‘A subjective notion of public or societal morality which discriminates against LGBT persons, and subjects them to criminal sanction, simply on the basis of an innate characteristic runs counter to the concept of Constitutional morality, and cannot form the basis of a legitimate State interest.’
Justice Indu Malhotra, in her separate judgment decriminalizing homosexuality, observed that 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.
Justice Malhotra held as follows:
In a fifty paged judgment, Justice Malhotra has referred to legislative background of section 377 IPC and also earlier judgments interpreting “carnal intercourse against the order of nature”. The judgment also explains how Section 377 is violative of Article 14,15, 19, and 21 of the Constitution. Justice Malhotra observed that a subjective notion of public or societal morality which discriminates against LGBT persons, and subjects them to criminal sanction, simply on the basis of an innate characteristic runs counter to the concept of Constitutional morality, and cannot form the basis of a legitimate State interest.
Homosexuality is a natural variant of human sexuality
The Judge referred to scientific research on the subject, observed that Homosexuality is a natural variant of human sexuality.
She said: “It is believed that one’s sexuality is the result of a complex interplay between nature and nurture. Sexual orientation is an innate attribute of one’s identity, and cannot be altered. Sexual orientation is not a matter of choice. It manifests in early adolescence. Homosexuality is a natural variant of human sexuality.”
Section 377 by penalising voluntary consensual relationships between LGBT persons creates an artificial dichotomy
Examining the issue through Article 14 prism, the judge observed that Section 377 operates in a vastly different manner for two classes of persons based on their “sexual orientation” i.e. the LGBT persons and heterosexual persons.
“Section 377 penalises all forms of non-penile-vaginal intercourse. In effect, voluntary consensual relationships between LGBT persons are criminalised in totality. The import and effect of Section 377 is that while a consensual heterosexual relationship is permissible, a consensual relationship between LGBT persons is considered to be ‘carnal’, and against the order of nature. Section 377 creates an artificial dichotomy. The natural or innate sexual orientation of a person cannot be a ground for discrimination. Where a legislation discriminates on the basis of an intrinsic and core trait of an individual, it cannot form a reasonable classification based on an intelligible differentia.”, the judge said observing that it would be retrograde to describe such relationships as being ‘perverse’, ‘deviant’, or ‘unnatural’.
Phrase “carnal intercourse against the order of nature” too open ended, gives scope for misuse
The judge also said that phrase “carnal intercourse against the order of nature” in Section 377 as a determining principle in a penal provision, is too open-ended, giving way to the scope for misuse against members of the LGBT community.
Right to life and liberty would encompass the right to sexual autonomy
Justice Malhotra also observed that Section 377 insofar as it curtails the personal liberty of LGBT persons to engage in voluntary consensual sexual relationships with a partner of their choice, in a safe and dignified environment, is violative of Article 21.
“Sexual orientation is innate to a human being. It is an important attribute of one’s personality and identity. Homosexuality and bisexuality are natural variants of human sexuality. LGBT persons have little or no choice over their sexual orientation. LGBT persons, like other heterosexual persons, are entitled to their privacy, and the right to lead a dignified existence, without fear of persecution. They are entitled to complete autonomy over the most intimate decisions relating to their personal life, including the choice of their partners. Such choices must be protected under Article 21. The right to life and liberty would encompass the right to sexual autonomy, and freedom of expression.”
Takes away the decisional autonomy of LGBT persons to make choices consistent with their sexual orientation
The judgment reads: “Section 377 affects the private sphere of the lives of LGBT persons. It takes away the decisional autonomy of LGBT persons to make choices consistent with their sexual orientation, which would further a dignified existence and a meaningful life as a full person. Section 377 prohibits LGBT persons from expressing their sexual orientation and engaging in sexual conduct in private, a decision which inheres in the most intimate spaces of one’s existence.”
Compels LGBT persons to lead closeted lives which results in serious health issues
The judge observed that Section 377 criminalises “carnal intercourse against the order of nature” it compels LGBT persons to lead closeted lives. “As a consequence, LGBT persons are seriously disadvantaged and prejudiced when it comes to access to health-care facilities. This results in serious health issues, including depression and suicidal tendencies amongst members of this community. “, she said.
It was further said: “LGBT persons express their sexual orientation in myriad ways. One such way is engagement in intimate sexual acts like those proscribed under Section 377. Owing to the fear of harassment from law enforcement agencies and prosecution, LGBT persons tend to stay ‘in the closet’. They are forced not to disclose a central aspect of their personal identity i.e. their sexual orientation, both in their personal and professional spheres to avoid persecution in society and the opprobrium attached to homosexuality. Unlike heterosexual persons, they are inhibited from openly forming and nurturing fulfilling relationships, thereby restricting rights of full personhood and a dignified existence. It also has an impact on their mental wellbeing.”
History owes an apology
Justice Malhotra concluded the judgment with this observation: “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. This was on account of the ignorance of the majority to recognise that homosexuality is a completely natural condition, part of a range of human sexuality. The misapplication of this provision denied them the Fundamental Right to equality guaranteed by Article 14. It infringed the Fundamental Right to non-discrimination under Article 15, and the Fundamental Right to live a life of dignity and privacy guaranteed by Article 21. The LGBT persons deserve to live a life unshackled from the shadow of being ‘unapprehended felons’
Fallacy in the Suresh Kumar Koushal Judgment
Justice Malhotra also overruled the two-judge SC bench judgment in Suresh Kumar Koushal for the following reasons: