SC decriminalises homosexuality

Choice of a partner is part of the fundamental right to privacyBench says history owes the LGBTQ community an apologySection 377 has been a reason for much tragedy and anguish

In a landmark judgment on Thursday, a five-judge Constitution Bench of the Supreme Court decriminalised homosexuality, with a prayer to the LGBTQ community (Lesbian, Gay, Bisexual, Transgender, Queer) to forgive history for subjecting them to “brutal” suppression.

The Bench, led by Chief Justice of India Dipak Misra, unanimously held that criminalisation of private consensual sexual conduct between adults of the same sex under Section 377 of the Indian Penal Code was clearly unconstitutional. The court, however, held that the Section would apply to “unnatural” sexual acts like bestiality. Sexual act without consent continues to be a crime under Section 377.

In four concurring opinions, the Constitution Bench declared the 156-year-old “tyranny” of Section 377 “irrational, indefensible and manifestly arbitrary.” Section 377 thus far punished homosexuality with 10 years of imprisonment.

Lawmakers’ lethargy

The prayer for forgiveness came from Justice Indu Malhotra, the lone woman judge on the Constitution Bench. “History owes an apology,” she said, reaching out to the rainbow spectrum.

Justice D.Y. Chandrachud called Section 377 “Macaulay’s legacy,” which continued for 68 years despite a liberal Constitution because of the manifest lethargy of the lawmakers. He said Section 377 shackled the human instinct to love. It had been a reason for much tragedy and anguish.

“It is difficult to right a wrong by history. But we can set the course for the future,” Justice Chandrachud wrote in his separate opinion.

He said decriminalisation of homosexuality was just a step. This case was about people wanting to live with dignity. Citizens cannot be pushed into obscurity by a colonial law, he wrote.

A self-correction

Section 377 discriminated against a minority based solely on their sexual orientation. It violated the right of the LGBTQ community to “equal citizenship and equal protection of laws.” The court held that bodily autonomy was individualistic. Choice of a partner was part of the fundamental right to privacy. The court set aside its 2013 judgment in the Suresh Koushal case. Legal experts said this was a much-needed self-correction of a past judicial wrong committed against the community. Experts said the Constitution Bench verdict would become the foundation for members of the community to seek individual rights.

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