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  • In July 2009, the Delhi High Court, recognising the inherent injustice in Section 377’s operation, rendered a momentous verdict, and found that the law, in persecuting a community purely based on the sexual orientation of its members, was patently opposed to the Constitution’s essential promises.
  • However, just over four years later, in Suresh Kumar Koushal v. Naz Foundation , the Supreme Court reversed this finding.
  • Section 377, at its core, is an intention to enforce a decree against actions that are professed to be beyond the warrants of society’s moral compass.
  • Only, that in the case of criminalising homosexuality, it is the outlawing of the act that is immoral, and not the act itself.
  • As the American philosopher Martha Nussbaum has argued, the Supreme Court’s verdict in Koushal shows us that there is an almost pathological emotion of disgust at the heart of any perceived rationale for criminalising homosexuality, when such acts cause no actual harm to any person whatsoever.
  • It is undeniable that a society’s moral judgment must play some role in determining the extent of its criminal laws. However, “a conscientious legislator who is told a moral consensus exists,” as the legal philosopher Ronald Dworkin once wrote, “must test the credentials of that consensus.”
  • The community’s moral standards thus cannot be arbitrarily gleaned nor can it be a product simply of inexplicable revulsion and disgust.
  • In the case of Section 377, any reasonable analysis would show us that to regard homosexual activity as somehow immoral violates the innate natural autonomy that every person has over his or her respective sexuality.