In a huge victory for civil rights and the LGBTQ community, a Constitution Bench of the Supreme Court has unanimously read down Section 377 of the Indian Penal Code that criminalises homosexual sex. In doing so the learned court has recognised the sexual rights of the LGBTQ community and provided legal protection to homosexuality.
The issue had been debated for years with the legal process itself taking several twists and turns. In 2009, the Delhi high court had decriminalised homosexuality by finding Section 377 of IPC violative of the Constitution. But this was overturned by the Supreme Court in 2013 which cited low conviction rates under the law and put the ball in Parliament’s court to decide the issue.
However, the Supreme Court’s more recent observations on the issue have been far more liberal, taking into account the ethos and spirit of constitutional provisions. It chose to revisit its 2013 judgment after five prominent petitioners — namely bharatnatyam dancer Navtej Singh Johar, journalist Sunil Mehra, restaurateur Ritu Dalmia, Neemrana hotel chain co-founder Aman Nath and businesswoman Ayesha Kapur — approached the court. It was the petitioners’ submission that they were living in fear of harassment because of Section 377 of IPC.
There’s no denying the fact that the law criminalising ‘unnatural’ sex is an outdated relic of the past that was handed down to us by the British. But society has changed radically from the days of Victorian England. The irony is that while decriminalisation of homosexuality has long been actualised in England, we continued to persist with this outmoded provision on our statute books. Plus, judges who have opined on the matter are right in pointing out that no community, no matter how miniscule, should have cause to live in fear. This is against Article 21 of the Constitution guaranteeing the fundamental right to life and liberty. It also goes against Articles 14 and 15 guaranteeing equality and forbidding discrimination.
Reading out the judgment, Justice DY Chandrachud asserted, “Foreign jurisdictions have actively recognised the rights of the LGBT community. We also must give these rights to this community. Decriminalising is just the first step.” In the same vein, Justice Indu Malhotra affirmed, “History owes an apology to these people and their families. Homosexuality is part of human sexuality. They have the right of dignity and free of discrimination. Consensual sexual acts of adults are allowed for LGBT community.” While Chief Justice of India Dipak Misra added, “Autonomy is individualistic, people in private can choose to share intimacy with individuals of their choice” and that “Morality cannot be martyred at the altar of social morality. Only Constitutional morality exists in our country”.
Besides, the law needs to keep pace with changing social mores. Though Section 377 should have never been on the statute books, its continued existence in the 21st Century is simply unjustifiable. At the end of the day, the sexual orientation of an individual is linked to privacy and expression. With the Supreme Court already locating privacy in Article 21 of the Constitution, Section 377 doesn’t stand scrutiny any more. Thus, it’s welcome that the apex court has expunged this obnoxious provision. The government should now gracefully accept this.