The Constitution Bench of the Honourable Supreme Court has ruled that an adult gay sex between the parties in private is no longer a criminal offence under Section 377 of the Indian Penal Code, 1860.
This judgment was delivered by the five-judge bench consisting of Chief Justice Dipak Mishra, Justice DY Chandrachud, Justice AM Khanwilkar, Justice Indu Malhotra and Justice RF Nariman on September 06, 2018.
In the concerned Writ Petitions before the Supreme Court, the following arguments were advanced in favour of decriminalisation of Section 377, IPC-
- Homosexuality, bisexuality and other sexual orientations are natural and reflective of expression of choice and inclination founded on the consent of two persons who are eligible in law to express such consent. It cannot be said to be a physical or a mental illness, rather they are natural variations of expression and free thinking process. If these sexual orientations are made a criminal offence then it will violate well-established principles pertaining to individual dignity and decisional autonomy inherent in the personality of a person. It will also cause a great discomfort to gender identity and will lead to the destruction of the right to privacy which is a pivotal facet of Article 21 of the Constitution.
- Such sexual orientations are to be considered as an ‘order of nature’. The American Psychological Association has opined that sexual orientation is a natural condition and attraction towards the same sex or opposite sex are both naturally equal, the only difference being that the same sex attraction arises in far lesser numbers.
- Article 377 has denied the homosexual their growth of personality, relation building endeavour to enter into a live-in relationship or to form an association with a sense of commonality which violates Article 19(1)(a) of the Constitution.
- Bisexual and transgender (LGBT) community, who comprise 7- 8% of the total Indian population, need to be recognized and protected, for sexual orientation is an integral and innate facet of every individual‘s identity. The impact of sexual orientation on an individual‘s life is not limited to their intimate lives but also impacts their family, professional, social and educational life.
- Sexual minorities in the society need protection more than the heterosexuals so as to enable them to achieve their full potential and to live freely without fear, apprehension or trepidation in such a manner that they are not discriminated against by the society openly or insidiously or by the State in multifarious ways in matters such as employment, choice of partner, testamentary rights, insurability, medical treatment in hospitals and other similar rights arising from live-in relationships.
- Individuals belonging to the LGBT group suffer discrimination and abuse throughout their lives due to the existence of Section 377 IPC which is nothing but a manifestation of a mindset of societal values prevalent during the Victorian era where sexual activities were considered mainly for procreation. The said community remains in a constant state of fear which is not conducive to their growth.
- These sexual minorities in the society suffer at the hands of law and are also deprived of the citizenry rights which are protected under the Indian Constitution. The law should have treated them as natural victims and sensitized the society towards their plight and laid stress on such victimisation, however, the reverse is being done due to which a sense of estrangement and alienation has developed and continues to prevail amongst the members belonging to the LGBT group. Compulsory alienation due to stigma and threat is contrary to the fundamental principle of liberty.
- Transgenders have been recognized by law as a third gender apart from male and female and have been given certain rights. Yet, in view of the existence of Section 377 in the IPC, consensual activities amongst transgenders would continue to constitute an offence.
- The rights of the LGBT group are not fully realized and they remain incomplete citizens because their expression as regards sexuality is not allowed to be pronounced owing to the criminality attached to the sexual acts between these persons which deserves to be given a burial and, therefore, the rights of the LGBT community also need equal, if not more, constitutional protection.
- Section 377 of the IPC be read down qua the LGBT community so as to confine it only to the offence of bestiality and non-consensual acts in view of the fact that with the coming into force of the Criminal Law (Amendment) Act, 2013 and the Protection of Children from Sexual Offences Act, 2012 (POCSO Act), the scope of sexual assault has been widened to include non peno-vaginal sexual assault and also criminalize non-consensual sexual acts between children thereby plugging important gaps in the law governing sexual violence in India.
- Section 377, despite being a pre-constitutional law, was retained post the Constitution coming into effect by virtue of Article 372 of the Constitution, but it must be noted that the presumption of constitutionality is merely an evidentiary burden initially on the person seeking to challenge the vires of a statute and once any violation of fundamental rights or suspect classification is prima facie shown, then such presumption has no role. In the case at hand, the homosexuals face a violation of their fundamental rights to an extent which is manifestly clear and it is a violation which strikes at the very root or substratum of their existence. Section 377, if retained in its present form, would involve the violation of, not one but, several fundamental rights of the LGBTs, namely, right to privacy, right to dignity, equality, liberty and right to freedom of expression.
- Sexual orientation which is a natural corollary of gender identity is protected under Article 21 of the Constitution and any discrimination meted out to the LGBT community on the basis of sexual orientation would run counter to the mandate provided under the Constitution
- Sexual orientation and privacy lie at the core of the fundamental rights which are guaranteed under Articles 14, 19 and 21 of the Constitution and thus it is imperative that Section 377 is struck down. Since sexual orientation is an important facet of the right to privacy which has been raised to the pedestal of a cherished right, it is propounded that sexual autonomy and the right to choose a partner of one‘s choice is an inherent aspect of the right to life and right to autonomy.
- There is no difference between persons who defy social conventions to enter into inter-religious and inter-caste marriages and those who choose a same sex partner. Similarly, even if there is disapproval by the majority of the sexual orientation or exercise of choice by the LGBT persons, the Court as the final arbiter of the constitutional rights, should disregard social morality and uphold and protect constitutional morality for that is the governing rule. The LGBT persons cannot be penalized simply for choosing a same sex partner, for the constitutional guarantee of choice of partner extends to the LGBT persons as well.
- Section 377 is an anathema to the concept of fraternity as enshrined in the Preamble to our Constitution and the Indian Constitution mandates that we must promote fraternity amongst the citizens sans which unity shall remain a distant dream.
- Section 377 is violative of Article 14 of the Constitution as the said Section is vague in the sense that carnal intercourse against the order of nature is neither defined in the Section nor in the IPC or, for that matter, any other law. There is no intelligible differentia or reasonable classification between natural and unnatural sex as long as it is consensual.
- Section 377 violates Article 15 of the Constitution since there is discrimination inherent in it based on the sex of a person‘s sexual partner as under Section 376(c) to (e), a person can be prosecuted for acts done with an opposite-sex partner without her consent, whereas the same acts if done with a same-sex partner are criminalized even if the partner consents. Reference was made to the Justice J.S Verma Committee on Amendments to Criminal Law which had observed that ‘sex’ occurring in Article 15 includes sexual orientation and, thus, as per the petitioners, Section 377 is also violative of Article 15 of the Constitution on this count.
- Section 377 has a chilling effect on Article 19(1)(a) of the Constitution which protects the fundamental right of freedom of expression including that of LGBT persons to express their sexual identity and orientation, through speech, choice of romantic/sexual partner, expression of romantic/sexual desire, acknowledgment of relationships or any other means and that Section 377 constitutes an unreasonable exception and is thereby not covered under Article 19(2) of the
- Section 377 violates the rights of LGBT persons under Article 19(1)(c) and denies them the right to form associations. Similarly, such persons are hesitant to register companies to provide benefits to sexual minorities due to the fear of state action and social stigma. Further, a conviction under Section 377 IPC renders such persons ineligible for appointment as a director of a company.
- Section 377 IPC, by creating a taint of criminality, deprives the LGBT persons of their right to reputation which is a facet of the right to life and liberty of a citizen under Article 21 of the Constitution to the effect that reputation is an element of personal security and protected by the Constitution with the right to enjoyment of life and liberty. This right is being denied to the LGBT persons because of Section 377 IPC as it makes them apprehensive to speak openly about their sexual orientation and makes them vulnerable to extortion, blackmail, and denial of State machinery for either protection or for enjoyment of other rights and amenities and on certain occasions, the other concomitant rights are affected.
- Section 377 IPC impedes the ability of the LGBTs to realize the constitutionally guaranteed right to shelter. To illustrate the same, attention of the Court was drawn to the fact that LGBTs seek assistance of private resources such as Gay Housing Assistance Resources (GHAR) in order to access safe and suitable shelter and this is an indication that the members of this community are in need of immediate care and protection of the State.
- LGBT persons are deprived of their rights due to the presence of Section 377 as they fear prosecution and persecution upon revealing their sexual identities and, therefore, this class of persons never approached the Supreme Court as petitioners, rather they have always relied upon their teachers, parents, mental health professionals and other organizations such as NGOs to speak on their behalf.