Supreme Court atones, strikes down Section 377 partially

A five judge bench of the Supreme Court on Thursday struck down section 377 of the IPC, which held so-called unnatural sex as a criminal offence. The section 377 was partially struck down by the Constitution bench and will no longer apply to consensual same-sex acts between homosexuals, heterosexuals and lesbians but will continue to apply to bestiality and sexual acts without consent by one of them.

Chief Justice of India Dipak Misra in his judgment held section 377 to be “irrational, indefensible and manifestly arbitrary”. Observing that “Denial of self-expression is like death,” the CJI ruled that LGBTQ community possessed equal rights as any other citizen.

“Societal morality cannot trump constitutional morality. Societal morality cannot overturn the fundamental rights of even a single person,” the CJI held, adding, “Sexual orientation is biological, innate. She or he has no control over who they get attracted to. Any repression will be a violation of free expression. Bodily autonomy is individualistic. A matter of choice and is part of dignity. Section 377 is therefore violative of Article 14.”

It was time to bid adieu to prejudicial perceptions deeply ingrained in social mindset, the CJI ruled along with Justice Khanwilkar. It was time to empower LGBTQ community against discrimination and they should be allowed to make their choices, he said in his judgment.

In separate but concurring judgments, Justice Chandrachud, Justice Nariman and Justice Indu Malhotra also read down section 377.

Justice Chandrachud observed, “ Tragedy and anguish inflicted by section 377 should be remedied. Macaulay's legacy exists 68 years after the coming of a liberal Constitution. Human instinct to love has been constrained. Sexual orientation has become a reason for blackmail on the Internet.”

Justice Nariman said, “Homosexuals have a fundamental right to live with dignity, entitled to be treated as human beings and imbibe the spirit of fraternity.” While Justice Indu Malhotra declared that the society owed an apology to the LGBTQ for years of stigma imposed on them because of which they were made to lead lives of fear.

Justice Rohinton Nariman also directed the government to take steps to end prejudice and stigma against LGBTQ.

The salient points made in the judgments are as follows:

• Section 377 IPC is irrational, indefensible and arbitrary. The majoritarian views and popular morality cannot dictate constitutional rights
• Constitution is a dynamic document, having the primary objective of establishing a dynamic and inclusive society
• Sexual orientation is natural. Discrimination on the basis of sexual orientation is violation of freedom of speech and expression
• Section 377 has been destructive to LGBT community. It has inflicted tragedy and anguish, which are to be remedied...