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The Supreme Court’s historic verdict de-criminalising gay sex will have far-reaching implications for the largely conservative Indian society, which has been divided on the controversial issue still considered a taboo by many.

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Satya Prakash in Delhi

The Supreme Court’s historic verdict de-criminalising gay sex will have far-reaching implications for the largely conservative Indian society, which has been divided on the controversial issue still considered a taboo by many.

Per se, the verdict is about legalising homosexual acts between consenting adults in private. After the Supreme Court’s nine-judge Constitution Bench verdict in 2017 declaring right to privacy a fundamental right under Article 21 (right to life and personal liberty), the fate of Section 377 of the Indian Penal Code was almost a foregone conclusion.

However, the manner in which the five-judge Constitution Bench, headed by Chief Justice of India, Dipak Misra, treated the issue of homosexuality, it has gone much beyond sexual orientation, preference and choice, consent, privacy, intimacy and individual autonomy.

Now the discourse is going to be about equality, non-discrimination, inclusion, identity, dignity and full citizenship rights for the lesbian, gay, bisexual, transgender, and queer (LGBTQ) community, which also include marriage, adoption and succession. The judgment also attempts to undo the stigma attached to homosexuality by asking the government to sensitise its officials, particularly police officials, and bring the community back into the mainstream.

The 19th-century Victorian law, which came into force in 1862, says, “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 10 years, and shall also be liable to fine.”

After examining Section 377, the  Bench declared a part of it as “irrational, indefensible and manifestly arbitrary”, for, it violated right to equality, right to non-discrimination, right to freedom of speech and expression and right to live with human dignity. The provision has been read down to exclude consensual homosexual acts between adults in private from the purview of the archaic law. However, it can still be invoked to deal with non-consensual homosexual acts or sex with minors or animals.

The verdict has implications for heterosexuals as well. Oral and anal sex between consenting adults in private was treated as “unnatural” and a crime under the Section. Such acts are no more a crime.

By de-criminalising homosexual acts between consenting adults in private, the Supreme Court has corrected its December 2013 mistake of reversing the Delhi High Court’s 2009 verdict that had read down Section 377 of the IPC.

“The observation made in Suresh Koushal (2013 SC verdict) that gays, lesbians, bisexuals and transgenders constitute a very minuscule part of the population is perverse due to the very reason that such an approach would be violative of the equality principle enshrined under Article 14 of the Constitution. The mere fact that the percentage of population whose fundamental right to privacy is being abridged by the existence of Section 377 in its present form is low does not impose a limitation upon this Court from protecting the fundamental rights of those who are so affected by the present Section 377 IPC,” the top court said correcting its own mistake. 

It’s rather sad that the Supreme Court, which is supposed to be solely guided by constitutional morality and protection of fundamental rights of citizens against prevalent social morality dictated by majoritarianism, took so long to realise and correct its mistake. The Delhi High Court’s 2009 verdict authored by Justice AP Shah (since retired) was way ahead of its time.

Justice Indu Malhotra 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 have suffered through the centuries.” What about the delay on the part of the Supreme Court?

While the Supreme Court kept the issue on the backburner for years, all major political parties, meanwhile, changed their stand on the Section. “When millions of people world over are having alternative sexual preferences, it is too late in the day to propound a view that they should be jailed. The Delhi HC’s view appears more acceptable,” Finance Minister Arun Jaitley had said in 2015. The Congress, the Aam Admi Party and the Communist Party of India-Marxist, too, had supported de-criminalising gay sex.

Many contend that homosexuality is against moral values of our society. But what is forbidden in religion need not be prohibited in law. A legal wrong is almost always a moral wrong, but vice versa may not be correct. A moral wrong becomes a crime only when its consequences are adverse for the larger society.

Justice Nariman rightly said, “Morality and criminality are not co-extensive — sin is not punishable on earth by courts set up by the state but elsewhere; crime alone is punishable on earth. To confuse the one with the other is what causes the death knell of Section 377, insofar as it applies to consenting homosexual adults.”

In May 2015, Ireland legalised same-sex marriage by popular vote. In June 2015, the US apex court ruled that same-sex marriages were legal. Belgium, Brazil, Canada, France, Iceland, Ireland, Luxembourg, Norway, Portugal, South Africa, Spain, Sweden and Uruguay allow same-sex marriage. Will it happen in India too?

The LGBTQ community has already started demanding such rights in India. They can take a cue from the verdict of Justice DY Chandrachud, “Gays and lesbians, transgenders and bisexuals continue to be denied a truly equal citizenship seven decades after independence….”

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.” Another round of legal battle is around the corner.

"Morality and criminality are not co-extensive — sin is not punishable on earth by courts set up by the state but elsewhere; crime alone is punishable on earth. To confuse the one with the other is what causes the death knell of Section 377, insofar as it applies to consenting homosexual adults.” Justice RF Nariman

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