A five-judge Constitution Bench of the Supreme Court on Thursday decriminalised homosexuality by partially striking down the colonial era provisions of Section 377 of the Indian Penal Code (IPC).
The Bench, led by Chief Justice of India (CJI) Dipak Misra and comprising Justices Rohinton F. Nariman, A.M. Khanwilkar, D.Y. Chandrachud and Indu Malhotra , gave four separate but concurring judgment.
In the combined judgment, the CJI and Justice Khanwilkar said the Section would not apply to consensual same-sex acts between homosexuals, heterosexuals, lesbians and other sexual minorities but would apply to bestiality and sexual acts without consent by one of them. Justice Nariman asked the Union government to work towards eradicating the stigma surrounding homosexuality.
Our Legal Correspondent Krishnadas Rajagopal gives live updates from the Supreme Court:
Justice Indu Malhotra says society owes an apology to the LGBTQ community for the years of stigma imposed on them.
'Section 377 is based on deep-rooted gender stereotypes'
Justice Chandrachud is the next judge to deliver his verdict. He says:
"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."
Quoting Leonard Cohen, he says, "Shadows of a receding past controls the quest of LGBTQ for fulfillment."
Justice Chandrachud continues. "What is the 'order of nature'? State cannot decide the boundaries between what is permissible or not. Section 377 is based on deep-rooted gender stereotypes. It persecutes people. It is a majoritarian impulse to subjugate a sexual minority to live in silence," he says and adds decriminalisation of homosexuality is only the first step.
Terming criminalising homosexuality "unconstitutional", he says LGBTQ possess "full range of constitutional rights" including sexual orientation and partner choice. "LGBTQ has equal citizenship and equal protection of laws."
Centre should take campaign to reduce stigma
Justice Rohinton F. Nariman delivers his verdict.
The Yogyakarta Principles animates Article 14. Homosexuals have a fundamental right to live with dignity, are entitled to be treated as human beings and imbibe the spirit of fraternity, he says concurring witth the CJI to partially strike down Section 377.
The Yogyakarta Principles is a document about human rights in the areas of sexual orientation and gender identity, published as the outcome of an international meeting of human rights groups in Yogyakarta, Indonesia, in November 2006. The Principles were supplemented in 2017, expanding to include new grounds of gender expression and sex characteristics, and a number of new principles.
He points out that the recently passed Mental Healthcare Act has recognised that homosexuality is not a mental disorder. He orders the Central government to take campaign to reduce stigma surrounding sexual minorities.
Section 377 is violative of Article 14: CJI
The Chief Justice continues to read his judgment says: "Bodily autonomy is individualistic. A matter of choice and is part of dignity." He asserts that Section 377 is violative of Article 14.
In the combined judgment, the CJI and Justice Khanwilkar say the Section will not apply to consensual same-sex acts between homosexuals, heterosexuals, lesbians and other sexual minorities but will apply to bestiality and sexual acts without consent by one of them.
The judgment further states: "The LGBTQ community needs the rainbow of hope for the sake of the humanity. They should be allowed to live with dignity and without pretense. This is their journey to dignity, equality and liberty. It is time to bid adieu to prejudicial perceptions deeply ingrained in social mindset. It is time to empower LGBTQ community against discrimination. They should be allowed to make their choices."
Gay rights activists celebrate
Sukhmani, an 18-year-old activist, says, “We are very happy to receive the same rights as all other people in this country. We have legal acceptance now. We will work for social acceptance.”
As the verdict is being delivered, jubliant gay rights activists celebrate on the lawns of the court. Shouts of 'Hip Hip Hurray' echo on the premises.
Sukhmani, an 18-year old activist tells Jaideep Deo Bhanj , "we are very happy to receive the same rights as all other people in this country. We will have legal acceptance now will work for social acceptance now. At least the constitution and the IPC supports!"
'Sexual orientation is biological, innate'
The CJI is the first judge to read out his verdict. Denial of self-expression is like death. ''Section 377 is irrational, indefensible and manifestly arbitrary,'' he says.
Delivering the judgment for himself and on behalf of Justice Khanwilkar, he overturns the Suresh Koushal judgment, thereby effectively decriminalising homosexuality. The LGBTQ community possesses equal rights as any other citzen, he notes.
"Societal morality cannot trump constitutional morality. Societal morality cannot overturn the fundamental rights of even a single person," he states.
"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," he adds.
The Constitution Bench assembles and pronouncement of the judgment commences.
The CJI says four judges will deliver separate but concurring judgments.
Justices Nariman, Chandrachud and Indu Malhotra too will deliver separate judgments.
The petitioners
The issue was first raised by NGO Naz Foundation which, in 2001, approached the Delhi High Court. In 2009, it decriminalised sex between consenting adults of the same gender by holding the penal provision as “illegal“.
This High Court judgement was overturned in 2013 by the apex court, which also dismissed a review plea against which the curative petitions were filed that are pending.
The top court had commenced hearing on the fresh writ petitions challenging re-criminalisation of consensual gay sex between two adults, rejecting the Centre’s plea seeking postponement of the proceedings by four weeks.
At the outset of the hearing, the five-judge Bench, on July 10, makes it clear that it is not going into the curative petitions and would adjudicate on the fresh writ petitions in the matter.
Who are in favour of Section 377?
An alliance of churches and a Christian group Trust of God Ministries opposed the scrapping of the colonial era law.
Advocate Manoj George, for an alliance of churches, said “carnal desire,” with or without consent, was an offence under Section 377. It was against the order of nature.
Senior advocate K. Radhakrishnan, for Trust of God Ministries, argued that striking down Section 377 IPC could increase the instances of sexually-transmitted diseases such as AIDS.
Apostolic Alliance of Churches and Utkal Christian Association and some other NGOs and individuals, including Suresh Kumar Kaushal, have also favoured retaining the controversial clauses.
Mr. Kaushal had also challenged the 2009 verdict of the High Court in the apex court, which had restored Section 377.
The judgment on Section 377 is expected to be delivered at 11.30 am.
'Homosexuality is not an illness'
The Indian Psychiatric Society (IPS) has said it is “time to stop looking at homosexuality as a mental illness”. It states that the there is no scientific evidence that sexual orientation can be altered by any treatment. Any such attempt “may lead to low self-esteem and stigmatisation,” it warns.
A “position statement on Homosexuality” issued by the Society says: “Homosexuality is not a psychiatric disorder and we recognise same sex sexuality as a normal variant of human sexuality much like heterosexuality and bisexuality.’’
The Society adds that there is no scientific evidence that sexual orientation can be altered by any treatment and that any such attempts may in fact lead to low self-esteem and stigmatization of the person.
The Opposition parties too are in favour of decriminalising homosexuality.
Following its privacy judgment in August last year, the Congress had urged the apex court to take a relook at Section 377.
"CPI(M) has always been against criminalisation of same sex between consenting adults. Any way in a democracy, police and the state have no business interfering in personal choice of individuals,” party leader Brinda Karat had said.
Even the right wing Shiv Sena has supported decriminalising homosexuality
Centre's stand
The Union government, on July 11, told the Supreme Court that it would leave it to the wisdom of its judges to decide the constitutionality of Section 377.
It, however, said the court should specify that the right to choose a partner should not extend to perversions like incest.
Gay rights activists hailed the Centre's stand. Anjali Gopalan, founder and executive director of Naz Foundation Trust, said it was a huge step as the government’s stand was not clear earlier.
“At least the government stand is clear now, which should be helpful in doing away with Section 377. It seems like there is light at the end of the tunnel at last,” said Ms. Gopalan.
What is the litigation about?
Mediapersons at the Supreme Court ahead of the verdict on Section 377.
The Constitution Bench hearing in the Section 377 case began on July 10, with Justice Chandrachud orally observing that a person’s choice of a partner is a fundamental right to life, and a ‘partner’ includes same sex partner.
The judgment comes on a batch of petitions, including the lead one filed by hotelier Keshav Suri, arguing that the right to sexual orientation is meaningless without the right to choose a partner. Section 377 criminalises a section of people for being a sexual minority.
The Constitution Bench judgment will decide whether the December 2013 verdict of the court in the Suresh Koushal case, which upheld Section 377 and dismissed the LGBT (lesbian, gay, bisexual, and transgender) community as a negligible part of the population while virtually denying them the right of choice and sexual orientation, will prevail or not.
Tracing the birth of the LGBTQ rights movement
Lesbian, gay, bi-sexual and transgender (LGBT) people, along with their supporters, take part in Namma Pride Bengaluru Queer Habba rally in Bengaluru.
It was August 11, 1992. Outside the police headquarters in the ITO area of Delhi, the first known protest by gay rights in India was held.
It was sparked by the police picking up men from the Central Park in Connaught Place on suspicion of homosexuality — in those days, this kind of harassment was still a ‘normal’ practice. But activists from an organisation called AIDS Bhedbhav Virodhi Andolan (ABVA) decided not to let it pass this time and blocked the entrance to the police headquarters to protest the harassment.
Two opinions
There will be two opinions for the Constitution Bench led by the CJI. They will be authored by the CJI and Justice Chandrachud.
The judgment is expected at 11:00 am.
What is Section 377?
Section 377 of the Indian Penal Code criminalises consensual private sexual acts between adults. It came into force in 1862. Lawyers have argued that the notorious Criminal Tribes Act, 1871, which branded a number of marginalised population groups like transgenders as “innately criminal” before it was repealed, drew inspiration from Section 377. Though the 172nd report of the Law Commission of India recommended the deletion of Section 377, no action was taken. The penal provision says “whoever voluntarily has carnal intercourse against the order of nature with any man, woman or animal, shall be punished with imprisonment for life, or with imprisonment of either description for a term which may extend to 10 years, and shall also be liable to fine.”
In 2009, the Delhi High Court read down Section 377 to apply only to non-consensual, penile, non-vaginal sex, and sexual acts by adults with minors. In December 2013, a two-judge Bench of the Supreme Court, on appeals filed by private parties, set aside the High Court’s judgment . It upheld the criminalisation of gay sex while virtually denying the LGBTQ community the right to sexuality, sexual orientation and choice of partner. In July 2018, a Constitution Bench, led by Chief Justice Dipak Misra, re-opened the entire issue , saying a section of people could not live in fear of the law which atrophied their rights to choice, privacy and dignity.
