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In A Landmark Decision, Supreme Court Decriminalises Homosexuality, Strikes Down Section 377

ANANYA BHATNAGAR | 0
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| September 6 , 2018 , 13:59 IST

The Supreme Court on Thursday struck down the controversial Section 377 of the Indian Penal Code and hence decriminalized homosexuality.

A five-judge constitutional bench headed by Chief Justice of India Dipak Misra and comprising of Justice Rohinton Nariman, Justice AM Khanwilkar, Justice DY Chandrachud and Justice Indu Malhotra were hearing the matter.

The bench said, “Primary objective of having a Constitutional society is to transform the society progressively; Constitutional provisions should not be interpreted in the literal sense.”

The Apex Court held that Section 377 insofar as it criminalizes consensual sexual acts between adult human beings, is unconstitutional and liable to be struck down. However, the bench made it clear that sex with animals, which also forms a part of Section 377, will remain a criminal offence.

Senior Advocates Mukul Rohatgi, Aravind Datar, Shyam Divan, CU Singh, Anand Grover and Advocates Menaka Guruswamy, Saurabh Kirpal and Jayna Kothari argued for various petitioners and intervenors.

Individual Choice & Freedom of Expression

The bench said, “Respect for individual choice essence of liberty, LGBT community possess equal rights under the Constitution, Supreme Court.

“Sexual orientation of an individual is natural and discrimination on the basis of sexual orientation is a violation of Freedom of Expression,” the bench added.

Not A Mental Disorder

Justice Rohinton Nariman said that one feature of his judgment is reliance on Mental Healthcare Act as per which Parliament has recognized that homosexuality is not a mental disorder.

Justice Nariman includes a declaration against discrimination against the LGBTQ community. He noted that the government must take active steps to disseminate the judgment and create awareness against prejudice. Moreover, he noted that government officials will also receive sensitisation.

An Apology

Justice Indu Malhotra observed, “History owes an apology to members of LGBT community and their family members for ostracisation and persecution they faced because of society's ignorance that homosexuality is a natural trait, its penal suppression infringes a host of fundamental rights.

Equality Over Majority

Justice DY Chandrachud observed that gays, lesbians, bi-sexual and transgenders have equal rights as other citizens.

“This case is much more than just decriminalising a provision It is about an aspiration to realise Constitutional rights and equal existence of LGBT community as other citizens,” observed Justice Chandrachud. He noted, “Human sexuality cannot be confined to a binary.”

Chief Justice Dipak Misra while pronouncing the verdict said,”The majoritarian views and popular morality cannot dictate constitutional rights”

De-criminalisation is but the first step; The Constitution envisages much more. LGBTs are a victim of Victorian morality. Constitutional morality and not Societal morality should be the driving force for deciding the validity of Section 377.

Justice Chandrachud also said, “This case is much more than just decriminalising a provision It is about an aspiration to realize Constitutional rights and equal existence of LGBT community as other citizens. To deny LGBT community of their right to sexual orientation is a denial of their citizenship and a violation of their privacy. They cannot be pushed into obscurity by an oppressive colonial legislation.”

The Changing Decisions

The Delhi High Court had decriminalized homosexual relations between two consenting adults in 2009, however, the Supreme Court in 2013 re-criminalized relations between people of the same sex, spurring multiple petitions to the apex court.

What Did The Section Say

The 149-year-old Section 377 law criminalized unnatural offences and carnal intercourse against the order of nature with any man, woman or animal, regardless of consent. Violating Section 377 is punishable with fine and/or imprisonment ranging from 10 years to life.

The law says, “Whoever voluntarily has carnal inter­course against the order of nature with any man, woman or animal, shall be punished with 1[imprisonment for life], or with impris­onment of either description for a term which may extend to ten years, and shall also be liable to fine. Explanation.—Penetration is sufficient to constitute the carnal intercourse necessary to the offence described in this section.”