‘Love is love’: Internet cheers with memes, cartoons as Supreme Court decriminalizes homosexuality, India decriminalizes homosexuality. The Supreme Court’s decision was received with joy and on social media. Section 377 of the Indian Penal Code came into force more than a century and a half ago, in 1861, when India was still being ruled by the British. It was modelled on Britain’s ‘Buggery Act’ of 1533, and criminalised “unnatural offences”. According to the act, “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.”
How long it took?
The judgement came after the Supreme Court heard six petitions and interventions filed by non-governmental organisation Naz Foundation, parents of queer people and Voices Against 377, a collective of human rights groups. The petitioners urged the court to reconsider its 2013 judgement on the Suresh Kumar Koushal vs. Naz Foundation case, when it set aside a 2009 Delhi High Court order which decriminalised homosexuality. Back then, the court said that only the legislature could change laws.
What does the judgement say?
In four different but concurring opinions, the Supreme Court said that Section 377, as far as the aspect of criminalising consensual homosexual sex goes, runs contradictory to the Constitution. In consequence, the court has read down the provision and has declared all forms of consensual sex between competent adults to be legal. This consent, the court clarified, should be free consent without any coercion.
How did the court arrive at this conclusion?
The five-judge bench has given an exhaustive judgement covering a gamut of Constitutional questions, from fundamental rights to questions of privacy to understanding of morality. The court has made it clear that Article 14 of the Constitution guarantees equality before law and this applies to all classes of citizens. It has dismissed the position taken by a two-judge bench in 2013 that the LGBTQ community constitute a minuscule minority and so there was no need to decrminalise homosexual sex. In this, the court said it was important that the rights of minority are protected from majoritarian interference.
“An examination of Section 377 IPC on the anvil of Article 19(1)(a) reveals that it amounts to an unreasonable restriction, for public decency and morality cannot be amplified beyond a rational or logical limit and cannot be accepted as reasonable grounds for curbing the fundamental rights of freedom of expression and choice of the LGBT community. Consensual carnal intercourse among adults, be it homosexual or heterosexual, in private space, does not in any way harm the public decency or morality,” Chief Justice Dipak Misra and Justice AM Khanwalkar.
Does this mean the LGBTQ community now has all rights of an ordinary citizen?
Yes! The court has declared this in principle. In his opinion, Justice DY Chandrachud said, “Members of the LGBT community are entitled, as all other citizens, to the full range of constitutional rights including the liberties protected by the Constitution. Members of the LGBT community are entitled to the benefit of an equal citizenship, without discrimination, and to the equal protection of law.”
Justice Indu Malhotra said history owes an apology the LGBTQ community:
“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. The members of this community were compelled to live a life full of fear of reprisal and persecution. This was on account of the ignorance of the majority to recognise that homosexuality is a completely natural condition, part of a range of human sexuality.”