RAINBOW NATION
LANDMARK RULING SC strikes down sec 377 as it violates right to equality NOT UNNATURAL Sexual orientation held to be a natural phenomenon JUDGES CONCUR Individual dignity can’t be hostage to social morality
It’s no longer a crime to be a homosexual in India. The Supreme Court on Thursday partially struck down the 157year-old British-era law that penalises consensual gay sex between adults, declaring that an individual’s sexual orientation is a matter of privacy and also an essential facet of one’s dignity. The LGBTQ (lesbian, gay, bisexual, transgender, queer) community possesses the same human, fundamental and constitutional rights as other citizens, the court said.
A Constitution Bench led by Chief Justice Dipak Misra said section 377 of the Indian Penal Code was arbitrary and unconstitutional to the extent that it punishes consensual intercourse between adults irrespective of their gender identity or sexual orientation.
SC held that section 377 infringed upon the fundamental rights of LGBTQ persons, who ought to be treated equally before the law, enjoy dignity and freedom of expression and not face discrimination. While reading his judgment, Misra said, “I am what I am. So take me as I am. No one can escape their individuality.”
In four separate but concurring judgments, the apex court ruled that societal morality cannot violate the fundamental rights of even a single individual. “Constitutional morality cannot be martyred at the altar of societal morality,” the bench said.
The judgement came on a batch of petitions filed by 34 individual petitioners belonging to the LGBTQ community, interventions filed by NGO Naz Foundation, parents of queer persons and Voices Against 377, a collective of human rights groups, among others. This was the first time LGBTQ persons filed writ petitions to challenge section 377’s constitutional validity.
Petitioners included Navtej Singh Johar, a Sangeet Natak Akademi awardee, chef and restaurateur Ritu Dalmia, transgender woman activist Akkai Padmashali, hotelier Keshav Suri, activists Arif Jafar and Ashok Row Kavi, and a clutch of IITians from an all-India alumni group Pravritti.
Justice Indu Malhotra, who is the lone woman judge of the fivejudge Constitution Bench, said, “Sexual orientation is an innate attribute of one’s identity, and cannot be altered. Sexual orientation is not a matter of choice. Homosexuality is a natural variant of human sexuality.”
“History owes 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,” she added.
Clearing the air on the issue of pending cases under section 377, the judgment says, “Reading down of Section 377 shall not, however, lead to the reopening of any concluded prosecutions, but can certainly be relied upon in all pending matters whether they are at the trial, appellate, or revisional stages.”
Non-consensual intercourse and bestiality remains an offence under section 377.