In a landmark move, India's highest court struck down a 157-year old colonial-era law, the notorious 'Section 377' that criminalised all sexual activity apart from heterosexual sex as “against the order of nature”. A bench of five judges of the Supreme Court spent weeks hearing impassioned arguments for and against decriminalising same-sex relations starting this July.
It delivered a unanimous verdict today morning through four separate but concurrent judgments, in which the judges described Section 377 as “arbitrary and said that freedom could only be fulfilled where the LGBT community possesses equal rights. Justice Indu Malthotra, the only woman on the bench, said history owed an apology to those persecuted in the past by the law, and that today's judgment would be considered in all pending prosecutions.
The judges verdict reinstates the fact that individual constitutional rights reign supreme, and that the expression of intimacy was a part of the fundamental right to privacy. Four separate, yet concurring judgements were delivered, authored by CJI Misra, Justice Chandrachud, Justice Nariman, and Justice Malhotra. CJI Misra began by reading the judgment. “Section 377 is arbitrary. The LGBT community possesses rights like others. Majoritarian views and popular morality cannot dictate constitutional rights. We have to vanquish prejudice, embrace inclusion and ensure equal rights,” he said.
He added, “Sexual orientation of an individual is natural and discrimination on the basis of sexual orientation is a violation of freedom of expression. The provision of IPC had resulted in collateral effect in that consensual sex between LGBT persons is criminalised, and is violative of Article 14, Supreme Court.” The bench has overruled a SC order in the Suresh Kumar Koushal Case. Justice Nariman said that Koushal was no longer good law in view of the NALSA and Puttaswamy judgments. He also said that “homosexuality cannot be regarded as mental disorder” and “homosexuals have the right to live with dignity.”
Delivering his judgment, Justice Chandrachud said, “Section 377 inflicts tragedy and anguish; it has to be remedied. 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.” He added, “To deny the 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.”
