On the 6th of September, 2018 the Supreme Court of India (SC) gave finality to an age old issue of decriminalization of the section 377 of the Indian Penal Code (IPC), 1861. The court struck down portions of section 377 of the IPC and decriminalized homosexuality. Hence, exonerating a section of our own society who have varying practices of sexuality than the majority, who were hitherto considered as criminal and against the law. Celebrations erupt among the LGBT community.
The Verdict
A 5 judge constitutional bench of the SC in the landmark verdict dumped the archaic provisions of the much discussed section which read:
- Unnatural offences: Whoever voluntarily has carnal intercourse against the order of nature with any man, woman or animal shall be punished with imprisonment for life, or with imprisonment of either description for a term which may extend to ten years, and shall also be liable to fine.
Explanation: Penetration is sufficient to constitute the carnal intercourse necessary to the offence described in this section.
The ambit of Section 377 extends to any sexual union involving penile insertion per se. Theoretically, sexual acts such as fellatio and anal penetration may be punishable under this law.
Accepting the consent part the court said that 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.
The Bench was 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. The bench also asked central government to work towards removing the stigma of homosexuality from the society and impressed upon media and other social institutions to work towards social acceptability and removal of prejudice towards homosexuals.
Some key observations from court:
Society owes an apology to the LGBTQ community for the years of stigma imposed on them. – Justice Indu Malhotra
Justice Chandrachud– 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.”
‘Section 377 is based on deep-rooted gender stereotypes’
Justice nariman
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.
CJI justice Misra and Justice Khanvilkar
“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.”
Way Forward
As the highest court of the land has put a seal of finality over the contentious issue. The next move should be aimed at enhancing the social acceptability of homosexuals and removal of social stigma surrounding same sex relationships.
The legal war also doesn’t end here. The battle for decriminalization has been won but more legal fights for rights, such as to marry to adopt or have kids must be fought and this euphoria should not douse the fire for more progressive and humane reforms in our society.
The other areas which need focus include
- such reforms should come via elected representatives and government and courts should be the savior of the last resort
- focus on mental health and related issues as highlight by the Honorable court.
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