Each individual, the court held, has the right to choose and that cannot be dictated by majoritarian views and popular morality. The role of all those who fought this lengthy battle should serve as an inspiration.
OP Jindal Global University, Sonipat
REVERSING its own 2013 judgment of Suresh Kumar Kaushal vs The NAZ Foundation on Thursday, the Supreme Court struck down Section 377 of the Indian Penal Code in part. Essentially, any consensual sex between two adults is no longer a crime. Beastiality will continue to be a crime. This colonial Section from the 1861 Penal Code previously had had a greatly adverse impact on the LGBTQ community. Whilst prosecutions under the Section were rare, it was, according to the petitioners, used as a tool to blackmail and persecute the community.
This judgment comes after a long history of litigation. In 2009, the Delhi High Court had ruled Section 377 to be unconstitutional. The Supreme Court, however, reversed this verdict, saying that 377 did not suffer from unconstitutionality. Member of Parliament Shashi Tharoor had moved a Private Member's Bill to abolish Section 377, but that was never taken up. However, finally, the decision was made by a five-judge Bench, including the Chief Justice of India. The judgment borrows extensively from other jurisdictions, including from Canada, United States, United Kingdom and South Africa.
Justice Misra, quoting Schopenhauer, noted: "I am who I am, and I cannot be anyone else." Embedding existence in individuality, Justice Misra, reading for both himself and Justice Khanwilkar, added that respect for individual choice is the essence of liberty. This particular clause meant that a section of the society had been denied this right.
In fact, the judgment has extremely interesting elements of a variety of areas of constitutional and political importance.
The first, with regard to privacy. Last year, by a nine-judge Bench, privacy had been declared a fundamental right. The court ruled that what happens in the privacy of homes is outside the domain of the state. Section 377, in its existence, violated that right.
Second, the essence of liberty is an individual choice. This must be respected in full and cannot be ruled by majoritarian morality. It was further added that 'Sexual orientation is natural. Discrimination on the basis of sexual orientation is violation of freedom of speech and expression.' Justice Misra, in fact, said, 'Denial of self-expression is inviting death.'
Third, it was held that homosexuality was not a mental disorder, pursuant to the Mental Healthcare Act.
Additionally, it was observed that Section 377 had inflicted tragedy and anguish which need to be remedied. Justice Malhotra added that history owed an apology to all those who were impacted by the law.
Perhaps most importantly, the case brought to the forefront issues of constitutionalism, rights and civil society and citizen engagement. Each individual, the court held, has the right to choose and that cannot be dictated by majoritarian views and popular morality. Individualism cannot be compromised due to these external factors. The role of all those who fought this lengthy battle, lost and continued to fight, should really serve as an inspiration. Freedom and rights need to be constantly protected, and engagement of the civil society is vital to keeping rights alive.
The road ahead for the community is long. Experience shows us that for real change to happen, community understanding and engagement is crucial. It will certainly take time before the rights of all sections of the society in the country are upheld. Nonetheless, it is a victory of individual rights over bigotry, prejudice and arbitrariness.
Section 377 was a stark example of Victorian morality being enforced on an independent and young India. Abolishing it has brought us a step closer to shaping our own laws to match the aspirations, sensibilities and needs of the day. The Constitution, noted the judgment, is 'a dynamic document, having the primary objective of establishing a dynamic and inclusive society.'
Whilst we celebrate the victory of individuality, liberty and freedom, it is also important to introspect. There are other remnants of our colonial past — both in our laws, and in our thinking — whose time is up. In a liberal democracy, there is little scope for laws that unfairly oppress and arbitrarily deny rights. It is essential that the nation, especially the civil society, is aware of its rights and continues to fight for them. Perhaps, Tagore should have the last word,
'Where the mind is without fear and the head is held high,
Where knowledge is free,
Where the world has not been broken up into fragments
By narrow domestic walls,
Where words come out from the depth of truth,
Where tireless striving stretches its arms towards perfection,
Where the clear stream of reason has not lost its way
Into the dreary desert sand of dead habit,
Where the mind is led forward by thee
Into ever-widening thought and action,
Into that heaven of freedom, my Father, let my country awake.'