LEGAL NEWS: Section 377 is irrational, indefensible and manifestly arbitrary, says the CJI
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.
JUDGEMENT: 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.
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.”