5 Judges Constitution Bench of the Supreme Court on Thursday decriminalised homosexuality by partially striking down the colonial era provisions of Section 377 of the Indian Penal Code (IPC).
The Bench led by Chief Justice of India (CJI) Dipak Misra and comprising Justices Rohinton F. Nariman, A.M. Khanwilkar, D.Y. Chandrachud and Indu Malhotra gave four separate but concurring judgment. CJI is the first judge to read out his verdict. Denial of self expression is like death, he says.
Section 377 is irrational, indefensible and manifestly arbitrary, he says.
Delivering the judgment for himself and on behalf of Justice Khanwilkar, he overturns the Suresh Koushal judgment, thereby effectively decriminalising homosexuality. The LGBTQ community possesses equal rights as any other citzen, he notes.
“Societal morality cannot trump constitutional morality. Societal morality cannot overturn the fundamental rights of even a single person,” he states.
“Sexual orientation is biological, innate. She or he has no control over who they get attracted to. Any repression will be a violation of free expression,” he adds.”Our Constitution nurtures dissent as a safety valve of society and it does not impose conformity. We cannot change history but pave the way for better future.”
“Centre must give wide periodic publicity to SC judgment to eliminate stigma attached to LGBT community.”
The judgment further states: “The LGBTQ community needs the rainbow of hope for the sake of the humanity. They should be allowed to live with dignity and without pretense. This is their journey to dignity, equality and liberty. It is time to bid adieu to prejudicial perceptions deeply ingrained in social mindset. It is time to empower LGBTQ community against discrimination. They should be allowed to make their choices.”
Justice Chandrachud said “Tragedy and anguish inflicted by Section 377 should be remedied. Macaulay’s legacy exists 68 years after the coming of a liberal Constitution. Human instinct to love has been constrained. Sexual orientation has become a reason for blackmail on the internet.”
Quoting Leonard Cohen, he says, “Shadows of a receding past controls the quest of LGBTQ for fulfillment.”
As the verdict is being delivered, jubliant gay rights activists celebrate on the lawns of the court. Shouts of ‘Hip Hip Hurray’ echo on the premises.
An alliance of churches and a Christian group Trust of God Ministries had opposed the scrapping of the colonial era law.
Advocate Manoj George, for an alliance of churches, said “carnal desire,” with or without consent, was an offence under Section 377. It was against the order of nature.
Senior advocate K. Radhakrishnan, for Trust of God Ministries, argued that striking down Section 377 IPC could increase the instances of sexually-transmitted diseases such as AIDS.
Apostolic Alliance of Churches and Utkal Christian Association and some other NGOs and individuals, including Suresh Kumar Kaushal, have also favoured retaining the controversial clauses.
Mr. Kaushal had also challenged the 2009 verdict of the High Court in the apex court, which had restored Section 377.
Read the full judgment here:
[embeddoc url=”https://legaldesire.com/wp-content/uploads/2018/09/14961_2016_Judgement_06-Sep-2018.pdf”]
The Petitioners:
- Navtej Singh Johar, 59, is a renowned classical dancer and winner of the Sangeet Natak Akademi Award, who had petitioned the Supreme Court along with his partner of 25 years and said that Section 377 violated the right to life and personal liberty guaranteed by the constitution. Mr Johar is a visiting faculty at the Ashoka University.
- Sunil Mehra, 63, is a journalist and the former editor of the Indian edition of Maxim magazine. He is an actor and exponent of dastangoi, a 13th century form of storytelling. He has directed, produced, written and anchored ‘Centrestage’ on Doordarshan. Along with Navtej Singh Johar, his partner of over two decades, he has co-founded Studio Abhyas.
- Ritu Dalmia, 45, is a celebrity chef and owner of the niche restaurant chain Diva. She has written several books and has also hosted food shows on television. Born in Kolkata to a Marwari business family, Ms Dalmia joined her family business when she was a teenager. A globe trotter, Ms Dalmia specialized in Italian cuisine. She has written travelogues and many cookbooks. One of her bestsellers is Travelling Diva: Recipes from around the World in 2012.
- Aman Nath, 61, is the owner of the Neemrana chain of hotels. Passionate about history and architecture, Aman Nath has written several books on history and arts. He is also a poet and a prolific writer, who has co-written and authored 13 illustrated books on art, history, architecture and photography. Aman Nath’s work was the first Indian book chosen by Christie’s for worldwide distribution.
- Ayesha Kapur, 44, is a businesswoman associated with the food and beverages industry.
