Free Press Journal

Section 377 verdict opens pandora’s box

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(Photo by INDRANIL MUKHERJEE / AFP)

India today joined 17 Commonwealth nations that legalized gay sex between consenting adults in private, so that coitus between two adults, whether male, female or somewhere in between, is no longer a crime.

In a landmark decision, a five-judge bench of the Supreme Court unanimously declared that Section 377 of the Indian Penal Code “in so far as it penalised consensual sexual acts between consenting adults in private” was unconstitutional. “Intimacy and privacy is a matter of choice. We have to bid adieu to such stereotypes and prejudices,” Chief Justice of India Dipak Misra declared while pronouncing the judgment.

The United Nations immediately lauded this verdict of India’s five-judge Constitution bench which may impact the law in some of the 36 Commonwealth countries where the archaic concept of carnal intercourse “against the order of nature” still survives, stemming from an 1861 law.


This judgment opens a Pandora’s Box because it will imply that persons of the same sex may now legally marry, which will raise complex questions of their progeny, whether natural or artificial, succession to property and heirship. However, the five-judge bench verdict has restricted itself to the question of constitutional protection of homosexuals, lesbians, bisexuals, transgender and queers. It declared that constitutional morality overrode societal morality which had to change with time. Other complex questions can be clarified later.

The judges in separate, but concurring judgments, declared that Section 377 violates the right to life and personal liberty guaranteed under Article 21 of the Constitution. It also violated the right to self-expression guaranteed by Article 19 (1) (a)  which included the right to find solace and intimacy in sexual intercourse between consenting adults, irrespective of gender, apart from violating the right to equality guaranteed by Article 14.

However, section 377 will continue to apply in cases of forced sexual intercourse between adults, or when a minor is forced into sex, or acts of bestiality. Hence, consensual sex in private is the distinguishing ingredient which divides the section into what is enforceable and what is not, to ensure the venal police do not blackmail lonely same-sex couples whose right to individuality has been upheld.

“A person’s sexual orientation is intrinsic to their being. It is connected with their individuality, and identity. A classification which discriminates between persons based on their innate nature, would be violative of their fundamental rights, and cannot withstand the test of constitutional morality,” declared Justice Dhananjaya Chandrachud, who was earlier an additional solicitor general in Mumbai during the late 90s.

Writing the lead judgment for himself and for Justice A.M. Khanwilkar, CJI Dipak Misra digressed into poetry and philosophy before citing a 24-year-old report by the American Psychological Association, which declared that “homosexuality is neither a mental illness nor moral depravity. It is simply the way a minority of our population expresses human love and sexuality,” the CJI quoted verbatim to buttress his point.

Displaying a liberal streak, the CJI went on to state “an individual has sovereignty over his or her body which could be surrendered to another individual and their intimacy in privacy is a matter of their choice.” “Such concept of identity is not only sacred but is also in recognition of the quintessential facet of humanity in a person’s nature. The autonomy establishes identity which is a part of the dignity of an individual. This dignity is special to an individual who has a right to enjoy life…….”

This five-judge bench judgment is the outcome of a tortuous legal battle initiated in 2001 by Naz Foundation which culminated in a two-judge bench of the Delhi high court striking down Section 377 as unconstitutional in 2009. This revolutionary judgment written by Chief Justice Ajit Shah was challenged before a two-judge bench in the Supreme Court which overturned the Delhi high court judgment on the ground that enacting a law on the subject was best left to Parliament. Finally a three-judge bench of the apex court referred the issue to the CJI who set up a five-judge bench to declare the law on this vexed question.

Strangely, Justice Indu Malhotra, the junior most judge on the bench, in her separate judgment, observed that “history owes an apology to the members of this community and their families for the ignominy and ostracism they have suffered through the centuries,” perhaps overlooking the fact that history is an inanimate subject which cannot be changed. Nor can it apologize to the LGBT community.

The 2009 judgment of Justice Ajit Shah was forward-looking, like the judge himself, who had looked forward to being elevated to the Supreme Court. His hopes were rudely dashed along with his judgment striking down Section 377 of the IPC, leaving an embittered Justice Shah to state on prime-time news that he was hurt because he was not elevated to the apex court. He later became the chairman of the Law Commission of India.

VERDICT OPENS PANDORA’S BOX

This judgment opens a Pandora’s Box because it implies that persons of the same sex may now legally marry, which will raise complex questions of their progeny, whether natural or artificial, succession to property and heirship. However, the five-judge bench verdict has restricted itself to the question of constitutional protection of homosexuals, lesbians, bisexuals, transgender and queers. It declared that constitutional morality overrode societal morality which had to change with time. Other complex questions can be clarified later.

HOMOSEXUALITY NO MORE  A CRIME

 

 

A MAJORITARIAN IMPULSE

It is a majoritarian impulse to subjugate a sexual minority to live in silence.

The role of courts is more important when rights affected are of a minority, subject to historical discrimination.

 

 

SELF-DETERMINATION

Any individual has sovereignty over his/her body… sexual orientations are defined by natural instincts.

Any discrimination on the basis of sexual orientation is violation of the fundamental rights.

Autonomy, intimacy and identity of an individual are to be protected. At the core of identity, lies the right to self-determination

Sustenance of one’s identity is a filament of life, someone’s sexuality cannot be criminalised in a free society.

 

 

DENIAL OF RIGHT  TO PRIVACY

Society cannot dictate sexual relationship between consenting adults as it is a private affair.

Denial of right to sexual orientation is akin to denial of right to privacy.

 

 

RIGHTING A HISTORICAL  WRONG

Consent must be free consent. History owes the members  of LGBT redressal for past persecution and ignorance  of the majority.

 

 

 

 

 

 

INSTINCT TO LOVE HAS  BEEN CONSTRAINED

Homosexuality is not a mental disorder, it is a completely natural condition. It is the way a minority expresses human love and sexuality.