History Owes Members of LGBTQ+ Community an Apology: Justice Indu Malhotra on Section 377

New Delhi: In a historic judgment on Thursday, a five-judge constitution bench headed by Chief Justice Dipak Misra and comprising Justices Rohinton Fali Nariman, A.M. Khanwilkar, D.Y. Chandrachud and Indu Malhotra scrapped the provisions of Section 377 of the IPC, which criminalises 'unnatural sex.'

In a separate judgment, Justice Malhotra stated that sexual orientation is an innate attribute of one’s identity, and cannot be altered. Sexual orientation is not a matter of choice, she stated, adding that it manifests in early adolescence. "Homosexuality is a natural variant of human sexuality."

Justice Indu Malhotra. Credit: Twitter

"A person’s sexual orientation is intrinsic to their being. It is connected with their individuality, and identity. A classification which discriminates between persons based on their innate nature, would be violative of their fundamental rights, and cannot withstand the test of constitutional morality."

"The members of this [LGBTQ+] community were compelled to live a life full of fear of reprisal and persecution. This was on account of the ignorance of the majority to recognise that homosexuality is a completely natural condition, part of a range of human sexuality."

Read full text of Justice Indu Malhotra's judgment on Section 377:

Section 377 Indu Malhotra by The Wire on Scribd

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