The LGBTQ community has witnessed utmost criticism, neglect and rejection by society on the premise of certain aspects of morality, which have been profoundly vague and discriminative. The 2013 judgment of Suresh Kumar Koushal by the then Bench of the Hon’ble Supreme Court overturned the judgment of the Delhi High Court decriminalising Section 377. However, after a series of petitions filed before it seeking an extensive judicial review involving the freedom of sexual orientation, the Apex Court has been overturned the 2013 judgment striking down the provision of Section 377 which criminalised consensual homosexual activities between two adults. This historic and pragmatic judgment was pronounced by the recently appointed Constitution Bench consisting of Chief Justice Dipak Misra, Justice Indu Malhotra, Justice DY Chandrachud, Justice RF Nariman and Justice Khanwilkar by a unanimous verdict through four separate but concurring judgments.
The judgments of the Hon’ble Judges of the Bench have been given referring to the important issues that were faced by the LGBTQ community in its entirety, which are mentioned below in brief:
- Interpretation of the Indian Constitution:
It was rightly stated that the Indian Constitution is a living and an organic document with the capability to expand in order to encapsulate the changing needs and demands of the society at large. It is the duty of the courts to undertake the responsibility of progressive and rational interpretation in the interests of safeguarding general equality and curbing injustice against that class of persons or a minority group which has been deprived of exercising its basic fundamental rights under Chapter III of the Constitution.
- Discrimination on grounds of morality and against Article 14 of the Constution:
A substantial number of the populous have showed a lack of empathy and acceptance to the LGBTQ community in the exercise of its right to sexual orientation which is a paramount element under Article 21 of the Constitution. Social morality cannot and should not be an excuse to violate the fundamental rights under the Constitution as only constitutional morality can govern the rightness and wrongness of certain choices and situations. Article 14 of the Constitution is an emanating concept which entails that classification without any reasonableness is and shall be considered as discrimination and unequal treatment, which the LGBTQ community was facing for years and years.
- Right to Live with Dignity and Freedom of Expression:
Dignity is an inseparable facet to one’s individuality without which every other right is meaningless. The Apex Court in its various precedents, as well as on the international front, has upheld and recognised the right to live with dignity as a fundamental human right. The right to choose one’s sexual orientation is a natural phenomenon involving several biological factors which are uncontrollable as per science and therefore any discrimination on the freedom to choose one’s sexual orientation is a very serious violation of one’s freedom of expression.
- Unreasonable restriction under Article 19(1)(a):
Section 377 had placed an unreasonable restriction on the LGBTQ community on the grounds of public decency and morality. Such a restriction was evidently neither rational nor logical in nature, thereby giving reasonable grounds for curbing the fundamental rights of freedom of expression and choice of the LGBT community. Consensual sexual activities including 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 clearly violated Article 19(1)(a) on the grounds of unreasonableness and moral turpitude.
However, the Hon’ble Apex Court has retained the provision in terms of its application with any sexual activities with an animal as well as lack of consent between homosexuals, which would invite the provisions of Section 377 in its entirety.
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Judgment: Navtej Singh Johar and Ors Versus Union of India and Ors
