Sec 377 down: Heralding a new India from darkness to light
New Delhi, Sep 7: The Supreme Court on Thursday delivered a historic order in which is concluded that gay sex among consenting adults in private is not an offence. The court while striking down Section 377 of the Indian Penal Code, a British era law that criminalised gay sex said that it violated the constitutional right to equality and dignity.
In the 493 page verdict, Chief Justice of India, Dipak Misra, who led the five judge Bench said that the 158-year old law had become an "odious weapon" to harass the LGBT community by subjecting them to discrimination and unequal treatment, a judge also said that history owed an apology to the community and their families for the delay in providing redressal for the "ignominy" and "ostracism" they have faced through the centuries.
It said Section 377 was a product of Victorian-era morality and there was no reason to continue with it as it enforced Victorian morale on the citizens of the country.
While concluding the historic 493-page verdict, Chief Justice Dipak Misra, who headed the constitution bench, said it was time to move from "darkness to light" to herald a New India which would be a more inclusive society.
"Section 377 IPC, so far as it criminalises even consensual sexual acts between competent adults, fails to make a distinction between non-consensual and consensual sexual acts of competent adults in private space, which are neither harmful nor contagious to the society.
"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. Therefore, ... Section 377 IPC is liable to be partially struck down for being violative of Article 14 of the Constitution," the five-judge constitution bench said.
The bench, which also comprised Justices R F Nariman, A M Khanwilkar, D Y Chandrachud and Indu Malhotra, held that the Lesbian, Gay, Bisexual, Transgender and Queer (LGBTQ) community possess the same constitutional rights as any other citizen and part of Section 377, which prohibits sexual relationship between consenting adults of the same sex, is violative of the right to equality and the right to live with dignity.
However, the court clarified that non-consensual gay sex or sexual activity with an animal or a child will continue to invite penal liability under Section 377 of the IPC and would remain a criminal offence.
The CJI, who along with Justice Khanwilkar, penned the main judgement, termed sexual orientation as a "biological phenomenon" and "natural" and held that any discrimination on this ground was violative of the fundamental rights.
"It is declared that insofar as Section 377 criminalises consensual sexual acts of adults in private, is violative of Articles 14, 15, 19, and 21 of the Constitution. It is, however, clarified that such consent must be free consent, which is completely voluntary in nature, and devoid of any duress or coercion," the bench ruled.
Delivering the judgment on a clutch of petitions, it said "morality cannot be martyred at the altar of social morality and only constitutional morality can allowed under the rule of law".
Justice Malhotra, a member of the bench in her separate judgement, said that history owed an apology to the members of this community and their families, for the delay in providing redressal for the ignominy and ostracism that they have suffered through the centuries.
Justice DY Chandrachud, in his judgement, said that due to Section 377, the LGBTQ members were forced to live in hiding and as second class citizens, while the others used to enjoy the right of sexual orientation.
"Section 377 IPC, so far as it penalises any consensual sexual relationship between two adults, be it homosexuals (man and a man), heterosexuals (man and a woman) or lesbians (woman and a woman), cannot be regarded as constitutional. However, if anyone, by which we mean both a man and a woman, engages in any kind of sexual activity with an animal, the said aspect of Section 377 is constitutional and it shall remain a penal offence under Section 377 IPC.
"Any act of the description covered under Section 377 IPC done between two individuals without the consent of any one of them would invite penal liability under Section 377 IPC," the court said in its landmark verdict.
Justice Nariman said that homosexuality was not a mental disorder and such persons have a fundamental right to live with dignity.
It also said that "consensual carnal intercourse among adults, be it homosexual or heterosexual, in private space, does not in any way harm the public decency or morality. Therefore, Section 377 IPC in its present form violates Article 19(1)(a) of the Constitution." The respect for individual choice is the "very essence" of liberty and criminalising carnal intercourse was "irrational, indefensible and manifestly arbitrary", it stated.
The court referred to its 2013 verdict and said that upholding the validity of Section 377 on the ground that LGBTs comprised a minuscule fraction of the total population was constitutionally "impermissible" and the law was being misused.