In a far-reaching, landmark judgment, the Supreme Court on Thursday ruled that gay sex among consenting adults was not a criminal offence, striking down as “unconstitutional” a part of Section 377 of the 158-year-old Indian Penal Code (IPC) that criminalises homosexuality.
In a unanimous verdict, the five-judge Constitution Bench decriminalised Section 377 IPC with regard to consensual gay sex, asserting that it was “irrational, indefensible and manifestly arbitrary” and that it violated fundamental rights to equality, life with dignity, personal liberty, non-discrimination, privacy and expression under Articles 14, 15, 19, and 21 of the Constitution.
Delivering four separate but concurring judgements running into altogether 495 pages, the Constitution Bench ~ headed by Chief Justice Dipak Misra and also comprising of Justices A M Khanwilkar, R F Nariman, D Y Chandrachud and Indu Malhotra ~ overturned the apex court’s 2013 verdict which had re-criminalised consensual gay sex.
The Bench maintained that the Lesbian, Gay, Bisexual and Transgender (LGBT) people are entitled to the entire range of same legal and constitutional rights as other citizens of the country.
The top court’s historic judgment triggered widespread celebrations among sections of civil society, human rights and the LGBT community. Some of them welcomed it after nearly two decades of legal battle as a victory of marginalised and vulnerable people and sexual minority while maintaining that a long battle for real equality and non-discrimination awaits them at societal, governmental and legal levels in coming days.
The Bench described sexual orientation as a matter of an individual’s personal life and dignity, liberty, and expression, stating that it was “biological” or “natural” and that any discrimination on this ground will be violative of that person’s fundamental rights.
Referring to the apex court’s 2013 verdict ~ which had set aside the Delhi High Court’s historic 2009 judgment decriminalising gay sex between consenting adults ~ the Bench said it had upheld the constitutionality of Section 377 IPC on a ground that “the LGBT community comprised only a minuscule fraction of the total population and that the mere fact that the said Section was being misused is not a reflection of the vires of the Section”.
“Such a view is constitutionally impermissible,” stated CJI Misra, who wrote the judgment for himself and Justice Khanwilkar.
“Constitutional morality cannot be martyred at the altar of social morality and it is only constitutional morality that can be allowed to permeate into the Rule of Law. The veil of social morality cannot be used to violate fundamental rights of even a single individual, for the foundation of constitutional morality rests upon the recognition of diversity that pervades the society,” CJI Misra ruled.
The CJI also said : “Section 377 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.”
In her judgment, Justice Malhotra said, “It is declared that insofar as Section 377 criminalises consensual sexual acts of adults (i.e. persons above the age of 18 years who are competent to consent) in private, is violative of Articles 14,15, 19, and 21 of the Constitution.”
Justice Malhotra reportedly said that history owed an apology to the members of the LGBT community and their families for the delay in providing redressal for the ignominy and ostracism that they have suffered through the centuries.
In his separate judgment, Justice Chandrachud also said that due to Section 377 IPC, the LGBT people were forced to live in hiding and as second-class citizens even as others enjoyed the right of sexual orientation.
The Bench said the courts must protect the dignity of an individual as right to live with dignity is recognised as a fundamental right. It said the State cannot persecute people and decide the boundaries between what is permissible or not, holding that Section 377 IPC was based on “deep-rooted stereotypes of the society” that was violative of fundamental rights to equality and life with dignity.
Justice Chandrachud ruled that “Members of the LGBT community are entitled, as all other citizens, to the full range of constitutional rights including the liberties protected by the Constitution” and that the LGBT people are “entitled to the benefit of an equal citizenship, without discrimination, and to the equal protection of law”.
He declared, “The choice of whom to partner, the ability to find fulfilment in sexual intimacies and the right not to be subjected to discriminatory behaviour are intrinsic to the constitutional protection of sexual orientation.”
In his verdict, Justice Nariman said, “We are also of the view that the Union of India shall take all measures to ensure that this judgment is given wide publicity through the public media, which includes television, radio, print and online media at regular intervals, and initiate programmes to reduce and finally eliminate the stigma associated with such persons.”
He also ruled : “Above all, all government officials, including and in particular police officials, and other officers of the Union of India and the states, be given periodic sensitisation and awareness training of the plight of such persons in the light of the observations contained in this judgment.”
Reading down Section 377 IPC, the Constitution Bench said its provision will however continue to govern sexual acts against minors besides acts of bestiality.
The judgment came on a clutch of writ petitions filed by dancer Navtej Jauhar, journalist Sunil Mehra, chef Ritu Dalmia, hoteliers Aman Nath and Keshav Suri, and business executive Ayesha Kapur as well as 20 former and current students of the IITs.
These petitioners had sought decriminalisation of consensual gay sex between adults by declaring Section 377 as unconstitutional. Describing Section 377 as a “terrible colonial legacy”, they said it violated Articles 14 (equality),15 (discrimination),19 (freedom) and 21 (life and liberty) of the Constitution and has a “chilling effect” on the sexual minority.
The writ petitions were opposed by the Apostolic Alliance of Churches and Utkal Christian Association and some NGOs and individuals.
Seeking decriminalisation of consensual homosexuality, the NGO Naaz Foundation had first challenged Section 377 in the Delhi High Court in 2001.