A look at the four separate but concurring orders of the 5-judge Constitution Bench
CJI Dipak Misra & Justice A M Khanwilkar: ‘Sexual autonomy pillar of individual liberty’
Chief Justice of India Dipak Misra and Justice A M Khanwilkar underlined that “sexual autonomy” is an “important pillar” and an “insegregable facet of individual liberty”.
They observed that “organisation of intimate relations” is a matter of “complete personal choice” between consenting adults, that “it is a vital personal right falling within the private protective sphere and realm of individual choice and autonomy”. “Such progressive proclivity is rooted in the constitutional structure and is an inextricable part of human nature,” they said.
“…It has to be appreciated that homosexuality is something that is based on sense of identity. It is the reflection of a sense of emotion and expression of eagerness to establish intimacy. It is just as much ingrained, inherent and innate as heterosexuality. Sexual orientation, as a concept, fundamentally implies a pattern of sexual attraction. It is as natural a phenomenon as other natural biological phenomena,” the judgement authored by CJI Misra said.
“Section 377 fails to take into account that consensual sexual acts between adults in private space are neither harmful nor contagious to society. On the contrary, Section 377 trenches a discordant note in respect of the liberty of persons belonging to the LGBT community by subjecting them to societal pariah and dereliction,” they said.
“Attitudes and mentality have to change to accept the distinct identity of individuals and respect them for who they are rather than compelling them to become who they are not,” they said.
“When the liberty of even a single person of society is smothered under some vague and archival stipulation that it is against the order of nature or under the perception that the majority population is peeved when such an individual exercises his/ her liberty despite the fact that the exercise of such liberty is within the confines of his/ her private space, then the signature of life melts and living becomes a bare subsistence and resultantly, the fundamental right of liberty of such an individual is abridged,” they said.
Justice Rohinton F Nariman: ‘They have a fundamental right to live with dignity’
OBSERVING THAT Section 377 of the IPC is “capricious and irrational”, Justice Rohinton F Nariman said persons who are homosexual “have a fundamental right to live with dignity”, that will “assure the cardinal constitutional value of fraternity”.
He observed that 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”.
“Morality and criminality are not co-extensive — sin is not punishable on earth by courts set up by the state, but elsewhere; crime alone is punishable on earth. To confuse the one with the other is what causes the death knell of Section 377, insofar as it applies to consenting homosexual adults,” Justice Nariman said. “The object sought to be achieved by the provision, namely to enforce Victorian mores upon the citizenry of India, would be out of tune with the march of constitutional events that has since taken place, rendering the said object itself discriminatory when it seeks to single out same-sex couples and transgenders for punishment,” he said.
Justice Nariman said “modern psychiatric studies and legislation… recognises that gay persons and transgenders are not persons suffering from mental disorder” and “cannot therefore be penalised”.
He said Section 377 “must be held to be a provision which is capricious and irrational. Also, roping in such persons with sentences going up to life imprisonment is clearly excessive and disproportionate, as a result of which, when applied to such persons, Articles 14 and 21 of the Constitution would clearly be violated.”
Justice D Y Chandrachud: ‘Decriminalisation first step… broader range of entitlements’
OBSERVING THAT sexual orientation of the LGBT community is “intrinsic” to their “dignity, inseparable from their autonomy, and at the heart of their privacy”, Justice D Y Chandrachud said Section 377 was “founded on moral notions which are anathema to a constitutional order”.
“The choice of a partner, desire for personal intimacy, and yearning to find love and fulfilment in human relationships have a universal appeal… In protecting consensual intimacies, the Constitution adopts a simple principle: the state has no business to intrude into these personal matters. Nor can societal notions of heteronormativity regulate constitutional liberties based on sexual orientation,” he said. “Does the Constitution allow a quiver of fear to become the quilt around the bodies of her citizens, in the intimacies which define their identities? If there is only one answer to this question, as I believe there is, the tragedy and anguish which Section 377 inflicts must be remedied. Section 377 provides for rule by the law instead of the rule of law. The rule of law requires a just law which facilitates equality, liberty and dignity in all its facets. Rule by the law provides legitimacy to arbitrary state behaviour,” he said.
He said decriminalisation is the “first step”, and “constitutional morality” requires the Supreme Court “not to turn a blind eye to their right to an equal participation of citizenship and an equal enjoyment of living”. “Decriminalisation is, of course, necessary to bury the ghosts of morality… But it is a first step. The constitutional principles on which it is based have application to a broader range of entitlements… In the march of civilisations across the spectrum of a compassionate global order, India cannot be left behind,” he said.
Justice Indu Malhotra: ‘Sexual orientation connected with identity’
OBSERVING THAT LGBT persons “deserve to live” a life “unshackled from the shadow of being unapprehended felons”, Justice Indu Malhotra said Section 377 “infringed” on the fundamental right to non-discrimination, to live a life of dignity, and privacy guaranteed in the Constitution.
“History owes an apology to the members of this community and their families, for the delay in providing redressal for the ignominy and ostracism they have suffered… The members of this community were compelled to live a life full of fear of reprisal and persecution. This was on account of the ignorance of the majority to recognise that homosexuality is a completely natural condition, part of a range of human sexuality,” said Justice Malhotra. “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,” she said.
“LGBT persons, being a sexual minority, have been subjected to societal prejudice, discrimination and violence on account of their sexual orientation. Since Section 377 criminalises ‘carnal intercourse against the order of nature’, it compels LGBT persons to lead closeted lives. As a consequence, LGBT persons are seriously disadvantaged and prejudiced when it comes to access to healthcare facilities,” she said.
On the right to privacy, Justice Malhotra said Section 377 “takes away the decisional autonomy of LGBT persons to make choices consistent with their sexual orientation, which would further a dignified existence and a meaningful life ”. It prohibits them “from expressing their sexual orientation and engaging in sexual conduct in private, a decision which inheres in the most intimate spaces of one’s existence,” she said.