THE GIST of Editorial for UPSC Exams : 7 September 2018(The right to love : on Section 377 verdict)

The right to love : on Section 377 verdict 

Mains Paper: 2 | Constitution 
Prelims level: Section 377
Mains level: The Supreme Court ruling on Section 377 furthers the frontiers of personal freedom 

Introduction

• The Supreme Court’s given landmark judgment decriminalising gay sex is that social morality cannot trump constitutional morality. 
• They have observed it is a reaffirmation of the right to love.
• In a 5-0 verdict, a Constitution Bench has corrected the flagrant judicial error committed by a two-member Bench in Suresh Kumar Koushal (2013), in overturning a reasoned judgment of the Delhi High Court reading down

Section 377 of the IPC.

• In 2013 decision meant that the LGBTQ community’s belatedly recognised right to equal protection of the law was withdrawn on specious grounds.
• The Parliament must act if it wanted to change the law against unnatural sex.
• The courts considered Section 377 earlier, the litigation was initiated by voluntary organisations. 
• When those affected by the 2013 verdict approached the Supreme Court, it was referred to a larger Bench to reconsider Koushal.

The historical development 

• Two landmark judgments took forward the law on sexual orientation and privacy and formed the jurisprudential basis for the latest judgment.
• In National Legal Services Authority (2014), a case concerning the rights of transgender people, the court ruled that there could be no discrimination on the basis of sexual orientation and gender identity. 
• In the ‘privacy case’, a nine-judge Bench ruled that sexual orientation is a facet of privacy, and constitutionally protected.
• Chief Justice of India Dipak Misra’s opinion lays emphasis on transformative constitutionalism, that is, treating the Constitution as a dynamic document that progressively realises various rights. 
• In particular, he invokes the doctrine of non-retrogression, which means that once a right is recognised, it cannot be reversed. 
• Taken together, the four opinions have furthered the frontiers of personal freedom and liberated the idea of individual rights from the pressure of public opinion.

Way forward 

• Justice R.H. Nariman said, Constitutional morality trumps any imposition of a particular view of social morality.
• Justice D.Y. Chandrachud underscores the “unbridgeable divide” between the moral values on which Section 377 is based and the values of the Constitution.
• Justice Indu Malhotra strikes a poignant note when she says history owes an apology to the LGBTQ community for the delay in providing the redress. 
• The dilution of Section 377 marks a welcome departure from centuries of heteronormative thinking. 
• This is a verdict that will, to borrow a phrase from Justice Chandrachud, help sexual minorities ‘confront the closet’ and realise their rights.

UPSC Prelims Questions: 

Q.1)  Section 377 of Indian penal code is related to
a. Cyber attacks
b. Heinous crimes
c. Criminalization of homosexuals
d. Sexual offences against children
Answers:  C

Mains Questions:
Q.1) What is Sec 377? What it needs to remove in current scenario  ?

Online Coaching for UPSC PRE Exam

General Studies Pre. Cum Mains Study Materials