In a significant ruling that marks a new era for human rights, the Supreme Court of India has declared a British colonial-era law invalid. Section 377 of the Indian Penal Code (IPC), a regulation spanning back 158 years, had formerly made same-sex relations between consenting adults in private illegal. The Supreme Court has termed Section 377 as “irrational, indefensible, and manifestly arbitrary,” and its judgment breaches a part of this law, stating it infringed upon an individual’s identity, right to equality, and privacy.
Continuing Application of Section 377
Despite the transformation, certain provisions of Section 377 remain in effect. The legislation continues to be applicable in cases involving bestiality, carnal intercourse with minors, and situations where consent is not given. This landmark decision came from a Constitution Bench which corrected its earlier verdict delivered in 2013 by a two-member bench in the Suresh Kumar Koushal case.
Upholding Rights of Minority and Individual
The judgment emphasized the precedence of minority rights over majoritarian views, asserting that under the constitution, no minority group should suffer deprivation of their constitutional rights due to divergence from prevalent societal norms. Further, the ruling underscored the importance of individual liberty over community preferences, declaring that “Denial of self-expression is akin to death”.
Sexual Identity and Character
The Supreme Court extended the understanding of the term “sex” as prohibited grounds for discrimination in Article 15 of the constitution. It stated that it goes beyond biological attributes and encompasses an individual’s “sexual identity and character”.
Homosexuality: Not a Mental Illness
Modern psychiatric studies and legislation affirm that homosexuality and transgenderism are not mental disorders. The Supreme Court reiterated this view, referring to the Mental Health Care Act, 2017, which demystifies misconceptions and dispels the stigma attached to homosexuality as a mental illness.
Against Stigma Faced by LGBTQ Community
The decriminalization of homosexuality is vital to eliminate the societal stigma associated with sexual orientation. This entails not just non-discrimination by the state but also the recognition of rights promoting the fulfillment of same-sex relationships.
Nature of Homosexuality
Pertinently, the court recognized that homosexuality, observed in about 1,500 species, cannot be deemed unnatural. It categorically dismissed the classification of sexual relations into natural and unnatural, advocating that an individual’s natural identity is fundamental to their existence.
Constitutional Morality Supersedes Societal Morality
The judgment accentuated the principle of “transformative constitutionalism”, viewing the constitution as a dynamic document that progressively perpetuates various rights. “Constitutional morality”, it asserted, triumphs over societal morality.
Judgments and Their Execution
While the ruling is progressive and reformist, its execution demands sensitization of societal institutions towards acceptance of what is written. As of now, the Supreme Court has confined itself to the decriminalization of homosexuality. Issues like same-sex marriage, adoption, and other civil rights of the LGBTQ community remain unaddressed.
Naz Foundation vs Government Of NCT of Delhi (2009)
A plea against Section 377 IPC, initially dismissed in 2004, was remitted back to the High Court by the Supreme Court in 2006. In a subsequent judgment, the High Court decriminalized consensual sexual acts of adults in private, viewing Section 377 as violative of Articles 21, 14, and 15 of the Constitution.
Suresh Kumar Koushal and another vs Naz Foundation and others (2013)
A two-person SC bench in 2013 quashed the High Court’s 2009 ruling, considering it legally unsustainable.
National Legal Services Authority v. Union of India (2014)
In a pivotal ruling, the Supreme Court held that transgender people should be treated as a ‘third gender’ to safeguard their rights under Part III of our Constitution.
KS Puttaswamy vs. Union of India (2017)
In this judgment, often referred to as the ‘Right to Privacy’ judgement, the Supreme Court disagreed with its 2013 ruling, recognizing sexual orientation as an inherent facet of privacy.
