377 verdict has inbuilt firewall

SC thwarts any future attempts to bring back criminalisation of homosexuality

New Delhi: An activist waves a rainbow flag (LGBT pride flag) after the Supreme Court verdict which decriminalises consensual gay sex, outside the Supreme Court in New Delhi, Thursday, Sept 6, 2018. A five-judge constitution bench of the Supreme Court today, unanimously decriminalised part of the 158-year-old colonial law under Section 377 of the IPC which criminalises consensual unnatural sex, saying it violated the rights to equality. (PTI Photo/Kamal Kishore) (PTI9_6_2018_000133B)

Within the pages of the Supreme Court judgment decriminalising homosexuality contains a safeguard against any attempts by governments, present and future, to enact laws to make homosexuals criminals again.

The five-judge Constitution Bench led by Chief Justice of Dipak Misra has introduced the “Doctrine of Progressive Realisation of Rights” to guard against future attempts to reintroduce that part of Section 377 of the Indian Penal Code which had made the entire LGBTQ community “unconvicted felons” without the basic rights of a citizen for over a century.

Using this legal doctrine, Chief Justice Misra has held that once a right is recognised and given to the public, it cannot be taken back by the state at a later date. Once a step is taken forward, there is no going back.

“In a progressive and an ever-improving society, there is no place for retreat or regression. The society has to march ahead,” Chief Justice Misra held.

Modern ethos

The doctrine of progressive realisation of rights mandates that the laws of a country should be in consonance with its modern ethos, it should be “sensible” and “easy to apply”.

“The state has an obligation to take appropriate measures for the progressive realisation of economic, social and cultural rights,” Chief Justice Misra wrote.

“The ‘doctrine of progressive realisation of rights’, as a natural corollary, gives birth to the doctrine of non-retrogression. As per this doctrine, there must not be any regression of rights … The doctrine of non-retrogression sets forth that the State should not take measures or steps that deliberately lead to retrogression on the enjoyment of rights either under the Constitution or otherwise,” Chief Justice Misra laid down in his separate opinion shared with Justice A.M. Khanwilkar for the Bench.

Chief Justice Misra notes that the Supreme Court went wrong in 2013 in the Suresh Koushal judgment, which set aside the brief reprieve offered by the historic Delhi High Court judgment on Section 377 in 2009 and placed the yoke of criminality back on the LGBTQ community.