History owes an apology to the members of the LGBT community and their families for the delay in providing redressal for the "ignominy" and "ostracism" they have faced through the centuries, the Supreme Court said Thursday.
Justice Indu Malhotra, who wrote a separate concurring judgement decriminalising consensual gay sex, said the members of this community were compelled to live under the fear of reprisal and persecution which occurred due to the ignorance of the majority to recognise that homosexuality is a "completely natural" condition which is part of a range of human sexuality.
Such persons deserve to live a life unshackled from the shadow of being 'unapprehended felons', the lady judge said.
She was part of a five-judge constitution bench that unanimously held that part of Section 377 of the Indian Penal Code that criminalised consensual sexual relationships between adults of the same sex or otherwise, in private, violated the constitutional right to equality and dignity.
"History owes an apology to the members of this community and their families, for the delay in providing redressal for the ignominy and ostracism that they have suffered through the centuries. The members of this community were compelled to live a life full of fear of reprisal and persecution," Justice Malhotra said in her 50-page verdict.
"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. The mis-application of this provision denied them the fundamental right to equality guaranteed by Article 14," she said.
The court said the part of Section 377 infringed the fundamental right to non-discrimination under Article 15 of the Constitution and the right to live a life of dignity and privacy as guaranteed by Article 21, while also violating the right of freedom of expression of Lesbian, Gay, Bisexual and Transgender (LGBT) persons under Article 19(1)(a).
Adults are persons above the age of 18 years who are competent to give consent, the court said and clarified that such consent must be a free consent, which is completely voluntary in nature and devoid of any duress or coercion.
Justice Malhotra said "reading down of Section 377 is necessary to exclude consensual sexual relationships between adults, whether of the same sex or otherwise, in private, so as to remove the vagueness of the provision to the extent it is inconsistent with Part III of the Constitution."
LGBT members are entitled to complete autonomy over the most intimate decisions relating to their personal life, including the choice of their partners and such choices must be protected under Article 21 as "the right to life and liberty would encompass the right to sexual autonomy, and freedom of expression."
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