For 157 years, the section 377 of the Indian Penal Code, which criminalised unnatural sexual offenses, was used to discriminate against the Fundamental Rights of the LGBTQ+ community in India. The draconian law, which was penned down by the British in 1861, had been under implementation in India long after the British left the country and long after the UK had decriminalised it themselves.
However, on September 6, 2018, the Supreme Court, in a historic judgement, passed the verdict to decriminalise homosexuality. The five-judge bench comprising Chief Justice Dipak Misra, Justices Indu Malhotra, DY Chandrachud, Rohinton F Nariman, and AM Khanwilkar unanimously ruled to decriminalise consensual sex between consenting adults. The judgement ushers a new dawn in India’s fight against discrimination and for equality for all.
Here are some of the most powerful things the bench said while pronouncing their judgement that everyone must know:
- Social morality cannot be used to violate the fundamental rights of even a single individual. Constitutional morality cannot be martyred at the altar of social morality.
- Constitution is a living organic document; pragmatic interpretation has to be given to combat rigorous inequality and injustice.
- Any discrimination on the basis of sexual orientation violates Fundamental Rights.
- Section 377 fails to make distinction between consensual and non-consensual acts. It had become a weapon for the harassment of LGBT and subject them to discrimination.
- To deny members of LGBT community the full expression of right to sexual orientations is to deny them right under constitution, it’s denial of the right to privacy.
- No law can be divorced from constitutional morality, state has no business to intrude in personal matters, nor can societal norms regulate sexual orientation. Homosexuality is natural.
- History owes an apology to the LGBT community. They were made to live a life full of fear.
- Decriminalisation is but the first step; the Constitution envisages much more. LGBTs are victims of Victorian morality. Constitutional morality and not societal morality should be the driving force for deciding validity of Section 377.