Section 377 verdict: India's apology to the LGBTQ community

Private sexual acts between two consenting individuals of the same or different gender, or the transgender community will not be a crime under Section 377 of the Indian Penal Code (IPC), ruled the Supreme Court on Thursday.

A unanimous verdict given by a five-judge Constitution Bench of Chief Justice of India (CJI) Dipak Misra, Justices RF Nariman, AM Khanwilkar, DY Chandrachud, and Indu Malhotra recognized that sexual orientation of homosexuals and heterosexuals is a natural and biological aspect of one's identity and not recognizing this community's sexual orientation or choices violated their fundamental rights to equality, dignity and free expression under Articles 14 and 19(1)(a)of the Constitution.

The Court admitted it missed an opportunity to set things right in 2013 when the LGBTQ community pleaded through the NGO Naz Foundation to strike down Section 377 as unconstitutional. The five judges set aside the Suresh Koushal Vs Naz Foundation judgment of 2013 and went on to hold that though the LGBT community may be a miniscule minority in the country, the Courts have a constitutional duty to ensure not a single individual's fundamental rights is put in peril. Four out of the five judges speaking through separate decisions came to the common conclusion that the 158-year old provision introduced by Lord Macaulay in 1860 cannot apply to consensual sexual acts between two adults in private. However, it will remain in force to punish acts of bestiality (sexual acts committed between man and animal) and non-consensual sex between individuals or minors.

CJI Misra, penning the judgment for himself and Justice Khanwilkar, said, that Section 377 was based on societal morality and majoritarian perception that perceives marriage to be for procreation. He based it instead on constitutional morality that brooks no discrimination of citizens. "With passage of time, individuals bond together for emotional companionship," he said, adding, "It is the freedom of choice of two consenting adults to perform sex for procreation or otherwise and if their choice is that of the latter, it cannot be said to be against the order of nature."

While the Court gave the transgender community a right to be recognized as third gender, Section 377 punished them for sexual acts in private, which failed them to realize their right fully, the judges observed. The effect of the section is to efface the identities of LGBT community in order to subjugate them to a culture of silence and to force them to live in "closeted invisibility" said Justice Chandrachud.

Justice Nariman believed that the Government was alive to the fact that no citizen can be discriminated based on their sexual orientation. This was borne out from Section 21 of the Mental Healthcare Act, 2017. Justice Nariman observed, "Section 377 demeans same-sex consenting adults by having them prosecuted instead of understanding their sexual orientation and attempting to correct centuries of the stigma associated with such persons."

Justice Malhotra ended on an apologetic note that strikingly caught the imagination of the nation. She said, "History owes an apology to the LGBT community for the ignominy and ostracism that they have suffered through the centuries."