Homosexuals have a fundamental right to live with dignity and are not suffering from mental disorder, Supreme Court judge Justice R F Nariman said Thursday.
He said the Section 377 was the product of the Victorian era morality which was long gone and there was no reason to continue with it especially when it enforces Victorian mores upon the citizenry of India.
"We find that Section 377, in penalizing consensual gay sex, is manifestly arbitrary. Given modern psychiatric studies and legislation which recognizes that gay persons and transgenders are not persons suffering from mental disorder and cannot therefore be penalized, the Section must be held to be a provision which is capricious and irrational," Justice Nariman said.
He was part of the five-judge Constitution bench which declared as unconstitutional the part of Section 377 of the IPC which criminalised homosexual as also transgender sex between consenting adults.
In his separate concurring verdict, Justice Nariman said Constitutional morality always trumps any imposition of a particular view of social morality by changing majoritarian regimes.
He said the apex court is the custodian of fundamental rights which are beyond the reach of majoritarian governments.
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"The very purpose of the fundamental rights chapter in the Constitution of India is to withdraw the subject of liberty and dignity of the individual and place such subject beyond the reach of majoritarian governments so that constitutional morality can be applied by this Court to give effect to the rights, among others, of 'discrete and insular' minorities.
"One such minority has knocked on the doors of this Court as this Court is the custodian of the fundamental rights of citizens. These fundamental rights do not depend upon the outcome of elections. And, it is not left to majoritarian governments to prescribe what shall be orthodox in matters concerning social morality," Justice Nariman said.
He said "fundamental rights chapter is like the north star in the universe of constitutionalism" in India.
He also said that persons who are homosexual have a fundamental right to live with dignity and declared that such groups are entitled to the protection of equal laws, and are entitled to be treated in society as human beings without any stigma being attached to any of them.
"We further declare that Section 377 insofar as it criminalises homosexual sex and transgender sex between consenting adults is unconstitutional," he said.
He urged the Centre to take all measures to give wide publicity of the verdict on section 377 through media and initiate programmes to reduce and eliminate the stigma associated with such persons.
"Above all, all government officials, including and in particular police officials, and other officers of the Union of India and the States, be given periodic sensitization and awareness training of the plight of such persons in the light of the observations contained in this judgment," Justice Nariman said.
He said Section 377, the victorian era product must give way to constitutional morality and the same has been recognized in many of the apex court judgments.
"It must not be forgotten that Section 377 was the product of the Victorian era, with its attendant puritanical moral values... The rationale for Section 377, namely Victorian morality, has long gone and there is no reason to continue with...," he said.
"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," he said.
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