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A closerlook at thejudgmentthat rewrotehistory...In a historic judgment on Thursday, 6 September, 2018,the Supreme Court of India struck down part of Section377 of the Indian Penal Code (IPC) which criminalizeshomosexual relationships between consenting adults.A five-judge Constitution bench of Chief Justice DIPAKMISRA, Justice A.M. KHANWILKAR, Justice ROHINTON F.NARIMAN, Justice...
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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.
"Whoever voluntarily has
carnal intercourse against the
order of nature with any man,
woman or animal, shall be
punished with (imprisonment
for life), or with imprisonment
of either description for a
term which may extend to ten
years, and shall also be liable
to (pay a) fine."
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.