Majority not always right | Daily News

Majority not always right

An Indian supporter of the Lesbian, Gay, Bisexual, Transgender (LGBT) community takes part in a pride parade in Bhopal on July 15, 2018. - AFP
An Indian supporter of the Lesbian, Gay, Bisexual, Transgender (LGBT) community takes part in a pride parade in Bhopal on July 15, 2018. - AFP

A Supreme Court constitution bench last Thursday pronounced a unanimous verdict – in four concurring judgments – scrapping the provisions of Section 377 of the Indian Penal Code, which criminalise ‘unnatural sex’ between consenting adults, and was effectively used to criminalise homosexual relations in India for more than a century.

The judgment decriminalises sexual acts between consensual adults and brings the curtains down on a decade-long legal struggle that saw the Delhi high court first strike down Section 377 as unconstitutional only to have the Supreme Court bring it back into play. The parts of Section 377 pertaining to sex with animals and children will remain, the court said.

On Thursday, four separate but concurring judgments were delivered, authored by CJI Misra, Justice Chandrachud, Justice Nariman and Justice Malhotra. The chief justice began by reading the judgment by him and Justice Khanwilkar, saying, according to Live Law, “Section 377 is arbitrary. The LGBT community possesses rights like others. Majoritarian views and popular morality cannot dictate constitutional rights. We have to vanquish prejudice, embrace inclusion and ensure equal rights.”

The bench has overruled the Supreme Court order in the Suresh Kumar Koushal case, which re-criminalised ‘unnatural sex’, Bar and Bench quoted CJI Misra as saying. “Sexual orientation of an individual is natural and discrimination on the basis of sexual orientation is a violation of freedom of expression,” the court said. “The provision of IPC had resulted in collateral effect in that consensual sex between LGBT persons is criminalised, and is violative of Article 14, Supreme Court.”

Right to live with dignity

Justice Nariman delivered his judgment next, saying that the Suresh Kumar Koushal was no longer good law in view of the NALSA and Puttaswamy judgments. He also said that “homosexuality cannot be regarded as mental disorder” and “homosexuals have the right to live with dignity”.

Justice Chandrachud delivered his judgment after Justice Nariman, saying, “Section 377 inflicts tragedy and anguish; it has to be remedied.”

“This case is much more than just decriminalising a provision. It is about an aspiration to realise constitutional rights and equal existence of LGBT community as other citizens,” Chandrachud continued. He too brought up the right to privacy judgment from last year, “To deny the LGBT community of their right to sexual orientation is a denial of their citizenship and a violation of their privacy. They cannot be pushed into obscurity by an oppressive colonial legislation.”

He added that IPC Section 377 has been destructive to the LGBT identity.

Justice Malhotra read out her judgment last, saying that history owes an apology to those who have been persecuted and socially ostracised because of Section 377.

Earlier in July this year, a five-judge constitution bench headed by Chief Justice Dipak Misra said it will also examine the correctness of its 2013 verdict that had set aside the Delhi High Court judgement decriminalising gay sex. The apex court had in 2013 restored sexual relationship between persons of the same sex as a criminal offence by setting aside the 2009 Delhi High Court judgement that had held as unconstitutional section 377 of the IPC, which makes such actions between two consenting adults of same sex as a penal offence. During the hearing today, the bench, also comprising Justices R F Nariman, A M Khanwilkar, D Y Chandrachud and Indu Malhotra, said it would examine the constitutional validity of section 377 of the IPC and the fundamental rights of the LGBTQ (Lesbians, Gay, Bisexual, Transgender, Queer) community.

The bench said the curative petitions filed by it have a limited scope and would have to be heard by some other bench. It was on the petition filed by the Naaz Foundation that the Delhi High Court had decriminalised section 377 of the IPC, which was challenged in the apex court by some individuals and religious organisations. Even the Centre had at that time favoured retention of the provision in the IPC as penal offence. Thursdays hearing began with senior advocate Mukul Rohatgi, appearing for dancer Navtej Jauhar, one of the petitioners, telling the court that the right to have sexual freedom should be examined in view of the nine-judge bench verdict on privacy which was delivered on August 24, 2017. In the judgement on privacy as a fundamental right, the apex court’s nine-judge bench had said the right to privacy cannot be denied to members of the LGBT community merely because they have unconventional sexual orientation and form a miniscule fraction of the over 1.32 billion Indian population.

Modi government did not oppose petitions

During the hearing, the Narendra Modi government told the Supreme Court that it will not be opposing the petitions challenging Section 377. Additional Solicitor General Tushar Mehta said that the government will be leaving the decision to the court, but asked that the court not rule on related matters such as marriage rights for the LGBT community.

“In the most respectful submission of the Union of India, allowing any other issue (other than constitutional validity of Section 377) to be argued and adjudicating the same with giving an opportunity to the Union of India to file a counter affidavit to the Union of India may not be in the interest of justice and would be violative of principles of natural justice,” the Centre’s affidavit said.

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These were the 64 words of Section 377 in the IPC which the court was deliberating on:

“Unnatural offences.—Whoever voluntarily has carnal inter¬course against the order of nature with any man, woman or animal, shall be punished with 1[imprisonment for life], or with impris¬onment of either description for a term which may extend to ten years, and shall also be liable to fine. Explanation—Penetration is sufficient to constitute the carnal intercourse necessary to the offence described in this section.”

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In a statement, the Indian Psychiatric Association said, “In the opinion of the Indian Psychiatric Association, homosexuality is not a psychiatric disorder. This is in line with the position of the American Psychiatric Association and the International Classification of Diseases of the World Health Organization which removed homosexuality from the list of psychiatric disorders in 1973 and 1992 respectively.

“The IPS recognises same sexuality as a normal variant of human sexuality much like heterosexuality and bisexuality. There is no scientific evidence that sexual orientation can be altered by any treatment and that any such attempts may, in fact, lead to low self-esteem and stigmatisation of the person.

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Chief Justice of India observes

* “No one can escape from their individualism. Society is now better for individualism. In the present case, our deliberations will be on various spectrums.”

* Sustenance of identity is the pyramid of life

* Morality cannot be martyred at the altar of social morality. Only Constitutional morality exists in our country.

* Sexual orientation is one of many biological phenomenon. It is natural and no discrimination can exist. Any violation is against freedom of speech and expression. 

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