SC decriminalises ‘consensual gay sex’ among adults
In a historic ruling, the Supreme Court on Thursday decriminalised “consensual gay sex” among adults while observing that Section 377 has become a willing instrument of repression of LGBT (Lesbian, Gay, Bi-sexual, Transgender) community.
The apex court pointed out that the members of the LGBT community have suffered the indignities of denial for a “too long” period of 158 years.
In a separate judgement, Justice D Y Chandrachud observed that denial of right to sexual orientation was akin to denial of right to privacy.
Justice D Y Chandrachud, however, concurred with the views of the four other members of the bench headed by Chief Justice Dipak Misra.
He said that section 377 of the Indian Penal Code, which criminalised consensual gay sex between adults, had consigned a group of citizens to “the margins”, due to which the members of lesbians, gays, bisexuals and transgender (LGBT) community were relegated to the anguish of being “closeted identities”.
“Sexual and gender based minorities cannot live in fear, if the Constitution has to have a meaning for them on even terms,” Justice Chandrachud said, adding, “sexual orientation has become a target for exploitation, if not blackmail, in a networked and digital age”.
“It is difficult to right the wrongs of history. But we can certainly set the course for the future. That we can do by saying, as I propose to say in this case, that lesbians, gays, bisexuals and transgenders have a constitutional right to equal citizenship in all its manifestations,” he said.
Watch: Supreme Court decriminalises Homosexuality in a historic ruling
Writing a 181-page verdict, Justice Chandrachud said the human instinct to love was “caged” by constraining the physical manifestation of their sexuality because of the colonial law.
Stressing that “individual liberty is its soul”, he said that choosing of a partner, ability to find fulfilment in sexual intimacies and not to be subjected to discriminatory behaviour, were intrinsic to the constitutional protection of sexual orientation.
“A hundred and fifty eight years is too long a period for the LGBT community to suffer the indignities of denial. That it has taken 68 years even after the advent of the Constitution is a sobering reminder of the unfinished task which lies ahead. It is also a time to invoke the transformative power of the Constitution,” he said.
Justice Chandrachud said that the law penalising such sexual conduct violated the constitutional guarantees of liberty and equality and denudes the members of LGBT communities of their constitutional right to lead fulfilling lives.
“In its application to adults of the same sex engaged in consensual sexual behaviour, it violates the constitutional guarantee of the right to life and to the equal protection of law,” he said.
He said the even after India gained independence in 1947, the citizens belonging to sexual minorities “have waited” as their fundamental freedoms remained restrained under an “antiquated and anachronistic colonial-era law – forcing them to live in hiding, in fear, and as second-class citizens”.
He said the Constitution neither demands conformity, nor contemplates the main-streaming of culture as it “nurtures dissent as the safety valve for societal conflict”.
Justice Chandrachud also said that sexual orientation was recognised and protected by the Constitution and Section 377 of the IPC has been destructive of an identity, which was crucial to a dignified existence.
“By imposing the sanctions of the law on consenting adults involved in a sexual relationship, it has lent the authority of the state to perpetuate social stereotypes and encourage discrimination,” he said.
“The lethargy of the law is manifest yet again,” he said in the beginning of his judgement.
Justice Chandrachud said that by criminalising consensual acts between such individuals, the state was denying its citizens the right to intimacy which emanates from an individual’s prerogative to engage in sexual relations on their own terms.
“In protecting consensual intimacies, the Constitution adopts a simple principle: the state has no business to intrude into these personal matters. Nor can societal notions of heteronormativity regulate constitutional liberties based on sexual orientation,” he said.
Referring to the right to health, he said that people must also have the right to exercise choice in their sexual lives and feel safe in expressing their sexual identity to attain highest standard of health.
He also referred to the concept of constitutional morality and said that it must turn into a habit of citizens and by respecting the dignity of LGBT individuals, the court was only fulfilling the foundational promises of Constitution.
“Although section 377 prima facie appears to criminalise certain acts or conduct, it creates a class of criminals, consisting of individuals who engage in consensual sexual activity. It typecasts LGBTQ individuals as sex-offenders, categorising their consensual conduct on par with sexual offences like rape and child molestation,” he said.
Justice Chandrachud also said the Constitution prohibited discrimination within the society. So the LGBT community cannot be discriminated against and they have a right to express themselves through their intimate choices.
“LGBT individuals living under the threats of conformity grounded in cultural morality have been denied a basic human existence. They have been stereotyped and prejudiced. Constitutional morality requires this court not to turn a blind eye to their right to an equal participation of citizenship and an equal enjoyment of living,” he said.
(With PTI inputs)
