Supreme Court decriminalises homosexuality: A look at how archaic parts of Section 377 were struck down

India on Thursday became the 26th country in the world to decriminalise homosexuality as the Supreme Court, in a landmark judgment, declared Section 377 of the Indian Penal Code to be unconstitutional to the extent that it criminalises consensual sexual acts between adults, whether homosexual or heterosexual.

The five-judge constitution bench of the apex court decriminalised part of Section 377 which criminalises consensual unnatural sex.

Delivering four separate but concurring judgments, the Supreme Court set aside its 2013 verdict which had re-criminalised consensual unnatural sex.

'Constitutional morality cannot be martyred at the altar of social morality'

Chief Justice Dipak Misra and Justice AM Khanwilkar, who wrote the main 166-page judgment, held that Section 377 had become an "odious weapon" to harass the LGBTQ community which was made a "societal pariah" by subjecting them to discrimination and unequal treatment.

The CJI held that Section 377 in its present form violated Article 19(1)(a) of the Constitution, which deals with freedom of speech and expression.

"Individual has sovereignty over his or her body and can surrender autonomy wilfully to another individual and their intimacy in privacy is a matter of their choice and such concept of identity is not only sacred but is also in recognition of the quintessential facet of humanity in a person's nature," the verdict said.

Representational image. PTI

Representational image. PTI

It also said that "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."

The respect for individual choice is the "very essence" of liberty and criminalising carnal intercourse under Section 377 is "irrational, indefensible and manifestly arbitrary", it categorically stated.

"Section 377 of IPC subjects the LGBT community to societal pariah and dereliction and is, therefore, manifestly arbitrary, for it has become an odious weapon for the harassment of the LGBT community by subjecting them to discrimination and unequal treatment. Therefore...Section 377 of IPC is liable to be partially struck down for being violative of Article 14 of the Constitution," it said.

"It is true that the principle of choice can never be absolute under a liberal Constitution and the law restricts one individual's choice to prevent harm or injury to others," it said, adding that sexual orientation was one of the many biological phenomena which is natural and inherent in an individual.

"Constitutional morality cannot be martyred at the altar of social morality and it is only constitutional morality that can be allowed to permeate into the Rule of Law. The veil of social morality cannot be used to violate fundamental rights of even a single individual, for the foundation of constitutional morality rests upon the recognition of diversity that pervades the society," it said, adding that the right to live with dignity has been recognised as a human right internationally and the courts must strive to protect," it also said.

'History owes apology to LGBTQ community'

History owes an apology to the members of the LGBTQ community and their families for the delay in providing redressal for the "ignominy" and "ostracism" they have faced through the centuries, Justice Indu Malhotra said.

Justice Malhotra, who wrote a separate concurring judgment decriminalising consensual gay sex, said the members of this community were compelled to live under the fear of reprisal and persecution which occurred due to the ignorance of the majority to recognise that homosexuality is a "completely natural" condition which is part of a range of human sexuality.

Such persons deserve to live a life unshackled from the shadow of being 'unapprehended felons', the judge said.

"History owes an apology to the members of this community and their families, for the delay in providing redressal for the ignominy and ostracism that they have suffered through the centuries. The members of this community were compelled to live a life full of fear of reprisal and persecution," Justice Malhotra said in her 50-page verdict.

"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. The mis-application of this provision denied them the fundamental right to equality guaranteed by Article 14," she said.

Justice Malhotra said "reading down of Section 377 is necessary to exclude consensual sexual relationships between adults, whether of the same sex or otherwise, in private, so as to remove the vagueness of the provision to the extent it is inconsistent with Part III of the Constitution."

'Constitution neither demands conformity nor contemplates mainstreaming of culture'

Justice DY Chandrachud in his judgment observed that denial of right to sexual orientation was akin to denial of right to privacy.

He said that Section 377 had consigned a group of citizens to "the margins", due to which the members of lesbians, gays, bisexuals and transgender (LGBT) community were relegated to the anguish of being "closeted identities".

"Sexual and gender based minorities cannot live in fear, if the Constitution has to have a meaning for them on even terms," Justice Chandrachud said, adding, "sexual orientation has become a target for exploitation, if not blackmail, in a networked and digital age".

"It is difficult to right the wrongs of history. But we can certainly set the course for the future. That we can do by saying, as I propose to say in this case, that lesbians, gays, bisexuals and transgenders have a constitutional right to equal citizenship in all its manifestations," he said.

Writing a 181-page verdict, Justice Chandrachud said the human instinct to love was "caged" by constraining the physical manifestation of their sexuality because of the colonial law.

Stressing that "individual liberty is its soul", he said that choosing of a partner, ability to find fulfilment in sexual intimacies and not to be subjected to discriminatory behaviour, were intrinsic to the constitutional protection of sexual orientation.

"A hundred and fifty eight years is too long a period for the LGBT community to suffer the indignities of denial. That it has taken 68 years even after the advent of the Constitution is a sobering reminder of the unfinished task which lies ahead. It is also a time to invoke the transformative power of the Constitution," he said.

He said the Constitution neither demands conformity, nor contemplates the main-streaming of culture as it "nurtures dissent as the safety valve for societal conflict".

'Fundamental rights chapter like the north star in the universe of constitutionalism'

Justice RF Nariman in his judgment said that Section 377 was the product of the Victorian-era morality which was long gone and there was no reason to continue with it especially when it enforces Victorian mores upon the citizenry of India.

"We find that Section 377, in penalizing consensual gay sex, is manifestly arbitrary. Given modern psychiatric studies and legislation which recognizes that gay persons and transgenders are not persons suffering from mental disorder and cannot therefore be penalized, the Section must be held to be a provision which is capricious and irrational," Justice Nariman said.

He also said that constitutional morality always trumps any imposition of a particular view of social morality by changing majoritarian regimes.

He said the apex court is the custodian of fundamental rights which are beyond the reach of majoritarian governments.

"The very purpose of the fundamental rights chapter in the Constitution of India is to withdraw the subject of liberty and dignity of the individual and place such subject beyond the reach of majoritarian governments so that constitutional morality can be applied by this Court to give effect to the rights, among others, of 'discrete and insular' minorities."

"One such minority has knocked on the doors of this Court as this Court is the custodian of the fundamental rights of citizens. These fundamental rights do not depend upon the outcome of elections. And, it is not left to majoritarian governments to prescribe what shall be orthodox in matters concerning social morality," Justice Nariman said.

He said "fundamental rights chapter is like the north star in the universe of constitutionalism" in India.

Activists welcome judgment but not all happy with it

The verdict was widely welcomed and celebrated by activists, Bollywood celebrities, and some from the political spectrum. However, there was also a section which did not readily accept the verdict.

Activist Anjali Nazia said the Supreme Court had paved way for bigger judgments ahead. "We were granted a basic human right today and we can't express just how happy we are," Nazia told PTI.

Describing the verdict as a landmark, Anjan Joshi, member of the Society for People, Awareness, Care and Empowerment (SPACE), said it would be help them in their quest for equality. "It is a start. We know we have a long way to go in terms of right to adoption, right to marriage but it is a very welcome beginning," Joshi said.

Manabi Bandyopadhyay, the country's first transgender college principal, said it was a "new dawn" for members of the LGBTQ community and activists.

Taking to Twitter, film director Hansal Mehta, who made "Aligarh" on the life of Aligarh Muslim University professor Ramchandra Siras, who faced discrimination for being gay, called the verdict a "new beginning".

The Rashtriya Swayamsevak Sangh (RSS), on the other hand, said that even though it does not consider homosexuality a crime, it does not support same-sex marriage as such relationships are not "compatible with nature".

BJP leader Subramanian Swamy called homosexuality a "genetic disorder", and hoped that next government will move a 7-judge bench to set aside the 5-judge bench order.

With inputs from PTI


Updated Date: Sep 06, 2018 22:14 PM

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