Mumbai: In a judgment that erased a 157-year-old law and catapulted India from a league of 72 nations where gay sex is a crime to another league of 124 that sees it as normal human behaviour, the Supreme Court reminded India that "majoritarianism” and “social morality" could not override the country's founding document.

The court declared Section 377 of the Indian Penal Code to be unconstitutional to the extent that it criminalises consensual sexual acts between adults whether homosexual or heterosexual. However, non-consensual sex and bestiality, or having sex with animals, will continue to be a crime.

“I am what I am, so take me as I am,” said Chief Justice Dipak Misra, on September 6, 2018, at the start of his judgement, adding that “denial of self-expression is inviting death”. CJI Misra wrote his judgment along with Justice AM Khanwilkar.

Justices Fali Nariman, DY Chandrachud and Indu Malhotra delivered the other three judgements.

Members of the LGBTQI (Lesbian, Gay, Bisexual and Transgender, Queer, Intersex) community are entitled, as all other citizens, to the full range of constitutional rights, Justice Chandrachud said in his judgement--one of four concurring judgements. “The choice of whom to partner, the ability to find fulfilment in sexual intimacies and the right not to be subjected to discriminatory behaviour are intrinsic to the constitutional protection of sexual orientation,” he added.

‘Morality and criminality are not co-extensive--sin is not punishable on earth’

The LGBT community must not be outlawed or given an step-motherly treatment “in the garb of social morality”, CJI Misra said.

“Morality and criminality are not co-extensive--sin is not punishable on earth,” said Justice Nariman in his judgement, adding that only crime is punishable on earth.

Justice Nariman went on to say that the very purpose of fundamental rights in the Indian Constitution is to place the subject of an individual’s liberty and dignity beyond the reach of majoritarian governments. This is so that constitutional morality can assure the the rights, among others, of “discrete and insular” minorities.

“These fundamental rights do not depend upon the outcome of elections,” Justice Nariman said.

“Democratic as it is, our Constitution does not demand conformity. Nor does it contemplate the mainstreaming of culture,” said Justice Chandrachud. Recalling his recent order of August 29, 2018, which issued notices to the Maharashtra government on the arrests of five human rights activists by Pune police in relation to the Bhima Koregaon violence, Justice Chandrachud said “[Non-conformity] nurtures dissent as the safety valve for societal conflict.”

“Our ability to recognise others who are different is a sign of our own evolution,” Justice Chandrachud added. “We miss the symbols of a compassionate and humane society only at our peril.”

Section 377 forces consensual sex between adults into a realm of fear and shame, as persons who engage in anal and oral intercourse risk criminal sanctions if they seek health advice, Justice Chandrachud observed. “This lowers the standard of health enjoyed by them and particularly by members of sexual and gender minorities, in relation to the rest of society,” he said.

“History owes an apology to the members of this community and their families,” said Justice Indu Malhotra, the sole woman judge on the constitution bench, ”...for the delay in providing redressal for the ignominy and ostracism that they have suffered through the centuries.”

LGBTQI persons were compelled to live in fear of reprisal and persecution, because of the ignorance of the majority to recognise homosexuality as “a completely natural condition, part of a range of human sexuality”, she observed, adding that this had led to a denial of fundamental rights guaranteed under Articles 14 (equality before the law or equal protection), 15 (prohibition of discrimination), 19 (freedom of speech and expression), and 21 (right to life) of the Indian Constitution.

“LGBT persons deserve to live a life unshackled from the shadow of being ‘unapprehended felons’,” Justice Malhotra said.

Indian Constitution is a 'living, breathing document'

Emphasising that the Constitution is an organic and breathing document with senses, capable of adaptation, CJI Misra added that the judiciary “cannot remain oblivious to the fact that the society is constantly evolving”.

“Does the Constitution allow a quiver of fear to become the quilt around the bodies of her citizens, in the intimacies which define their identities?” Justice Chandrachud asked, adding, “the tragedy and anguish which Section 377 inflicts must be remedied.”

'Homosexuality not a mental disorder'

“Mental illness shall not be determined on the basis of non-conformity with moral, social, cultural, work or political values or religious beliefs prevailing in a person’s community,” said Justice Nariman, ruling that homosexuality can no longer be viewed as a mental disorder.

The judgement makes a note of the statement issued on June 6, 2018 by the Indian Psychiatry Society (IPS) , which said the “Indian Psychiatric Society would like to state that there is no evidence to substantiate the belief that homosexuality is a mental illness or a disease”.

Currently, the Medical Council of India, following the World Health Organization (WHO) classification of diseases, lists homosexuality as a mental disorder under F66 of the International Classification of Disease-10. As per the classification, a patient who identifies as LGBTQI is seen to be suffering an identity crisis, which needs treatment.

In 1990, the WHO revised its classification, removing homosexuality from the list of mental disorders requiring diagnostics and said that “sexual orientation by itself is not to be considered a disorder”. Yet, homosexuality is still included under F-66, as we said.

“Homosexuality could still provide the basis for a psychiatric diagnosis, but only if the individual was distressed about it,” said WHO.

One of the reasons cited by some in the WHO for keeping homosexuality in the ICD-10 was that in some parts of the world, homosexuality is penalised by death. In such cases, treating it as a mental disorder helps such individuals.

Under this approach, in India, conversion therapy, which can supposedly convert queers to heterosexuals using electro-convulsive therapy/hormone therapy, is allowed.

For the ICD-11 revision which comes into effect in 2022, homosexuality has been recommended to be deleted completely.

Understanding consent: Sections 377 and 375

The apex court judges also analysed the major difference between the language of Sections 377 and Section 375 (which relates to rape of a woman through vaginal, anal or oral penetration), and deemed the former “legally unsustainable”.

While Section 375 elaborates on the absence of consent in detail thus describing how rape is a criminal offence, this understanding of willful and informed consent/voluntary carnal intercourse is absent in Section 377 for homosexuals and well as heterosexuals.

If consensual carnal intercourse has been allowed among heterosexual population due to the Criminal Law (Amendment) Act, 2013, CJI Misra said, “such kind of proclivity amongst any two persons including LGBT community cannot be treated as untenable so long as it is consensual and it is confined within their most private and intimate spaces.”

Homosexuality not 'against the order of nature'

Evaluating the idea of ‘carnal intercourse against the order of nature’ held previously by the Supreme Court and the high courts of India, the judges observed that the description is vague and does not fit in with recent judgements passed by the court, referring specifically to the NALSA case of 2014, wherein the Court was dwelling upon the status of identity of the transgenders, and the right to privacy judgement of 2017, among others.

In the contemporary world, even marriage now is not carried out solely for the purpose of procreation, the judges observed. “It is the freedom of choice of two consenting adults to perform sex for procreation or otherwise and if their choice is that of the latter, it cannot be said to be against the order of nature,” CJI Misra said, ruling that sex, performed differently, as per the choice of the consenting adults--until now criminalised under Section 377 of the IPC--does not per se make it against the order of nature.

The way forward: Awareness and sensitisation

Justice Nariman directed the Centre to “take all measures to ensure that this judgment is given wide publicity through the public media” at regular intervals and “initiate programs to reduce and finally eliminate the stigma associated with such persons”.

All government officials--particularly police officials--are to be given periodic sensitisation and awareness training of the plight of such persons, Justice Nariman added.

“The repercussions of prejudice, stigma and discrimination continue to impact the psychological well-being of individuals impacted by Section 377,” Justice Chandrachud said, adding, “Mental health professionals can take this change in the law as an opportunity to reexamine their own views of homosexuality.”

(Saldanha is an assistant editor and Salve is an analyst with IndiaSpend.)

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Prachi Salve & Alison Saldanha