Consensual intercourse among adult homosexuals or heterosexuals in private space does not harm public decency or morality, the Supreme Court ruled on Thursday.
In a landmark verdict, Chief Justice Dipak Misra and Justice A M Khanwilkar, who wrote the main 166-page judgement, held that Section 377 of the Indian Penal Code had become an "odious weapon" to harass the LGBT community which was made "societal pariah" by subjecting them to discrimination and unequal treatment.
The CJI held that Section 377
in its present form violated Article 19(1)(a) of the Constitution that deals with freedom of speech and expression.
"Individual has sovereignty over his or her body and can surrender autonomy wilfully to another individual and their intimacy in privacy is a matter of their choice and
such concept of identity is not only sacred but is also in recognition of the quintessential facet of humanity in a person's nature," the verdict said.
It also said that "consensual carnal intercourse among adults, be it homosexual or heterosexual, in private space, does not in any way harm the public decency or morality. Therefore, Section 377 IPC in its present form violates Article 19(1)(a) of the Constitution."
The respect for individual choice is the "very essence" of liberty and criminalising carnal intercourse under Section 377 IPC is "irrational, indefensible and manifestly arbitrary", it categorically stated.
"Section 377 of IPC subjects the LGBT community to societal pariah and dereliction and is, therefore, manifestly arbitrary, for it has become an odious weapon for the harassment of the LGBT community by subjecting them to discrimination and unequal treatment. Therefore... Section 377 of IPC is liable to be partially struck down for being violative of Article 14 of the Constitution," it said.
"It is true that the principle of choice can never be absolute under a liberal Constitution and the law restricts one individual's choice to prevent harm or injury to others" it said, adding that sexual orientation was one of the many biological phenomena which is natural and inherent in an individual.
The CJI said Section 377 IPC, which penalises any consensual sexual relationship between two adults, be it homosexuals (man and man), heterosexuals (man and a woman) or lesbians (woman and woman), cannot be regarded as constitutional.
"However, if anyone, by which we mean both a man and a woman, engages in any kind of sexual activity with an animal, the said aspect of Section 377 is constitutional and it shall remain a penal offence under Section 377 IPC. Any act of the description covered under Section 377 IPC done between two individuals without the consent of any one of them would invite penal liability under Section 377 IPC," Justice Misra said.
The top court said the section, so far as it criminalises even consensual sexual acts between competent adults, fails to make a distinction between non-consensual and consensual sexual acts of competent adults in private space, "which are neither harmful nor contagious to the society."
The court held that an examination of Section 377 IPC in relation to Article 19(1)(a) reveals that it amounts to an unreasonable restriction, as "public decency and morality cannot be amplified beyond a rational or logical limit and cannot be accepted as reasonable grounds for curbing the fundamental rights of freedom of expression and choice of the LGBT community."
The court referred to its 2013 verdict and said that upholding the validity of Section 377 on the ground that the LGBT comprised only a minuscule fraction of the total population was constitutionally "impermissible" and the law was being misused.
Observing that the Constitution was a living and organic document capable of expansion with the changing needs and demands of the society, it said the courts must commemorate that it is the Constitution and its golden principles to which they bear their foremost allegiance.
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, the CJI said.
The judge said the concept of constitutional morality urges the organs of the State, including the Judiciary, to preserve the heterogeneous nature of the society and curb any attempt by the majority to usurp the rights of a minuscule section of the populace.
"Constitutional morality cannot be martyred at the altar of social morality and it is only constitutional morality that can be allowed to permeate into the Rule of Law. The veil of social morality cannot be used to violate fundamental rights of even a single individual, for the foundation of constitutional morality rests upon the recognition of diversity that pervades the society," it said, adding that the right to live with dignity has been recognised as a human right internationally and the courts must strive to protect.
"Dignity is an inseparable facet of every individual that invites reciprocative respect from others to every aspect of an individual which he/she perceives as an essential attribute of his/her individuality, be it an orientation or an optional expression of choice, the court said.
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