Reading down the Article 377 of the Indian Penal Code, on Thursday, a five-judge bench of the Supreme Court set right the wrong a two-judge bench had done in 2013. Section 377 criminalises, as per the word of the law, “carnal intercourse against the order of nature”, but has been used to punish homosexuality. The SC’s 2013 verdict had reversed the Delhi HC’s 2010 judgment that declared Section 377 constitutionally unsound. In doing so, the apex court had failed to uphold the rights of LGBTQI citizens of the country, given how Section 377 had not only been used to criminalise their orientation but also fed the discrimination against them. Though the law punished sexual acts against the “order of nature”, it has been often used to harass LGBTQI individuals—gay rights activist Arif Jafar’s incarceration and torture in jail in 2001 is testimony of this. Since 1861, Section 377 has relegated homosexuals to second-class citizenship in the country.
It is because of the relentless fight put up by petitioners that include the Naz Foundation, a celebrated Bharatnatyam dancer, a prominent hotelier couple, a chef, a journalist, a businesswoman and a group of LGBTQI students from the IITs that the colonial-era law that conflated Victorian notions of morality with the “natural order” has been finally junked.
The five-judge bench, comprising Chief Justice of India Dipak Misra, Justices Rohinton Fali Nariman, AY Khanwilkar, Justice DY Chandrachud and Indu Malhotra, insisted that homosexual orientation and, therefore, expression within the confines of consent, are natural. It makes clear that the phrase “order of nature” in Section 377 doesn’t account for “inborn traits or developed orientations or, for that matter, consensual acts which relate to responses to series of free exercise of assertions of one’s bodily autonomy.”
Thursday’s judgment is truly progressive in more than one sense. While the 2013 verdict had held that there was no need to read down Section 377, since homosexuals in India formed “minuscule fraction of the population”, the five-judge bench makes clear that the judiciary’s role is to ensure that the Constitutional protection of rights of minorities, saying, “The role of the Courts gains more importance when the rights which are affected belong to a class of persons or a minority group who have been deprived of even their basic rights since time immemorial.” Given the Constitution privileges “individual autonomy and liberty”, “equality sans discrimination”, “recognition of identity with dignity” and “privacy”, the SC declared Section 377 arbitrary and said, “Majoritarian views and popular morality cannot dictate Constitutional rights”. With the law feeding homophobia, many LGBTQI individuals are not able to live a life of fulfilment and dignity, either forced into the margins of society or into the closet. Such a second-class life, as per a 2012 paper in the Indian Journal of Psychiatry, has disastrous impact on the mental health of many LGBTQI individuals. The apex court’s observation, that Section 377 has impeded LGBTQI individuals access to mental healthcare, even though the Mental Healthcare Act, 2017 provides the right to access mental healthcare without discrimination, even on the ground of ‘sexual orientation’, brings out poignantly the impact the draconian law has had on many lives.
While the Centre did well not to oppose the petition at the Supreme Court, it had requested the court to steer clear of pronouncing on civil rights, including marriage and other legally recognised unions, and liabilities of LGBTQI individuals. Though the SC didn’t record any explicit observations, it has nevertheless done well to say, “The first step on the long path to acceptance of the diversity and variegated hues that nature has created has to be taken now … to make way for a progressive and inclusive realisation of social and economic rights embracing all…”