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October 03, 2018

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Supreme Court Decriminalizes Consensual Gay Sex


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lgbt

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.

SECTION 377 AS IT WAS:
“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.


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