Supreme Court Decriminalizes Consensual Gay Sex

A closer

look at the

judgment

that rewrote

history...

In a historic judgment on Thursday, 6 September, 2018,

the Supreme Court of India struck down part of Section

377 of the Indian Penal Code (IPC) which criminalizes

homosexual relationships between consenting adults.

A five-judge Constitution bench of Chief Justice DIPAK

MISRA, Justice A.M. KHANWILKAR, Justice ROHINTON F.

NARIMAN, Justice D.Y. CHANDRACHUD, and Justice INDU

MALHOTRA agreed on the matter, with four separate but

concurring judgments read out in the top court.

The main 166-page judgment authored by Chief Justice

DIPAK MISRA along with Justice A.M. KHANWILKAR

began with a quote by the great German thinker, JOHANN

WOLFGANG VON GOETHE: "I am what I am, so take me as

I am."

The judgment described the Constitution as "a living and

organic document capable of expansion with the changing

needs and demands of the society" and stressed that "the

Courts must robe themselves with the armory of progressive

and pragmatic interpretation to combat the evils of

inequality and injustice that try to creep into the society."

Constitutional morality embraces several virtues, the

foremost being espousal of a pluralistic and inclusive

society, the order read. "The veil of social morality cannot

be used to violate the fundamental rights of even a single

individual, for the foundation of Constitutional morality

rests upon the recognition of diversity that pervades the

society," it stated.

Discrimination on the basis of one's sexual orientation

would entail a violation of the fundamental right of

freedom of expression, said the judgment. "Section 377

of the 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," it read.

Consensual carnal intercourse among adults, whether

homosexual or heterosexual, in private space, does not

harm public decency or morality, and hence, Section 377 of

the IPC, in its present form, violates Article 19(1)(a) of the

Constitution, the order stated. While it declared Section 377

unconstitutional insofar as it penalized any consensual

sexual relationship between two adults (man and man,

man and woman, or woman and woman), the order made it

clear that if a man or woman engaged in any kind of sexual

activity with an animal, it would constitute a penal offence

under the same section.

Justice ROHINTON F. NARIMAN, in his judgment, wrote

that since the rationale for a part of Section 377, namely

Victorian morality, had long gone, there was no reason

to continue with it. "Section 377, insofar as it applies to

same-sex consenting adults, demeans them by having

them prosecuted instead of understanding their sexual

orientation and attempting to correct centuries of stigma

associated with such persons," Justice NARIMAN wrote.

He termed Section 377 as "capricious and irrational",

citing modern psychiatric studies and legislation which

recognized that gay persons and trans-genders were not

persons suffering from mental disorder, and hence, not

liable to be penalized. "Such groups are entitled to the

protection of equal laws, and are entitled to be treated in

society as human beings without any stigma being attached

to any of them… Section 377 insofar as it criminalizes

homosexual sex and transgender sex between consenting

adults is unconstitutional," the order read.

Separately, Justice D.Y. CHANDRACHUD wrote, "Section

377 has consigned a group of citizens to the margins.

It has been destructive of their identities. By imposing

the sanctions of the law on consenting adults involved

in a sexual relationship, it has lent the authority of the

state to perpetuate social stereotypes and encourage

discrimination. Gays, lesbians, bisexuals and trans-genders

have been relegated to the anguish of closeted identities.

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, he wrote. "Sexual orientation

is recognized and protected by the Constitution. Section

377 of the Indian Penal Code is unconstitutional insofar

as it penalizes a consensual relationship between adults of

the same gender. The constitutional values of liberty and

dignity can accept nothing less," he asserted.

Mirroring Justice D.Y. CHANDRACHUD, Justice INDU

MALHOTRA wrote, "History owes an apology to the

members of this community, and their families, for the delay

in providing redress for the ignominy and ostracism they

have suffered…" A person's sexual orientation is intrinsic

to their being and connected with their individuality and

identity, and a classification which discriminates between

persons based on their

innate nature violates

their fundamental rights

and cannot withstand

the test of Constitutional

morality, she highlighted.

The five-judge Constitution

bench of the Supreme

Court pronounced its

verdict after hearing

the petitions moved by

celebrated dancer NAVTEJ

JOHAR (56); journalist

SUNIL MEHRA (60); Diva

restaurant chain owner

RITU DALMIA (43); writer,

hotelier and architectural

restorer AMAN NATH

(65); Executive Director of

The LalitSuri Hospitality

Group KESHAV SURI (33);

and F&B businesswoman

AYESHA KAPUR (41).

At the outset, the bench

debated whether to consider questions beyond sexual

orientation but Chief Justice DIPAK MISRA in the end noted

that the matter of Section 377's constitutionality be first

settled. The government, too, decided not to contest the

petitions, leaving them to the wisdom of the court instead.

Former judgments

Significantly, the 6 September Supreme Court ruling

overturned the apex court's 2013 order, where a twojudge

bench of Justice G.S. SINGHVI and Justice S.J.

MUKHOPADHYAYA set aside a 2009 Delhi High Court

order, decriminalizing homosexuality. In a pioneering

judgment in 2009, a Delhi High Court bench of the

then Chief Justice A.P. SHAH and Justice S. MURLIDHAR

ruled, "We declare Section 377 of the Indian Penal Code

insofar as it criminalizes consensual sexual acts of adults

in private as violative of Articles 21, 14, and 15 of the

Constitution." NGO NAZ FOUNDATION moved the Delhi

High Court in 2001 over a writ petition first filed in 1994 by

AIDS BHEDBHAV VIRODHI ANDOLAN, seeking declaration

of Section 377 as "unconstitutional" by the Delhi High

Court. Following the 2013 SC ruling, the NAZ FOUNDATION

in 2014 filed a curative

petition. The Right to

Privacy judgment (2017)

further motivated the

Supreme Court to consider

the matter again.

WAY FORWARD

With the 6 September SC

ruling, India now occupies

pride of place as the 26th

country in the world

to have decriminalized

homosexuality. However,

the reactions within the

country have been a mixed

bag, with many welcoming

the decision and many

others raising concerns

over it. The RASHTRIYA

SWAYAMSEVAK SANGH

(RSS) went on record to say

that although it does not

consider homosexuality

a crime, it does not support same-sex marriages as such

relationships are not compatible with Nature. In our view,

consensual sex within the LGBTQ community is certainly

not a new phenomenon, but whether giving it this kind of

legitimacy will work out for the best, only time will tell.

Disclaimer – Statements and opinions expressed in this article are those from the editorial and are well researched from

various sources. The content in the article is purely informative in nature.