In a major boost to rights of LGBTQ community a five-judge Constitution Bench of the Supreme Court decriminalised homosexuality.
The Bench, led by Chief Justice of India Dipak Misra, unanimously held that criminalisation of private consensual sexual conduct between adults of the same sex under Section 377 of the Indian Penal Code was clearly unconstitutional. Besides, the bench also prayed to the LGBTQ community (Lesbian, Gay, Bisexual, Transgender, Queer) to forgive history for subjecting them to “brutal” suppression.
The court, however, held that the Section would apply to “unnatural” sexual acts like bestiality. Sexual act without consent continues to be a crime under Section 377. In four concurring opinions, the Constitution Bench declared the 156-year-old “tyranny” of Section 377 “irrational, indefensible and manifestly arbitrary.” Section 377 thus far punished homosexuality with 10 years of imprisonment.
The prayer for forgiveness came from Justice Indu Malhotra, the lone woman judge on the Constitution Bench. “History owes an apology,” she said, reaching out to the rainbow spectrum. Justice D.Y. Chandrachud called Section 377 “Macaulay’s legacy,” which continued for 68 years despite a liberal Constitution because of the manifest lethargy of the lawmakers. He said Section 377 shackled the human instinct to love. It had been a reason for much tragedy and anguish.
“It is difficult to right a wrong by history. But we can set the course for the future,” Justice Chandrachud wrote in his separate opinion.
He said decriminalisation of homosexuality was just a step. This case was about people wanting to live with dignity. Citizens cannot be pushed into obscurity by a colonial law, he wrote.