The Supreme Court recently delivered a 493-page unanimous ruling relating to Section 377 of the Indian Penal Code and restored Constitutional morality into the framework of law after about 157 years. If we go into the history of the legislation, we will notice this Victorian-era law was modelled on Britain’s Anti-Buggery Act of 1533. The allegation has been that Section 377 reflected the British Judeo-Christian values prevalent at that time. Section 377 was the first colonial sodomy law inserted into the penal code and formed the model for similar laws across Asia, the Pacific Islands and Africa. In Asia and the Pacific, colonies and countries that inherited versions of that British law were: Australia, Bangladesh, Bhutan, Brunei, Fiji, Hong Kong, India, Kiribati, Malaysia, Maldives, Marshall Islands, Myanmar, Nauru, New Zealand, Pakistan, Papua New Guinea, Singapore, Solomon Islands, Sri Lanka, Tonga, Tuvalu and Western Samoa. In Africa, countries that inherited the version were: Botswana, Gambia, Ghana, Kenya, Lesotho, Malawi, Mauritius, Nigeria, Seychelles, Sierra Leone, Somalia, Swaziland, Sudan, Tanzania, Uganda, Zambia, and Zimbabwe. Only New Zealand (in 1986), Australia (state by state and territory by territory), Hong Kong (in1990, before the colony was returned to China), and Fiji (by a 2005 high court decision) have put the legacy and the sodomy law, behind them. Ironically, England and Wales decriminalised most of the consensual homosexual conducts in 1967.
The Supreme Court overruled its own opinion in the earlier case of Suresh Koushal and has not chosen to leave it to the Parliament to legislate as it thinks wise. The political class has avoided direct involvement in discussions relating to the LGBTQ minority. It is wary of a backlash from the social and religious taboos associated with gay relationships. In 2013, when the Supreme Court heard the appeal against the Delhi High Court ruling, the then ASG PP Malhotra, representing the UPA Government, strongly opposed decriminalising Section 377, saying this would be “immoral, unethical and abhorrent” for the society. The Modi Government decided to leave the case to the apex court, carefully limiting its implicit “no objection” to same-sex relations between consenting adults. While the Government took its stand, the BJP kept a low profile on the issue. Finally, the court took the responsibility on its shoulders and delivered the historic judgment. The Supreme Court said that a free society could be created only when individual identity, including sexual preferences, was protected and citizens were allowed to express themselves freely without being fettered by social exclusion or identity seclusion.
A five-judge Bench led by Chief Justice Dipak Misra said, “The overarching ideals of individual autonomy and liberty, equality for all sans discrimination of any kind, recognition of identity with dignity and privacy of human beings constitute the cardinal four corners of our monumental Constitution forming the concrete substratum of our fundamental rights that have eluded certain sections of our society who are still living in the bondage of dogmatic social norms, prejudiced notions, rigid stereotypes, parochial mindset and bigoted perceptions. Social exclusion, identity seclusion and isolation from the social mainstream are still the stark realities faced by individuals today and it is only when each and every individual is liberated from the shackles of such bondage and is able to work towards full development of his/her personality that we can call ourselves a truly free society”. CJI Misra said, “We have to bid adieu to the perceptions, stereotypes and prejudices deeply ingrained in the societal mindset so as to usher in inclusiveness in all spheres and empower all citizens alike without any kind of alienation and discrimination.”
Justice Chandrachud made a bold statement that in matters of personal intimacy and sexual orientation, the state had no role to play. The choice of a partner, the desire for personal intimacy and the yearning to find love and fulfillment in human relationships have a universal appeal, straddling age and time. “In protecting consensual intimacies, the Constitution adopts a simple principle: the state has no business to intrude into these personal matters. Nor can societal notions of heteronormativity regulate constitutional liberties based on sexual orientation,” he said.
CJI Misra said, “Individual identity and preferences were unique and could not be dictated on the basis of social dogmas or Victorian era social inhibitions. When we talk about identity from the constitutional spectrum, it cannot be pigeon-holed singularly to one’s orientation that may be associated with his/her birth and the feelings he/she develops when he/she grows up. Such a narrow perception may initially sound to subserve the purpose of justice but on a studied scrutiny, it is soon realised that the limited recognition keeps the individual choice at bay.”
Paucity of space is a constraint on a more detailed discussion of the judgment, but one could now safely say homosexuals have a fundamental right to live in India with dignity and privacy. Justice Nariman said, “Persons who are homosexuals have a fundamental right to live with dignity… We further declare that such groups (LGBTQ) are entitled to the protection of equal laws, and are entitled to be treated in society as human beings without any stigma being attached to any of them. We further direct that Section 377 in so far as it criminalises homosexual sex and transgender sex between consenting adults is unconstitutional.” He directed the Centre to take all measures for wide publicity of the judgment at regular intervals through media and also initiate sensitisation programmes for society, government and police officials to “reduce and finally eliminate the stigma associated with such persons” by making them aware of the plight of the LGBTQ community.
Justice Chandrachud, who authored the lengthiest judgment of 181 pages, said it was axiomatic that lesbians, gays, bisexuals, transgenders and queer members continued to be denied a truly equal citizenship seven decades after Independence. “The law has imposed upon them a morality which is an anachronism. Their entitlement should be as equal participants in a society governed by the morality of the Constitution. That in essence is what Section 377 denies to them. The shadows of a receding past confront their quest for fulfillment,” he said. “It is difficult to right the wrongs of history. But we can certainly set the course for the future. That we can do by saying, as I propose to say in this case, that lesbians, gays, bisexuals and transgenders have a constitutional right to equal citizenship in all its manifestations. Sexual orientation is recognized and protected by the Constitution,” he said.
Justice Malhotra, writing a short 50-page judgment, said, “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 suffered through centuries. The members of this community were compelled to live in fear of reprisal and persecution. This was on account of the ignorance of the majority to recognize that homosexuality is a natural condition.”
These were the highlights and indicators in the epoch-making judgments dealing with the rights of LGBTQ. Though the judgments are laudable and progressive, they also pave the way for newer problems that have to be faced by the socio-legal framework. For example, matters of same-sex marriage, matters of adoption and host of similar such problems will continue to crop up as the present ruling is only the beginning and not the end by itself. But when the other epoch-making ruling is forthcoming has to be waited.
(The writer, a Senior Advocate, is a former All India Service officer, a former diplomat, a former editor, a former President of Orissa High Court Bar Association and a former Advocate General of Odisha. jayantdas@hotmail.com)
