reaffirmed its commitment to keeping up with changing circumstances and public opinion.


On January 8, 2018, a writ petition was filed at the Supreme Court before a three-judge bench. The petitioners pleaded that the "right to sexuality," "right to sexual autonomy," and "right to choose a sexual partner" be declared to be part of the right to life provided by Article 21 of the Indian Constitution. The petitioners also asked for Section 377 of the Indian Penal Code to be declared illegal. The Apex Court's three-judge bench concluded that the matter needed to be heard by a larger panel. As a result, when the petition was transferred, our Supreme Court's learned five judges struck down Section 377 inasmuch as it criminalised consensual sex.


The fundamental question in the case was whether the non-recognition and consequent denial of expression of choice under Section 377 was in violation of the ruling in Suresh Kumar Koushal & Anr. v. Naz Foundation & Ors.


When the writ petition was first presented by dancer Navtej Singh Johar, before the threejudge bench, the bench referred to the Suresh Koushal case in which the Supreme Court overturned the Naz Foundation judgement. The three-judge bench felt that there were a lot of aspects to be considered regarding Section 377- determination of “order of nature”, social morality, rights of sections of people, constitutional foundations, consenting adults, etc. Thus, the judges deemed the case fit to be considered by a larger bench. Considering the petitions and examining the same through various aspects, the learned fivejudge bench of the Apex Court gave its judgement in favour of the petitioner and unanimously held that Section 377 was unconstitutional as far as it criminalized consensual sex between two adults of same or different sex. As the judgement was given by a five-judge bench, it is a binding precedent on all courts in India.


As a result, the Supreme Court's decision to decriminalise consensual sexual activities between two adults, regardless of gender or sexual orientation, was correct. The Court's decision to keep bestiality, sex with minors, and non-consensual sexual conduct within the scope of Section 377 was likely to close any loopholes or abuses of the legislation. As a result, the Court reversed Suresh Kumar Koushal's decision. After suffering at the hands of society and family and being labelled as "untouchables," it was past time for our Supreme Court to embrace a progressive and open mentality and accept the LGBT community as a legitimate component of Indian society.


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