History Owes An Apology To LGBT Community; They Deserve To Live A Life Unshackled From The Shadow Of Being ‘Unapprehended Felons’: Justice Indu Malhotra

‘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: Insofar as Section 377 criminalises consensual sexual acts of adults (i.e. persons above the age of 18 years who are competent to consent) in private, is violative of Articles 14, 15, 19, and 21 of the Constitution. It is, however, clarified that such consent must be free consent, which is completely voluntary in nature, and devoid of any duress or coercion. The declaration of the aforesaid reading down of Section 377 shall not, however, lead to the reopening of any concluded prosecutions, but can certainly be relied upon in all pending matters whether they are at the trial, appellate, or revisional stages. The provisions of Section 377 will continue to govern non-consensual sexual acts against adults, all acts of carnal intercourse against minors, and acts of bestiality.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 sexualityThe 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 misuseThe 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 autonomyJustice 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...

History Owes An Apology To LGBT Community; They Deserve To Live A Life Unshackled From The Shadow Of Being ‘Unapprehended Felons’: Justice Indu Malhotra

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History Owes An Apology To LGBT Community; They Deserve To Live A Life Unshackled From The Shadow Of Being ‘Unapprehended Felons’: Justice Indu Malhotra

Ashok Kini

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