Better Late Than Never : SC Decriminalises Homosexuality

“I am what I am, so take me as I am”. Quoting the great German thinker Johann Wolfgang von Goethe, this is how the introduction to the landmark SC verdict on Section 377 of IPC begins.

The prolonged battle against Section 377 of the IPC has finally come to its logical conclusion. In a truly historic verdict today, the five-judge Constitutional Bench of the Apex Court, headed by the CJI Dipak Misra, has partially struck down the controversial section of the Indian Penal Code. To that effect, the Court has decriminalised homosexuality as it held Section 377 of the IPC as “irrational, indefensible, and manifestly arbitrary”. Describing Section 377 as violating the Article 14 (Right to Equality) of the constitution, the five judges wrote four separate but concurring judgements with the CJI and Justice Khanwilkar writing a common judgement.

What is Section 377 of the IPC?

Section 377 of the IPC is a colonial-era law which came into force in 1872. It criminalises “certain types of” consensual private sexual acts between adults. The penal provision states that, “whoever voluntarily has carnal intercourse against the order of nature with a 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.” Many lawyers and experts of the field have argued that the law drew inspiration from the now repealed Criminal Tribes Act of 1871. This Act branded a number of tribal and marginal communities like transgenders as “innately criminal”.

Freedom and love constitute the most basic human instincts or emotions. The need or rather the craving for freedom, especially in relation to the most private aspects of one’s life, is a natural desire of all human beings. Therefore, coming one year after the Puttaswamy judgement (Right to Privacy), it is no surprise that the SC verdict noted that, “Sexual orientation is natural, biological and cannot be the basis of discrimination”. Further, the verdict also mentioned that homosexuality is not a mental disease. This is a reiteration of the Mental Healthcare Act – 2017, which also delists homosexuality as a disease.

Highlights of the Verdict

The 493 pages, Supreme Court Verdict is a remarkable document. It is a beacon of hope for the future and is a vindication of the rights of all human beings. It has not only corrected the historical wrong but has also laid down progressive values which are going to strengthen the civil rights movement in India. Coming at a time when the pluralistic nature of Indian society is in jeopardy, the reiteration that the “majoritarian views and popular morality cannot dictate constitutional rights” is a welcome remark. Also significant is the preference or pre-eminence accorded to the individual in the verdict. It is a clear reminder that the Constitution in general and the fundamental rights in particular accord special protection to the Individual. Further, it is also a strong rebuttal of the idea that the state or the government can dictate its citizens-what is the natural order of the nature.

Miles to travel…

As the only female judge on the Bench, Justice Indu Malhotra has noted that, “History owes an apology to the members of this (LGBT) community and their families, for the delay in providing redressal for the ignominy and ostracism that they have suffered through the centuries”. Taking cue from J. Malhotra’s argument, it is now imperative that the bigger battle against removing the stigmatisation attached with homosexuality be waged. For the society, this is a moment of reflection. Although, a big battle has been won today, but the real war remains to be fought i.e. Fighting the taboo associated with LGBTQIA+ community is a challenge which must be confronted head-on now. The members of the LGBT community will be able to lead a life of dignity only when the society at large accepts them for who they are. It is only then that these people will be able to come out of their fear and pretence and be able to live a truly fulfilling life. This, however, will be a much difficult and protracted battle as compared to the legal one, for, after the last year’s ‘Privacy Verdict’, it was almost inevitable that the Section 377 was going to be scrapped. It is therefore imperative to remember that meaningful social change only happen when an entire generation of people remain committed in their sustained efforts towards eradicating the evil they are fighting. In this case, it will be this factor which will ultimately decide whether or not this verdict will have a revolutionary impact.  But for now, let us all take congratulate ourselves for love has finally triumphed.


Contributed by Kunwar Suryansh
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