Justice D.Y. Chandrachud on Thursday said homosexuality is documented in 1,500 species and is not unique to humans.
The judge, with this single observation, dispelled the prejudice that homosexuality is against the order of nature. Justice Chandrachud quoted from an article he read which said that homosexual behaviour existed in all species except those that “never have sex at all, such as sea urchins and aphis.” Chief Justice of India Dipak Misra also wrote, “What nature gives is natural. That is called nature within.”
The Chief Justice quoted German thinker Johann Wolfgang von Goethe, who said, “I am what I am, so take me as I am.”
Justice Chandrachud compared same-sex love to those of couples who married outside their caste, religion and faith, at enormous personal risk. The judge located the struggle of citizens belonging to sexual minorities in the larger history of the struggles against various forms of social subordination.
Thus, he observed, the limits imposed by structures such as gender, caste, class, religion and community made the “right to love” not just a separate battle for LGBTQ individuals, but a battle for all.
“What Section 377 speaks of is not just about non-procreative sex but is about forms of intimacy which the social order finds ‘disturbing’. This includes various forms of transgression such as inter-caste and inter-community relationships which are sought to be curbed by society. What links LGBT individuals to couples who love across caste and community lines is the fact that both are exercising their right to love at enormous personal risk and in the process disrupting existing lines of social authority,” Justice Chandrachud wrote.
