As of this moment, gay sex has been decriminalized. Chief Justice Of India, Dipak Misra along with Justices RF Nariman, DY Chandrachud, Indu Malhotra, and Justice Khanwilakar passed a judgement that stated that gay rights are to be upheld and consensual sex between consenting adults is not a criminal offence and that this criminalisation cannot be deemed as constitutional. It was further stated autonomy, intimacy and identity of an individual are to be protected. At the core of this decision lies the fact that this whole community is to be given the same fundamental rights as everyone else in the country—Right to life with dignity and right to self determination included. Even a single person’s individual rights shouldn’t be infringed upon.
As explained by Deya Bhattacharya, Human Rights Lawyer and Researcher, this is a huge win for our country but is also the first of many baby steps that need to be taken to ensure structural changes in our system and policies to protect and empower the community to live openly, without fear and with pride. That said, it is a monumental win in terms of Human Rights overall and that is a definite cause for celebration for all.
Further, the idea that the LGBTQ community only forms a “minuscule” part of the population that was stated in the 2013 verdict that chose to uphold the criminalisation of consensual sex has been struck down and the right to privacy has been upheld.
CJI Dipak Mishra said,
Privacy of human beings constitutes the cardinal rule of our constitution.
The Supreme Court said,
Rights of the last man should also be preserved by the courts. Progressive interpretation of constitution and progressive realisation of rights. The previous judgment was incorrect.
Sexual orientation is one of many biological phenomena which are described as natural and inherent. They are considered part of freedom of expression.
Sexual orientation is a natural phenomenon. Any discrimination on this basis is violative of the Constitution. Any individual has sovereignty over his/her body… Many sections continue to suffer exclusions due to stereotypes… We can’t call ourselves a developed society unless they are freed from these shackles.. LGBTQ community is no different they possess same rights as others. Sustenance of one’s identity is a filament of life, someone’s sexuality cannot be criminalised in a free society.
Social morality cannot be used to violate the fundamental rights of even a single individual. Constitutional morality cannot be martyred at the altar of social morality.
Any discrimination on the basis of sexual orientation violates fundamental rights.
Section 377 fails to make distinction between consensual and non-consensual acts… It had become a weapon for the harassment of LGBT and subject them to discrimination.
Justice Nariman said,
LGBT have a fundamental right to live with dignity, such groups are entitled to protection of law. The government should give wide publicity to the judgment.
Justice Chandrachud said,
Constitution protects fluidity of sexual experience.
Sexual minorities in India have lived in fear, hiding as second class citizens.
History has been witness to stigmatisation of those who do not live by societal standards. Attack on the validity of 377 is a challenge to discrimination they have faced.
To deny members of LGBT community the full expression of right to sexual orientations to deny them right under constitution, its denial to right to privacy.
To move beyond decriminalisation is just the first step.Counselors need to adopt progressive skills to help individual families and organisations to understand the concept.
No law can be divorced from constitutional morality, state has no business to intrude in personal matters, nor can societal norms regulate sexual orientation.
Justice Indu Malhotra said,
istory owes apology to the LGBT community. They were made to live a life full of fear.
Stay tuned for more updates as they happen!