SC ruling on Section 377 of IPC furthers personal freedoms

But it is only a first step towards wider social acceptance for sexual minorities

The stirring message from the Supreme Court’s landmark judgment decriminalising gay sex is that social morality cannot trump constitutional morality. In a 5- 0 verdict, a Constitution Bench has corrected the flagrant judicial error committed by a two-member Bench in Suresh Kumar Koushal (2013), in overturning a reasoned judgment of the Delhi High Court reading down Section 377 of the IPC. The court has overruled Koushal and upheld homosexuals’ right to have intimate relations with people of their choice, their inherent right to privacy and dignity and the freedom to live without fear.

In the intervening years, two landmark judgments took forward the law on sexual orientation and privacy and formed the jurisprudential basis for the latest judgment. In National Legal Services Authority (2014), a case concerning the rights of transgender people, the court ruled that there could be no discrimination on the basis of sexual orientation and gender identity. In Justice KS Puttaswamy (2017), or the “privacy case”, a nine-judge Bench ruled that sexual orientation is a facet of privacy, and constitutionally protected. Chief Justice of India Dipak Misra’s opinion lays emphasis on transformative constitutionalism, that is, treating the Constitution as a dynamic document that progressively realises various rights. In particular, he invokes the doctrine of non-retrogression, which means that once a right is recognised, it cannot be reversed. This is a verdict that will, to borrow a phrase from Justice Chandrachud, help sexual minorities “confront the closet” and realise their rights.

The Hindu, September 7