Same Sex Relationships Are Legal In India Rules Supreme Court by decriminalizing Section 377

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Supreme Court of India delivered a landmark judgment by decriminalizing section 377 of Indian Penal Code which criminalized sexual relations between same sex.

Facts Of The Case

Equal rights activists in India struggled for years to get same-sex marriage legalized. They saw a ray of hope in 2009 when Delhi High Court decriminalized homosexuality among consenting adults. However, this hope was short-lived as Supreme Court of India quashed the Delhi High Court order in December 2012  saying that order passed by Delhi High Court was legally unsustainable.

Legislature seemed to agree with the Supreme Court Verdict as Lok Sabha voted against the introduction of a private member’s bill to decriminalize homosexuality proposed by MP Sashi Tharoor. Another group called LGBT rights activists approached the Supreme Court through a writ petition to reconsider their decision. The main argument of this group was that right to sexuality, sexual autonomy, choice of partner, life, privacy, dignity, and equality among other fundamental rights are guaranteed under Part3 of the Constitution and same are being violated by Section 377.

Petitioner’s case was strengthened a little last year by the right to privacy judgment last year in which the Apex court ruled that sexual orientation is an essential attribute of privacy.

Decision Of The Case

A constitutional bench of five judges unanimously held that section 377 of Indian Penal Code is violative of right to equality and right to live with dignity, thereby over-ruling its previous judgment in Suresh Kaushal case which had recriminalized homosexuality in India

Justice Chandrachud in his judgment deconstructed the entire section 377 and stated that section discriminates human beings on grounds of sex which is violative of Article 15(1). The judgment further draws power of exhortations of Dr. Martin Luther King against the “doctrine of wait’ which says that non-conformist should wait till mainstream understands their way of life, before disturbing the established social mores. Sexual minorities have waited long enough, but nothing changed.

Justice R.F Nariman in his concurring judgment further observed that constitutionality cannot be presumed in case of a pre-constitutional law such as Indian Penal Code. He did so while examining the validity of Suresh Kumar Kaushal Judgement. He observed

Suresh Kumar Koushal’s judgment first begins with the presumption of constitutionality attaching to pre-89 constitutional laws, such as Indian Penal Code. The judgment goes on to state that pre-constitutional laws, which have been adopted by Parliament and used with or without amendment, being manifestation of the will of the people of India through Parliament, are presumed to be constitutional. We are afraid we cannot agree.”

Moreover, Judgement also said that

It is difficult to right the wrongs of history. But we can certainly set the course for the future. That we can do by saying, as I propose to say in this case, that lesbians, gays, bisexuals, and transgenders have a constitutional right to equal citizenship in all its manifestations. Sexual orientation is recognized and protected by the Constitution. Section 377 of the Penal Code is unconstitutional in so far as it penalizes a consensual relationship between adults of the same gender. The constitutional values of liberty and dignity can accept nothing less.

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 recognize that homosexuality is a completely natural condition, part of a range of human sexuality. The misapplication of this provision denied them the Fundamental Right to equality guaranteed by Article 14. It infringed the Fundamental Right to non-discrimination under Article 15, and the Fundamental Right to live a life of dignity and privacy guaranteed by Article 21. The LGBT persons deserve to live a life unshackled from the shadow of being ‘unapprehended felons’.

Learning of the Case

From this case, we learn that State cannot discriminate between the people on the basis of their gender, sexual orientation, choice of partner and so on. Further, Right to privacy includes sexual orientation and constitutionality cannot be presumed in pre-constitutional laws. 

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