While Justice D.Y. Chandrachud criticised the government for its ‘lethargy’, Justice Indu Malhotra said ‘history owes an apology’ to the LGBTQ community.
New Delhi: In a landmark, unanimous verdict, the Supreme Court Thursday struck down a colonial-era law that criminalised homosexuality and declared it unconstitutional.
A five-judge Constitution bench headed by Chief Justice Dipak Misra delivered the verdict, reading down Section 377 of the Indian Penal Code. The ruling was delivered in four separate but concurring opinions delivered by CJI Misra (who wrote for himself and Justice A.M. Khanwilkar) and Justices Rohinton F. Nariman, D.Y. Chandrachud and Indu Malhotra.
ThePrint analyses the 477-page ruling and brings you the significant aspects.
CJI Misra & Justice Khanwilkar’s opinion
Chief Justice Misra and Justice Khanwilkar began by recounting in detail the arguments advanced by all the petitioners and intervenors in the legal tussle to decriminalise homosexuality.
Transformative Constitution: “The purpose of having a constitution is to transform the society for the better,” CJI Misra wrote, drawing heavily from a 2008 ruling by the Supreme Court of South Africa.
According to Misra, the Constitution “carries a pledge, promise and thirst to transform the Indian society,” and constitutional courts have a duty in “realising the evolving nature of the Constitution”.
However, the ruling said courts must “not be remotely guided by view or popular perception”.
This is in complete contrast to the 2013 apex court ruling that upheld Section 377, where the court said even if the law is unjust, it is for Parliament to repeal the law and not for the court to strike it down. This interpretation will have wider implications in the future where the courts will have to recognise new rights that are yet to evolve.
Right to choose one’s partner: In striking down Section 377, the court reiterated what it had said in the Hadiya case — that any person who has come of age and has the capability to think on his/her own has a right to choose his/her life partner.
Freedom to be different: The court also dwelled upon “freedom to be different”.
“Society as a whole or even a minuscule part of society may aspire and prefer different things for themselves. They are perfectly competent to have such a freedom to be different, like different things, so on and so forth, provided that their different tastes and liking remain within their legal framework,” the court said.
Constitutional duty to respect another’s dignity: Significantly, the ruling said that apart from the responsibilities of the judiciary and the state, citizens also have a “constitutional duty” to show respect for the dignity of another individual.
“It is not only the duty of the state and the judiciary to protect this basic right to dignity, but the collective at large also owes a responsibility to respect one another’s dignity,” the court said.
Understanding homosexuality: “It is pure science, a certain manner in which the brain and genitals of an individual function and react,” CJI Misra wrote. The opinion also discussed Australian judge Michael Kirby’s definitions of gender identity, gay, lesbian etc. Incidentally, Kirby, who identifies himself as gay, had severely criticised the 2013 apex court ruling.
“Society cannot remain unmindful to the theory which several researches, conducted both in the field of biological and psychological science, have proven and reaffirmed time and again.”
Misra’s ruling also said that the society regress in its understanding of rights once it has made a positive stride. Since the court recognised the rights of transgenders in the NALSA ruling, it cannot “retrograde” to not recognise rights of other minorities.
Justice Nariman’s opinion
Justice Rohinton Nariman, who wrote a separate concurring opinion, started by discussing the history of Section 377 and the evolution of a similar law in the United Kingdom.
He also noted that a court in Trinidad and Tobago, referring to the Supreme Court’s landmark privacy of August 2017, had struck down its own law that criminalised homosexuality.
Homosexuality not a mental illness: He highlighted Section 2 (s) of the Mental Healthcare Act, 2017, that defines mental illness to clarify that even Parliament does not think of homosexuality as a mental illness.
Arbitrary, violates privacy: Nariman declared Section 377 as manifestly arbitrary, drawing from his own opinion in the triple talaq ruling, which said that a statutory provision can be struck down on the sole ground that it is arbitrary.
He again referred to his opinion in the Shreya Singhal case that struck down Section 66A of the Information Technology Act, and said the “chilling effect” caused by Section 377 would also violate the right to privacy.
Significantly, the judge directed the government to take all measures to ensure that the ruling is given wide publicity to eliminate the stigma associated with such persons. He also directed that government officials, including police officers, must be given periodic sensitisation and awareness training.
Justice Chandrachud’s opinion
The judge began by quoting Justice Leila Seth, the first woman chief justice of an Indian high court, and mother of celebrated author and gay rights activist Vikram Seth.
“What makes life meaningful is love. The right that makes us human is the right to love. To criminalise the expression of that right is profoundly cruel and inhumane,” Justice Seth had written.
Justice Chandrachud said Section 377 ensured conformity by imposing the fear of penal laws among citizens. “Section 377 provides for rule by the law instead of the rule of law,” he wrote.
Criticism of the government: The judge criticised the government for leaving the matter to the “wisdom of the court”.
“We would have appreciated a categorical statement of position by the government, setting out its views on the validity of Section 377,” the ruling said.
The ruling also criticised the “lethargy” of the government which allowed the survival of Section 377 — “a supposedly alien law” — for over 158 years.
Test of arbitrariness: The judge held that Section 377 was arbitrary since it did not make a distinction between homosexuals and heterosexuals, and between ‘ordinary intercourse’ and ‘intercourse against the order of nature’. Any intercourse that does not lead to procreation is considered against the order of nature.
“What is ‘natural’ and what is ‘unnatural’? And who decides the categorisation into these two ostensibly distinct and water-tight compartments?” the judge wrote.
The ruling also stated that “discrimination will not survive constitutional scrutiny when it is grounded in and perpetuates stereotypes about a class”. Section 377, the ruling said, “is founded on a stereotypical understanding of the role of sex”.
“Section 377 criminalises behaviour that does not conform to the heterosexual expectations of society. In doing so it perpetuates a symbiotic relationship between anti-homosexual legislation and traditional gender roles,” he added.
After discussing jurisprudence of other countries at length, Justice Chandrachud concluded that intimacy between consenting adults of the same-sex is beyond the legitimate interests of the state.
Justice Malhotra’s opinion
Justice Malhotra began by noting that even though Section 377 appears to be facially neutral and applies equally to both heterosexuals and homosexuals, “the thrust of this provision has been to target the LGBT community in light of the colonial history of anti-sodomy laws, and penalise what was perceived to be ‘deviant’ or ‘perverse’ sexual behaviour.”
The judge also wrote 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”.
Homosexuality not an aberration: Malhotra clarified that homosexuality was not an aberration but a variation of sexuality.
“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.”
Malhotra held Section 377 to be arbitrary, discriminatory and violative of the right to dignity and the right to privacy.
Right to health: Justice Malhotra ruled that Section 377 had to be struck down since it violated the right to health. “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,” the ruling said.
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