In a landmark Judgment Supreme Court of India has struck down 157 year old law which criminalizes consensual homo sexual acts between adults. The Five Judge Bench has declared Section 377 IPC unconstitutional, insofar as it criminalises consensual sexual acts of adults in private.
Chief Justice Dipak Misra said it is a unanimous verdict expressed through four separate but concurring judgments.
"Section 377 IPC is irrational , indefensible and arbitrary.The majoritarian views and popular morality cannot dictate constitutional rights"
As per the Judgment of CJI and Justice Khanwilkar Section 377 is unconstitutional, to the extent it criminalizes consensual sexual acts between adults, whether homosexual or heterosexual. However, bestiality will continue as an offence.
The 2013 SC judgment in Suresh Kumar Koushal case was overturned by the Constitution Bench.
The judgment of Chief Justice Dipak Misra and Justice Khanwilkar was emphatic in stating that constitutional rights cannot be dictated by majoritarian views and popular morality. Majoritarianism was held to be constitutionally untenable.
"Constitution is a dynamic document, having the primary objective of establishing a dynamic and inclusive society", said the judgment.
The Chief's judgment further noted that it was time to bid adieu to prejudicial perceptions deeply ingrained in social mindset and to empower the LGBT community against discrimination.
Identity & Autonomy
The judgment of CJI Misra and Justice Khanwilkar touched upon the aspects of identity and autonomy of individual. Sexual orientation was treated as an expression of identity, protected under fundamental right to freedom of speech and expression. The judgment also noted that sustenance of identity was the essence of existence.
"Sexual orientation is natural. Discrimination on the basis of sexual orientation is violation of freedom of speech and expression", noted the judgment.
It was also stated that bodily autonomy of an individual was to be constitutionally protected. A person should be able to share intimacy in private with a person of his choice; that forms part of his right to privacy.
Homosexuality not a mental disorder
The judgment of Justice R F Nariman held that homosexuality was not a mental disorder. He referred to the latest Mental Healthcare Act passed by the parliament, which recognized homosexuality as a normal condition. Justice Nariman also added that homosexuals have the right to live with dignity. Justice Nariman urged the government to give wide publicity to the order to counter the stigma associated with homosexuality.
The Suresh Kumar Koushal judgment was held to be no longer a good law in view of the judgments in NALSA case and Puttaswamy judgment.
Tragedy inflicted by Section 377
The judgment of Justice Chandrachud touched upon the tragedy and anguish inflicted by Section 377.
"Section 377 has travelled so much that it has been destructive to LGBT community. It has inflicted tragedy and anguish, which are to be remedied", stated his judgment.
He also observed that human sexuality cannot be confined to a binary.
Justice Chandrachud also added that the case was not just about decriminalising Section 377 IPC, and was about recognizing the rights of LGBT community.
Historical wrongs apologized.
Justice Indu Malhotra said that history owed an apology to LGBT community for the persecution and ostarcism imposed by Section 377.
The Constitution Bench comprising Chief Justice Dipak Misra and Justices RF Nariman, AM Khanwilkar, DY Chandrachud and Indu Malhotra reserved judgment on July 17, after four days of hearing. The Court expressed that it will examine whether its is permissible under Constitutional morality to criminalize sexual acts performed by consenting adults.
Senior Advocates Mukul Rohatgi, Aravind Datar, Shyam Divan, CU Singh, Anand Grover and Advocates Menaka Guruswamy, Saurabh Kirpal and Jayna Kothari argued for various petitioners and intervenors.
Although the Delhi High Court had struck down the provision in 2009, it was revived by the Supreme Court in 2013 in a widely criticised judgment by a Division Bench of Justice G S Singhvi and Justice S J Mukhopadhyaya.
However, the issue resurrected in July 2016, when a fresh petition filed by well-known persons, including dancer N.S. Johar, journalist Sunil Mehra, chef Ritu Dalmia, hotelier Aman Nath and business executive Ayesha Kapur, was referred to Constitution Bench by a Division Bench headed by Justice Bobde. The reference was made on the basis of submission that it was the first time that individuals directly affected by the provision were approaching the Court.
The SC judgment in privacy case noting that 'sexual orientation' was a facet of privacy right, brought in a fresh perspective to the issue.
The four-day long marathon hearing had witnessed engaging submissions by a battery of lawyers.
"Section 377 violates Part III (of the Constitution)...right to life includes the right to dignity and to choose one's sexual partner...the effect on section 377 is by and large on gay men though prima facie it is sex neutral (Despite the use of the term 'whoever' in the language of section 377, considering the concept of conventional sex, being peno-vaginal intercourse)...", Senior Counsel Mukul Rohatgi had argued.
"the 'order or nature' is not defined and it would change as the society changes...accordingly, a law which was valid 50 years ago could be invalid today", he drove in the point.
Thereupon, he discussed section 375 of the IPC which defines the offence of rape- "this is all non-consensual and between a man and a woman...so the corollary would be that if consensual sex does not attract section 376, then it would fall under section 377"
Objecting to the observation of the two-judge bench in Suresh Kumar Kaushal, Senior Advocate Arvind Datar had advanced, "it is logically wrong to say that since the Parliament, despite the recommendation of the Law Commission in its 172nd Report, has chosen not to delete section 377, it is constitutional..."
Reading clauses (1) and (2) of Article 13 together, he argued that if section 377 was introduced in present day, it would not stand the test of Part III of the Constitution, and hence, the provision, as enacted in 1860, could not either.
Advocate Saurabh Kirpal relied on the judgments in NALSA and Justice K. S. Puttaswamy to depict the existence of the Fundamental Rights; and on the Shakti Vahini (honour killings) and Hadiya cases to show the contents of the rights under Articles 14, 19 and 21 as including the right to choose one's sexual partner.
ASG Tushar Mehta submitted the Centre's affidavit before the Supreme Court five judge bench, clarifying its stand to not contest the petitions, leaving the decision to the wisdom of the court.
However, the ASG proceeded to voice his personal apprehension in the light of the observation made by Justice D. Y. Chandrachud that in as much as the right to choose one's sexual partner has been recognised in the Hadiya case, such right could also possibly be extended to include a partner of the same-sex.
"This may encourage other forms of sexual perversions such as incest, and relationships within the 'prohibited degrees' and between 'sapindas' which are restricted under the Hindu Marriage Act (of 1955)...one may say that his choice of sexual partner is his sister...", iterated Mr. Mehta, requesting a clarification of the judgment in Shafin Jahan v. UOI in this respect.
Advocate Menaka Guruswamy had passionately urged, "Navtej Singh Johar (one of the petitioners) has been with his partner for 24 years...Amarnath's (another petitioner) partner of 26 years has passed away and not present to witness this hearing...Sunil Mehra (petitioner) had cleared the IAS but did not join, owing to the fear that is generated by this policy...their lives are passing by..."
Senior Counsel Anand Grover had referred to section 375, IPC to attack the impugned provision- "(Penetration into) Mouth, urethra or anus which was earlier considered to fall under section 377, now attracts section 375, if without consent...the legislature does not see it as being against the 'order of nature'...also, there is no intelligible differentia between whether the act is performed homosexually or heterosexually..."
Advocate Jayna Kothari advanced a brief argument on how the rights of transgenders, recognised by the apex court in the NALSA judgment, would not actualise until section 377 is struck down- "Transgenders are commonly suspected of the offence under section 377...my client was born as a male, but identifies herself as a female...she is married, but if she indulges in any sexual activity with her husband, section 377 would come into play"
Senior Advocate Shyam Diwan threw light on how the members of LGBT community are "invisible" until they develop relationships, upon which they become "visible" to the society and the State; the "shadow of criminality" cast upon them and their treatment as "second class citizens".
Senior Advocate C. U. Singh, appearing on an intervention application, addressed the medical concerns associated with this criminalisation.
Senior Counsel Ashok Desai discussed the approaches to homosexuality under various religious beliefs.
Senior Advocate Krishnan Venugopal argued that section 377 qualifies as a means to suppress alternate sexuality.
Advocate Manoj George, appearing on behalf of two Christian associations, had also criticised the "U-turn" resorted to by the Centre in the present batch of petitions, considering its earlier stand in Suresh Kumar Kaushal.
In his turn, Senior Counsel K. S. Radhakrishnan contended that what is criminalised under section 377 are certain acts and not gender identity or sexual orientation.