The Supreme Court on Thursday decriminalised homosexuality with a prayer to the LGBTQ (Lesbian, gay, bisexual, transgender, and queer) community to forgive history for their “brutal” suppression.
A five-judge Constitution Bench, led by Chief Justice of India (CJI) Dipak Misra unanimously held that criminalisation of private consensual sexual conduct between adults of the same sex under Section 377 of the Indian Penal Code is clearly unconstitutional.
The court, however, held that Section 377 will apply to “unnatural” sexual acts like bestiality. Sexual acts without consent continues to be a crime under the Section.
In four concurring opinions, the Bench declared the 156-year-old “tyranny” of Section 377 as “irrational, indefensible and manifestly arbitrary”.
Section 377 punished homosexuality with a 10-year imprisonment.
The prayer for forgiveness came from Justice Indu Malhotra, the lone woman judge on the Constitution Bench. “History owes an apology,” she reached out to the rainbow spectrum.
Justice D.Y. Chandrachud called Section 377 “Macaulay’s legacy”, which continued for 68 years despite a liberal Constitution because of the manifest lethargy of lawmakers. He said the Section shackled the human instinct to love. It had been a reason for tragedy and anguish. “It is difficult to right a wrong by history. But we can set the course for the future,” he wrote in his separate opinion.
‘It is just a step’
Justice Chandrachud said decriminalisation of homosexuality was just a step. This case was about people wanting to live with dignity. Citizens cannot be pushed into obscurity by a colonial law.
Section 377 discriminates against a minority solely for their sexual orientation. It violates the right of the LGBTIQ community to “equal citizenship and equal protection of laws”. The court held that bodily autonomy is individualistic. Choice of partner is part of the fundamental right to privacy.
The Bench set aside the 2013 judgment of the court in the Suresh Koushal case.
Legal experts said this was a much-needed self-correction of a past judicial wrong committed on the LGBTQ community. The verdict would become the foundation for members of the community to seek individual rights like.
The 2013 judgment upheld Section 377 and set aside the reprieve won by the LGBTQ community through the Delhi High Court verdict of 2009, which decriminalised homosexuality. It had cast the community back into the shadows as “unconvicted felons”.
The court declared that once a nine-judge Bench has declared privacy to be a part of the fundamental right to life, nothing could stop the Supreme Court from upholding bodily autonomy and sexual orientation as fundamental rights too.
‘LGBTQ community possesses equal rights’
The CJI, in his separate opinion shared with Justice A.M. Khanwilkar, held that the LGBTQ community possesses equal rights as any other citizen. Any societal repression of their innate and biological sexual orientation is against the fundamental right to free expression. Homosexuality is their order of nature.
The CJI said the community needs the rainbow of hope for the sake of humanity. They should be allowed to live with dignity and without pretence about their identity. This verdict is the beginning of a journey towards greater dignity, equality and liberty.
‘Fundamental right to live with dignity’
Justice Rohinton F. Nariman, in his separate opinion, held that homosexuals have a fundamental right to live with dignity. They are entitled to be treated as human beings and should be allowed to imbibe the spirit of fraternity.
Justice Nariman embraced the ''Yogyakarta'' Principles, which recognise freedom of sexual orientation and gender identity as part of human rights, saying they “animate” the right to equality and equal protection by laws.
Justice Chandrachud said medical science should stop being a party to the stigmatisation of homosexuals by “trying to cure something that is not even a disease”. Medical professionals and counsellors should tweak their own attitude. Stigmatisation seriously affects members of the LGBTQ community.
Justice Chandrachud pointed out how variations in sexual orientation have become a reason for blackmail on the Internet. Quoting Lenoard Cohen, he described how “shadows of a receding past” still controlled the quest of LGBTQ community for fulfillment.
“Civilisation has been brutal,” he wrote.