SC RIGHTS A 158- YR- OLD WRONG

■ Strikes down parts of Section 377, which criminalised consensual homosexual acts ■ Bench says history owes an apology to the LGBT community ■ ‘ Social morality can’t be used to violate fundamental acts’

In a historical and pathbreaking judgment, the Supreme Court on Thursday partially struck down as unconstitutional the 158- year- old colonial law — Section 377 of IPC — which criminalises consensual homosexual acts between two consenting adults. It held that homosexuality, lesbian, gay sex or un- natural sex between a man and woman is no more an offence for prosecution of the offender.

In a unanimous 493page verdict, a five- judge Constitution Bench declared Section 377 of the Indian Penal Code unconstitutional, insofar as it criminalises consensual sexual acts of adults in private. It, however, clarified that such consent must be free consent, which is completely voluntary in nature, and devoid of any duress or coercion.

The court also said that the provisions of Section 377 would continue to govern non- consensual sexual acts against adults, all acts of carnal intercourse against minors, and acts of bestiality or any kind of sexual activity with an animal.

Chief Justice Dipak Misra wrote for himself and Justice A. M. Khanwilkar. Justices Rohinton Nariman, D. Y. Chandrachud and Indu Malhotra gave concurring verdicts giving additional reasons.

The court, while striking down part of the Section 377 that criminalises consensual gay sex, said it was “irrational, indefensible and manifestly arbitrary”.

The CJI said that criminalisation of consensual carnal intercourse, be it amongst homosexuals, heterosexuals, bi- sexuals or transgenders, hardly serves any legitimate public purpose or interest. “Any discrimination on the basis of sexual orientation violates fundamental rights,” said CJI Misra, reading out the operative portion of the verdict in a packed courtroom.

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 bench said.

The CJI said, “Social morality cannot be used to violate the fundamental rights of even a single individual... Constitutional morality cannot be martyred at the altar of social morality.”

The court said that any display of affection amongst the members of the LGBT community towards their partners in public, so long as it does not amount to indecency or has the potentiality to disturb public order, can’t be bogged down by majority perception.

Terming sexual orientation as a “biological phenomenon” and “natural”, the court said, “If Section 377 remains in its present form in the statute book, it will allow the harassment and exploitation of the LGBT community to

prevail. We must make it clear that freedom of choice cannot be scuttled or abridged on the threat of criminal prosecution…”

The CJI said the very existence of Section 377 IPC criminalising transgenders casts a great stigma on an already oppressed and discriminated class of people. This stigma, oppression and prejudice has to be eradicated and the transgenders have to progress.

Justice Indu Malhotra, who wrote a separate concurring judgment, said members of the LGBT community are compelled to live under the fear of reprisal and persecution.

“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. The members of this community were compelled to live a life full of fear of reprisal and persecution,” Justice Malhotra said in her 50- page verdict.

Justice Indu Malhotra said the mere fact that the LGBT persons constitute a “miniscule fraction” of the country’s population couldn’t be a ground to deprive them of their fundamental rights guaranteed by the Constitution.

Justice Malhotra, while over- ruling the 2011 apex court verdict upholding provisions of Section 377, said the misapplication of this provision denied them the fundamental right to equality guaranteed by Article 14.

Justice Chandrachud, in his verdict, said that by penalising sexual conduct between consenting adults, Section 377 imposes moral notions which are anachronistic to a constitutional order.

He said while ostensibly penalising “acts”, it impacts upon the identity of the LGBT community and denies them the benefits of a full and equal citizenship.

“What makes life meaningful is love. The right that makes us human is the right to love. To criminalise the expression of that right is profoundly cruel and inhumane,” said Justice Chandrachud.

Eighty- seven years after the IPC was made, India gained her liberation from a colonial past. But the legacy of first law commission’s chief Lord Thomas Babington Macaulay — the offence under Section 377 — has continued to exist for nearly 68 years after we gave ourselves a liberal Constitution, he said.

“Section 377 exacts conformity backed by the fear of penal reprisal. There is an unbridgeable divide between the moral values on which it is based and the values of the Constitution. What separates them is liberty and dignity. We must, as a society, ask searching questions to the forms and symbols of injustice,” Justice Chandrachud said.

Justice Rohinton Nariman, in his concurring opinion, rejected the contention that since Section 377 is a colonial provision, it is presumed to be constitutionally valid.

Justice Nariman held that there is no presumption of constitutionality attached to a pre- constitutional statute like Indian Penal Code.

“The fact that the legislature has chosen not to amend the law, despite the 172nd Law Commission Report specifically recommending deletion of Section 377, may indicate that Parliament has not thought it proper to delete the aforesaid provision, is one more reason for not invalidating Section 377.”

He said the fact that only a minuscule fraction of the country’s population constitutes lesbians and gays or transgenders, and that in the last 150 years less than 200 persons have been prosecuted for committing the offence under Section 377, is neither here nor there.