Supreme Court of India on Thursday, with a stroke of a judgment restored ‘inclusiveness’ by decriminalising part of Section 377 that made consensual sex between consenting homosexuals a crime.
The judgment was appreciated and hailed by the LGBTQ rights activists and all the sections supporting them. The ‘victory was achieved after a decade-long legal battle which saw a win, a defeat and finally a lasting victory.
The SC judgment apart from safeguarding the rights of LGBTQ community also highlights the fact that Indian Constitution is indeed a ‘living document’ and not a static treaty as evident from the fact that Section 377 initially was decriminalised in 2009 by the Delhi High Court, the judgment that was set aside by a division bench of the Supreme Court in 2013, which in turn was set aside by the larger constitution bench on Thursday.
While the 2009 judgment should be lauded for ensuring the ‘inclusiveness’, it is Thursday’s judgment by the highest court of the land that established individual liberty as the bulwark of democracy and made the widest possible interpretation of ‘morality’ and ‘freedom’.
On 2 July, 2009 while declaring Section 377 IPC, insofar it criminalises consensual sexual acts of adults in private as “violative of Articles 21, 14 and 15 of the Constitution” Delhi High Court observed, “If there is one constitutional tenet that can be said to be underlying theme of the Indian Constitution, it is that of 'inclusiveness.”
It added, “This Court believes that Indian Constitution reflects this value deeply ingrained in Indian society, nurtured over several generations. The inclusiveness that Indian society traditionally displayed, literally in every aspect of life, is manifest in recognising a role in society for everyone. Those perceived by the majority as 'deviants' or 'different' are not on that score excluded or ostracized.”
It further added, “Where society can display inclusiveness and understanding, such persons can be assured of a life of dignity and nondiscrimination. This was the 'spirit behind the Resolution' of which Nehru spoke so passionately. In our view, Indian Constitutional law does not permit the statutory criminal law to be held captive by the popular misconceptions of who the LGBTQs are. It cannot be forgotten that discrimination is antithesis of equality and that it is the recognition of equality which will foster the dignity of every individual.”
The judgment delivered by a bench headed by then chief justice of Delhi High Court justice AP Shah was lauded by the LGBTQ community and supporters of gay rights. However, in the normal course, the judgment of the Delhi High Court was challenged and the apex court in 2013, while setting aside the high court judgment held that “Section 377 IPC does not suffer from the vice of unconstitutionality and the declaration made by the Division Bench of the High court is legally unsustainable”.
Setting aside the Delhi High Court judgment the SC stated, “In its anxiety to protect the so-called rights of LGBTQ persons and to declare that Section 377 IPC violates the right to privacy, autonomy and dignity, the High Court has extensively relied upon the judgments of other jurisdictions. Though these judgments shed considerable light on various aspects of this right and are informative in relation to the plight of sexual minorities, we feel that they cannot be applied blindfolded for deciding the constitutionality of the law enacted by the Indian legislature.”
While delivering the judgment the Supreme Court left it to the elected representatives to decide whether it wants the section that criminalises the consensual sexual activity of adults in private, to stay in operation or bring in necessary amendments to abolish it.
The court held, “While parting with the case, we would like to make it clear that this Court has merely pronounced on the correctness of the view taken by the Delhi High Court on the constitutionality of Section 377 IPC and found that the said section does not suffer from any constitutional infirmity. Notwithstanding this verdict, the competent legislature shall be free to consider the desirability and propriety of deleting Section 377 IPC from the statute book or amend the same as per the suggestion made by the Attorney General.”
Five years from then the legislature failed to take up the responsibility and once again it was the judiciary that rose to the occasion. A five-judge constitutional bench, led by Chief Justice of India Dipak Misra, hearing a clutch of petitions challenging Section 377 of the Indian Penal Code (IPC) once again reaffirmed the Delhi High Court judgment of 2009 by decriminalising consensual adult sex in private.
The court while delivering a judgment observed, “Section 377 IPC, so far as it criminalises even consensual sexual acts between competent adults, fails to make a distinction between non-consensual and consensual sexual acts of competent adults in private space which are neither harmful nor contagious to the society. Section 377 IPC subjects the LGBTQ community to societal pariah and dereliction and is, therefore, manifestly arbitrary, for it has become an odious weapon for the harassment of the LGBTQ community by subjecting them to discrimination and unequal treatment.”
It added, “An examination of Section 377 IPC on the anvil of Article 19(1)(a) reveals that it amounts to an unreasonable restriction, for public decency and morality cannot be amplified beyond a rational or logical limit and cannot be accepted as reasonable grounds for curbing the fundamental rights of freedom of expression and choice of the LGBTQ community. Consensual carnal intercourse among adults, be it homosexual or heterosexual, in private space, does not in any way harm the public decency or morality. Therefore, Section 377 IPC in its present form violates Article 19(1)(a) of the Constitution.”
It is worth remembering what (just a day before enactment of the Indian Constitution) BR Ambedkar said in the constituent assembly. He said, “I feel, however good a Constitution may be, it is sure to turn out bad because those who are called to work it, happen to be a bad lot. However bad a Constitution may be, it may turn out to be good if those who are called to work it, happen to be a good lot. The working of a Constitution does not depend wholly upon the nature of the Constitution.”
By delivering this judgment and establishing the rights of LGBTQ community it can be safely said that the basic spirit of the Constitution, at least in this respect, was well guarded by the judiciary.
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Updated Date: Sep 06, 2018 18:38:35 IST